Regarding Attorneys

[Prosay]

If an attorney is regularly engaged in collecting debts, is he/she not considered a "collection agency" and therefore subject to the FDCPA ?

If so , are they not required to show proof of a VALID ASSIGNMENT from the OC ? And if an "alleged debtor " demands proof of that assignment are they required to furnish it with the request for validation,verification ,ect ?

My sister received a letter from an "attorney" stating they represented a major credit card company, but did not reference any account number...just their file number and the name of the OC.

She has disputed this matter in it's entirety and demanded proof of the 'alleged" account as well as a formally prepared, executed , SIGNED and AUTHENTICATED DOCUMENT PROVING THE ASSIGNMENT and their authorization to collect ON BEHALF OF THE OC. SHE ALSO DEMANDED THE DOCUMENT BE AUTHENTICATED BY THE INDIVIDUAL/S who had "personal and first hand knowledge '' of the account in question. she reminded the attorney that " THE PROOF OF TRUTHFULNESS OF ANY STATEMENT MADE ON ANY AFFIDAVIT IS THE BURDEN OF THE AFFIANT" under Tenn Law( TCA 30-2-712)

She also reminded the attorney that a mere statement of "legal standing" is considered conjecture and would not stand per a decision rendered by THE HONORABLE JUDGE FRANK G. CLEMENT, AT THE COURT OF APPEALS IN NASHVILLE, TENN JANUARY 7,2009.

Think my sister's reply to the attorney will get their attention ?

Please critique and reply !

[workingpoor]

My sister received a letter from an "attorney" stating they represented a major credit card company, but did not reference any account number...just their file number and the name of the OC.

I've always wondered why CAs found it necessary to eliminate the original account number and create their own "file" number.

[antiquedave]

Seems to me there are a couple of catch 22's that plague collection attorney's when it comes right down to it they should not make any robo calls that leave a message at all. The numbers though are in their favor they make more breaking the law than they have to pay out in fines so they keep breaking the law.

In Michigan an attorney collecting on behalf of a client does not have to be licensed and can use their own letterhead in the dunning process.

In Lesher v kay we have a ruling that says it still breaks FDCPA so it seems they can remain unlicensed and stay within state lawbut it may violate federal law.

If you are collecting a debt you are a collection agency, what I don't understand is that if you assign a debt to a collection agency they can hire a lawyer to sue but the OC's are not doing doing that, rather they are going through the collection agency process a couple times and then sending the account to an attorney that specializes in suing debtors, why not just go that route through the collection agency that is already on board.

If the debt has not changed ownership the process does not make sense to me.

[Guest usctrojanalum]

I've always wondered why CAs found it necessary to eliminate the original account number and create their own "file" number.

Well it should be pretty obvious why they create their own file number. But as for not giving the original account number with the OC, that part is puzzling. And no, they do not have to produce a "valid assignment" from the OC.

An attorney simply stating that he represents a party is to be considered a fact until either him or the client expressly states otherwise in writing.

[antiquedave]

Supreme Court decision Heintz v. Jenkins, 514 U.S. 291 (1995). In Heintz, the Court held

that the FDCPA "applies to attorneys who 'regularly' engage in consumer-debt-collection

activity, even when that activity consists of litigation." 514 U.S. at 299

[Prosay]

Supreme Court decision Heintz v. Jenkins, 514 U.S. 291 (1995). In Heintz, the Court held

that the FDCPA "applies to attorneys who 'regularly' engage in consumer-debt-collection

activity, even when that activity consists of litigation." 514 U.S. at 299

I guess this decision is what peeked my concern, and since they are subject to the FDCPA, doesn't the FDCPA mandate proof of assignment ?

[Guest usctrojanalum]

No, where does the FDCPA mandate that? Could you please provide the section?

