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Case Law: FDCPA

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Check this list to find cases regarding the Fair Debt Collection Practices Act. The cases highlighted in blue are the most famous cases that everyone doing credit repair should know about.

DAVID ALIBRANDI v. FINANCIAL OUTSOURCING SERVICES, INC.,

http://www.ca2.uscourts.gov:81/isysnative/RDpcT3BpbnNcT1BOXDAyLTc1NDBfb3BuLnBkZg==/02-7540_opn.pdf#xml=http://10.213.23.111:81/isysquery/irl3920/1/hilite

United States Court of Appeals for the Second Circuit - June 18, 2003

Alibrandi alleged that in a January 27, 2000 letter seeking payment of a debt he owed to First Union National Bank, Financial Outsourcing did not include the warnings and declarations of debtor rights that the Act requires to be included in correspondence from debt collectors.

The district court found that, because First Union and Financial Outsourcing deemed Alibrandi’s debts not to be in default when Financial Outsourcing wrote to him, Financial Outsourcing was not a “debt collector” and the FDCPA did not require the January 27, 2000 letter to contain the statutory warnings. Accordingly, the court granted Financial Outsourcing’s motion for summary judgment and dismissed the case. Alibrandi appealed. We hold that if First Union retained North Shore Agency, Inc., and, by reason of a letter that North Shore as its agent sent to Alibrandi, in effect declared Alibrandi’s debt to be in default before First Union referred his account to Financial Outsourcing, the January 27, 2000 letter was required to include the warnings. Because it does not appear at this point that Alibrandi’s contentions as to First Union’s retention of North Shore and North Shore’s communication with him are undisputed, we vacate the judgment and remand for further proceedings.

ASSET ACCEPTANCE CORPORATION, v. OTHELL ROBINSON

http://www.michbar.org/opinions/appeals/2001/030201/9546.pdf

State of Michigan Court of Appeals - March 2, 2001

Defendant appeals as of right from an order granting plaintiff’s motion for summary disposition in this debt collection action. We affirm in part and remand.

Defendant first contends that plaintiff did not have standing to bring this suit under the Michigan Collection Practices Act (MCPA) based on the following provisions: Defendant maintains that plaintiff is a collection agency under the Act and has thus violated the above provisions. Plaintiff, on the other hand, contends that it is not a collection agency and purchased the debt in question outright and is not acting on behalf of a creditor.

In the instant case, defendant purchased the vehicle from Repo Depo West, Inc. Repo Depo West, Inc. immediately sold defendant’s account to Guardian National Acceptance Corporation. On June 27, 1997, plaintiff purchased defendant’s account from GNA. The purchase agreement states that GNA conveyed all of its interests in the accounts to plaintiff for value.

This Court holds that plaintiff is not a collection agency as defined by the Act. The purchase agreement states that GNA conveyed all of its interest in defendant’s account for valuable consideration.

Defendant also argues that, under the Fair Debt Collection Practices Act, 15 USC 1692 et seq. (FDCPA), plaintiff is a debt collector and is prohibited from suing on accounts it purchased after the debt was in default. Plaintiff concedes that it is a debt collector under the FDCPA. Defendant relies on the following provisions to support his argument:

In the instant case, plaintiff concedes, and we agree, that it is a debt collector under the Act. However, defendant does not allege how, if at all, plaintiff has violated any of the protective provisions of the Act.

RAUL AVILA, v. ALBERT G. RUBIN and VAN RU CREDIT CORPORATION

http://laws.lp.findlaw.com/7th/952881.html

United States Court of Appeals for the Seventh Circuit - May 16, 1996

Can a person, licensed to practice law, be in violation of the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. sec. 1692 et seq., for sending dunning collection letters that purport to be from an "at torney"? This is one of two interesting questions we ad- dress today in this case involving Raul Avila (and a class of similarly situated persons), the Van Ru Credit Corporation, and Albert G. Rubin, an attorney-at-law from Skokie, Illinois. As Joe Friday would say, let's get to the facts. We will, but unlike Sergeant Friday, it won't be "just the facts" as we'll mix in some observations and findings along the way.

Avila is a student loan debtor living in Connecticut. Van Ru Credit Corporation is a collection agency in Skokie, Illinois. Rubin is an Illinois attorney. Although we were told at oral argument that Rubin and the Van Ru agency are separate, they actually seem to be as closely inter- twined as lovers during an embrace. Here's the situation from which, we think, that conclusion is justified.

DOROTHY ARRUDA ET AL., v. SEARS, ROEBUCK & CO. ET AL.

http://laws.lp.findlaw.com/1st/021198.html

United States Court of Appeals for the First Circuit - October 30, 2002

To be specific, the appellants -- several former Chapter 7 debtors seeking to represent a putative class -- maintain that the principal defendant, Sears, Roebuck & Company, (1) habitually violated the Bankruptcy Code by the manner in which it essayed to enforce security liens in household goods and other personal property. Their claim has two subparts. First, they allege that redemption agreements between lienholders and debtors, entered into after the granting of a discharge in bankruptcy, invariably violate the prohibitions of the bankruptcy discharge injunction, codified in 11 U.S.C. § 524. Second, they allege that, in all events, such agreements require bankruptcy court approval (which was never obtained).

The district court wrote a thoughtful opinion in which it answered both the bankruptcy and the FDCPA questions adversely to the appellants. Arruda v. Sears, Roebuck & Co., 273 B.R. 332 (D.R.I. 2002). It thereupon dismissed their complaints. Id. at 351. For the reasons that follow, we affirm the district court's order.

CURTIS BARTLETT, V. JOHN A. HEIBL

http://www.ca7.uscourts.gov/op3.fwx?yr=97&num=1946&Submit1=Request+Opinion

United States Court of Appeals for the Seventh Circuit - October 8, 1997

A credit-card company hired lawyer John Heibl, the defendant in this case, to collect a consumer credit-card debt of some $1,700 from Curtis Bartlett, the plaintiff. Heibl sent Bartlett a letter, which Bartlett received but did not read, in which Heibl told him that "if you wish to resolve this matter before legal action is commenced, you must do one of two things within one week of the date of this letter": pay $316 toward the satisfaction of the debt, or get in touch with Micard (the creditor) "and make suitable arrangements for payment. If you do neither, it will be assumed that legal action will be necessary."

The letter is said to violate the statute by stating the required information about the debtor's rights in a confusing fashion. Finding nothing confusing about the letter, the district court rendered judgment for the defendant after a bench trial. The plaintiff contends that this finding is clearly erroneous. The defendant disagrees, of course, but also contends that even if the letter is confusing this is of no moment because Bartlett didn't read it. That would be a telling point if Bartlett were seeking actual damages, for example as a consequence of being misled by the letter into surrendering a legal defense against the credit-card company. He can't have suffered such damages as a result of the statutory violation, because he didn't read the letter. But he is not seeking actual damages. He is seeking only statutory damages, a penalty that does not depend on proof that the recipient of the letter was misled. E.g., Tolentino v. Friedman, 46 F.3d 645, 651 (7th Cir. 1995); Harper v. Better Business Services, Inc., 961 F.2d 1561, 1563 (11th Cir. 1992); Clomon v. Jackson, 988 F.2d 1314, 1322 (2d Cir. 1993); Baker v. G.C. Services Corp., 677 F.2d 775, 780-81 (9th Cir. 1982). All that is required is proof that the statute was violated, although even then it is within the district court's discretion to decide whether and if so how much to award, up to the $1,000 ceiling. E.g., Tolentino v. Friedman, supra, 46 F.3d at 651; Clomon v. Jackson, supra, 988 F.2d at 1322.

TERRI L. BASS, v. STOLPER, KORITZINSKY, BREWSTER & NEIDER, S.C. and KATHY LESCHENSKY

http://laws.lp.findlaw.com/7th/962113.html

In the United States Court of Appeals for the Seventh Circuit - APRIL 18, 1997

This case presents the novel question of whether the Fair Debt Collection Practices Act ("FDCPA" or "the Act"), 15 U.S.C. sec. 1692 et seq., applies to third-party efforts to collect payment from consumers who use a dishonored check for the purchase of goods or services. The answer turns on whether the payment obligation that arises from a dishonored check constitutes a "debt" as defined in the Act. On cross-motions for partial summary judgment, the district court answered in the affirmative, holding that (1) the Act applies to third- party collectors of dishonored checks, and (2) the defendants' collection practices violated the Act. On appeal, the defendants challenge only the former holding, arguing that the Act applies only to those debts arising from an offer or extension of credit. We now affirm.

DIANE W. BENTLEY, v. GREAT LAKES COLLECTION BUREAU, INC.,

http://www.tourolaw.edu/2ndCircuit/Pre95/93-7153.html

United States Court of Appeals for the Second Circuit - June 14, 1993

Appeal from summary judgment entered in the United States District Court for the District of Connecticut (Covello, J.), the district court having dismissed plaintiff's complaint after finding that debt collection letters sent by defendant to plaintiff were not misleading or deceptive within the intendment of the Fair Debt Collection Practices Act.

Reversed and remanded.

BIRGETTA A. DAVIS BOYD and CHARLENE HARRISON v. NORMAN WEXLER

http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=7th&navby=case&no=011809

United States Court of Appeals for the Seventh Circuit - December 28, 2001

The Act forbids a debt collector, which Wexler is conceded to be, to "use any false, deceptive, or misleading representation or means in connection with the collection of any debt," 15 U.S.C. sec. 1692e, including "the false representation or implication that any individual is an attorney or that any communication is from an attorney." 15 U.S.C. sec. 1692e(3). A lawyer who merely rents his letterhead to a collection agency violates the Act, 15 U.S.C. sec. 1692j(a); Taylor v. Perrin, Landry, deLaunay & Durand, 103 F.3d 1232, 1235-38 (5th Cir. 1997); cf. White v. Goodman, 200 F.3d 1016, 1018 (7th Cir. 2000), for in such a case the lawyer is allowing the collection agency to impersonate him.

The significance of such impersonation is that a debtor who receives a dunning letter signed by a lawyer will think that a lawyer reviewed the claim and determined that it had at least colorable merit; so if no lawyer did review the claim, the debtor will have been deceived and the purpose of the Act therefore thwarted. Similarly, a lawyer who, like Wexler, is a debt collector violates section 1692e(3) (and also section 1692e(10), which forbids "the use of any false representation or deceptive means to collect or attempt to collect any debt") if he sends a dunning letter that he has not reviewed, since his lawyer's letterhead then falsely implies that he has reviewed the creditor's claim.

BRADY, v. CREDIT RECOVERY

http://laws.lp.findlaw.com/getcase/1st/case/981497v2&exact=1

United States Court of Appeals for the First Circuit - November 18, 1998

Plaintiff William H. Brady ("Brady") filed this action against defendant The Credit Recovery Company ("CRC" or "defendant") and its president and clerk Leslie A. Clark ("Clark" or "defendant") to redress alleged violations of the Fair Debt Collection Practices Act (the "FDCPA"), 15 U.S.C. §§ 1692-1692o, and of related state law obligations.

