Lawyer representing his own JDB claims JDB not subject to FDCPA?

[Optimus_SubPrime]

I'm currently in a timely dispute with a law firm over an alleged CC debt. In my DV, I asked for the name and address of their client so I could dispute with them directly.

As validation, the law firm sent me a one page letter on law firm stationery with my name, the alleged amount, alleged name and address of original creditor, with no evidence at all as to where this info was obtained from.

I waited to see if they would send anything more. They sent another letter a few weeks ago stating that their client had authorized them to litigate, and that they intended to do so. They urged me to contact them within 2 weeks of receipt of the letter.

I replied by informing them that:

a) their attempts at validation did not meet the requirements of the FDCPA & the Wollman letter, and that I requested again the name and address of their client to dispute directly with them

they had included a notation "cc: Judgment Creditor" in a previous mailing, misrepresenting the legal status of the debt

c) their noncompliant collection attempts were causing me to experience sleeplessness and emotional distress, and that the FDCPA allows for me to recover any associated costs as damages, should this proceed to litigation

The lawyer responded by mail saying that:

a) He was both the lawyer AND the president of the JDB claiming to own the account. He asserted that the JDB was not pursuing collection as defined by the FDCPA, since it is simply the owner of the account, and the law firm is pursuing the collection. Therefore, he argued, his JDB is not bound by the FDCPA or required to be licensed as a collection agency.

the "cc: Judgment Creditor" notation was a bona fide error, and did not consitute misrepresentation since misrepresentation under the law requires "that the untruth be believed by the person receiving the communication". Since I stated that I had no judgment, no misrepresentation had taken place.

c) "I sincerely doubt that you are experiencing sleeplessness and emotional distress as a result of the actions of this office except that you may be experiencing sleeplessness as you contemplate your potential claims under the FDCPA."

My biggest concern here is a).

As I read it, he is arguing that the law firm is only required to obtain verification from his client, since his client is standing in the shoes of the creditor via assignment. (He has included some third-generation copies of the Bill of Sale and chain of Assignment docs, but no statement from the OC.)

What is the best way to proceed here? What would you do next if you were dealing with a lawyer like this?

Does it make any difference that the JDB in effect became aware of my dispute once the lawyer read my initial DV? Does it make any difference that the lawyer is president of the JDB he represents? Thanks in advance for your opinions and help.

[someonesomewhere]

I think he's full of poop.

http://www.creditinfocenter.com/legal/FDCPA.shtml#803

The term "debt collector" means any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another. Notwithstanding the exclusion provided by clause (F) of the last sentence of this paragraph, the term includes any creditor who, in the process of collecting his own debts, uses any name other than his own which would indicate that a third person is collecting or attempting to collect such debts. For the purpose of section 808(6), such term also includes any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the enforcement of security interests. The term does not include --

(A) any officer or employee of a creditor while, in the name of the creditor, collecting debts for such creditor;

(

any person while acting as a debt collector for another person, both of whom are related by common ownership or affiliated by corporate control, if the person acting as a debt collector does so only for persons to whom it is so related or affiliated and if the principal business of such person is not the collection of debts;

© any officer or employee of the United States or any State to the extent that collecting or attempting to collect any debt is in the performance of his official duties;

(D) any person while serving or attempting to serve legal process on any other person in connection with the judicial enforcement of any debt;

(E) any nonprofit organization which, at the request of consumers, performs bona fide consumer credit counseling and assists consumers in the liquidation of their debts by receiving payments from such consumers and distributing such amounts to creditors; and

(F) any person collecting or attempting to collect any debt owed or due or asserted to be owed or due another to the extent such activity (i) is incidental to a bona fide fiduciary obligation or a bona fide escrow arrangement; (ii) concerns a debt which was originated by such person; (iii) concerns a debt which was not in default at the time it was obtained by such person; or (iv) concerns a debt obtained by such person as a secured party in a commercial credit transaction involving the creditor.

He can make claims to the contrary, but he's subject to FDCPA. If he's this dumb, you might end up in court or retaining legal counsel on this one. Rules don't change. Follow the DV flowchart.

