Showing posts with label debt collector. Show all posts
Showing posts with label debt collector. Show all posts

Saturday, November 10, 2012

What is a "false, misleading and deceptive" communication under the Fair Debt Collection Practices Act


The Fair Debt Collection Practice Act (FDCPA) was enacted to “eliminate abusive debt collection practices.”   Among the abusive tactics that the FDCPA sought to eliminate was the proscription of “false, misleading and deceptive” communications from debt collectors to consumers.

Consumer, Paula Maple, took out a loan from Midland Funding, LLC successor in interest to Bank of America, N.A., for personal, family, or household services.  Sometime thereafter the debt was transferred to the law firm of Sprechman & Associates, P.A. for collection.
On March 6, 2012, Sprechman & Associates, P.A. sent a letter to Paula Maple which stated in part:

“If your client fails to make payment or fails to make appropriate arrangements they will leave us with no choice but to subject all of their assets to actions to collect this Judgment.”

Paula Maple filed a lawsuit in United States District Court, Middle District of Florida, against Sprechman & Associates, P.A. alleging, among other things, that the statement in the letter were false given the numerous exemptions to executions on judgments.

Paula Maple also alleged in her lawsuit that the letter sent to her by Sprechman & Associates, P.A. violated the Fair Debt Collections Practices Act and the Florida Unfair and Deceptive Practices Act.

Whether a collection letter or other communication is false, deceptive, or misleading under the FDCPA is determined from the perspective of the objective least sophisticated consumer.  Under this standard, collection notices can be deceptive if they are open to more than one reasonable interpretation, at least one of which is inaccurate.   Debt collectors that violate the FDCPA are strictly liable, meaning that a consumer need not show intentional conduct by the debt collector to be entitled to damages.

For more information about debt collection harassment, or Sprechman & Associates, P.A., visit us at http://www.ConsumerRightsOrlando.com.

Sunday, October 21, 2012

Voicemails from Debt Collectors

The Fair Debt Collection Practice Act (FDCPA) was enacted to “eliminate abusive debt collection practices.” The FDCPA applies to, among other things, communications with the consumer, including voicemails.

If you have received a voicemail from a debt collector, these are some questions a consumer should consider:

  • Did the voice message disclose the debt collectors’ identity – his/her name, employer and phone number and a statement that the purpose of the call was to collect a debt?

  • Did the voicemail disclose the identity of the consumer so the debt collectors are sure they have the right phone number?

  • Did the consumer authorize the debt collector to speak with a third party? (If so, probably no FDCPA violation).

  • Was the message limited to determining the debtor’ residence, telephone number or the debtor’ place of employment? (With some exceptions, this is a permitted third party communication and so probably no FDCPA violation).

If you have received a voicemail from a debt collector and it does not comply with the above requirement or just think it may be improper, give us a call and let us hear the message to make sure it complies with the law.

For more information about the Fair Debt Collection Practices Act, or, its state law counterpart, the Florida Consumer Collection Practices Act, visit us at:

Thursday, October 18, 2012

Claim of $50 for attorney’s fees violates FDCPA (in Ohio)

Consumer, Mary, Moxley, entered into a consumer loan agreement with Cash Stop in order to borrow $279.96. The loan Agreement contained an attorney fee shifting provision. The provision purported to allow Cash Stop to charge Plaintiff attorney fees incurred to collect under the contract in the event of Plaintiff’s default. When the consumer defaulted, Cash Stop hired attorney Pfundstein to collect the debt under the loan agreement. Pfundstein filed a complaint against consumer to collect the debt. The complaint requested judgment in the amount of $319.96, which included default charges and other fees. In addition, the complaint sought $50.00 for attorney fees. The complaint stated: “In addition, whereas the defendant(s) agreed in the contract to pay reasonable attorneys’ fees, the plaintiff requests $50.00.”

Consumer filed a complaint in federal court against Pfundstein claiming that was guilty of violating the Fair Debt Collection Practices Act (FDCPA) by making a false, misleading and deceptive statement in the lawsuit that he filed on behalf of Cash Stop against her with regard to the claim for recovery of attorney’s fees. The consumer then moved for summary judgment on her claim.
The unique aspect of this case is that under Ohio law, creditors are not permitted to recover attorney fees incurred in connection with debt collection suits involving personal, family, or household debt.
Defendant/attorney claimed that the request for attorney's fees was a good faith mistake of law.
The Court granted the consumer’s motion for summary judgment noting that because the FDCPA has been generally recognized as a strict-liability statute, even a good-faith error can give rise to liability. The Court found that attorney Pfunstein had violated the FDCPA by seeking to recover $50 in attorney’s fees in the underlying action, when such fees were not permitted by Ohio law.
Moxley v. Pfundstein, 2012 U.S. Dist. LEXIS 146868 (N.D. Ohio Oct. 11, 2012).

