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Miranda Question?


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In June, I received a statement from a collecton agency. This was the first letter received from them. There was no mention of miranda rights on this document. They also did not mention anywhere that they were attemping to collect on a debt. The letter simply shows my personal information, their contact info and a statement reading " A search of our records indicates you owe the following accounts". It then lists two OC's with amounts, interest, fees and a total. At the bottom is a portion to detach and return with payment.

This weekend I received a second letter that is almost identical to the first with the exception they included a statement that reads. "Do Not Ignore This Letter" Unless this office is is contacted in 10 days of the above date to arrange payment, it is our intention to forward you account to an agency in your area for collection and possible legal action. This letter also makes no mention of miranda rights.

These are the only two documents I have received. Have they committed a violation under the FDCPA for not including any miranda statement?

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The only reason I mention this, is that it happened to me...did you check the back of the letters? I had a couple come through where the mini-miranda was printed in almost "water mark" type lettering on the back...and another where it was buried in the fine print. I'm pretty sure that both were violations of the "least sophisticated consumer" guidelines, but, they were there.

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Guest E. Normis Debtor

The pivotal question is not whether it was the first letter you received, but rather was it the first letter they sent. If their procedures indicate they included the miranda in their initial communication, you bear the burden of proving you never received it.

Subsequent to the initial communication, the wording does not need to be exactly "This communication is from a debt collector......etc." providing the letter conveys the message.

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There have been court cases about that. the miranda and minimiranda warnings MUST be in a type size and color, and located in a location easily seen, or this is not legal. I am at work today, so I don't have access to my case law files, but they are there.

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Guest E. Normis Debtor

I'd be interested in seeing those cases. All of the ones I've read where the font size etc was an issue deal with the question of overshadowing 30 day verification rights which are not necessary in subsequent communications. Such overshadowing would violate 1692g(a)

Failing to convey the purpose of the communication would fall under 1692e(11). where most courts have held the position Court of Appeals (8th) in Volden v. Innovative:

Though the letter does not say it is from a debt collector, the fact it says it is sent in an attempt to collect a debt is sufficient for even the unsophisticated consumer to understand that such a letter is necessarily froma "debt collector." While the unsophisticated consumer test is meant to protect consumers of below average sophistication, it also involves an element of reasonableness that prevents bizarre interpretations of debt collection notices. Peters, 277 F.3d at 1055.We find the letter "effectively conveys" the fact that it is from a debt collector, and thus does not violate section 1692e(11). Id. at 1056

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Thanks for the responses. I did not DV them after receiving the first letter. I decided against it because I'm currently involved with another collection agency in which a have filed suit in federal court. I didn't want to have too many irons in the fire and the amount they are attempting to collect is only $125. At this point I have not pulled recent credit reports to see if they are reporting.

They got under my skin when they threatened legal action. Since I'm already working with an attorney I'm going to discuss with him tomorrow. If he feels it is something worth pursuing I'd gladly pay the federal fee's again.

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The only reason I mention this, is that it happened to me...did you check the back of the letters? I had a couple come through where the mini-miranda was printed in almost "water mark" type lettering on the back...and another where it was buried in the fine print. I'm pretty sure that both were violations of the "least sophisticated consumer" guidelines, but, they were there.

After you mentioned this, I doubled checked the front and back of both letters, nothing !

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Guest E. Normis Debtor

As a consumer advocate, I feel strongly about aggressively pursuing legal remedies against collectors who employ abusive collection techiniques.

However, chasing technical violations without the presence of abuse will ultimately cause the tide to turn back the other way, as is evidenced by this recent ruling:

Jacobson v. Healthcare Financial Services, Inc.

--- F.Supp.2d ----, 2006 WL 1528959 (fair use claimed)

E.D.N.Y.,2006.