The district court dismissed Brady's FDCPA claim for failure to state a claim pursuant to Fed. R. Civ. P. 12(B)(6) and dismissed the remaining state law claims without prejudice for lack of jurisdiction. In its memorandum and order, the district court recited the standard governing 12(B)(6) motions to dismiss but relied in part on materials outside of the pleadings. We therefore treat the motion as one for summary judgment. See Dominique v. Weld , 73 F.3d 1156, 1158 (1st Cir. 1996).

We review a grant of summary judgment de novo , viewing the facts in the light most favorable to the nonmovant, plaintiff, see id. , and conclude that the order of dismissal/grant of summary judgment must be reversed. Accordingly, we remand this case for action consistent with this opinion.

SAMUEL L. BROWN, v. BUDGET RENT-A-CAR SYSTEMS, INC.,

http://www.law.emory.edu/11circuit/aug97/96-2546.opa.html

United States Court of Appeals for the Eleventh Circuit. - Aug. 15, 1997.

This appeal presents the issue of whether unpaid administrative and other fees charged under the rental agreement by an automobile and truck rental company in the event of an accident constitute "debt" under the Fair Debt Collection Practices Act. We hold that such fees fall within the ambit of the Act, and remand for further proceedings.

SHAROLYN CHARLES, v. LUNDGREN & ASSOCIATES

http://laws.lp.findlaw.com/9th/9615995.html

United States Court of Appeals for the Ninth Circuit. - July 8, 1997

This case presents an issue of first impression in this circuit: whether a third-party debt collector's efforts to collect a dishonored check are governed by the Fair Debt Collection Practices Act ("FDCPA" or "the Act"), 15 U.S.C. SS 1692- 1692o. The district court ruled that the FDCPA does not apply to efforts to collect a dishonored check, because a dishonored check is not a "debt" under the FDCPA.

The only federal court of appeals that has considered this question is the Seventh Circuit. In a well-reasoned and persuasive opinion, that court recently held that a dishonored check is a "debt" under the FDCPA. Bass v. Stolper, Koritzinsky, Brewster & Neider, S.C., 111 F.3d 1322 (7th Cir. 1997).

We agree with its conclusion that, because "an offer or extension of credit is not required for a payment obligation to constitute a `debt' under the FDCPA," id. at 1326, the FDCPA governs the collection of dishonored checks. We therefore reverse.

CHAUDHRY, v. GALLERIZZO

http://laws.lp.findlaw.com/4th/981024p.html

United States Court of Appeals for the Forth Circuit - April 5, 1999

Plaintiffs, Mohammad and Diana Chaudhry, filed the present action against Defendants Michael Gallerizzo and his law firm, Gebhardt & Smith, in the United States District Court for the District of Maryland, alleging various violations of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C.A. § 1692a, et seq. (West 1998). The district court granted a motion for judgment as a matter of law in favor of Defendants on all counts. In addition, the district court levied sanctions against Plaintiffs and their attorney for filing frivolous claims. We affirm.

CARL CHAUNCEY, v. JDR RECOVERY CORPORATION

http://laws.lp.findlaw.com/7th/963980.html

United States Court of Appeals for the Seventh Circuit - June 23, 1997

Plaintiff Carl Chauncey sued defendant JDR Recovery Corporation alleging violations of the Fair Debt Collection Practices Act (15 U.S.C. sec.sec. 1692-1692o) ("FDCPA"). The defendant is a professional debt collection agency and wrote plaintiff on December 10, 1994, a letter seeking to collect a $1,541.28 debt allegedly owed to Bridgestone/Firestone. On December 8 of the following year, plaintiff sued defendant alleging two violations of 15 U.S.C. sec. 1629g(a). The suit sought statutory damages, costs and reasonable attorney's fees under 15 U.S.C. sec. 1692k. On June 14, 1996, the district court handed down an opinion finding defendant liable on one claim of plaintiff and finding it unnecessary to rule on plaintiff's second claim because a single violation of the FDCPA is sufficient to entitle plaintiff to an award of statutory damages. However, the order did not determine the amount of statutory damages and attorney's fees but permitted the parties to put in evidence on those amounts. 1

The question before us is whether the dunning letter sent by defendant demanding payment within the 30-day debt validation period violates the FDCPA.

MICHAEL DESANTIS, v. COMPUTER CREDIT, INC.

http://www.tourolaw.edu/2ndCircuit/October01/00-9574.html

United States Court of Appeals for the Second Circuit - October 30, 2001

Plaintiff brought action under the Fair Debt Collection Practices Act alleging that debt collector's letter violated the terms of the Act. The United States District Court for the Eastern District of New York (Mishler, J.), dismissed the action for failure to state a claim on which relief can be granted, and plaintiff appealed. The Court of Appeals, Leval, J., vacates and remands, holding that plaintiff's complaint states claim that debt collector's letter contradicted or confused the message required to be given by the Act.

Plaintiff appeals from the judgment of the United States District Court for the Eastern District of New York (Jacob Mishler, Senior District Judge), dismissing claims under the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. ("the Act"), for failure to state a claim on which relief can be granted. See Fed. R. Civ. P. 12(B)(6). We vacate and remand.

TROY L. FREYERMUTH, v. CREDIT BUREAU SERVICES, INC OF NEBRASKA

http://caselaw.lp.findlaw.com/data2/circs/8th/002661p.pdf

United States Court of Appeals for the Eighth Circuit - April 27, 2001

Troy L. Freyermuth (Freyermuth) appeals the district court's entry of summary judgment in favor of Credit Bureau Services, Inc., d/b/a/ Checkmate of Fremont (Checkmate). Freyermuth commenced this action pursuant to the Fair Debt Collection Practices Act (FDCPA), for abusive practices in seeking to collect payment for dishonored checks. 15 U.S.C. §§1692 et seq. The District Court granted summary judgment for defendant. We affirm.

DANIEL GARETT, v. RICHARD S. DERBES

http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=search&case=/data2/circs/5th/9630737cv0.html

United States Court of Appeals Fifth Circuit - April 23, 1997

In early April 1993, Bell South Mobility retained the law firm of Richard S. Derbes, A Professional Law Corporation, to collect delinquent telephone bills from certain customers. Over the next nine months, Richard S. Derbes, on behalf of the law firm, mailed approximately 639 demand letters to individual customers of Bell South. Daniel Garrett received one of these demand letters and then filed an action against Derbes and his law firm (jointly, "Derbes") alleging several violations of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq.

GEORGE W. HEINTZ, v. DARLENE JENKINS

http://supct.law.cornell.edu/supct/html/94-367.ZO.html

United States Supreme Court - April 18, 1995

Petitioner Heintz is a lawyer representing a bank that sued respondent Jenkins to recover the balance due on her defaulted car loan. After a letter from Heintz listed the amount Jenkins owed as including the cost of insurance bought by the bank when she reneged on her promise to insure the car, Jenkins brought this suit against Heintz and his law firm under the Fair Debt Collection Practices Act, which forbids "debt collector" to make false or misleading representations and to engage in various abusive and unfair practices. The District Court dismissed the suit, holding that the Act does not apply to lawyers engaging in litigation. The Court of Appeals disagreed and reversed.

Held: The Act must be read to apply to lawyers engaged in consumer debt collection litigation for two rather strong reasons. First, a lawyer who regularly tries to obtain payment of consumer debts through legal proceedings meets the Act's definition of "debt collector": one who "regularly collects or attempts to collect, directly or indirectly, [consumer] debts owed . . . another," 15 U.S.C. § 1692a(6). Second, although an earlier version of that definition expressly excluded "any attorney at law collecting a debt as an attorney on behalf of and in the name of a client," Congress repealed this exemption in 1986 without creating a narrower, litigation related, exemption to fill the void. Heintz's arguments for nonetheless inferring the latter type of exemption--(1) that many of the Act's requirements, if applied directly to litigation activities, will create harmfully anomalous results that Congress could not have intended; (2) that a postenactment statement by one of the 1986 repeal's sponsors demonstrates that, despite the removal of the earlier blanket exemption, the Act still does not apply to lawyers' litigating activities; and (3) that a nonbinding "Commentary" by the Federal Trade Commission's staff establishes that attorneys engaged in sending dunning letters and other traditional debt collection activities are covered by the Act, while those whose practice is limited to legal activities are not--are unconvincing. Pp. 3-8. 25 F. 3d 536, affirmed.

CAROLYN HERBERT, v. MONTEREY FINANCIAL SERVICES, INC.

http://www.ctd.uscourts.gov/Opinions/092801.AWT.Herbert.pdf

United States District Court of Connecticut – September 28, 2001

Plaintiff Carolyn Herbert (“Herbert”) claims that the defendant, Monterey Financial Services, Inc. (“Monterey”), violated the Fair Debt Collection Practices Act, 15 U.S.C. 1692(e), (“FDCPA”) and the Connecticut Unfair Trade practices Act, Conn. Gen. Stat. § 42-110a et seq. (“CUTPA”) by (1) reporting that Herbert owed a debt, without reporting that the debt was disputed and (2) failing to notify the credit bureaus that the debt owed by Herbert had been discharged. The defendant contends, as to the first claim, that any violation was the result of a bona fide error which occurred in spite of Monterey’s adoption of procedures designed to avoid such an error, as contemplated by 15 U.S.C. § 1692k©. As to the second claim, the defendant contends that it reported the debt as discharged immediately after receiving notification that the debt had been discharged. After a bench trial, the court makes the following findings of fact and conclusions of law, and finds for the defendant on all claims.

AMANDA HORKEY, v. J.V.D.B. & ASSOCIATES, INC.,

http://caselaw.lp.findlaw.com/data2/circs/7th/023283p.pdf

United States Court of Appeals for the Seventh Circuit - June 20, 2003

Chris Romero, an employee of J.V.D.B. & Associates, Inc., a debt collection agency, attempted by telephone to collect a client’s debt from Amanda Horkey while she was at work. Horkey asked him to give her a number she could call from her home. When he refused she hung up. Romero made a second call and left a profane message with Horkey’s coworker. Horkey sued under the Fair Debt Collection Practices Act. J.V.D.B. appeals from the district court’s entry of summary judgment in favor of Horkey, the denial of its motion for attorney’s fees, and the awarding of statutory and compensatory damages in Horkey’s favor. For the reasons set forth below, we affirm in all respects.