For more information about the Fair Debt Collection Practices Act, or, its state law counterpart, the Florida Consumer Collection Practices Act, visit us at:

Thursday, September 20, 2012

Debt Collectors May Seek You Out Via Facebook

Facebook is great for looking up that girl who stole your lunchbox in preschool. Being clever enough on Twitter can land you a book deal. And if you're a debt collector, social media is remarkably helpful in helping you to track down people who haven't paid their bills.

"Between Facebook and LinkedIn—a lot of people show up online in different places. They don't even realize," says Howard Beloff, president of CSRS Collections, a small collection agency in Rockville, Md.

Beloff's company collects on a variety of debts: late rent, medical companies, delinquent private school tuition. In many cases, he says, especially in those of people who have amassed rent bills, these debtors have moved and are hard to find. That's where the investigative work of debt collecting comes in. And in the arsenal of tools at their disposal, debt collectors find social media an immensely helpful addition.

A few decades ago, collectors had to rely old-school tools like the White Pages for basic information on whether a debtor had moved or changed phone numbers. The Internet changed that completely, says Mark Schiffman, spokesperson for ACA International, a trade group of credit and collection professionals.

"From a tech perspective, it's easier access to public information, versus having 50 phone books or 100 phone books in my office," Schiffman says. "Now you have the Internet and people putting information that's publicly available out there. People are putting out a little billboard" for themselves, he says.

That's not all of the help that the Internet affords collectors. Some states put their court records online, and online "skip tracing" sites help agencies find potential addresses for debtors.

It sounds like a lot of avenues to pursue, just to track down where someone lives. But all this online information can be used for much larger purposes. An up-to-date LinkedIn site can give a collector easy information on if and where that person works, says Beloff, which is valuable information for a collection agency that wants to garnish a debtor's wages. In other words, put information—a public Facebook status, a LinkedIn update, a tweet—about getting hired at a new job onto the internet and collectors get a signal that you might have money available.

Simply reading what a debtor has made public on social media is not illegal, and it's hard to argue it's unethical; collectors are simply using available information. Still, there are strict laws ensuring that the investigation goes little further. While a debt collector can look at a debtor's Facebook page, Twitter feed, or LinkedIn listing for information, for example, she can't tweet, message, or even E-mail the debtor with information about outstanding balances.

One collector talks about the difference between acceptable tactics and those that venture into deceptive territory.

"If I were to be a bit surreptitious and if I were to actually try to become your friend on Facebook and you were to accept me as a friend on Facebook, I would get access to all kinds of really, really good information on you," says Bill Bartmann, CEO of Oklahoma-based debt collection company CFS II. That kind of deception, he says, is different from simply Googling or Facebook-searching a debtor.

Schiffman says that while complaints have been filed with the government over the use of social media in collections, he does not believe that the use of social media has led to a spike in complaints. Still, debt collection complaints have risen in recent years, from 128,000 in 2009 to nearly 152,000 in 2010, and again to nearly 181,000 in 2011.

According to data supplied by ACA, debt collections have also grown recently. Collections at third-party debt collectors totaled $44.6 billion in 2010 , up more than $4 billion from 2007, before the crisis, though employment at those firms was down slightly over the same period.

However, the population of debtors to pursue is growing: Roughly one in seven Americans—slightly more than 14 percent—is being pursued by a debt collector, according to the Federal Reserve Bank of New York. That's up substantially from mid 2003, when the figure was around 9 percent. The amount available to collect is up, too, from around $900 per debtor then to over $1,500 now.

While a certain, small percentage of debtors habitually run up bills and neglect to pay them, says Bartmann. the recent economic downturn brought a new population onto the debtor rolls: people not used to being pursued. While some may be facing financial hardship and be unable to pay, there are many others who want to get their debts discharged quickly.

He feels that this new population has, in some ways, made collections easier.

"Are customers more apt to pay now than in previous economic cycles? That answer is yes," Bartmann says.

