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Is FDCPA truly strict liability statute?


Mikeman
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Hello all,

I have read and posted here for awhile. I have another CA bothering me but these guys may have screwed up and I want to sue in small claims. Usually I just send a DV and C/D and they go away. But I think I have a big fish here and I want to reel it in. However, I dont want to waste money in court fees and costs if I dont have a good chance of winning. Hence these questions.

1. The FDCPA prohibits a CA from calling before 8am. If they called me once at 756 am and I can conclusively prove it by phone records, is this enough for a violation worth $1000? Or should I wait awhile and see if they do it again? The call was not answered but my phone records can prove they called.

2. The FDCPA says a CA must send a letter within 5 days of initial contact.

If a CA calls and calls but does not leave any messages and has not sent any written correspondence, is that a violation? It seems to me that if a CA calls me and my phone records prove it, that is a contact whether or not they talk to me or even leave a message. They have contacted me by telephone even if they did not speak to me or leave a message and Caller ID proves it.

3. If a CA puts a hard pull on my CR before even contacting me about the

alleged debt, do they have a PP to do so? Even if so, can they continue this if they were DVed and failed to respond and I know they are not the owner or assignee of the debt but were hired by the OC? Especially if the debt is past the 7 and a half reporting period which it is. (this is another issue aside from questions 1 and 2). My argument is that any negative reporting after the 7 and a half years violates the FDCPA even if the FCRA allows pulls for the PP of collection of an acct. Is there any good case law on this?

I appreciate all well-reasoned responses on any of these questions.

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Though the FDCPA is indeed a strict liability, that doesn't equate to an award of $1000 for a proven violation. The maximum award, excluding actual damages, is $1000. A judge may decide calling you 4 minutes early is $4 worth of damage. I've seen awards of $0.

They haven't contacted you and requested any payment. Technically they wouldn't be subject to the FDCPA.

They can't report, but they can pull your CBR forever if you owe them money.

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You are reaching here. The only violation you have there is calling before 8 am. Even that one is weak. The CA would have a good case for claiming Bona Fide error in claiming the clocks were a little fast. Even if you did win, this would be a minimal violation.

I tell people here over and over, don't go running off to the courthouse every time you get a violation. If you want to win, you need to appear to be the real victim here, not some scammer looking to make a fast buck. ESPECIALLY in small claims.

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Dive makes a good point. Let me expand further.

It is important that consumers are aware of their rights under the FDCPA, it is equally important they are aware of the Acts purpose: Control abusive debt collection practices.

Courts are very much aware of the increase in not only FDCPA cases, but an increase the "borderline" ones. Abuse the act, and you may lose some of its protections.

A very recent ruling in Jacobson v. Healthcare Financial Services makes this abundantly clear.

Not only did the court note how many more FDCPA suits they have seen in recent years, but also made note that this same person had previously filed 4 such suits.

In their denying Jacobsons overshadowing claim, the court stated:

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." "There comes a point where this Court should not be ignorant as judges of what we know as men"

FWIW

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The disdain for the average citizen dripping off that "hypothetical Mr. Least Sophisticated Consumer" quote is grotesque.

The notion that the poor, innocent collections industry is being flogged within an inch of its life by the brutal, uncaring consumer is just laughable on its face. Collections has never been bigger business than it is today.

Your point is well taken, Norm -- some judges obviously have a grudge against those claiming minor violations and would like to gut the consumer protections the law provides.

It's too bad that what the judges "know as men" doesn't seem to include the thousands of consumers badgered by illegal collection practices who are intimidated into paying charges they shouldn't and who never file suit.

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As others have stated, and I expand upon. No one violation a case does make. The real way to hammer a CA is to compile a dossier full of violations to show a proven pattern of abuse. One little misstep is not enough to run off to court -- although one big one like threatening to have you arrested most certainly is enough. But if you have 30 minor violations well documented, you certainly have enough to show a pattern of abuse or a lack of adequate procedures to prevent violations; both of which trounce a bonafide error defense.