MARA FLAMM vs. SARNER & ASSOCIATES, P.C

http://www.paed.uscourts.gov/documents/opinions/02D0812P.HTM

United States District Court for the Eastern District of Pennsylvania - November 6, 2002

This action arises out of the efforts of defendants to collect a debt from plaintiff. Plaintiff has brought suit against her physician Jodi Brown, M.D. ("Dr. Brown"), her physician's attorneys Joshua and Leonard Sarner and their firm of Sarner & Associates, P.C. (collectively, "Sarner Defendants"), and process server John Matusavage ("Mr. Matusavage"). Plaintiff alleges claims under the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692 et seq., as well as under Pennsylvania state law for violations of the Unfair Trade Practices and Consumer Protection Law ("UTPCPL"), 73 Pa. C. S. § 201-1, et seq., intentional infliction of emotional distress, defamation and civil conspiracy. Defendants have moved to dismiss the FDCPA claim asserted for failure to state a claim under Federal Rule of Civil Procedure 12(B)(6). They have further moved to dismiss the remaining claims for lack of jurisdiction. For reasons articulated below, the motions to dismiss will be granted in part and denied in part.

KYLE M. HAMILTON, v. UNITED HEALTHCARE OF LOUISIANA, INC.,

http://caselaw.lp.findlaw.com/data2/circs/5th/0131179cv0.pdf

United States Court of Appeals Fifth Circuit - November 1, 2002

Kyle M. Hamilton appeals from the dismissal of his Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692, et seq. (1997), claim against Healthcare Recoveries, Inc. ("HRI"), as well as from the district court’s determination that it lacked diversity jurisdiction. He also appeals from the district court’s refusal to allow him to amend his complaint. For the following reasons, we REVERSE in part, AFFIRM in part, and REMAND for further proceedings.

CAROLINE HENNESSY. V. DANIELS LAW OFFICE

http://caselaw.lp.findlaw.com/data2/circs/8th/002048p.pdf

United States Court of Appeals for the Eighth Circuit - November 2, 2001

Ms. Hennessy filed suit against the Daniels Law Office and Richard Daniels,

Jr. (referred to collectively as Daniels) alleging violations of the FDCPA in relation to the collection of a student loan. Daniels tendered an offer of judgment for $1,000 under Fed. R. Civ. P. 68. Ms. Hennessy accepted the offer, and the district court entered judgment. After the district court denied Ms. Hennessy's subsequent motion for costs and attorney's fees, Ms. Hennessy filed a motion to alter or amend, see Fed. R. Civ. P. 59(e), which the district court also denied. On appeal, Ms. Hennessy contends that she is entitled to attorney's fees, but she has not briefed, and we therefore do not address, the issue of costs.

BETTY Y. JANG, v. A.M. MILLER AND ASSOCIATES

http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=search&case=/data2/circs/7th/963173.html

United States Court of Appeals For the Seventh Circuit - August 27, 1997

Betty Jang and Jeffrey Gammon filed nearly identical class action complaints against two collection agencies that sent them dunning letters on behalf of Discover Card for alleged outstanding credit card debts. Jang and Gammon complained that although the dunning letters technically complied with the Fair Debt Collection Practices Act, they were misleading because the collection agencies never intended to fully comply with the statutory notices set forth in the letters. We agree with the district court that Jang and Miller failed to state a claim against the collection agencies because the agencies did all they were required to do under the FDCPA.

BRENDA JOHNSON, v. JESSE L. RIDDLE

http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=search&case=/data2/circs/10th/014028v2.html

United States Court of Appeals for the Tenth Circuit - September 5, 2002

Under Utah statutory law, the holder of a dishonored check may collect from the person who wrote the check its face amount and "a service charge that may not exceed $15." Utah Code 7-15-1 (1997).(1) The defendants in this suit attempted to collect a statutory shoplifting fee of $250 on a dishonored check.

The central question presented by this case is whether the defendants are liable under the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C.1692 et seq., which establishes civil liability for debt collectors who attempt to collect amounts not "permitted by law," id. 1692f(1). The district court held that the defendants' actions were "permitted by law" because unpublished default judgments issued by state trial courts in earlier collection actions on dishonored checks had awarded shoplifting fees irrespective of the $15 maximum service charge. Johnson v. Riddle, No. 2:98CV599C, slip op. at 12 (D. Utah Dec. 20, 2000). We conclude that the district court misconstrued the term "permitted by law." We hold that, under a correct application of that standard, Riddle's attempt to collect a shoplifting penalty from Johnson was not permitted by law. However, because it remains necessary to determine whether Riddle may avoid liability because his error was bona fide in statutory terms, we reverse and remand for further proceedings consistent with this opinion.

KAREN MAGUIRE, v. CITICORP RETAIL SERVICES, INC.,

http://csmail.law.pace.edu/lawlib/legal/us-legal/judiciary/second-circuit/test3/97-7755.opn.html

United States Court of Appeals for the Second Circuit - July 1, 1998

Plaintiff Karen Maguire appeals from a judgment of the United States District Court for the District of Connecticut (Alan H. Nevas, District Judge) granting defendant Citicorp Retail Service's motion for summary judgment and dismissing Maguire's complaint alleging violations of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq., and the Connecticut Unfair Trade Practices Act, Conn. Gen. Stat. § 42-110a et seq., and denying plaintiff's motion for partial summary judgment on the issue of liability. Affirmed in part, vacated in part and remanded.

JAMES C. MAHON, v. CREDIT BUREAU OF PLACER COUNTY INCORPORATED

http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=search&case=/data2/circs/9th/9717298.html

United States Court of Appeals for the Ninth Circuit - April 28, 1999

Gloria and James Mahon (the "Mahons") appeal the district court's grant of summary judgment in favor of the Credit Bureau of Placer County, Inc. and its president, Eugene Bellisario (collectively, the "Credit Bureau"), in the Mahons' action alleging violations of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. S 1692g. The Mahons contend the district court erred by (1) failing to hear oral argument before granting the Credit Bureau's motion for summary judgment, (2) holding that the Credit Bureau complied with the FDCPA by merely sending a Validation of Debt Notice pursuant to 15 U.S.C. S 1692g(a), without establishing its receipt, and (3) holding that the Credit Bureau adequately verified the debt, as required by 15 U.S.C. S 1692g(B). We have jurisdiction under 28 U.S.C. S 1291, and we affirm.

ARTHUR MILLER, v. WOLPOFF & ABRAMSON, L.L.P., UPTON, COHEN & SLAMOWITZ, and NATIONAL ATTORNEY NETWORK, INC

http://www.tourolaw.edu/2ndCircuit/200302/02-70170.html

United States Court of Appeals for the Second Circuit - February 25, 2003

For the reasons that follow, we hold that the grant of summary judgment on plaintiff's claim that W&A and UC&S failed to conduct a meaningful review of plaintiff's file before sending the debt collection letters on attorney letterhead was premature. We affirm the dismissal of plaintiff's claim that UC&S's efforts to collect attorneys' fees violates the FDCPA's prohibition on attempting to collect an amount not expressly authorized by the agreement creating the debt or by law. We hold that the underlying credit card agreement permitted the collection of attorneys' fees and that the fact that UC&S later may have intended to share those fees with a non-lawyer does not render the attempt to collect such fees illegal, even if that act of sharing might violate New York professional ethics rules. Finally, we hold that plaintiff's claim that language in W&A's original collection letter overshadows or contradicts the validation notice was properly dismissed because the notice clearly advises the consumer of her FDCPA rights and is neither overshadowed nor contradicted by the language on the front of the letter. Accordingly, we vacate in part, affirm in part, and remand.

RICHARD E. NAAS; JANET NAAS, v. MARC D. STOLMAN; DAVID ADRIAN

http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=search&case=/data2/circs/9th/9616789.html

United States Court of Appeals for the Ninth Circuit - December 9, 1997

Richard and Janet Naas sued National Business Factors, Inc. and its attorneys, Adrian and Stolman, (collectively NBF) for violations of the Fair Debt Collection Practices Act (Act), 15 U.S.C. SS 1692a-1692o, and for intentional infliction of emotional distress. The district court exercised jurisdiction pursuant to 28 U.S.C. S 1331, 15 U.S.C. S 1692k(d), and 28 U.S.C. S 1367, and dismissed the Naases' complaint without leave to amend, and dismissed the action. The Naases timely appealed, and we have jurisdiction pursuant to 28 U.S.C. S 1291. We affirm and hold that the Naases' action is barred by the statute of limitations.

TERRENCE NEWMAN and MICHELLE NEWMAN, v. BOEHM, PEARLSTEIN & BRIGHT, LIMITED

http://laws.lp.findlaw.com/7th/962839.html

In the United States Court of Appeals for the Seventh Circuit - JULY 2, 1997

The question presented by these appeals, one of first impression in the circuits, is whether an assessment owed to a homeowners or condominium association qualifies as a "debt" under the Fair Debt Collection Practices Act (the "FDCPA" or "Act"), 15 U.S.C. sec.sec. 1692 et seq. Guided by our recent decision in Bass v. Stolper, Koritzinsky, Brewster & Neider, S.C., 111 F.3d 1322 (7th Cir. 1997), which interprets the term "debt" under that Act, we hold that it does. We therefore reverse the district court's contrary judgment and remand for further proceedings.

NIELSEN v. DICKERSON, et al

http://www.bankersonline.com/lending/fdcpacase.pdf

United States Court of Appeals for the Seventh Circuit – October 9, 2002

After receiving a letter from attorney David D. Dickerson advising her that the balance on her GM credit card account was past due, plaintiff Ann L. Nielsen filed a class action suit against Dickerson and others pursuant to the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq. Nielsen asserted that Dickerson’s letter, which was sent to thousands of delinquent creditors like her, falsely suggested that an attorney had become actively involved in GM’s debt collection efforts, when in fact Dickerson had done little more than lend his name and firm letterhead to the debt collection effort. See 15 U.S.C. §§ 1692e(3) and (10), 1692j(a).

After certifying a class comprised of all Illinois residents who had received letters from Dickerson’s firm, 1999 WL 350649, Judge Kocoras granted summary judgment in favor of the plaintiffs, 1999 WL 754566. We affirm.

ELIZABETH PETERS, v. GC SERVICES L.P.; DLS ENTERPRISES, INC.; and GC FINANCIAL CORPORATION

http://www.ca5.uscourts.gov/Opinions/pub/01/01-21027-cv0.pdf

United States Court of Appeals for the Fifth Circuit - October 18, 2002

Plaintiff Elizabeth Peter appeals from the district court’s grant of complete summary judgment in favor of Defendants GC Services, L.P., DLS Enterprises, and GC Financial Corp. on her claims alleging violations of various sections of the Fair Debt Collection Practices Act (FDCPA). Peter claims that a debt collection letter sent to her by GC Services included false statements which obscured or confused the validation notice

required by 15 U.S.C. § 1692g and which violated 15 U.S.C. § 1692e. She also alleges that the envelope in which that letter was sent, which gave the name and address of the Department of Education as the return address, violated 15 U.S.C. §§ 1692e(1),(14), and f ( 8 ). We agree with the district court’s determination that the collection letter did not violate the FDCPA. Because we believe that the envelope violates the FDCPA, however, we reverse the district court’s grant of summary judgment for Defendants on the envelope claims, render judgment for Plaintiff, and remand this case to the district court for proceedings to determine damages.