Still, he advises caution to anyone making too much of their lives public online. His word of advice to debtors: "Be careful what you put out there."

That, he says, or just pay your bills as best you can. Neglecting to pay altogether can make prices higher and credit tougher to get for everyone.

Beloff agrees: "The thing is, is that for anybody who pays their bills, they should hate people who don't."

U.S. News & World Report

By Danielle Kurtzleben

For more information about the Fair Debt Collection Practices Act, or, its state law counterpart, the Florida Consumer Collection Practices Act, visit us at:

Wednesday, September 12, 2012

Letter Stating that Student Loan is “Ineligible for Bankruptcy Discharge” is False, Deceptive and Misleading Statement under FDCPA


Student loans are presumptively nondischargeable in bankruptcy.  However, student loans can be discharged in bankruptcy if a debtor demonstrates, by a preponderance of the evidence, that requiring their repayment would impose an undue hardship on the debtor.   To seek an undue hardship discharge of student loans, a debtor must commence an adversary proceeding by serving a summons and complaint on affected creditors. To succeed in such a proceeding, the debtor must show: (1) that the debtor cannot maintain, based on current income and expenses, a ”minimal” standard of living for herself and her dependents if forced to repay the loans; (2) that additional circumstances exist indicating that this state of affairs is likely to persist for a significant portion of the repayment period of the student loans; and (3) that the debtor has made good faith efforts to repay the loans.

 
With this state of the law as a background, would a statement to a consumer that her/his student loan was “ineligible for discharge in bankruptcy” be deemed a false statement under the FDCPA? The Second Circuit recently responded to this question in the affirmative.
 

In  Easterling v. Collecto, Inc., 2012 U.S. App. LEXIS 18444 (2d Cir. N.Y. Aug. 30, 2012), Berlincia Easterling obtained a student loan. Approximately 4 years later she filed for bankruptcy, however, in her petition, she classified the student loan as non-dischargeable. Accordingly, her student loan was not discharged. When the debt collector for the Department of Education learned about the bankruptcy, it sent Easterling a letter advising her that her account was “NOT eligible for bankruptcy discharge. After receiving the letter, Easterling filed a claim under the Fair Debt Collection Practices Act ("FDCPA"), contending that the collection letter’s statement that her student loan was “ineligible for bankruptcy discharge” was false, deceptive, or misleading under the least sophisticated consumer standard. The District Court granted defendant/debt collector's motion for summary judgment.  Easterling appealed.

 
The Second Circuit held that the debt collector violated the FDCPA’s proscription against false, misleading, or deceptive practices by sending the debtor a collection letter incorrectly informing her that her student loans were “ineligible for bankruptcy discharge” because, although the debtor may have faced significant hurdles to discharging her student loans in bankruptcy, the least sophisticated consumer would have interpreted the letter as representing, incorrectly, that bankruptcy discharge of her loans was wholly unavailable to her. The Court concluded that the letter’s capacity to discourage debtors from fully availing themselves of their legal rights rendered its misrepresentation exactly the kind of abusive debt collection practice that the FDCPA was designed to target.

For more information about the Fair Debt Collection Practices Act, or, its state law counterpart, the Florida Consumer Collection Practices Act, visit us at: Stop Collection Harassment; or Consumer Rights Orlando

Tuesday, August 21, 2012

Frequently Asked Questions about the FDCPA

Frequently Asked Questions

Q. What is the Fair Debt Collection Practices Act?

A. The Fair Debt Collection Practices Act ("FDCPA") requires that debt collectors treat you fairly by prohibiting certain methods of debt collection.

Q. What debts are covered?

A. Personal, family, and household debts are covered under the Act.  This includes money owed for the purchase of an automobile, for medical care, or for charge accounts.

Q. Who is a debt collector under the FDCPA?

A. A debt collector is any person, other than the creditor, who regularly collects debts owed to others. Under a 1986 amendment to the Fair Debt Collection Practices Act, this includes attorneys who collect debts on a regular basis.

Q. Who is a debt collector under the Florida Consumer Collection Practices Act?

A. Under Florida law, the definition of a "debt collector" is much broader than under its federal counterpart. Under the Florida Consumer Collection Practices Act (“FCCPA”), a “debt collector” is defined as: “any person who uses any instrumentality of commerce within this state, . . . in any business the principal purpose of which is the collection of debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another. The term ’debt collector’ includes any creditor who, in the process of collecting her or his own debts, uses any name other than her or his own which would indicate that a third person is collecting or attempting to collect such debts.”