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Thanks everyone

I was wary of suing with such a weak violation (but it is a violation).

I wish I knew what this debt was for but they dont leave messages or

send anything in writing. I've always had the philosophy of not talking

to any CA but I also dont like to be bothered. So I can send a DV and

CD and they will go away or I can wait to see if they commit further violations. Which is the better option if I want to see if they make more mistakes? Colorado has fined them twice this year and they were sent

two letters of admonition so I know they are shady. I only have one debt that can be legally collected. If its not that debt then its not mine. So far they are just calling once a day.

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Thanks everyone

I was wary of suing with such a weak violation (but it is a violation).

At this point it isn't a violation. Because you haven't spoken to them, or received a dunning letter, there is no implication of an obligation, alleged or otherwise. Absent some obligation to pay, they are not subject to the FDCPA.

They may be attempting to locate a friend or relative of yours. They may be calling to wish you Happy Holidays.

I believe not talking to a creditor is a big mistake. Take a look at how many threads here, or on any discussion board, start out with "I just received a summons", or, "I have a judgment." Those are some of the results that can occur from not wanting to communicate with a creditor.

How do you know they didn't send you your validation rights? How do you know you're still within the 30 day window to take full advantage of those rights? It would be a shame if that 30 day window expires tomorrow and you didn't know because you didn't bother to ask.

Those are some of the things you can find out if you talk to them.

If you want violations to give you negotiating leverage against an obligation, you're not going to get them without talking to them. You may instead get a summons.

Just be sure you're recording the call.

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Thanks E Normis

I understand what you said altho I only talk to CAs in writing. Usually when one starts calling I find out who they are by tracing their phone number and then send a DV and CD all in one letter. Most dont respond but some do with some lame excuse of documents which purport to validate. Even if they respond I never hear from them again. The problem is this one debt I have that may or may not be collectible. I have good defenses against this debt including bankrupted and outside of the SOL. I state these defenses in my letter by saying "...if you are collecting for X be advised that this alleged debt was BKed and is beyond the applicable SOL. Please provide specific details as to why this alleged debt is still collectible." Of course they never answer that. So this debt just gets passed on to the next CA and it starts all over again. In the past this debt has gone thru about 6 CAs and 3 attys. This will be the 7th CA if they are trying to collect this debt. The last atty to have it was about 6 months ago. My letter said everything but dare him to sue. He did nothing. I almost wish they would sue so I can bring up my defenses and settle this once and for all. I am tired of this cycle of going thru one after another collector with no end in sight. I want to break this cycle somehow. I am not afraid of litigation but apparantly they are. Any suggestions from anyone are welcome.

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Personally, I would ignore their phone calls unless they have dinged your credit reports or mailed you a notice.

Technically, until they do one of those things, their calls are nothing more than hot air. If they keep calling and don't mail you a dunning letter with a statement on it of your right to validation (which they must do within 5 days of the first call), then they are just adding up the violations.

I'd say if you don't get anything in writing from them within 15 days, and they keep calling every day over that period of time, you have a pretty good case to take to a circuit court -- as long as everythig is well documented. A bunch of calls without the required written notice is sufficient cause to claim harassment and abuse. You can tack on a Federal Telecommunication Act violation as well for continually making calls with intent to harass and there are usually State laws against telephone harassment as well.

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I agree with your analysis. I will wait for 15 to 30 days to see if this CA continues to call w/o sending any written notice. Then I will send a DV

and CD letter. I'm hoping I can sue these bastards. Harassment is hard to prove but can pay off. I will update as necessary. My main goal is to stop the steady parade of CAs on this debt. If the first,second and third CA could not collect a debt, then any intelligent person would assume that any subsequent CA will be equally unsuccessful. I guess I dont understand CA intelligence (an oxymoron I think). Happy New Year to all.

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