DAVID PETERS, v. GENERAL SERVICE BUREAU, INC

http://caselaw.lp.findlaw.com/data2/circs/8th/012328p.pdf

United States Court of Appeals for the Eighth Circuit - January 28, 2002

David Peters brought this action against General Service Bureau, Inc. (GSB), under the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. (FDCPA), alleging that GSB had sent him a false, misleading, and coercive collection letter. The district court 2 granted GSB summary judgment and denied Peters' motion to alter or amend the judgment. Peters appeals, and we affirm.

ROBERT RENICK, v. DUN & BRADSTREET RECEIVABLE OPINION

http://caselaw.lp.findlaw.com/data2/circs/9th/0115117p.pdf

United States Court of Appeals for the Fifth Circuit - May 16, 2002

Renick didn’t pay his phone bill. After his account became seriously past due, Dun & Bradstreet, the phone company’s collection agent, sent Renick a collection notice. As required by the Federal Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692g(a), the notice informed Renick that he had the right to dispute the validity of the debt within 30 days, and that Dun & Bradstreet would then provide him with verification of the debt.

Twenty days later, Dun & Bradstreet sent a second notice. On the front, it asked Renick to “se the tear-off portion of this letter . . . to send your payment today.” The reverse side provided the validation information required by the FDCPA, and stated that “PROMPT PAYMENT IS REQUESTED.” The notice also told Renick to contact the telephone company with any questions about his phone account, but to direct all inquiries regarding the validity of the debt to Dun & Brad-street. Renick sued, alleging that the second notice violated the FDCPA. He argued that, coming only 20 days after the first collection notice, the request for “prompt” payment and payment “today” misled him into abandoning his statutory right to contest the validity of the debt within 30 days from the first notice.

JENNIFER LYNN ROMEA, v. HEIBERGER & ASSOCIATES,

http://www.tourolaw.edu/2ndCircuit/December98/98-7259.html

United States Court of Appeals for the Second Circuit - December 09, 1998

This case raises the issue of whether the requirements of the Federal Debt Collection Practices Act (FDCPA), 15 U.S.C. §§1692-1692o, apply to an attorney's execution and delivery of the three-day rent demand notice that is required by New York law as a condition precedent to a summary eviction proceeding. Finding that the FDCPA does apply, we affirm the district court's denial of the defendant's motion to dismiss the plaintiff's complaint.

DONNA M. RUSSELL, v. EQUIFAX A.R.S., and CBI COLLECTIONS,

http://www.tourolaw.edu/2ndCircuit/january96/95-70070.html

United States Court of Appeals for the Second Circuit - January 16, 1996

This appeal involves the application of the Fair Debt Collection Practices Act of 1977 (Act), 15 U.S.C. §§ 1692 to 1692o (1994). Plaintiff Donna M. Russell (plaintiff or consumer) appeals from a judgment of the United States District Court for the Northern District of New York (Scullin, J.) entered November 28, 1994 granting summary judgment to defendant Equifax A.R.S. (formerly CBI Collections) (Equifax or defendant). Russell contends that the district court's construction of the Act was wrong as a matter of law and should be reversed.

What happens to a consumer who is unable to pay her creditors has changed greatly from those days when a debtor like Wilkins Micawber was sent to King's Bench Prison because he had no money or property available to pay his debts. See Charles Dickens, David Copperfield (Part One) 201 (Peter Fenelon Collier & Son ed. 1900). While debt collectors are, of course, charged with the duty of collecting debts that are owed, they may not do so today in a manner that prevents consumers from exercising their legal rights. In enacting the Fair Debt Collection Practices Act Congress pointed out that "[m]eans other than misrepresentation or other abusive debt collection practices are available for the effective collection of debts." 15 U.S.C. § 1692©. As a consequence of its concern, the legislature armed consumers with a shield against the overly zealous debt collector; this shield is particularly important in our modern computer-driven world. Because we hold that Russell in this case was entitled to its protection, we reverse the district court's grant of summary judgment for defendant and remand the case for further proceedings.

BRADLEY T. RYAN v. WEXLER & WEXLER

http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=search&case=/data2/circs/7th/962620.html

United States Court of Appeals For the Seventh Circuit - May 7, 1997

Bradley Ryan wrote a personal check in June 1993 to Harrah's Casino. The check was returned for insufficient funds. Harrah's assigned the dishonored check to Wexler and Wexler ("Wexler") for collection. According to Ryan's complaint, he settled the collection account in full with Wexler in June 1994. Nevertheless, in April 1995 Wexler filed a "judgment" 1 against Ryan. Ryan alleges that this judgment appeared on both his TRW and Equifax credit reports. Ryan, through his attorney, twice wrote to Wexler disputing the accuracy of the judgment. According to Ryan, the erroneously filed judgment remains on his credit report and has led to several denials of credit as well as to Ryan's termination from his previous employment.

FRANK SAVINO, v. COMPUTER CREDIT, INC.,

http://www.tourolaw.edu/2ndCircuit/December98/98-7179.html

United States Court of Appeals for the Second Circuit - December 21, 1998

In this action under the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C § 1692 et seq., plaintiff Frank Savino appeals from two orders of the United States District Court for the Eastern District of New York (Spatt, Judge) that, collectively, denied his motion for class certification and significantly reduced the amount of attorney's fees that he requested. Defendant Computer Credit, Inc. cross-appeals from the district court's grant of summary judgment to Savino on his FDCPA claim, award of statutory damages and attorneys fees, and denial of sanctions against Savino and his attorney. We vacate the judgment only insofar as it ordered the payment of reduced attorney's fees and remand the matter to the district court for reconsideration of that issue. We affirm in all other respects.

CHOD SCHLOSSER and FRANCES SCHLOSSER, v. FAIRBANKS CAPITAL CORPORATION

http://www.conti-fairbanks.com/SchlosserOpinion032003.doc

United States Court of Appeals, Seventh Circuit - March 20, 2003.

Fairbanks Capital Corp. acquired 12,800 allegedly delinquent high-interest mortgages from ContiMortgage, including one owed by the plaintiffs, Chad and Frances Schlosser. Identifying itself as a debt collector, Fairbanks sent the Schlossers a letter asserting that the debt was in default. Fairbanks was mistaken; the Schlossers were not in default. The Schlossers filed suit claiming that Fairbanks's letter failed to notify them of their right to contest the debt, as required by the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. s 1692g(a). Fairbanks's mistake, as it turned out, worked to its advantage: the district court concluded that, because the debt was not actually in default when Fairbanks acquired it, Fairbanks was not a debt collector within the meaning of the FDCPA. The court granted Fairbanks's motion to dismiss, and the Schlossers appeal. We disagree with the district court's interpretation of the FDCPA and therefore reverse.

KATE SCHWEIZER, v. TRANS UNION CORPORATION

http://www.tourolaw.edu/2ndCircuit/January98/97-7542.html

United States Court of Appeals for the Second Circuit - January 26, 1998

Plaintiff Kate Schweizer appeals from an order of the United States District Court for the Southern District of New York, Charles L. Brieant, J., granting summary judgment to defendant Trans Union Corporation ("Trans Union") on Schweizer's claim under the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. §1692 et seq.

Schweizer's claim is based on a collection notice that she received from Trans Union in July 1995 regarding a debt of $15 allegedly owed by Schweizer to Roche Biomedical Labs, Inc. Schweizer does not challenge the content of the letter. Rather, she alleges that the appearance of the letter, and of the envelope in which it arrived, simulated a telegram and thereby "created a false sense of urgency" and "misrepresented the importance, cost, purpose and urgency of the communication" in violation of 15 U.S.C. §1692e. 1 Judge Brieant held that under the applicable law no reasonable juror could "find that the total effect of the document, including the envelope, was to create a false sense of urgency essentially by simulating a Telegram." We agree that there was no statutory violation here, and affirm.

JENNIFER SMITH, v. COMPUTER CREDIT, INC

http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=search&case=/data2/circs/6th/990055p.html

Unites States Court of Appeals for the Sixth Circuit - February 16, 1999

Jennifer Smith appeals the district court's grant of Computer Credit, Inc.'s motion to dismiss. Smith argues that a letter sent by Computer Credit, a debt collection agency, violated the Fair Debt Collection Practices Act, 15 U.S.C. § 1692g. We conclude that Computer Credit's letter did not violate the Fair Debt Collection Practices Act because the least sophisticated consumer would not have believed that the letter threatened his statutory right to dispute the validity of his debt within thirty days.

ALAN SNOW v JESSE L. RIDDLE

http://laws.lp.findlaw.com/10th/974045.html

United States Court of Appeals for the Tenth Circuit –

On September 23, 1994, Alan Snow purchased consumer goods from a Circle-K Store and paid for the merchandise with his personal check in the amount of $23.12. Circle-K deposited the check with its bank, but the check was dishonored because of insufficient funds. Circle-K then forwarded the returned check to its attorney, Jesse L. Riddle, P.C., to pursue collection.

GREG A. SPEARS, v. TIMOTHY L. BRENNAN

http://www.state.in.us/judiciary/opinions/archive/03260101.ewn.html

Court of Appeals of Indiana - March 26, 2001

Greg A. Spears challenges the trial court’s entry of summary judgment in favor of attorney and debt collector Timothy R. Brennan on Spears’ complaint alleging violations of the Fair Debt Collection Practices Act (“the FDCPA” or “the Act”), 15 U.S.C. § 1692 et seq. Spears presents four issues for our review, which we restate as:

1. Whether Brennan misrepresented the amount of attorney’s fees to which he was entitled for the collection of Spears’ debt in violation of 15 U.S.C. §§ 1692e(2)(B) and 1692f(1).

2. Whether Brennan’s debt collection notice to Spears complied with 15 U.S.C. § 1692g(a).

3. Whether Brennan violated 15 U.S.C. § 1692g(a) when he scheduled two hearing dates on the debt collection claim and obtained a default judgment against Spears within the thirty-day debt validation period.

4. Whether Brennan violated 15 U.S.C. § 1692g(B) when he obtained a default judgment against Spears after Spears had notified Brennan in writing that he was disputing the debt and before Brennan had mailed verification of the debt to Spears.

We affirm in part, reverse in part and remand for further proceedings.

LARRY SPROUSE V. CITY CREDITORS COMPANY

http://216.239.41.104/search?q=cache:2CDDxVb5SB8J:www.daylawlib.org/US%2520District%2520Court/010801/sprouse1.PDF+Sprouse+v.+City+Creditors+Company+&hl=en&ie=UTF-8

Unites State District Court for the Southern District of Ohio, Western Division – November 2, 2000

In their Complaint (Doc. #1), the Plaintiffs allege that the foregoing actions violated the FDCPA in two ways. In the First Claim for Relief, Plaintiff Shirley Sprouse alleges that the Defendants violated 15 U.S.C. § 1692f, because she was sued her prior to the expiration of the 30-day period which § 1692g(a) afforded her to dispute the validity of the debt. In the Second Claim for Relief, Plaintiff Larry Sprouse alleges that the Defendants violated § 1692f, by filing suit against him prior to notifying him that he owed a debt to Miami Valley Hospital or providing the § 1692g validation notices to him.