So, the FCCPA applies to any person or persons, collecting his/her own debts. Under that broad definition, the FCCPA would apply to a law or accounting firm attempting to collect its own fees, as well as the employees engaged in such collection activity on the law firm's behalf.

Q. How may a debt collector contact you?

A.  A collector may contact you in person, by mail, telephone, telegram, or FAX. However, a debt collector may not contact you at unreasonable times or places, such as before 8 a.m. or after 9 p.m., unless you agree. A debt collector also may not contact you at work if the collector knows that your employer disapproves.

Q. Can you stop a debt collector from contacting you?

A. You may stop a collector from contacting you by writing a letter to the collection agency telling them to stop.  Once the agency receives your letter, they may not contact you again except to say there will be no further contact. Another exception is that the agency may notify you if the debt collector or creditor intends to take some specific action.

Q. May a debt collector contact any person other than you concerning your debt?

A. If you have an attorney, the debt collector may not contact anyone other than your attorney. If you do not have an attorney, a collector may contact other people, but only to find out where you live and work. Collectors usually are prohibited from contacting such permissible third parties more than one. In most cases, the collector is not permitted to tell anyone other than you and your attorney that you owe money.

Q. What is the debt collector required to tell you about the debt?

A.  Within five days after you are first contacted, the collector must send you a written notice telling you the money you owe; the name of the creditor to whom you owe the money; and what action to take if you believe you do not owe the money.

Q. May a debt collector continue to contact you if you believe you do not owe money?

A.  A debt collector may not contact you if, within 30 days after you are first contacted, you send the collection agency a letter stating you do not owe money. However, a collector can renew collection activities if you are sent proof of the debt, such as a copy of a bill for the amount owed.

Q.  What control do you have over payment of debts?

A.  If you owe more than one debt, any payment you make must be applied to the debt you indicate. A debt collector may not apply a payment to any debt you believe you do not owe.

Q.  What can you do if you believe a debt collector violated the law?

A.  You have the right to sue a collector in a state or federal court within one year from the date you believe the law was violated. If your win, you may recover money for the damages you suffered. Court costs and attorney's fees also can be recovered.

For more information about the Fair Debt Collection Practices Act, or, its state law counterpart, the Florida Consumer Collection Practices Act, visit us at:

Sunday, July 22, 2012

Eleventh Circuit reaffirms application of FDCPA to mortgage foreclosure actions

Since 2009, debt collectors in the Eleventh Circuit (Florida, Georgia and Alabama) who were contacting consumers in connection with mortgage foreclosure actions relied on the decision of Warren v. Countrywide Home Loans, Inc. , 342 F. App’x 458 (11th Cir. 2009) for protection from suit because that decision held that enforcement of a security interest through the foreclosure process is not debt collection for purposes of the FDCPA.  However, creditors can no longer seek refuge in Warren v. Countrywide Home Loans, supra, since publication of the opinion in Reese v. Ellis, Painter, Ratterree & Adams, LLP , 678 F.3d 1211 (11th Cir. 2012).  Reese held that an entity that regularly attempts to collect debts can be a “debt collector” under the FDCPA even when that entity is also enforcing a security interest. 


The Reese holding was recently reaffirmed in Birster v. Am. Home Mortg. Servicing, 2012 U.S. App. LEXIS 14660 (11th Cir. Fla. July 18, 2012).  In this recent case, the Birsters owned a home in Jupiter, Florida which they refinanced through Option One.  The Birsters ceased making mortgage payments on or around June 1, 2008.  The promissory note and mortgage provided that any missed payment by the Birsters places the loan into a default status.  On July 30, 2008, AHMSI began servicing the loan and initiating collection activities.  On February 2, 2009, U.S. Bank, N.A., as the trustee for the lienholder, initiated foreclosure proceedings against the Birsters. In their FDCPA lawsuit, the Birsters alleged that AHMSI began its relentless assault on them in 2008.  According to the Birsters, AHMSI called them multiple times on a daily basis to collect the past due amounts.  The Birsters further alleged that most of these calls occurred after AHMSI knew that Angela suffered from an inoperable glioma (brain tumor) that cannot be diagnosed as cancerous or non-cancerous.  As early as April 16, 2009, the Birsters informed AHMSI that they were represented by an attorney, and provided AHMSI with the attorney’s name and phone number.  The Birsters advised AHMSI to contact their attorney and to cease contacting them directly.  AHMSI nevertheless continued its direct communications with the Birsters.  The Complaint further alleged that during these calls, AHMSI used offensive and abusive language towards Mrs. Birster and made false representations that the Birsters’ home was scheduled for a foreclosure sale.  Mrs. Birster also alleged that after a particularly abusive call on May 5, 2009, she collapsed in her front yard and was rushed to a nearby hospital.  Once the calls ceased, the Birsters claim AHMSI then began intimidating and harassing them at their home.  AHMSI sent agents to “inspect” the property, despite knowing the Birsters resided there.  Although AHMSI was initially inspecting the property on a monthly basis, AHMSI soon began visiting the Birsters’ home every day or every other day.  AHMSI’s home inspections even occurred on Thanksgiving and Christmas days. The Birsters alleged AHMSI’s actions caused Angela to suffer a deep depression and anxiety, resulting in her attempted suicide. 


