I am getting ready to Sue Wells Fargo Auto Finance

[diamonddan73]

I want to file a lawsuit against WFAF. They have been violating the FDCPA or the ROSENTHAL ACT I'm not sure which one. They have been using an auto dialer to call my cell phone anywhere from two to three times a day and they will leave one message a day. They have been doing this every month for the past 2 years for about 10-15 days per month. According to the ROSENTHAL ACT in California, they are not allowed to call a cell phone by auto dialer. My interpretation of the ROSENTHAL ACT is that they are in immidiate volation as soon as they call the first time. We never gave them our cell phone so they must have pulled it from a CRA or paid for the information we also never gave them permission to call our cell phone. At $500 per violation it think I have a potential for a pretty large law suit. What do you think?

[Chapel Hill]

How do you prove Wells called you?

[diamonddan73]

I have every call logged on my cell phone along with the saved voice mails. I can also serve discovery of all the calls that were auto dialed from WF to my cell as part of the lawsuit. At 3 per day for 15 days a month fir two years comes out to $540,000 dollars. I'm not sure what the SOL is so if I can go back more than 2 years = even more... And thats at 500 a call. The max is 1500 per call. I would love to stick it to WF for 1.5 Mill.

[hopefulscambeater.]

IF they are the OC- the FDCPA does not apply to them

[diamonddan73]

They are the OC, but aren't they violating the ROSENTAHAL ACT? The Cali ROSENTHAL ACT discribes "anyone" attempting to collect a debt as a debt collector. It also states that any debt collector that uses an auto dialer to contact the debtor by cell phone is in violation and the fines range between 500-1500 for each violation.

[hopefulscambeater.]

I'm not familiar at all with that CA law, but it does seem like they would be?

[skippy1960]

They are the OC, but aren't they violating the ROSENTAHAL ACT? The Cali ROSENTHAL ACT discribes "anyone" attempting to collect a debt as a debt collector. It also states that any debt collector that uses an auto dialer to contact the debtor by cell phone is in violation and the fines range between 500-1500 for each violation.

I think you better check, you are accurate on the Rosenthal Act and them calling at an abusive level. You need to review the TCPA regarding the violations and amounts you are speaking of. Finally have you ever sent them a letter telling them not to call a particular number? I believe this is neccessary for you to invoke the TCPA, although I am not an expert by any means on the TCPA.

You can check with the board I think there is a section that deals with this law....

[diamonddan73]

So I am going to send they this C&D letter. Please let me know if there is anything I am missing or need to change.

DH

DW

Our address

(Sent via CERTIFIED RETURN MAIL #123 456 789 with RETURN RECEIPT)

11/11/2010

Wells Fargo Auto Finance

PO Box 29704

Phoenix, AZ 85038

Re: Wells Fargo Auto Finance Account No: XXXXXXXX-For: $XX,XXX

Dear Wells Fargo Auto Finance:

This will serve as your legal notice under provisions of federal law, the Fair Debt Collection Practices Act (FDCPA), the TCPA, and the California Rosenthal Act to cease all communication with me except in written form, in regard to the debt referenced above. You are in direct violation of the TCPA by calling our Cell phone XXX)XXX-XXXX using and Auto-dialer and leaving a pre-recorded message and well as in Direct Violation of the California Rosenthal Act by harassing us with numerous call per day.

If you fail to heed this notice, I will file a formal complaint against you with the Federal Trade Commission who is responsible for enforcement, the States Attorney General office and/or the American Collectors Association as well as seek any and all damages that we are entitled to from your violations of the above mentioned Federal Act’s.

You are also notified that should any adverse information be placed against my credit reports as a result of this notice that appropriate actions will be taken. Give this very important matter the attention it deserves.

This is an attempt to make a debt collector obey the law. Any information obtained, will be used for that purpose.

Sincerely,

DH

DW

Edited November 11, 2010 by diamonddan73

[skippy1960]

From my limited reading of the TCPA, this is neccessary for you to collect if they continue, the FDCPA and Rosenthal you are fine with abusive calling already, but monetary award is capped at $1K. Hopefully they will ignore and keep calling.

[ADSOFT]

They are the OC, but aren't they violating the ROSENTAHAL ACT? The Cali ROSENTHAL ACT discribes "anyone" attempting to collect a debt as a debt collector. It also states that any debt collector that uses an auto dialer to contact the debtor by cell phone is in violation and the fines range between 500-1500 for each violation.

Can you post a link and a highlighted paragraph where the Rosenthal act states that?

[diamonddan73]

moranlaw.net/California%20fair%20debt%20collection%20practices%20law.htm

1788.2. (a) Definitions and rules of construction set forth in this

section are applicable for the purpose of this title.

( The term "debt collection" means any act or practice in

connection with the collection of consumer debts.

© The term "debt collector" means any person who, in the

ordinary course of business, regularly, on behalf of himself or

herself or others, engages in debt collection. The term includes any

person who composes and sells, or offers to compose and sell, forms,

letters, and other collection media used or intended to be used for

debt collection, but does not include an attorney or counselor at

law.

[diamonddan73]

Here is the TCPA rules:

Calls cannot be made with artificial voices or recordings to cell phones or to any service in which the recipient is charged for the call

In the event of a violation of the TCPA, individuals are entitled to collect damages directly from a solicitor for $500 to $1,500 for each violation, or recover actual monetary loss, whichever is higher

[diamonddan73]

So I sent WF the C&D letter CMRRR today. If they call me again, do I need a lawyer to sue them or can I do it myself? Does anyone have any experience with a TCPA lawsuit? Thanks again for your help.

[Keith Keogh]

I am an attorney in Chicago who has filed a class action against Wells Fargo pursuant to the TCPA for calling celluar telephone numbers.

I am investigating such complaints and would be interested in speaking to anybody who recieved calls from Wells Fargo on their cell phone.

You can e-mail me at Keith@Keoghlaw or call me directly at 312.780.7363.

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