Jun 06, 2006 (Approx. 5 pages)

"...Ironically, it appears that it is often the extremely sophisticated consumer who takes advantage of the civil liability scheme defined by this statute, not the individual who has been threatened or misled. The cottage industry that has emerged does not bring suits to remedy the "widespread and serious national problem" of abuse that the Senate observed in adopting the legislation, 1977 U.S.C.C.A .N. 1695, 1696, nor to ferret out collection abuse in the form of "obscene or profane language, threats of violence, telephone calls at unreasonable hours, misrepresentation of a consumer's legal rights, disclosing a consumer's personal affairs to friends, neighbors, or an employer, obtaining information about a consumer through false pretense, impersonating public officials and attorneys, and simulating legal process." Id. Rather, the inescapable inference is that the judicially developed standards have enabled a class of professional plaintiffs....

It is interesting to contemplate the genesis of these suits. The hypothetical Mr. Least Sophisticated Consumer ("LSC") makes a $400 purchase. His debt remains unpaid and undisputed. He eventually receives a collection letter requesting payment of the debt which he rightfully owes. Mr. LSC, upon receiving a debt collection letter that contains some minute variation from the statute's requirements, immediately exclaims "This clearly runs afoul of the FDCPA!" and--rather than simply pay what he owes--repairs to his lawyer's office to vindicate a perceived "wrong." "[T]here comes a point where this Court should not be ignorant as judges of what we know as men."

...The Defendant's motion for summary judgment must be granted....

The Plaintiff acknowledged, by counsel's admissions at argument, see United States v. McKeon, 738 F.2d 26, 30 (2d Cir.1982), the validity of the underlying debt and that he did not feel harassed, threatened or misled by the letter. His mistaken belief that the alleged violation of the statute, arrived at merely by a strained construction of its language, constitutes per se harassment is, in essence, a complaint against the creditor for the temerity of requesting that he pay what he owes. Against this background, the Court grants the Defendant's request for costs and attorney's fees pursuant to 1692k(a)(3). "

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I agree with you 100% and having said that this may not go any further than this conversation, however I have made no mention to the validity of this alleged debt which in fact I would dispute.

I began my credit repair journey in February of this year and along the way I have owned up to every legimate debt. As I mentioned earlier, when they threatened legal action against me for a debt that is not legitimate, they turned the table and I'll fight back. I'm fortunate to be working with a cunsumer advocate attorney that I trust. He is not a sue happy attorney, if he suggests simply DV'ing without any mention of a suit, that's the direction I'll go.

It's just that it is irritating to be threatened by someone claiming that it's necessary to respond within 10 days of a letter dated Aug. 3rd when received on the 12th.

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Here comes my penny's worth, again.

Not one time has anybody asked what state the OP is from? Also, not one time was it mentioned as to IF those letters were from the OC. Everyone needs to remember that some OC's will send letters "threatening" collections as a way to encourage someone to pay the bill. Thus, no warnings are required.

But, if your state, as mine, California, holds the OC liable under the FDCPA, it is a different story.

And, in reading that case in regards to the LSC, I would love to ask the judges a question. And that is IF they ever read Spears v. Brennan. The short version, in simple words, is that the judges wrote that "it does not matter whether the debt be valid, but, how the debt is collected." In short, the writer of that decision needs to go back to school and learn something. True, I agree that the laws should not be abused, but, at the same time, no consumer deserves the right to have their rights violated, period.

To the OP. I just read your last post. I take my hat off to you. Keep up the fight. You're on the right track.

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The problem with that is the "least sphisticated consumer" will never sue- because the penalties are too low for lawyers to take FDCPA cases- they are not profitable. Therefore, the majority of consumers seeking relief will be the more sophisticated consumer. Rest assured though, that if the CA is taking advantage of the law and harming a smarter consumer who is aware of his or her rights, they are also doing the same to the LSC.

The law is there for a reason, and I for one am sick of judges legislating from the bench. That is not their job.

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Guest E. Normis Debtor
California, holds the OC liable under the FDCPA

No it doesn't.

Not one time has anybody asked what state the OP is from

Doesn't matter what state he's from. He's indicated he never incurred the obligation. He can't be held liable for a debt he never incurred in any state.