The district court granted summary judgment to AHMSI after concluding the Birsters’ allegations related solely to efforts by AHMSI to enforce a security interest, rather than to collect a debt. Thus, the district judge concluded that the actions of AHMSI were not covered by the FDCPA.  Based on the holding in Reese, supra, the Eleventh Circuit reversed the order granting summary judgment.

For more information about the Fair Debt Collection Practices Act, or, its state law counterpart, the Florida Consumer Collection Practices Act, visit us at:

Sunday, July 8, 2012

Confusing Debt Validation Notice violates FDCPA

The Fair Debt Collection Practices Act (“FDCPA”) requires, among other things, that debt collectors, within five days after first communicating with an individual debtor about a debt, to provide the debtor with a validation notice provides the consumer a written notice containing -- along with other information – the name of the creditor to whom the debt is owed and the amount of the debt. This notice is sometimes referred to as a debt validation notice. Simply stating the amount due is not enough, however. The notice must state the amount of the debt clearly enough that the recipient is likely to understand it. It is not enough for a debt collection agency simply to include the proper debt validation notice in a mailing to a consumer. Congress intended that such notice be clearly conveyed. Therefore, a notice that letter fails to state amount of debt where a consumer reading it could reasonably interpret the amount of debt in two ways, is a violation of the FDCPA. In Melillo v. Shendell & Assocs., 2012 U.S. Dist. LEXIS 9248 (S.D. Fla. Jan. 26, 2012), the plaintiff recieved a collection letter from a law firm representing his condominium association. Plaintiff alleged in his Complaint that the collection letter failed to state a clear amount of the debt owed because it referred to different amounts. The Court applied the objective "least sophisticated consumer" standard to the collection letter. In denying defendant’s motion to dismiss, the Court stated that in reading the complaint in the light most favorable to plaintiff, to the extent that the parties dispute factual issues regarding whether the collection letter was actually confusing will ultimately be for the jury to decide at trial.

For more information about the Fair Debt Collection Practices Act, or, its state law counterpart, the Florida Consumer Collection Practices Act, visit us at:

Tuesday, July 3, 2012

Who is a "debt collector" under Florida Law


Under Florida law, and more specifically the Florida Consumer Collection Practices Act (“FCCPA”), a “debt collector” is defined as: “any person who uses any instrumentality of commerce within this state,  . . . in any business the principal purpose of which is the collection of debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another.  The term ’debt collector’ includes any creditor who, in the process of collecting her or his own debts, uses any name other than her or his own which would indicate that a third person is collecting or attempting to collect such debts.”

So, the FCCPA applies to any person or persons, collecting his/her own debts.  Under that broad definition, the FCCPA would apply to alaw firm attempting to collect its own fees, as well as the employees engaged in such collection activity on the law firm's behalf.

Robin Morgan retained the law firm of Arnold & Wilkins.   Morgan did not pay the law firm and they sued her is Small Claims Court.  She counterclaimed against the law firm, as well as the attorney and his assistant, individually, for violations of the FCCPA.  The law firm and the individuals moved to dismiss the counterclaim because they were not “debt collectors” under the FCCPA.   Morgan responded to the motion to dismiss by arguing that the FCCPA applies not only to a collection agency, but to any party seeking to collect a consumer debt.  The trial court granted the motion to dismiss finding that the FCCPA only apples to debt collectors not creditors collecting their own accounts as Morgan has alleged counter-defendants were doing.
On appeal, the law firm and the individual counterdefendants conceded that the trial court was in error when it ruled that FCCPA pertains only to debt collectors, however, they argued that that the trial court reached the right result for the wrong reason because Morgan’s debt was not a debt within the purview of the FCCPA since the debt did not flow from an extension of credit.  The appellate court reversed holding that that the obligation to the law firm was a debt covered by the FCCPA.

