Miranda- E Normus Debtor

[divemedic]

In another thread, you stated that the mini miranda was not required in follow up communications, if it was "obvious" that the letter came from a DC. I told you that there were court cases that required the notice, and required the notice to be conspicuous, but didn't have them while I was at work. Well, I am home today, and here they are:

Phillips v. Amana Collection Servs., 1992 WL 227839 (W.D.N.Y. Aug. 25, 1992). Notices on the reverse of the collection letter without reference to it on the front were

insufficient to place a consumer on notice of his legal rights and violated §§ 1692g and 1692e(11).

Rabideau v. Management Adjustment Bureau, 805 F. Supp. 1086 (W.D.N.Y. 1992). Although the reader was directed to information on the back, placement of the FDCPA notices on the reverse side of the collector’s letter in dot matrix print smaller than the explanation of payment by credit card which appeared in larger print did not effectively

convey the information required by §§ 1692g and 1692e(11) to the least sophisticated consumer.

Siler v. Management Adjustment Bureau, 1992 WL 32333 (W.D.N.Y. Feb. 18, 1992). Debt collector’s initial communication to the consumer which contained the validation notice required by § 1692g(a) and the debt collection warning required by § 1692e(11) on

the reverse side, with reference to them on the front, ‘‘in a smaller, lighter typeface than any on the front,’’ with larger print below soliciting credit card information if the

consumer chose to pay the debt in this method, was not in compliance with FDCPA.

Stojanovski v. Strobl & Manoogian, 783 F. Supp. 319 (E.D. Mich. 1992). Failure to include the debt collection warning of § 1692e(11) is a clear violation of the Act.

Sutton v. Law Offıces of Alexander L. Lawrence, 1992 U.S. Dist. LEXIS 22761 (D. Del. June 17, 1992). Section 1692e(11) required a debt collector to disclose that it was

attempting to collect a debt and that any information obtained from the debtor will be used for that purpose. Even though a debt collector’s initial communication contained the required disclosures, a subsequent letter sent by a separate party must also contain the §

1692e(11) disclosures.

Dorsey v. Morgan, 760 F. Supp. 509 (D. Md. 1991). If an attorney is a debt collector, failure of his correspondence to contain the validation notice and debt collection warning

violates §§ 1692g and 1692e(11).

Grammatico v. Sterling, Inc., Clearinghouse No. 47,976 (N.D.N.Y. 1991). Failure to include the language of § 1692e(11) in communication to consumer violated FDCPA.

Lewis v. Hanks, 1991 U.S. Dist. LEXIS 21807 (E.D. Mo. Feb. 26, 1991). Debt collector’s letter did not provide the debt collection warning required by § 1692e(11).

Peters v. Collection Technology Inc., 1991 U.S. Dist. LEXIS 21810 (D. Or. Dec. 5,1991). Debt collector’s letter failed to inform the consumer that any information obtained would be used for the purpose of collection in violation of §1692e(11).

Robinson v. Credit Serv. Co., 1991 WL 186665 (D.N.J. Sept. 16, 1991). Collector violated § 1692e(11) by failing to include a statement in its dunning letter that any

information provided by the consumer would be used for the purpose of collecting the debt.

Sylvester v. Laks, 1991 U.S. Dist. LEXIS 21777 (N.D. Ohio Aug. 1, 1991). A follow-up letter violated the § 1692e(11) notice requirement because the § 1692e(11) notice on a separate paper should have been referred to in the dunning letter. Summary judgment was denied the consumer partly because of a factual dispute and partly because of a bona fide error defense where the violation involved the failure of a dunning letter to refer to an alleged separate § 1692e(11) notice. (The fact that they had to use the error defense shows that the notice is needed)

There are many more, but you get the point.

[nascar]

Nice job, Dive.

[done hiding]

I'm impressed, nicely done!

[sevastras]

I know I am definately not an "Old-Timer" here, but I have learned quite a bit from here, AoC(when that was still around), among other research. My biggest dissagreement is that technicalities win and lose thousands upon thousands of cases each year. Why should we not use them? Especially with the amount of cases lost by consumers just because the Judge doesn't know or care about the consumer's rights. I would think that you would be a supporter of technicalities, E. Norm...I mean I am not trying to put you down or anything like that(I agree with almost everything you say). The law is the law, it really isn't up to people to decide if it is okay to do things some times and not others.

[E. Normis Debtor]

Great work Dive.

Slight problem though. Every case you cited is prior to 1996. As you seem to be unaware, 1692e(11) was amended in 1996.

Prior to the 1996 amendment, and what your case cites are based on, 1692e(11) was worded:

the failure to disclose clearly in all communications made to collect a debt or to obtain information about a consumer, that the debt collector is attempting to collect a debt and that any information obtained will be used for that purpose

The amended 1692e(11) reads:

The failure to disclose in the initial written communication with the consumer and, in addition, if the initial communication with the consumer is oral, in that initial oral communication, that the debt collector is attempting to collect a debt and that any information obtained will be used for that purpose, and the failure to disclose in subsequent communications that the communication is from a debt collector,

As you can plainly read, post 1996 only the initial communication needs to state the debt collector is attempting to collect a debt and that any information obtained will be used for that purpose

Subsequent communications need only disclose....the communication is from a debt collector. Note, it does not indicate it must state it, rather merelydisclose it.

So let's look at how an appeals court understands the meaning of the ammended 1692e(11) in a post 1996 ruling.