[antiquedave]

http://www.longislandlawyerblog.com/third-party-debt-collectors-burden-of-proof-in-credit-card-lawsuits

maybe some state law on assignments haven't found anything higher yet, but there has been interesting things on some of the attorney blogs I've looked at.

this is adddressing some assignment issues

http://docs.google.com/viewer?a=v&q=cache:06Fzo9ouRgUJ:www.mcbaonline.com/UserFiles/File/Memo%2520%2520of%2520Law%2520re%2520pleading%2520and%2520litigating%2520assigned%2520delinquent%2520debt%2520with%2520intro%2520letter.pdf+michigan+notice+of+assignment+credit+card+debt&hl=en&gl=us&pid=bl&srcid=ADGEESjERxblSKDLuSQNzFTrnKEG3I_VlbbBEA-KojeXptf-GPWXRtfxgZG0iSPhnIQT53AHDcc9XW_KLBgBl1CmjPZrMHHMt0P5VuDDKU4iBCsGNwJI726tzAyqIQk9PLCifoXVleH7&sig=AHIEtbRhtwFZPnPbDT0sKV__5mCAn-ImCw

Edited March 17, 2011 by antiquedave

[Guest usctrojanalum]

Those blogs do not have anything to do with what the OP is asking. The "assignment" he is talking about is when a case is referred to an attorneys office he wants proof that an OC sent the case to that attorney to handle. No law requires the attorney or OC to present this contract, and who says there even needs to be a contract in writing. It very well could be verbal.

[Prosay]

No, where does the FDCPA mandate that? Could you please provide the section?

I was only asking for verification in this regard being uncertain in re the FDCPA.

Perhaps if there are any laws which require attorneys to comply, someone knowledgeable will come forth.

I know in Tenn, a JDB must provide proof of a properly prepared, executed assignment and also disclose the "valuable consideration paid'.

I thought(hope) perhaps similiar language might also apply to Collection attorneys.

One way I have addressed letters from attorneys is reminding( not accusing) them that:

(1) MAKING False and Misleading Statements are in violation of the FDCPA

(2) Submitting False and Misleading Statements pertaining to debt collection via US MAIL is A Felony under US CODE TITLE 18 CHAPTER 63 (COLLECTIONS, FRAUD AND SWINDLES) providing severe penalty up to 10 years in prison AND UP TO $1000,000.00 FINE.

ALSO, submitting false and mis-leading information to any CRA by any electronic means( fax, e-file, etc) MIGHT ALSO CONSTITUTE 'WIRE FRAUD, under the same code as above.

(3) MAKING FALSE AND MIS-LEADING STATEMENTS IN THE COURSE OF LITIGATION ALSO CONSTITUTES "COMMITTING FRAUD UPON THE COURT"

AND POSSIBLE "MALICIOUS PROSECUTION" upon the defendant.

(4) The Attorney is also reminded of "The Attorney Accountability Act of 1995"

...and if in fact, they cannot prove they are representing the plaintiff, or prove they have been "assigned"...does this not constitute HAVING MADE A FALSE AND MIS-LEADING STATEMENT ? AND AT THAT POINT, COULD NOT THE DEFENDANT CHALLENGE THEM ON THIS POINT AND DEMAND PROOF THEREOF, and ask the court to compel strict proof in this regard, DISPUTING AN ALLEGATION OF MAKING FALSE AND/OR MIS-LEADING STATEMENTS ?

NOTE: Attorneys will always claim " attorney-client confidentiality", but they CAN ALWAYS BE CHALLENGED IN COURT !

They seem to get the message. I was sued by a major CC company about 5 years ago. I had just begun to study various laws including the FDCPA( out of necessity, as I could not afford an attorney). Anyway, I prepared an answer as best I could citing basically the same language as above. I had already received notice of summons, but for some reason, the summons was never delivered....and apparently the attorney withdrew as I never heard from him again ! Think I might have caught him by surprise with this language ??

Oh, I forgot to mention...I sent the letter to the attorney by FED-X OVERNIGHT guaranteed delivery by 10:00 AM next day. Shortly after 10 am I recieved a telephone call from the attorney's office, telling me the case had been postponed for two months. That two months has turned into 5 years...not another word from anyone...and I am still patiently waiting for the summons !

DON'T EVER THREATEN ANYONE IN YOUR LETTERS...but don't be afraid to cite all the laws you are familiar with and advise them of your options as well as legal remedies available to you !

Edited March 17, 2011 by Prosay

[BV80]

I know in Tenn, a JDB must provide proof of a properly prepared, executed assignment and also disclose the "valuable consideration paid'.

I thought(hope) perhaps similiar language might also apply to Collection attorneys.

The problem is a JDB and a collection attorney are 2 different entities. The JDB purchases the account (allegedly). That's why Tennessee enacted the law you mentioned.