Morgan v. Wilkins, 74 So. 3d 179 (Fla. 1st DCA 2011). 

For more information about the Fair Debt Collection Practices Act, or, its state law counterpart, the Florida Consumer Collection Practices Act, visit us at:

Monday, July 2, 2012

Florida Consumer Collection Practices Act ("FCCPA")


In 1993, the Florida Legislature enacted the Florida Consumer Collection Practices Act ("FCCPA") which law targets unfair debt collection tactics, including those inflicted upon residential mortgage customers. The statute proscribes a broad range of deceptive, harassing, and abusive practices.  It also provides a right to bring litigation against wrongdoers and to recover actual damages, costs, and attorney fees.

The following are some of the most common possible violations of the FCCPA:

•    Harassment - frequent phone calls to alleged debtors, their family and friends, repeated calls with no messages, hang-ups, lies, misleading comments, speaking in a belittling manner, embarrassing, argumentative and rude conduct are examples of harassing conduct.

•    Collecting money not owed - if an alleged debtor doesn’t owe the money it is a violation of the law for a collector to try and force the alleged debtor to pay the money.

•    Threats - creating a “false sense of urgency” or suggesting arrest, criminal prosecution, jail.

•    Calls at work - calls to the workplace, especially after a collector is told not to call, such as speaking to or leaving messages with a receptionist, calling the cell phone while alleged debtor is at work or calling alleged debtors direct line, is a violation.

•    Contacting 3rd parties - collectors may not contact any party about a debt without the express permission of the alleged debtor, including the spouse or any other family member, neighbors, friends, or co-workers.

•    Contact after attorney representation - once a collector is told a individual is represented by all conversations, messages, letters or any other communication must immediately stop.

For more information about the Fair Debt Collection Practices Act, or, its state law counterpart, the Florida Consumer Collection Practices Act, visit us at:

Tuesday, June 12, 2012

Creditors still trying to collect debts after bankruptcy

James and Shannon Humphrey filed bankruptcy on October 4, 2010 listing Bank of America as a creditor.  After the bankruptcy was filed, Bank of America, illegally contacted the Humphreys on 38 separate occasions.  Bank of America ignored protests from the Humphreys and their lawyer, telling them they didn't care about the bankruptcy and that phone calls would continue until the Humphreys contacted the bankruptcy department so Bank of America could update its computer system. The Court only penalized Bank of America $10,000 plus attorney's fees for these violations. 
Portfolio Recovery, a debt collector, purchased $1.52 billion of bankruptcy debt in 2011 for 9 cents on the dollar.   In the first quarter of 2012 alone, Portfolio Recovery reported earnings of $79,994,000 in fees collecting on bankruptcy debt.  In 2011, Capital One had to refund $2.35 million for illegally collecting on 15,500 claims already discharged in bankruptcy.  Capital One received $3.55 billion in bailout money from the federal government in 2008. EMC Mortgage -- a company purchased by JP Morgan Chase from Bear Stearns -- has illegally billed debtors in bankruptcy so often that bankruptcy judges have assessed punitive damages against it in four different court cases. Gagliardi v. EMC Mortgage, 290 B.R. 808 (Bankr.D.Colo. 2003); Curtis v. EMC Mortgage, 322 B.R. 470 (Bankr.D.Mass.2005); Castro v. EMC Mortgage, 08-01135 (Bankr.D.N.C. 2008); Harlan v. EMC Mortgage, 402 B.R. 703 (Bankr.W.D.Va.2009).   JP Morgan Chase obtained a bailout of $25 billion.   Despite reliance on the public dole to cure their own financial problems, banks have become more voracious in collecting consumer debt.

Excerpted from article written by Richard Gaudreau of the Huffington Post.