[divemedic]

Since the account was in default at the time of the assignment, he is a Debt Collector. He knows better. It is a violation for him to tell you that.

Also, it doesn't matter if the recipient believes an untrue statement, it matters if the least sophisticated debtor would believe it. This is well documented in case law. Since he is an attorney, he knows that. That means he violated again.

[nascar]

It is a violation for him to tell you that.

As an attorney, it's also a Code of Ethics violation. You should file a complaint with his state bar association.

[pulpfiction]

Wow...that scumbag attorney needs to be taught a lesson. Save that letter (obviously). Forward it to the bar association of whatever state he's licensed. Sue his JDB. The arrogant SOB will be paying you $1000 and begging to keep his law license (and you know these types took the bar exam like 8 times).

[someonesomewhere]

Optimus_SubPrime,

If you wanna make a lawyer smile a BSEG, continue following Kristy's DV flowchart.

http://www.debt-consolidation-credit-repair-service.com/forums/showthread.php?t=228576

By the time you're at Day 48, or if this moron gets dumb enough to serve you with a Summons and Complaint (sue you), take all your documentation and go see a lawyer at one of these two links.

http://naca.net/find-consumer-protection-attorneys/

http://www.myfaircredit.com/s/national-coverage-map

[Recovering Attorney]

Optimus, if this boozo is in NYS, let me know.

[Optimus_SubPrime]

Thanks for the help so far, guys. I'll be quoting the FDCPA definition of 'creditor' and the FTC's Klayman letter, in my reply to him.

What about his claim, though, that since the JDB is not in direct communication with me, it is not engaged in collecting debts? The Klayman letter says:

the Act applies to a corporation collecting its own debts if that corporation regularly collects debts, is engaged principally in debt collection, and collects debts that were "already in default when they were assigned to the corporation."

His argument will be that his JDB corporation would be a debt collector under the FDCPA if it dunned me, but since it only hires lawyers, the mere hiring of a lawyer does not constitute debt collecting. I know it seems plonkingly obvious that hiring a lawyer is an attempt to collect a debt, but I'm not sure how to convince the judge of that.

[pulpfiction]

Optimus Subprime (great name by the way..haha)....

This shark obviously believes you are bluffing.

Call his bluff. Forget the letters and such.

The only thing you should send is a summons (while simultaneously filing a bar ethics complaint.)

This guy barely graduated law school and passed the bar if he had to resort to getting involved with a JDB. One less scumbag lawyer out there....

[direred]

Actually, I need case law on exactly this point (9th would be most useful) -- and I can't find any.

[Big Time]

Anything on your credit reports about this?

[nascar]

Actually, I need case law on exactly this point (9th would be most useful) -- and I can't find any.

Dire, what exactly do you need?

[qtptute]

Actually, I need case law on exactly this point (9th would be most useful) -- and I can't find any.

You have Rosenthal (the grandaddy of them all for consumer protection) but watch out for Walls out of the 7th I think.

[direred]

Nascar, specifically I'm looking for case law about where a non-lawyer purchases an account in dispute and is therefore subject to the fdcpa.

I also found this on my fair debt:

Any one buying, taking assignment of or acting to collect upon an alleged debt after the debt becomes delinquent is a “debt collector” subject to the FDCPA. Perry v. Stewart Title Co., 756 F.2d 1197 [5th Cir. 1985]; Schlosser v. Fairbanks Capital Corp., 323 F.3d 534 [7th Cir. 2003] [ill]. Cases alleging facts giving rise to an FDCPA claim are removable whether or not the FDCPA is explicitly stated in the petition/complaint and are removable. Doherty v. Citibank [south Dakota], N.A., 375 F.Supp.2d 158 [u.S.D.C. E.D. N.Y. 2005]; McGilvray v. Hallmark Financial Group, Inc., 891 F.Supp. 265 [u.S.D.C. E.D. Va. 1995]. In cases with comparable facts plead in the original petition, the courts found the petition removable but those defendants acted to timely remove the petition. Chapman v. Chase Manhattan Mortgage Corp., 2006 WestLaw 519673 [u.S.D.C. N.D. Okla. 2006]; Schade v. MBNA America Bank, N.A., 2006 WestLaw 212147 [u.S.D.C. W.D. N.C. 2006].