Collection attorneys usually don't purchase accounts. A bill of sale or purchase by a JDB can also be referred to as an "assignment". That assignment (purchase) is different than an assignment or contract to collect for someone else.

[Guest usctrojanalum]

Collection attorneys usually don't purchase accounts. A bill of sale or purchase by a JDB can also be referred to as an "assignment". That assignment (purchase) is different than an assignment or contract to collect for someone else.

This is the trap that Pro falls into. Not understanding the different meanings and context of the word "assignment."

[LearningasIgo]

.

An attorney simply stating that he represents a party is to be considered a fact until either him or the client expressly states otherwise in writing.

When a dunning letter arrives, and the "attorney" states he or she repesents a certain client, it would behoove to investigate rather than accepting the "fact". For one, call the client. If it is true, the "client" should declare so, that Joe Blow attorney does, indeed, represent them. This conversatioin can be, state law allowing, recorded. Good enough.

However, it is possible that the chain of representation becomes muddled, and the "client" will never have heard of the attorney. For example, a creditor could obtain a CA. The collection agency could then subcontract to an law firm. The law firm then sends another dunning letter claiming to represent the client that the original collection agency claims to represent. When asked, the creditor may have never heard of this last law firm. In fact, under this kind of holey umbrella, the subcontracter could also subcontract to yet another law firm, who could then also claim to represent the creditor, while the creditor would have no knowledge of this subcontracting chain. Under this holey umbrella, in theory, there could be no end to the subcontracters who claim to represent the creditor, all unknown to the creditor.

While somewhat hyperbolic, unless challenged, this kind of thing is feasible. Is there a problem with the creditor not knowing subcontracted law firms are representing them? IMO, there is. Is there a problem with a law firm claiming to represent a client without the client's knowledge? IMO, there is. In fact, I challenged this exact scenario in my own history dealing with a OC, its CA and the CA's subtracted law firm. Did my challenge work to my benefit? I think so, while not being 100% sure. Chase, Hanna, and the subcontracter backed off, back down, and faded away, when challenged. The challenging involved a "connecting the dots" letter to the FTC, my AG, and to the CA and subcontracted law firms' Bar Associations.

Just a view, primarily speaking to having attennae up, and not being hesitant to challenge--everything.

[Prosay]

This is the trap that Pro falls into. Not understanding the different meanings and context of the word "assignment."

Gentlemen, I know full well the difference between a jdb and a collection attorney, and I certainly know the meaning of an assignment, as well as a retainer.

The point I am trying to make is to force the attorney to PROVE that he/she represents the plaintiff, and if they cannot, then spank'em real hard !

Are you telling me that all an attorney has to do in court is say" yep, your honor, we represent this company"...and no questions are allowed to be asked ? Are you saying a judge will allow an attorney to "proceed no questions asked ?

What's wrong with this picture ?

And since any collection agency( attorneys included) who regularly engage in the business of debt collection ARE SUBJECT TO THE FDCPA, as well as SECTION 5 OF THE FTC ACT..

And since the FDCPA has specific guidelines governing False and Mis-leading statements...

And if an attorney FALSELY CLAIMS to represent the plaintiff( when he in fact does not)

UPON PROOF THEREOF...WHY CAN'T THEY BE SPANKED ?

I think this gray area deserves more investigation of attorney conduct and laws which apply to that conduct. Problem is I don't know where to begin !

How about it folks...help us out here !

Edited March 18, 2011 by Prosay

[Ray S.]

LearningasIgo:

I think have just begun the senario that you have completed... (for the time being).

Chase to Hanna as a CA then to a "local" law firm.

First, I received a dunning letter from Hanna. I did not respond or DV.

Then, I received a dunning letter from the "local" firm. I did respond; limited contact and DV request. (DV response is now past due 45 days.)

The dunning letter from the "local"law firm indicated Chase as their client. So...I called Chase and was told to deal with Hanna and that Chase had no knowledge of the "local" law firm. Shortly thereafter, I wrote and told Chase that I was confused as to who to "talk with" and loosing sleep due to the headaches and stomach upset I have been suffering. Still waiting to hear from Chase. And, in the meantime, doing a lot of reading on this wonderful site.