CHRISTOPHER M. TERRAN, v. JEROLD KAPLAN

http://laws.lp.findlaw.com/9th/9517402.html

United States Court of Appeals for the Ninth Circuit - March 28, 1997

This action arises from a letter sent by Jerold Kaplan, in his capacity as a debt collector, to Christopher Terran to collect on a debt Terran owed to Montgomery Ward Credit Corporation in the amount of $546.63 (the "collection letter"). Terran appeals from the district court's denial of a damage award following its determination that the collection letter violated the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. SS 1692a-o. Kaplan cross-appeals from the district court's conclusion that the letter violated the FDCPA. Both parties challenge the district court's order that each party must bear its own attorneys' fees and costs.

We conclude that Kaplan's collection letter did not violate the FDCPA. Because we reverse the district court on this ground, we do not reach Terran's challenge to the district court's denial of damages. We further remand for a recalculation of attorneys' fees and costs due Kaplan and for clarification of whether Terran, his counsel, or both are responsible for the payment of these fees and costs under Rule 11 of the Federal Rules of Civil Procedure.

FRANK THOMAS, v. LAW FIRM OF SIMPSON & CYBAK, et al.,

http://caselaw.lp.findlaw.com/data2/circs/7th/021113p.pdf

United States Court of Appeals For the Seventh Circuit - January 13, 2004

Frank Thomas appeals from the district court’s dismissal of his suit which alleged that General Motors Acceptance Corporation (“GMAC”), the law firm Simpson & Cybak (“Simpson”), and their employees failed to send him a debt validation notice advising him of his rights as a debtor within five days of their initial communication with him, as is required by the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692-1692o.Two principal questions are raised in this appeal: whether a creditor’s letter to a debtor or a debt collector’s initiation of a lawsuit in state court constitute “initial communications” within the meaning of the FDCPA. In dismissing Thomas’s case for failure to state a claim, the district court determined that the creditor’s letter to the debtor constituted an “initial communication,” while the debt collector’s initiation of the lawsuit did not. We disagree with both conclusions. Accordingly, we reverse the district court’s decision to dismiss Thomas’s claim against Simpson, and we remand for further proceedings.

STEPHEN P. TURNER, v.J.V.D.B. & ASSOCIATES, INC.

http://caselaw.lp.findlaw.com/data2/circs/7th/023511p.pdf

United States Court of Appeals For the Seventh Circuit - June 4, 2003

Stephen P. Turner sued a debt collector, J.V.D.B. & Associates, Incorporated, alleging that J.V.D.B. violated the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692e and f, by attempting to collect a $97.80 debt that had been discharged in bankruptcy. The district court granted summary judgment to J.V.D.B. on the ground that the debt collector was unaware of Turner’s bankruptcy as a matter of law. For the reasons set forth below, we reverse and remand as to § 1692e and affirm as to § 1692f.

The 7th Circuit reasoned that although JVDB was unaware of the bankruptcy, under §1692e ignorance is no excuse. The court held that the Act imposes strict liability and a consumer need not show intentional conduct by the debt collector to prove a violation, and only has to show that there was a violation

DANNY TUTTLE, v. EQUIFAX CHECK

http://www.tourolaw.edu/2ndCircuit/August99/98-9462.html

United States Court of Appeals for the Second Circuit - August 19, 1999

Plaintiff Danny Tuttle sued Equifax Check Services, Inc. ("Equifax"), alleging (inter alia) that Equifax's $20 service charge for collecting a dishonored check violated sections of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. §§1692e-1692g (1994), as well as Connecticut law. Tuttle appeals from a judgment entered in favor of Equifax after a jury trial in the United States District Court for the District of Connecticut (Goettel, J.), and from the denial of his renewed motion for judgment as a matter of law, see Fed. R. Civ. P. 50(B). He argues that the district court erred in the jury instructions and in the denial of his renewed motion for judgment as a matter of law. We affirm.

MARGARET WALKER, v. NATIONAL RECOVERY, INC

http://www.ca7.uscourts.gov/op3.fwx?yr=99&num=2119&Submit1=Request+Opinion

United States Court of Appeals for the Seventh Circuit - December 21, 1999

Notices sent to debtors must not confuse them about the verification rights established by the Fair Debt Collection Practices Act, 15 U.S.C. sec.sec. 1692-1692o. See Bartlett v. Heibl, 128 F.3d 497 (7th Cir. 1997). How a particular notice affects its audience is a question of fact, which may be explored by testimony and devices such as consumer surveys. We held accordingly in Johnson v. Revenue Management Corp., 169 F.3d 1057 (7th Cir. 1999), that a complaint alleging that a particular notice confuses recipients may not be dismissed under Fed. R. Civ. P. 12(B)(6)—not only because "this notice is confusing" states a claim on which relief may be granted, but also because district judges are not good proxies for the "unsophisticated consumers" whose interests the statute protects. "Unsophisticated readers may require more explanation than do federal judges; what seems pellucid to a judge, a legally sophisticated reader, may be opaque to someone whose formal education ended after sixth grade. To learn how an unsophisticated reader reacts to a letter, the judge may need to receive evidence." Johnson, 169 F.3d at 1060.

KARLA ANDREA WILKERSON, v. GERALD E. BOWMAN , GEORGE W. HEINTZ, JAMES D. BO SCIA, GLENN S. VIC IAN , PA UL H. ELLISON , and THOMAS A. BURRIS

http://www.ilnd.uscourts.gov/JUDGE/Pallmeyer/RRP_OPIN/wilkerson.pdf

United States District Court Northern District of Illinois Eastern Division -March 26, 2001

Plaintiff Karla Wilkerson received a letter from Indiana attorneys seeking to collect on an unpaid car loan. Plaintiff alleges the letter violates the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692g(a)(1), because it does not state the amount of the debt as of the date of the letter. Plaintiff seeks to represent a class of borrowers who received letters in the same form from these Defendants. Defendants argue that the letter does in fact comply with the FDCPA, or that, if it does not, the “bona fide error” defense precludes liability in this case. Class certification is not appropriate in this case, Defendants contend, because Plaintiff has not explained how she will distinguish consumer debts, which are covered by the FDCPA provisions, from business debts, which are not. They argue, further, that Plaintiff’s decision to name individual partners, rather than the firm only, as Defendants in this case requires denial of the class certification motion.

As explained below, this court concludes that the form letter involved in this case fails to state the amount of the debt as required by the FDCPA and that the bona fide error defense is not available on these facts. The court concludes, further, that questions of law and fact common to the proposed class predominate over individual damages issues, and that class certification is therefore appropriate.

ALAN H. WADLINGTON, TAMMY M. BERRY, and CHIP C. BRUNETTE, v. CREDIT ACCEPTANCE CORPORATION

http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=search&case=/data2/circs/6th/960054p.html

Unites States Court of Appeals for the Sixth Circuit - February 21, 1996

This is an appeal from a judgment for the defendants in a purported class action brought under the Fair Debt Collection Practices Act, 15 U.S.C. §§1692 et seq. The lead defendant, Credit Acceptance Corporation, maintains that it took assignments of retail installment sales contracts entered into between the named plaintiffs and an automobile dealer. Alleging that the plaintiffs subsequently defaulted, Credit Acceptance sued them through counsel who are co-defendants herein. The collection actions were brought in a venue that was improper under the Act if the company or its lawyers came within the statutory definition of a "debt collector" and if the venue provisions of the Act were not waived by acceptance of the venue provisions of the contracts.

We conclude that defendant Credit Acceptance Corporation was not a "debt collector" within the meaning of the Act, but that its lawyers came within the definition of that term. Because statutory liability is limited to debt collectors, we shall affirm the district court's judgment as to Credit Acceptance. We shall reverse the judgment as to the attorneys, remanding the case to the district court for further proceedings with respect to them.

WRIGHT v. ASSET ACCEPTANCE

http://proselitigant.net/wwwthreads/Wc3e2517e9a305.htm

United States District Court for the Southern District of Ohio, Western Division - January 3, 2000

Plaintiff alleged the defendants violated both the Fair Debt Collection Practices Act, 15 U.S.C.S. § 1692, et seq., by sending the plaintiff four debt collection letters. Plaintiff brought action against the defendants under the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C.S. § 1692, et seq. Plaintiff alleged that the defendants violated both Acts by sending him four debt collection letters. More specifically, he alleged that the defendants: (1) misrepresented the legal title to his debt; (2) failed to inform him of the consequences of acknowledging debts; (3)misrepresented the imminence of legal action; (4) created a false sense of urgency; and (5) mailed him letters that were calculated to abuse, to harass, and to oppress. The court determined that no defense to the debts existed for the plaintiff to his debts under because the least sophisticated consumer in the plaintiff's position could not have inadvertently revived a time-barred debt. Purported purchase agreement not admissible as a business record.

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I've posted this a few different places around the forum. This was taken from the National Association of Retail Collection Attorney's newsletter website. It's probably the best overview of the FDCPA and commonly made screwups by CA's I plan to take this with me to small claims court and use it to educate the judge.

Staying Out of Federal Court - Tips for Limiting the Potential for FDCPA Exposure

By David M. Schultz and John M. Foley*

The Fair Debt Collection Practices Act (FDCPA) was enacted by Congress in 1977 to counteract “debt collection abuse by third party debt collectors”, including such things as “obscene and profane language, threats of violence, telephone calls at unreasonable hours.” Another motivating factor in the passage of this law was the finding that “the vast majority of consumers who obtain credit fully intend to repay their debts.” Whether these findings remain true in this decade is highly questionable, but the fact remains that the FDCPA poses a legal and practical minefield for debt collectors, with substantial penalties for the slightest misstep.

The following overview is designed to assist in limiting the potential for common FDCPA violations which form the basis for federal class action lawsuits.

Overview of the FDCPA

Strict Liability with One Defense

The FDCPA is a strict liability statute, and intentional conduct is not required for liability. Whether or not the debt is owed is also generally irrelevant. The deck is further stacked against debt collectors in this arena by the decisions holding that a debt collector’s conduct or collection letters are not judged by the familiar standard of the “reasonable person”, but rather by reference to what the “unsophisticated consumer” would believe. As explained by the Seventh Circuit, this standard is designed to protect the debtor who is “uninformed, naive or trusting” and presumes a level of sophistication that “is low, close to the bottom of the sophistication meter.” Courts have recently expanded the standard for FDCPA liability beyond an express violation of the statute’s terms, and these cases hold that merely causing the unsophisticated consumer to be “confused” is sufficient to hold a debt collector liable.