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Guest E. Normis Debtor

And, in reading that case in regards to the LSC,

Did you actually read the case? If so, you would know the question of law on which the decision was based had nothing to do with whether or not the underlying debt was valid. Therefore it did not contravene Spears.

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Guest E. Normis Debtor
because the penalties are too low for lawyers to take FDCPA cases- they are not profitable.

Please elaborate. Payment of a Plaintiff's attorney's fees by the defendant are mandatory under the FDCPA for a provable violation. And, courts generally allow a higher hourly rate than the "going rate" for attorneys who prosecute a claim under the FDCPA.

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The FDCPA allows "reasonable" attorney's fees. Reasonable for that case. Since most FDCPA cases are going to be consumers who cannot pay (hence the CA being after them) you will have to take them on contingency if you are going to take them at all.

Like any other branch of law, some cases are winners, some are losers. The cases you win (if on contingency) must pay for the cases you lose. That means that the attorney is taking all of the financial risk, and taking it only for a small fee. The margins are not there to support such extreme risk, not when medical malpractice and product liability are as lucrative as they are.

The money just isn't there.

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Excuse me, I forgot to note it was California FDCPA that holds the OC liable. To read this, go to the sticky on California Law and click, go to second post and click on the "dca" website, then scroll to page 3 and read Article 1.3.

As to the comment about whether the debt was the OP's or not was not my reason for saying what I did. Everyone needs to realize I will make comments on items not mentioned so others may learn, or, we end up with excess threads asking the same question in a different way. At the same time, newcomers who want to help others can see things to ask of another newbie to get a response out faster if one of the elders are not onsite.

As to the Spears comment, my point was missed entirely. The short version is that even though the laws were written to protect the LSC, no where does it say the MSC cannot use the same laws. The comments made in the paragraph beginning with "It is interesting . . . " is my biggest complaint. One can assume that if they are a MSC and violated, the courts "may" not act on their claim if the debt is undisputed. Spears is simply stating that the law was written to protect the rights of the consumer, period. And, it does not matter if the debt was valid or not, only that the law was followed in the attempt to collect the debt. That is all. In no way did I even begin to claim the referenced case contravened Spears. All I did was make a comment.

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As a consumer advocate, I feel strongly about aggressively pursuing legal remedies against collectors who employ abusive collection techiniques.

However, chasing technical violations without the presence of abuse will ultimately cause the tide to turn back the other way, as is evidenced by this recent ruling...

I've been concerned for some time that too many people are using the FDCPA/FCRA, etc, not to protect their rights or to fight truly unethical/illegal CA behavior but as a means to avoid paying legitimate debts, generate additional income from violations or have a credit history that is more fantasy than reality.

I fear such actions will ultimately result laws that make it harder for consumers to protect themselves.

I think we all need to recognize that most of our financial problems are of our own making and while we should all fight to protect our rights, we need to pick our battles carefully and pay/settle our legitimate debts.

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I agree that we should pay our bills. I agree that our society is too obsessed with credit. Since everything from your insurance rates to your utility deposit is decided through your credit, you need to learn to play the game.

The industry has lobbyists that they use to lobby for changes to the collection, reporting, and bankruptcy laws, and they will try to get the law changed to their advantage, no matter what people do.

As far as the reasons behind suits, if the CA weren't breaking the law, it wouldn't be possible to sue them, would it? I help many, many people clean their credit, on this board and in person- I can say this- only about 10% of the CA's out there obey the law. About 20% of banks break the law. The CRA's all ignore the law.

I began learning how to use the FDCPA and FCRA to my advantage when I discovered the truth- paying your bills after they go to collection or are charged off does nothing, and even when you do pay your bills, the industry finds ways to distort your credit to their purposes. (Cap1, for example) Talk about a CR that is fantasy!!!

Don't think for a minute that the industry is not using the law to their advantage. If you doubt that, think about the following:

Universal default clauses

Mandatory Arbitration with the NAF

Bankruptcy reform

Suing in SCC using judges that are pro CA

Read the articles:

Here

Here

Here

and Here

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I believe in counter-suing...if a CA is going to ignore my request to validate, and intern try to get an easy judgement from me; I will pick every little thing apart. I have never taken it all of the way, but I will make sure that it is so expensive to pursue their little game that they will just give up on it. How do I know a debt is mine if they arent going to answer my DV or what about all of those fees they are tacking on that go beyond what is legal in my state?