From Volden v. Innovative Financial Systems March 10, 2006.

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 from a "debt collector." While the unsophisticated consumer test is meant to protect consumers of below average sophistication, it also involves an element of reasonableness thatprevents 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).

When attempting to interpret case law, it's important that you consider any changes in statute that may have occurred subsequent to a court's ruling.

If anyone is interested in the original thread, you can find it here.

Hope this helps.

[nascar]

The Volden case seems to address whether the specific inclusion of the words "debt collector" must be in the warning in order for it to comply. The court simply ruled that in the context of the entire statement, even the LSC could deduce the communication was from a debt collector, despite the absence of the words.

It does not address initial and subsuequent communication, notice location and font, etc. Dive is correct in his initial posting that led to this discussion.

There is no precedent for exclusion of the warning in subsequent communications.

[divemedic]

<sigh>

Ladick v. Gemert, 146 F.3d 1205 (10th Cir. 1998): A homeowner sued an HOA law firm over demand letters for condominium fees that allegedly failed to include the "validation notice" required by section 1692g of the FDCPA, and failed to disclose that the law firms were attempting to collect a debt and that any information obtained would be used for that purpose, as required by section 1692e(11).

[E. Normis Debtor]

The reason I included a link to the original thread is that apparenlty no one bothered to read my post. Here it is:

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.

Your reliance on Ladick is a misplaced as it deals with the miranda missing from the initial communication.

If you will re-read my post (above) it clearly indicates while the mini-miranda is necessary in the initial communication, it is not necessary in subsequent communication providing the message conveys it is from a debt collector. And, the wording "any information obtained will be used for that purpose" is never required beyond the initial communication......not since 1996.

If their records indicate they sent him an initial communication which contained the mini-miranda, he would bear the burden in court to show he never received it. That was the point of my inquiry.

To allow someone to believe they might have a violation, without knowing what burdens may exist (like proving they didn't receive a notification), is irresponsible.

[divemedic]

You misquoted the Volden case anyway.

Volden asserts IFS violated section 1692e(11) by failing to affirmatively state in its September 2002 letter to Volden that it was a debt collector. Subsection (11) defines the failure of a debt collector to disclose in its initial communication that it is attempting to collect a debt, and "in subsequent communications that the communication is from a debt collector," as a false, deceptive, or misleading representation.

The September 2002 letter states "Federal law requires us to inform you that this is an attempt to collect a debt and any information obtained will be used for that purpose." 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 from a "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

The arguement is not whether the the notice is required, but on the precise wording of the article. I'm sorry, but many of your posts are pro CA and are misleading.

[E. Normis Debtor]

The arguement is not whether the the notice is required, but on the precise wording of the article.

There is no required wording on subsequent communications. As the court in Volden makes clear, conveying the fact that the communication is from a debt collector satisfies 1692e(11).

[uwackme]

Normie.... pro CA?.... cough. Ah no.

[nascar]

E.N.D. It's clear from your posts that regardless of how correct or incorrect you are, you feel you must have the last word. Some readers may not recognize when you are misquoting information for your own benefit, but I assure you, some of us do.

[divemedic]

Oh, he is pro CA. When asked on the CI board:

Let's assume for a moment that some junk-debt buying collector buys an account and places a negative TL in someone's credit file.

Why should the consumer pay up?

What's in it for them?

END responds:

Forgive me, I'm going to go out on a limb here. Because they owe it?

[E. Normis Debtor]

Some readers may not recognize when you are misquoting information for your own benefit, but I assure you, some of us do.

Please point out exactly where the misquote is.

[astiman]

Normie pro-CA?

How could that be (smirk)?

[Methuss]

As you can plainly read, post 1996 only the initial communication needs to state the debt collector is attempting to collect a debt and that any information obtained will be used for that purpose

Subsequent communications need only disclose....the communication is from a debt collector. Note, it does not indicate it must state it, rather merelydisclose it.

This is entirely NOT in agreement with the opinion of the FTC lawyer who wrote this opinion in 1998: http://www.ftc.gov/os/statutes/fdcpa/letters/levine.htm

Which says, in part: "Among other things, this means that the letter referred to above must disclose that your client is attempting to collect a debt and any information obtained will be used for that purpose, in accordance with Section 807(11) of the FDCPA."

Do not confuse the Doctrine of substantial compliance with literal complaince as they are seperate and unique.

[E. Normis Debtor]

It would fall under substantial compliance. Read the other FTC opinion.

[Raysway]

This is a GREAT thread, guys...

Ray

[nascar]

It would fall under substantial compliance. Read the other FTC opinion.

If you're referring to the Gamache opinion, there is still no relief from the requirement to inform the consumer that the correspondence is an attempt to collect a debt.

[E. Normis Debtor]

It's an opinion on whether specific wording complies and states: anyone receiving a letter containing the above statement would make that connection, so it complies.

Nowhere does the FTC address whether the wording must track exactly as indicated.

But, the courts have. Specifically a US Court of Appeals ruling it only needs to "convey" the message.

[E. Normis Debtor]

You know what would probably be a good read, the district court's ruling in Volden.

Edit: I read the original complaint. It states: The notices attached as Exhibit A also violate the FDCPA in that they fail to disclose that Defendant is a debt collector as required by 1692e(11).....

Now isn't that the jist of everyones comments, that collection notices subsequent to the initial communication must state that?