For more information about the Fair Debt Collection Practices Act, or, its state law counterpart, the Florida Consumer Collection Practices Act, visit us at:

Friday, June 1, 2012

Plaintiff sues surety and law firm over bond forfeiture that was set aside

Plaintiff paid a bail bondsman a premium for a bond to bail her son out of jail. At the time she obtained the bond, she signed papers which had the legal effect of holding her responsible for the full amount of the bond, $3,500, if her son failed to appear. Plaintiff’s son failed to appear for his arraignment and he bond was revoked. Thereafter, the Court executed a judgment against plaintiff’s son as principal and National Casualty Corporation as surety for $3,500. However, plaintiff’s son eventually appeared in court and the bond forfeiture judgment was set aside. A law firm and two collection agencies sent correspondence and made telephone calls to the plaintiff claiming that she owed National Casualty Corp. $3,500.00. The law firm later sued the plaintiff on this alleged debt. Plaintiff filed suit against National Casualty, the law firm and the debt collectors for violations of the Fair Debt Collection Practices Act principally because they were trying to collect a debt that, as she alleged, did not exist. The Defendants moved to dismiss on various grounds. The Court, in denying the motions to dismiss the FDCPA claims stated that it was bound to accept as true all of the allegations in the plaintiff’s complaint and that if true, would constitute violations of the FDCPA. In its ruling, the Court stated: “An amount misstated by the debt collector need not be deliberate, reckless, or even negligent to trigger liability – it need only be false. Id. In other words, the FDCPA recognizes a strict liability approach.” Barlow v. Safety Nat’l Cas. Corp., 2012 U.S. Dist. LEXIS 75585 (decided May 30, 2012))


Thursday, May 31, 2012

Defendant was not a "debt collector" under the FDCPA


Plaintiff secured a line of credit with Defendant to purchase computer equipment.  Thereafter, Plaintiff became delinquent in her payments to Defendant, and Defendant began calling Plaintiff's mobile phone with prerecorded messages regarding the debt.  Plaintiff sent Defendant a letter asking Defendant to cease calling her which was received by Defendant.  Plaintiff asserts that this "letter revoked her consent that she had previously given to the Defendant to place calls to her cellular telephone number."   Plaintiff maintains, however, that Defendant continued to place an additional "forty calls to her cellular phone in less than three weeks.


Defendant filed a Motion to Dismiss the Complaint.  The Court held that Defendant did not qualify as a "debt collector" under the FDCPA.   Creditors who collect in their own name and whose principal business is not debt collection . . . are not subject to the [FDCPA]. . . . Because creditors are generally presumed to restrain their abusive collection practices out of a desire to protect their corporate goodwill, their debt collection activities are not subject to the [FDCPA] unless they collect under a name other than their own.  "Creditors—as opposed to debt collectors—generally are not subject to the FDCPA."   "A 'debt collector' is broadly defined as one who attempts to collect debts 'owed or due or asserted to be owed or due to another.'"   A "creditor," on the other hand, is one who "offers or extends to offer credit creating a debt or to whom a debt is owed."  One cannot be both a "creditor" and a "debt  collector" as defined under the FDCPA because the terms are mutually exclusive.

Motion to Dismiss was granted.

Gager v. Dell Fin. Servs., 2012 U.S. Dist. LEXIS 73752 (M.D. Pa. May 29, 2012).

Wednesday, May 30, 2012

Calling debtor at home and at work 82 times attempting to collect debt is not harassment


Yalitza Valle sues National Recovery Agency ("National")  alleging violations of the Fair Debt Collection Practices Act by calling Valle at home and at work eighty-two times in an attempt to collect debt incurred from emergency medical service.  The parties dispute no fact.   The telephone log confirms that between December 30, 2009, and September 7, 2010, National telephoned Valle at home and at work for a total of eighty-two calls, twenty-two of which occurred in February, 2010.  On seventeen occasions, National called both Valle's home telephone number and work telephone number during the same day.  National never called the same number more than once per day.  Valle never answered.  National never left a voice message. Speaking with National for the first and only time, Valle telephoned National on September 9, 2010, and National stopped calling Valle.  Valle produces no other evidence of potentially harassing conduct.   National never called Valle twice at the same phone number during the same day. National conversed with Valle only once and only when Valle called National, who never again called Valle.   National never threatened Valle; never called Valle at an odd hour; never contacted a friend, employer, co-worker, or family member; and never engaged in other conduct "naturally" resulting, or intending to result, in harassment, oppression, or abuse. Valle never disputed the debt, never demanded cessation of the calls, and never answered the phone.     Judgment for Debt Collector, National.

Valle v. Nat'l Recovery Agency, 2012 U.S. Dist. LEXIS 69564 (M.D. Fla. May 18, 2012).