The sole affirmative defense under the statute, bona fide error, has two parts. The debt collector must first establish that the violation was not intentional, usually not a difficult proposition. The second element requires a showing that “the error occurred notwithstanding the maintenance of procedures reasonably adapted to avoid such error.” The simple belief that the conduct was legal, even if based on an attorney’s review of the practice, will not suffice. The bona fide error defense requires the existence of a verifiable procedure, preferably written, plus an explanation of how the procedural safeguards uninten

tionally failed to prevent the alleged violation.

Penalties for Non-Compliance

Each plaintiff in an individual FDCPA case is entitled to up to $1,000 plus attorneys fees and costs. Thus, the statute creates a disincentive to defend questionable cases or to prolong litigation, because the debt collector who does so may wind up paying attorney fees which are far in excess of the maximum award to an individual debtor. Actual damages may also be awarded in these cases, but the Act’s strict liability provisions and statutory penalties have had the practical effect of making claims for actual damages the exception, as opposed to the norm.

Class actions impose maximum penalties of a more serious nature. In addition to awarding the individual plaintiff up to $1,000 for serving as the class representative and requiring a losing debt collector to pay the attorneys’ fees of the debtor, the FDCPA provides for an award to the class of up to 1% of the debt collector’s net worth or $500,000, whichever is smaller. Net worth is not defined in the FDCPA. As a generally statement, it may be defined as assets minus liabilities, according to GAAP standards. In response to lawful accounting measures taken by debt collectors to lower their net worths, plaintiffs’ attorneys have advanced a theory that net worth should be calculated from the point of view of the debt collector’s cash flow, which is usually a much higher figure.

Regardless of how the definition of “net worth” is defined, class certification class entitles a plaintiff to conduct discovery into a debt collector’s finance, a proposition which is understandably disconcerting to many debt collectors. The FDCPA’s fee-shifting provisions also result in the additional irony of the unsuccessful debt collector having to pay the plaintiff’s attorneys to comb through the debt collector’s private finances. For these obvious reasons, a small amount of prevention can often save debt collectors large exposure in such a suit. The following are some of the most common problems, and the most easily avoided.

Common Avoidable Problems

Assume the Act Applies

Both attorney and non-attorney debt collectors fall within the scope of the FDCPA. The key is whether a defendant acted as a “debt collector”, defined in the statute as any person who regularly collects or attempts to collect debts, either directly or indirectly, which are owed to another person. The cases interpreting what constitutes “regular” debt collection activity have considered both the percentage of activity devoted to collections , and the total amount of activity. As the Third Circuit aptly noted, anyone attempting to collect a debt owed to someone else “more than a handful of times per year” should presume that they are covered by the statute and comply with it.

Assume that the Obligation is a “Debt”

The Act defines a “debt” expansively to include any obligation to pay money arising out of a transaction in which the subject of the transaction is to be used “primarily for personal, family or household purposes...” Although business debts are obviously excluded, questions have arisen as to whether a “transaction” is required, and whether someone who purchases a debt and then seeks to collect now owns the debt so as to be excluded from the definition of “debt collector.” The rulings have not been favorable to debt collectors.

The argument that an insufficient funds check did not constitute a “transaction” has been rejected, and courts have held that a returned or insufficient funds check is a “debt” within the FDCPA. Courts have also rejected attempts by wily debt collector who purchase debts in default, and then seek to collect on their own behalf in order to circumvent the definition of “debt collector.” The test is whether the debt was in default at the time it was assigned or purchased. Condominium assessments are also debts. The list of what does not constitute a debt is substantially smaller, and shrinking. In view of the expansive interpretations of the Act and the potential for substantial exposure, it is worthwhile to proceed from assumption that the obligation is a “debt” and that the FDCPA applies.

Avoiding Overshadowing in the Initial Letter

The overwhelming majority of cases under the FDCPA involve the first communication to the debtor, and these cases arise out of the Act’s goal to give debtors thirty days to verify or dispute the debt. To this end, the Act requires the initial collection notice to contain a “validation notice” with certain statutorily-required statements to the debtor regarding, among other things, an explanation of the federal rights which the debtor may exercise within thirty days of receiving the letter.

In sum, the initial letter must advise debtors that they have thirty days from the receipt of the collection letter to make the following written requests of the debt collector: 1) that the collector obtain verification of the amount of the debt or judgment, 2) that the debt collector obtain the name and address of the original creditor, 3) that the debt collector will assume the debt to be valid unless it is disputed. The initial notice must further advise the debtor of the amount of the debt, the name of the creditor, and that the letter constitutes an attempt to collect a debt and that any information obtained will be used for that purpose.

Even if the required statements are included in the initial communication, a debt collector may be liable for “overshadowing” these rights with other statements so as to render the validation notice ineffective. In the authors’ experience, overshadowing constitutes the single greatest area of potential exposure, and collectors should make every effort to reduce the potential for lawsuits in this area.

Overshadowing can take infinite variations. Common violations are found by language which suggests that the debtor has less than thirty days to exercise his validation rights, by demanding payment “now”, “today”, “immediately”, “within ten days”, although such language is not required. Likewise, demanding actions other than payment can result in a finding of overshadowing and cases have held that a request for an immediate phone call may violate the Act. Courts have gone so far as to hold that a statement that the account “has been placed for immediate collection”, while not demanding any specific act, could cause enough confusion to support a class action.

The key to compliance is avoiding any language which would suggest (to an unsophisticated consumer) that any action is required before the expiration of the thirty-day period. Unfortunately, this conflicts with the legitimate economic goal of collecting the debt as soon as possible, and with a minimum of cost. Letters which comply with the FDCPA are often the least effective in producing a quick turnaround on collections, and very often debt collectors cannot see the proverbial forest through the trees when it comes to their own letters. Although review by an independent third party will not provide an affirmative defense, it may be effective in reducing the potential for expensive lawsuits.

Sending multiple letters within the thirty-day validation period also accounts for a large portion of the overshadowing cases. This scenario is often the easiest to avoid, and is the one most likely to give rise to a true defense of bona fide error. The Act does not forbid multiple communications within the first thirty days, but sending additional letters without overshadowing debtors’ validation rights is a tricky proposition. Collectors must take extreme care not to confuse the debtor about when the validation period will expire, and it is often useful to include a statement in subsequent letters that the thirty-day validation period began to run with the receipt of the collector’s first letter. Avoiding any demands for action before the validation period expires is as important in subsequent letters as it is in the original communication.

Debt collectors who wish to altogether avoid the pitfalls accompanying multiple communications during the validation period have a valuable opportunity to proactively plan for a viable bona fide error defense. Many suits result from an inadvertent sending (during the first thirty days) of a collection letter which was intended to be sent after that period. Thus, language which would be otherwise unobjectionable if made outside the validation period (such as a demand for immediate payment) often gives rise to liability for overshadowing if sent within the first thirty days. Every debt collector who sends only one letter during the validation period should have a written policy which provides, in substance, that it is the collector’s policy to send only one communication containing the validation notice during the validation period and that subsequent letters are to be sent no earlier than thirty-five days. Systems personnel should be clearly instructed, in writing, to implement the appropriate blocks to prevent the inadvertent sending of such letters.

When a collection letter is sent prematurely or out of series, as invariably happens despite the best intentions, the existence of such documentation could very well mean the difference between substantial liability and a complete defense to overshadowing.

Make Meaningful Threats, and Follow Through

One common problems which arises after the first letter is the threat of litigation. Attorneys seem to be particularly prone to suits over threats of litigation in their collection letters. The Act prohibits debt collectors, including attorneys, from threatening to take action which cannot be legally taken, or which the collector does not intend to take. Anyone who threatens suit should have both 1) the authority to follow through and 2) the intention to sue if the debt is not paid. A track record of filing lawsuits over debts of similar amounts is desirable. The collector must not fall into a trap of threatening to sue on all debts simply because he sues on the larger debts, and collectors should set up a process to ensure that only debts of a sufficient minimum size receive such threats.

Attorneys who threaten suits are subjected to a standard which is higher still. If an attorney sends a letter threatening suit, he must intend to follow through and there must be no legal impediment to filing suit, such as a prior bankruptcy. Personal review of the debtor’s file prior to sending the letter is also required of the attorney debt collector. Any lower level of involvement, including the use of form letters over an attorney’s signature, may give rise to violations of multiple sections of the FDCPA.

Conclusion

Although losing on a technicality is generally rare in the law, the FDCPA’s statutory scheme presents a striking exception to this rule. The Act’s harsh penalties, combined with a strict-liability system of fault, make it worthwhile for debt collectors to proactively examine their practices and to take the necessary proactive steps to limit their potential for liability.

*Biography of Authors

David M. Schultz is a partner in the Chicago office of Hinshaw & Culbertson. He has defended attorneys, debt collectors and creditors in over 100 consumer class actions. Mr. Schultz has defended some of the leading cases which have defined the limits of the FDCPA, including the Jenkins v. Heintz decision in which the United States Supreme Court ruled on the applicability of the Act to attorneys. Mr. Schultz also counsels attorneys and debt collectors on compliance issues regarding state and federal consumer laws.

John M. Foley is an partner in the Chicago office of Hinshaw & Culbertson. He concentrates his practice in the defense of lawyers and other professionals. Mr. Foley has defended over fifty class action suits against attorneys and debt collectors brought under the Fair Debt Collection Practices Act. He has also been involved in several precedent setting cases involving issues under the FDCPA. In addition to defending FDCPA lawsuits, Mr. Foley is actively involved in assisting lawyers and debt collectors with minimizing their exposure under the FDCPA.

1. S. Rep. No. 382, 95th Cong., 1st Sess. 7 (1977), reprinted in 1977 U.S.C.C.A.N. 1695.

2. Id.

3. Cavallaro v. Law Office of Shapiro & Kreisman, 933 F. Supp. 1148 (E.D.N.Y. 1996).

4. Gammon v. GC Services, L.P., 27 F.3d 1254 (7th Cir. 1994).

5. Bartlett v. Heibl, 128 F. 3d 497 (7th Cir. 1997).

6. 15 U.S.C. §1692k©. Jenkins v. Heintz, 124 F.3d 824 (7th Cir. 1997).

7. Id.

8. Baker v. GC Services Corp., 677 F.2d 775 (9th Cir. 1982).

9. 15 U.S.C. §1692k(a)(2)(A), §1692k(a)(3).

10. 15 U.S.C. §1692k(a)(2)(B),§1692k(a)(3)

11. Sanders v. Jackson, 209 F. 3d 998 (7th Cir. 2000)

12. Scott v. Universal Fidelity, 98 C 3659 (N.D. Ill. March 19, 1999)(Magistrate Judge Keys).

13. Jenkins v. Heintz, 514 U.S. 291 (1995).

14. Argentieri v. Fisher Landscapes, Inc., 27 F. Supp. 2d 84 (D. Mass. 1998).

15. Garrett v. Derbes, 110 F. 3d 317, 318 (5th Cir. 1997)(“if the volume of a person’s debt collection activity is great enough, it is irrelevant that these services only amount to a small fraction of his total business activity.”)