[direred]

Thanks for mentioning Walls. There is specific 9th case law about it, but Walls was a BK case, so I think I could argue its inapplicability to my own.

[divemedic]

Many cases here, from many Circuits.

Pollice v. National Tax Funding, L.P., 225 F.3d 379 (3d Cir. 2000). The purchaser of sewer and water service debts from a municipality, after default, was a debt collector for the purposes of the FDCPA.

Brannan v. United Student Aid Funds, Inc., 94 F.3d 1260 (9th Cir. 1996), cert. denied, 521 U.S. 1106 and 521 U.S. 1111 (1997). A student loan guaranty agency which acquired the loan after default in order to pursue collection was a debt collector under § 1692a(6).

Harris v. BWS Credit Servs., Inc., Clearinghouse No. 27,693 (D. Neb. 1980) (order on motions to dismiss). A motion to dismiss based on the assertion that the debt collection agency owned the debts was denied. The term ‘‘debt collector’’ is broad enough to cover persons collecting debts they own, and the record is not clear on whether the collector is covered or not.

Long v. G.C. Servs. Corp., Clearinghouse No. 31,345 (S.D. Ga. 1979). Collector’s motion to dismiss was denied where collector argued it was not a ‘‘debt collector’’ within § 1692a(6) since it purchased the debt which it sought to collect.

Asset Acceptance Corp. v. Robinson, 625 N.W.2d 804 (Mich. Ct. App. 2001). An entity that purchases a debt in default is a ‘‘debt collector’’ as defined by the FDCPA.

[nascar]

Nascar, specifically I'm looking for case law about where a non-lawyer purchases an account in dispute and is therefore subject to the fdcpa.

The best discussion available on the subject is What Constitutes "Debt Collector" for Purposes of Fair Debt Collection Practices Act, 173 A.L.R. Fed. 223.

[direred]

Thanks to both of you, those are both very helpful.

I have a motion to write.

[Optimus_SubPrime]

Thanks again to all of you so far. I'll be going to the law library to check out the cites you've left. I may type or scan in some of the relevant info for others in the 8th circuit if I have time.

[direred]

Sorry for the threadjack, Optimus.

This area in particular will give you some case law specific to lawyers and the FDCPA.

http://www.myfairdebt.com/forum/viewforum.php?f=11

[Optimus_SubPrime]

Sorry for the threadjack, Optimus.

Not a problem.

This area in particular will give you some case law specific to lawyers and the FDCPA.

Well, the lawyer acknowledges that he is a debt collector. He states that his client, the JDB, is not. Here's what he wrote:

My client, Junk Debt Inc., is not pursuing collection (as defined by the FDCPA) against you. It is simply the owner of the debt and my law firm is pursuing the collection of that debt. My client is not a collection agency and does not have to be licensed as a collection agency and does not have to comply with the FDCPA as it is not in direct communication with you on attempting to collect this debt.

My initial thinking was, "Direct communication with me is not necessary, so long as you're reporting it to the CRAs," but the JDB isn't -- this account # does not appear on any of my credit reports.

So I'm left looking for case law that supports the idea that a business which purchases debts in default and hires a lawyer to collect them is engaged in collection. Hopefully, one of the cites someone has posted today will pan out.

[divemedic]

Hire a lawyer and sue them. I think hiring a lawyer to assist in collecting is collection activity. See what the court says.

(6) The term "debt collector" means any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another.

Besides, since he is the President of the JDB, that is not gonna fly. Please tell me he put that claim in writing...

[someonesomewhere]

He's not only the President of the JDB club for buffoons, he's also a respondent.

[direred]

Not a problem.

So I'm left looking for case law that supports the idea that a business which purchases debts in default and hires a lawyer to collect them is engaged in collection. Hopefully, one of the cites someone has posted today will pan out.

Well, farming it out is collection activity, n'est-ce pas?

That'd be the argument I'd use.

[direred]

He's not only the President of the JDB club for buffoons, he's also a respondent.

OMG, that needs to be someone's sig.