Pease continue to update

Edited March 18, 2011 by Ray S.
typos

[Prosay]

Then the position which does have clout might be:

An attorney making a false or misleading statement in violation of the FDCPA, claiming to represent a given plaintiff, when he/she in FACT DOES NOT.

[Amerikaner83]

The point I am trying to make is to force the attorney to PROVE that he/she represents the plaintiff, and if they cannot, then spank'em real hard !

Only in Court. They don't HAVE to Prove a damn thing to you outside a courtroom.

Are you telling me that all an attorney has to do in court is say" yep, your honor, we represent this company"...and no questions are allowed to be asked ? Are you saying a judge will allow an attorney to "proceed no questions asked ?

YES. Unless YOU ask the question IN COURT. And what they actually have to show to "prove" is not the same in my Court as yours. You always mention TN code...and it seems as if you take TN "law" as the gospel Truth for everything - even things not governed under TN law. Like FDCPA.

What's wrong with this picture ?

It's called the Legal system. One party doesn't question one little detail the other party says or claims, that detail is on the record as fact now.

Challenge Everything! on that, you and I agree.

[LearningasIgo]

Only in Court. They don't HAVE to Prove a damn thing to you outside a courtroom.

.

No, but a key is to let them know they will be called upon to "prove" if and when litigation commences. Just that fact, alone, can produce dividends.

As I said in my example, which was "outside of court", just making them aware of an impending problem or challenge seemed to pay off. Hanna was contacted by Florida Office of Financial Regulation concerning their subcontracting of a law firm. The Office forwarded Hanna's response to me, which was a boon, since Hanna's representative attorney was lying through his teeth. Hanna and the subcontracter also had to respond to the FTC, my AG, the FOFR, and their own Bar Associations--"outside of court."

In addition, "outside the court", I forwarded each and every copy to Chase, the original creditor, just to make sure they were aware of the chicanery involved, and to insinuate that they, Chase, would bear some responsiblity up the road for that chicanery done in their good name. And that it would, most likely, get messy. Should a lawsuit be commenced, who would be on trial?

Challenge. Always.

[LearningasIgo]

LearningasIgo:

. (DV response is now past due 45 days.)

)

No, a DV response in never past due....the 30 days mentioned in the FDCPA is your window, not theirs...

[BV80]

No, but a key is to let them know they will be called upon to "prove" if and when litigation commences. Just that fact, alone, can produce dividends.

It's fine if one wants to request everything in the book in a DV letter. It might make them think twice.

We just have to understand what is required in response to a timely DV letter, and that if a DV is not timely, their nonresponse is not a violation.

[antiquedave]

one of the claims I made was that no response to a DV was by itself a deceptive and misleading act and a violation of FDCPA because it would lead the consumer to believe that the CA did not have any proof of account, standing or entitlement to collect and could be safely ignored.

When the business I worked for sent accounts into collection there would come a point where the CA would call and ask if we wanted to pursue the collection and file a suit, we never did that but they always asked at some point if they could contract a collection attorney.

I think that the secuirtization issue does open that door of who owns the debt and has standing, and if you think about it, each entity in the process has rights at different times and may be governed by a different agreement, so who had the account when CA1sent their dunning letter, or when the attorney was assigned, and even if the account comes back to the OC does the assignment to them to collect change their status in any way? Passing it through multiple holding companies can create a mryiad of issues and raise multiple questions.

[Guest usctrojanalum]

Are you telling me that all an attorney has to do in court is say" yep, your honor, we represent this company"...and no questions are allowed to be asked ? Are you saying a judge will allow an attorney to "proceed no questions asked ?

Yeah, pretty much. And if you are so worried about this, take them to trial. When there is a witness sitting in the box ask the witness at that time if they are represented by the attorney in the Courtroom with them.

[Prosay]

Only in Court. They don't HAVE to Prove a damn thing to you outside a courtroom.

YES. Unless YOU ask the question IN COURT. And what they actually have to show to "prove" is not the same in my Court as yours. You always mention TN code...and it seems as if you take TN "law" as the gospel Truth for everything - even things not governed under TN law. Like FDCPA.

It's called the Legal system. One party doesn't question one little detail the other party says or claims, that detail is on the record as fact now.

Challenge Everything! on that, you and I agree.