16. Crossley v. Lieberman, 868 F.2d 566, 569 (3d Cir. 1989)(citing R. Hobbes, Attorneys Must Now Comply with Fair Debt Collection Laws, X Pa.J.L.Reptr., No 46, 3 (Nov. 21, 1987)).

17. 15 U.S.C. §1692a(5).

18. Bass v. Stolper, 111 F.3d 1322 (7th Cir. 1997); Ozkaya v. Telecheck Services, Inc., 982 F. Supp. 578 (N.D. Ill. 1997)

19. Wadlington v. Credit Acceptance Corp., 76 F.3d 103 (6th Cir. 1996); Brannan v. United Student Aid Foundation, 94 F.3d 1260 (9th Cir. 1996).

20. Newman v. Boehm, Perlman & Bright, Ltd., 119 F.3d 477 (7th Cir. 1997).

21. 15 U.S.C. §1692g.

22. Id.

23. Id.

24. Vasquez v. Gertler & Gertler, Ltd., 987 F. Supp. 652 (N.D. Ill. 1997)(collecting cases).

25. Jenkins v. Union Corp., 999 F. Supp. 1120 (N.D. Ill. 1998)

26. 15 U.S.C. §1692e(5).

27. Avila v. Rubin, 84 F.3d 222 (7th Cir. 1996).

Notice: The NARCA Newsletter is a publication of the Association of Retail Collection Attorneys with headquarters at 1620 I Street NW, Ste 615, in Washington, D.C. 20006. Telephone 800-633-6069 or 202-861-0706. An appearance of an advertiser in this publication does not constitute an endorsement

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Validity of the underlying debt is immaterial.

McCartney v. First City Bank, 970 F.2d 45 (5th Cir. 1992); Baker v. G.C. Services Corp., 677 F.2d 775 (9th Cir. 1982); Mace v. Van Ru Credit Corp., 109 F.3d 338 (7th Cir.

1997); Keele v. Wexler, 149 F.3d 589 (7th Cir. 1998) (Focus is on the debt

collector's conduct, not the consumer's) - Keele v. Wexler, 149 F.3d 589

(7th Cir. 1998).

FDCPA lawsuit and action to collect underlying debt are not compulsory

counterclaims.

Peterson v. United Accounts, Inc., 638 F.2d 1134 (8th Cir.

1981). Consumer is therefore not barred from filing separate FDCPA

action even when previously sued on the debt. Debt collector may not

maintain collection action as counterclaim in federal court - Kuhn v.

Account Control Technology, Inc., 865 F.Supp. 1443 (D. Nev. 1994).

In FDCPA litigation brought against the debt collector, the collector normally may not assert a counterclaim for the underlying debt.

Peterson v. United Accounts, Inc., 638 F.2d 1134 (8th Cir. 1981)

Leatherwood v. Universal Business Service Co., 115 F.R.D. 48 (W.D.N.Y.

1987)

Gutshall v. Bailey & Assoc., 1991 U.S.Dist. LEXIS 12153 (N.D.Ill. 1991)

Hart v. Clayton-Parker & Assoc., 869 F. Supp. 774 (D.Ariz. 1994)

Ayres v. National Credit Management Corp., 1991 U.S. Dist. LEXIS 5629, 1991 WL 66845, at *4 (E.D. Pa. April 25, 1991)

Zhang v. Haven-Scott Assoc., Inc., 95-2126, 1996 WL 355344, 1996 U.S.Dist. LEXIS 8738 (E.D.Pa., June 21, 1996).

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Notations on credit reports ARE considered collection activity

TWYLA BOATLEY, Plaintiff, vs. DIEM CORPORATION, an Arizona Corporation, and DEBRA DENCEK, an Individual, Defendants. No. CIV 03-0762 PHX-SMM UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA 2004 U.S. Dist. LEXIS 5089 March 24, 2004, Decided March 24, 2004, Filed

b. Failure to Provide a copy of debt Verification upon Plaintiff's Demand

Plaintiff also alleges that Defendants did not comply with the FDCPA by failing to provide a copy of the verification of the debt upon request. Plaintiff has argued that the March 18, 2003 letter was a refusal on the part of Defendants to provide verification of the debt. To the contrary, Defendants argue that a "common sense reading of the collection letter dated March 18, 2003" will show that no such refusal was made. (Defs.' Mem. Supp. Resp. and Summ. J. at 10).

Whether Defendants' letter of March 18, 2003 amounts to a refusal to provide the verification is not pertinent to determining a violation of Section 1692g(B). This section states in part that once the debtor notifies the collector in writing within thirty days after receiving notice of the collection, "the debt collector shall cease collection of the debt, or any [*9] disputed portion thereof, until the debt collector obtains verification of the debt or a copy of a judgment . . . and a copy of such verification or judgment . . . is mailed to the consumer by the debt collector." 15 U.S.C.A. § 1692g(B) (2004).

Defendants' violation of this section occurred once Plaintiff notified Defendants that she disputed the debt and requested verification of the debt, and Defendants continued their collection tactics. For example, after notification, Defendants left the note on Plaintiff's credit report, and sent her a request for payment in full. (See Pl. ['s] Ex. E). Additionally, the March 18, 2003 letter contained language stating: "this is an attempt to collect a debt . . ." Id; cf. Renick v. Dun and Bradstreet Receivable Management Services, 290 F.3d 1055 (9th Cir. 2002) (holding that where a second notice can be construed as a request to pay rather than a demand, and the thirty-day notice language is contained therein and is not overshadowed by the request for payment, the notice does not violate the FDCPA).

Defendants neither present an argument, nor offer evidence to show that they were within their rights [*10] in maintaining their collection activities against the Plaintiff once she had notified them that the debt was disputed. The only indication that the thirty-day period for disputing the debt had possibly expired prior to Plaintiff's notice to Defendants, is found in the March 18, 2003 letter sent by Defendants to the Plaintiff stating that there was an initial notice to Plaintiff which was sent June 25, 2002. (See Pl. ['s] Ex. E). This letter is only referenced in Plaintiff's exhibits and Defendants have not asserted such a defense. Furthermore, the thirty-day period begins to run once the debtor receives the notice, not once it is mailed. See 15 U.S.C. 1692g(a)(3) (notice to consumer must contain language that the consumer has 30 days from receipt of the notice to dispute the debt). Defendants have not offered to show that Plaintiff ever received the June 25, 2002 notice, or that the notice even exists. Because no material fact surrounding this claim has been brought into question by Defendants, Plaintiff is entitled to summary judgment.

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i like this bit!!

Furthermore, the thirty-day period begins to run once the debtor receives the notice, not once it is mailed. See 15 U.S.C. 1692g(a)(3) (notice to consumer must contain language that the consumer has 30 days from receipt of the notice to dispute the debt). Defendants have not offered to show that Plaintiff ever received the June 25, 2002 notice, or that the notice even exists. Because no material fact surrounding this claim has been brought into question by Defendants, Plaintiff is entitled to summary judgment.

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Lynn Becker v. Montgomery - Lynch

CIVIL ACTION NO. 1:02CV 874 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO 2003 U.S. Dist. LEXIS 24992

The consumer suing under the FDCPA need not prove that a violation was intentional or negligent in most cases. Lee v. Thomas & Thomas, 109 F.3d 302 (6th Cir. 1997). The "FDCPA is a strict liability statute." Id.

The letter sent by Defendant Montgomery, Lynch violated numerous aspects of the FDCPA, including but not limited to 15 USC 1692e(11), 15 USC 1692e [*4] preface and 15 USC 1692e(10). Unfortunately, even though Defendant Montgomery, Lynch has exhibited a nearly total disregard for the requirements of the FDCPA, this Court may only make one statutory damages award with the maximum amount being One Thousand Dollars ($ 1,000.00). Wright v. Finance Service of Norwalk, Inc., 22 F.3d 647 (1994).

The FDCPA also allows the Court to award actual damages, in addition to the statutory damages, pursuant to 15 USC 1692k(a)(1). State law requirements regarding the proof of intentional or negligent infliction of emotional distress are not applicable to actual damages under the FDCPA. In Smith v. Law Offices of Mitchell N. Kay, 124 B.R. 182, 185 (D.Del. 1991). the district court instructed the jury:" First, actual damages may be awarded the plaintiff as result of the failure of defendants to comply with the Act. Actual damages not only include any out-of-pocket expenses, but also damages for personal humiliation, embarrassment, mental anguish or emotional distress." Actual damages are certainly appropriate where the conduct of the debt collector is egregious, as it is [*5] here. See, Boyce v. Attorney's Dispatch Service, 1999 U.S. Dist. LEXIS 12970, 1999 WL 33496505 (S.D. Ohio, April 27, 1999).

The multiple violations of the FDCPA and the particularly offensive implication that the failure to pay the amount will cause hard feelings and implying that she should display the "proper attitude" when dealing with Montgomery, Lynch is sufficient to cause anyone embarrassment, humiliation and upset. It is important to note that even though Plaintiff works for a debt collector herself, the inclusion of the type of language placed in its collection letters by Montgomery, Lynch would be offensive and upsetting even to those in the business and certainly to the least sophisticated consumer. See, Smith v. Computer Credit, Inc., 167 F.3d 1052 (6th Cir. 1999). It is fortunate for Defendant Montgomery, Lynch that Ms. Becker received this type of letter and brought suit, rather than an individual who is unfamiliar with the Act, as this Court would have been inclined to grant a significantly greater award of actual damages if Ms. Becker did not have an understanding of the FDCPA. Accordingly, this Court awards Plaintiff the sum of Two Hundred Dollars ($ 250.00) [*6] in actual damages for Montgomery, Lynch's violation of the FDCPA.

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We have many cases where CA's tell consumers the DV has to be signed. Here is case law that states it doesn't even have to be in writing:

Spearman v. Tom Wood Pontiac-GMC, Inc., 2002 WL 31854892 (S.D. Ind. Nov. 4, 2002). Collector’s incorrect § 1692g validation disclosure that any dispute must be in writing was a false representation in violation of § 1692e.

===

The 2nd Circuit have opined in In re RMA 208 FRD 498 ( 2002)

Just remember that an oral dispute does not necessarily trigger the obligation to validate, even if made w/in the first 30 days.

There is a decision, however, that supports the theory that since an oral dispute gives the CA notice of a dispute, it should do something to satisfy itself that the debt is valid. In re Sanchez 173 FSupp2nd 1029

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Great stuff! (the compilation by Swede) Is this still being updated? Thanks.

Yes, by anyone who wants to update it. ;)

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Well, I can only think of one significant one off-hand:

Riddle v. Kelly, 414 F.3d 832

http://caselaw.lp.findlaw.com/data2/circs/7th/041509p.pdf

It should be of interest to anyone out here who is NOT the innocent victim of a mistaken or malicious collection agency, and who is using the FDCPA to harass persons/creditors who have a real legal claim against them.