Personally in this case I would send a DV and see what happens. I am willing to put wagers on the fact that they will either just sue, or send some crap and then sue. That is when you take those violations and nail them.

E. Norm- would you agree that if a CA isnt going to respond to a proper DV or if they are going to just try and push a judgement through, that a technicallity gives you the leverage to fight back?

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First, I need to amend my last comment as I omitted something.

In regards to the FDCPA holding the OC liable, they can hold the OC liable under the Federal FDCPA if the OC works as their own collector and uses another name.

As to the last comments as to "overusing" the laws, I agree with all of you. As we have found recently, the BK laws were changed. Do we wonder why? Maybe it is because too many people were filing solely because a CA/JDB threatened one too many times.

Another thing to remember is that most collection suits are handled in small claims (different name in different states). The "wanna be" judges have very little "schooling" in legal matters and are less likely to act on your claim, thus, the courts get tied up more than they want it to. This is true as you will see this if you check your county out. As in California, the courts pray the two involved parties can resolve before bringing to court, and, at times, say so to the ones who don't. So, the simple fact they can and/or will change the laws is very possible.

Don't get me wrong, I am near the top of the list in nailing a CA/JDB who violates our rights, but, do we always need to use the courts? I say to use it as a last resort, or as a counterclaim if a suit is filed. Then, only to have to pay a lesser amount than asked for, or, in severe cases, as a way to avoid the whole thing. Remember, if both parties win their case, the amounts are offset, so, if you win, but, it only offsets the amount you owe, you still won. Myself, in our quest to clear our creidt, I did use the ITS letter, but, not once did I carry it out. I didn't have to. The involved parties found their errors and responded in kind. Even the one OC I cost the most in fines, sanctions, and future business had a balance owing in the end as I asked my insurance to reconsider his bills and pay accordingly, after six years, which I paid with a very large smile. The other involved parties ceased all activity and went away. In short, we paid our debt at their expense, and they paid for their errors. Everyone is happy. This is the whole of credit repair. We have all made mistakes in many different ways, and, now, it is up to us to correct this to the best of our ability, and, to assure, we are the winners, not them.

In short, as many of we oldtimers have pointed out over the years, use the laws to assure you are treated fairly, and walk away paying a lesser amount, as well as a deletion for the bonus part. I'm not saying to pay all unpaid debt, such as a timebarred debt where the CA/JDB does nothing more than lie to you, and violate you. No, don't pay them a penny. At the same time, if a debt is owed, but, has already been used as a deduction on taxes, I don't think a person should have to pay it, especially at the original amount. This, to me, is a flat out rip off. No one should realize a profit from something already reimbursed for. And, to continually violate a consumer for the sole purpose of doing so is wrong.

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Guest E. Normis Debtor

E. Norm- would you agree that if a CA isnt going to respond to a proper DV or if they are going to just try and push a judgement through, that a technicallity gives you the leverage to fight back?

Not sure what you mean by fight back.

I'm referring more to an instance such as mentioned in this thread.

You receive a dunning letter from ABC Collections. It says they are collecting for Cap1 on your old visa account which you never paid. It's signed by Jane Doe, Collector. How could even the least sophisticated not know the correspondance is from a debt collector? But, because it doesn't contain the statement "this communication is from a debt collector" in #10 arial font, someone is ready to sue.

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I strongly disagree with the inference that because a consumer is in a position to enforce his legal right, he is somehow taking advantage of the system.

Maybe those of you who advocate this postion would be more comfortable if the "least sophisticated consumer" test were replaced with the "financial means to enforce your rights test". Then, consumer protection laws could be made to apply only to those who don't have the means to protect themselves when those rights are violated.

"We're sorry, this law doesn't apply to you; you have a job and can read."

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