Mr. Edelman is a pro, and a VERY successful/smart one at that. If you think you are brighter, (while at the same time remaining a "least sophisticated consumer") give it a try.

Just a warning to those who think that you can escape a 20K debt by trying to out-bully a bully. You may end up another 20K down.

That said, an informed consumer is a great goal, and this seems to be an excellent forum. Keep up the good work, ya'all.

Young Law Student.

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That is why many of us here advise people to get multiple violations before running off to the courhouse. The trick here is to appear to be a victim, and not a scammer. If you go to court with 25 violations, it is hard to say you aren't being abused.

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Great stuff! (the compilation by Swede) Is this still being updated? Thanks.

I haven't but I intend to put some more stuff up. Like admin said, knock yourselves out.

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.. under the FDCPA - case here - from Fee Simple: H&K Mid-Atlantic Real Estate Blog - http://feesimple.blogspot.com/2006/04/foreclosure-liability-for-law-firms.html

Friday, April 21, 2006

Foreclosure Liability for Law Firms

Lawyers who handle mortgage foreclosure litigation may be debt collectors under, and must comply with, the Fair Debt Collection Practices Act, according to a divided panel of the 4th U.S. Circuit Court of Appeals.

The case involved a claim by Karen Wilson that the Leesburg, Va.-based law firm of Draper & Goldberg violated the debt collections act while pursuing a mortgage foreclosure against her on behalf of Chase Manhattan Mortgage Corp. Wilson v. Draper & Goldberg, No. 05-1392 (April 5).

Wilson alleged the firm violated the FDCPA by failWilson alleged the firm violated the FDCPA by failing to verify the debt when Wilson requested it, trying to collect the debt after Wilson disputed it, and communicating directly with Wilson even though the firm was informed she was represented by counsel.

According to the opinion, the law firm wrote Wilson a letter on Sept. 2, 2003, informing her that she was in default on her mortgage loan and that it was preparing foreclosure papers. The letter included a disclaimer, "Federal law requires us to advise you that this letter is written pursuant to the provisions of the Fair Debt Collection Practices Act. ... This letter is an attempt to collect a debt," according to the opinion. The firm also sent a "Validation of Debt Notice" in which it stated the law firm was not a debt collector or acting in connection with the collection of a debt.

Wilson wrote back disputing the arrears and asking that the firm verify the debt with the lender. But on Sept. 11, 2003, the law firm began foreclosure proceedings, the opinion says.

Shortly thereafter, according to the opinion, Erwin notified Draper & Goldberg that he represented Wilson and that the law firm should communicate only with him. Despite that, the law firm again wrote directly to Wilson on Oct. 6, 2003, to inform her that the foreclosure sale of her home was scheduled for Oct. 17. It again included notice that the letter was an attempt to collect a debt.

Wilson resolved her initial dispute with Chase before foreclosure, and she remains in her home, Erwin says. But that didn’t end her 2004 lawsuit claiming the law firm violated the FDCPA.

In response to the suit, Draper & Goldberg claimed it didn’t meet the definition of a debt collector under the act and was therefore not subject to the consumer protection law. It argued that, because it was foreclosing on a deed of trust, it didn’t involve collection of a debt but a termination of the debtor’s equity of redemption in the debtor’s property. As a result, the firm argued, it was exempt from the act under its provisions excluding the actions of fiduciaries.

The district court treated the law firm’s arguments as a motion for summary judgment and granted it. But the appellate court, based in Richmond, Va., reversed and remanded the case. It held 2-1 that trustees, including attorneys, acting in connection with a foreclosure can be debt collectors under the FDCPA.

Exempting law firms foreclosing under a deed of trust would "create an enormous loophole in the act, immunizing any debt from coverage if that debt happened to be secured by a real property interest and foreclosure proceedings were used to collect the debt," according to Judge William B. Traxler Jr., who wrote for the majority.

"We see no reason to make an exception to the act when the debt collector uses foreclosure instead of other methods," Traxler wrote. Judge J. Harvie Wilkinson III joined Traxler in the majority.

Judge H. Emory Widener Jr. dissented, stating that because Draper & Goldberg was acting as a fiduciary under the deed of trust, it was a fiduciary exempt from the FDCPA.

The law firm initiated more than 2,300 foreclosure actions, according to the opinion, "which is the regular collection of consumer debt," says Janet A. Flaccus, a law professor at the University of Arkansas in Fayetteville. "The court is correct in concluding that foreclosure is an attempt to collect a debt, and the [u.S.] Supreme Court made it crystal clear in Heintz v. Jenkins that attorneys can be debt collectors under the FDCPA." In Heintz, 514 U.S. 291 (1995), the court found that the act applies to attorneys who regularly engage in debt collection activity, even when the activity consists of litigation.

"I think the opinion is correct, and I think the law firm knew it from the beginning or it wouldn’t have included the debt collection notice in its letters," says Richard M. Alderman, director of the Consumer Law Center at the University of Houston. "It put enough disclosures in its letters to avoid some liability and then acted in a way to impose other liability. You can’t have your cake and eat it, too."

Alderman agrees with the majority that holding otherwise would create a loophole in debt collection law for foreclosure actions, which he thinks would be unfair to consumers. "If there’s any time an entity ought to be subject to the laws, I’d err in favor of protection when your house is in jeopardy," he says.

Stephen H. Turner, a Los Angeles attorney who defends law firms and debt collectors in actions alleging violations of debt collection laws, believes the opinion was wrongly decided. He suggests the law firm’s contradictory behavior hurt its cause.

"I wonder if bad facts make for bad law," he says. "The letters make reference to an attempt to collect a debt, then the law firm makes the argument that it wasn’t attempting to collect a debt. Also, there’s the unfortunate contact with the debtor after the debtor told the attorneys that all contact should be with her attorney."

Turner also says the fact that the deed was held in trust should have made a difference in the case. "It persuaded the dissenting opinion and the district court judge," he says. "The total number of judges who believed it made a difference is 2-2 at this point."

Alderman doesn’t buy that argument. "It’s a trust because the law firm operates in a state that has deeds of trust, and it’s foreclosing under the deed of trust," he says. "I don’t think this is the kind of fiduciary conduct that Congress meant to be exempt from the FDCPA when it exempted people with fiduciary duties."

The trust issue was a red herring for another reason, the plaintiff’s attorney says. "The practical reality is the law firms [that pursue foreclosures] really want the debtors to pay up and reinstate the mortgage," Erwin says. "Out of 20-some cases on the docket with Draper & Goldberg that I researched, only one actually went to foreclosure sale, and the sale was ratified. The rest never had a sale that was ratified. It’s not foreclosure and transferring title that these law firms are conducting. It’s collecting money."

Attorneys also dispute the overall effect of the opinion on law firms handling foreclosures.

"The consumer bar is going to come out roaring on this decision," Turner says. "This case will be cited as an example of how the law should be followed in other jurisdictions, and it’ll be harder for law firms that deal with foreclosure now that they’re subject to the FDCPA."

Not so, Erwin says. "The law firm acknowledged at oral argument that it wouldn’t be hard to make changes to comply with the FDCPA," he says. "At a practical level, law firms are going to have to change their procedures slightly. They’ll need to make more disclosures along the way, and once the debtor asks to verify the debt, they’ll have to suspend their procedures for 15 or 30 days until they do that. Then we can go about our business."

For Wilson, the case continues. "We’re going back to the district court, and we’re going to pursue the case," Erwin says. "I think liability is very strong here, and quickly the issue will come down to the amount of damages. We’re looking for damages for the violations of the FDCPA."

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Well, I can only think of one significant one off-hand:

Riddle v. Kelly, 414 F.3d 832

http://caselaw.lp.findlaw.com/data2/circs/7th/041509p.pdf

It should be of interest to anyone out here who is NOT the innocent victim of a mistaken or malicious collection agency, and who is using the FDCPA to harass persons/creditors who have a real legal claim against them.

Mr. Edelman is a pro, and a VERY successful/smart one at that. If you think you are brighter, (while at the same time remaining a "least sophisticated consumer") give it a try.

Just a warning to those who think that you can escape a 20K debt by trying to out-bully a bully. You may end up another 20K down.

That said, an informed consumer is a great goal, and this seems to be an excellent forum. Keep up the good work, ya'all.

Young Law Student.

For a creditor to have a real clam against a debtor in court, the OC/CA/JDB has to show proof the debt exists, it is the debtor's, and the debtor agreed to enter a contract with the OC, no matter who is suing the debtor.

In that case, it was a $100 bounced check with the cancellation stamp, the overdraft stamp, and the debtor's signature. Futher, the MICR numbers on the bottom check are probably's are the debtor's bank rounting transit number and account number and those are easily confirmable. That's pretty solid that the consumer has no leg to stand on.

But, that's what the DV process is for.

It's not just a way to get the phone to stop ringing for a month. If what comes out of the CA is pretty non-existent especially with loans and credit card debt... how can you claim a $10,000.00 debt on a consumer's head when you can't locate the original of the contract with the debtor's signature, validation on the debtor's part that they owe or that the amount is the correct one?

You should DV even when you know the debt is yours--if not to establish what the amount is currently for (how much is the principle on the balance, how much was tacked on by others?)

Your DV shouldn't also be an ITS letter, but the language should give clear warning that, in lay terms... "if you cuff me over or lie to me on this or harass me and not verify this debt with the OC I may have to sue you to get this to stop"

The ITS should be clearer that you *are going to sue in X days* and why you're doing it (refusal to delete bad info off CRAs, FDCPA violations, etc).

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Here's the FDCPA annotated with tons of case law. What this means is that is goes over the FDCPA with a fine tooth comb and for every section gives case law used to support it. This is a must read!!

http://www.edcombs.com/CM/Opinions/5art.new.pdf

Link doesn't work. You got another one? I REALLY wanted to read this.

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CIVIL PROCEDURE, DEBT COLLECTION

Sayyed v. Wolpoff & Abramson, No. 06-1458

In case involving claims under the Fair Debt Collection Practices Act related to defendant law firm's effort to collect a debt from plaintiff, dismissal of plaintiff's suit based on defendant's common law litigation immunity is reversed as the

FDCPA, not common law, governs the disposition of the action. Read more...

http://caselaw.lp.findlaw.com/data2/circs/4th/061458p.pdf

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Here's the FDCPA annotated with tons of case law. What this means is that is goes over the FDCPA with a fine tooth comb and for every section gives case law used to support it. This is a must read!!

http://www.edcombs.com/CM/Opinions/5art.new.pdf

Do you know an updated link for this??? I checked the main site and while I found a copy of the FDCPA, it wasn't annotated with case law.

Thanks in advance.

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Here's the FDCPA annotated with tons of case law. What this means is that is goes over the FDCPA with a fine tooth comb and for every section gives case law used to support it. This is a must read!!

http://www.edcombs.com/CM/Opinions/5art.new.pdf

Here is the update on that link:

http://www.edcombs.com/CM/Custom/7art%20new.pdf

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