HEY PAL...BACK OFF

You are aware that each state , or at least most states have language pertaining to the FDCPA (ie state code)?

And do you not submit your replies to a ca, attorney, etc ASKING ALL THE RIGHT QUESTIONS, INCLUDING PROOF OF CERTAIN MATTERS ? No, an attorney doesn't have to prove a "damn" thing outside the court room...but he/she knows that once inside a court room...it can become a level playing field, if the defendant is properly prepared .

I damn sure take Tenn law as "gospel truth" when I am defending myself in any situation...it would be rather foolish to not use one's resident state code, would it not ?

[Prosay]

No, but a key is to let them know they will be called upon to "prove" if and when litigation commences. Just that fact, alone, can produce dividends.

As I said in my example, which was "outside of court", just making them aware of an impending problem or challenge seemed to pay off. Hanna was contacted by Florida Office of Financial Regulation concerning their subcontracting of a law firm. The Office forwarded Hanna's response to me, which was a boon, since Hanna's representative attorney was lying through his teeth. Hanna and the subcontracter also had to respond to the FTC, my AG, the FOFR, and their own Bar Associations--"outside of court."

In addition, "outside the court", I forwarded each and every copy to Chase, the original creditor, just to make sure they were aware of the chicanery involved, and to insinuate that they, Chase, would bear some responsiblity up the road for that chicanery done in their good name. And that it would, most likely, get messy. Should a lawsuit be commenced, who would be on trial?

Challenge. Always.

This is EXACTLY WHAT I WAS DRIVING AT! challenge these guys up front, put them on notice that you aren't an easy mark...AND IT JUST MIGHT NOT EVEN GET TO COURT!

DO YOU GET THIS NOW , AMERIKANNER ?? Also, AMERIKANNER...SINCE WHEN IS THE FDCPA the " CURE ALL'' FOR DEALING WITH CA'S, JDBS AND ATTORNEYS ?

Edited March 18, 2011 by Prosay

[Prosay]

and this is for AMERIKANNER..

"State regulation

U.S. state laws on fair debt collection generally fall into two categories: laws which require persons who are collecting debts from consumers to be licensed, registered or bonded in order to collect from consumers in their states, and laws that protect consumers from specific unfair practices by debt collectors, which may include collection agencies and sometimes original creditors.( READ THIS, AMERIKANNER >" Many state laws--unlike the FDCPA--cover original creditors, THUS PROVIDING GREATER PROTECTION to consumers THAN THE FEDERAL FDCPA." Do you understand this "gospel" ??

Although not all states have such laws, the unfair practices that are prohibited generally track those that are also prohibited under the FDCPA. Some states have a complete prohibition against collecting from its residents unless the collection agency has complied with licensing or bonding, others exempt out-of-state collectors from those requirements. Examples of prohibitions of unfair practices by collectors include contacting employers after having been given notice not to do so, pretending to be a government agency, pretending to be an attorney or falsely threatening with a lawsuit. Many state fair debt collection laws also provide for a private right of action (consumers can sue the debt collector) by consumers against collectors that violate their provisions.

[edit] References

The following states have their own fair debt collection laws, which can be found here:

* Ala. Code Sec. 40-12-80

* Alaska Stat. Sec. 08.24.041-08.24.380; Alaska Stat. Sec. 45.50.471-45.50.461

* Ariz. Rev. Stat. Ann. sec. 32-1001 - 1057

* Ark. Stat. Ann. Sec. 17-24-101 -404

* Cal. Civ. Code Sec. 1788-1888.32, 1812.700 - .702

* Colo. Rev. Stat. Sec. 5-1-101 - 5-12-105

* Colo. Rev. Stat. Sec. 12-04-101 -137

* Conn. Gen Stat. Sec. 36a-645 - -647

* Del. Code Ann. tit. 30, Sec. 2301(a)(13)

* D.C. Code Ann. Sec. 22-3401 -3403

* D.C.Code Ann. Sec. 28-3814 -3816

* D.C. Code. Ann. Sec. 28-3901 -3909

* Fla. Stat. Sec. 559.55-.785

* Ga. Code. Ann. Sec. 7-3-1 -29

* Haw. Rev. Stat. Sec. 443B-1 -20

* Haw. rev. Stat. Sec. 480D-1 et seq.

* Idaho Code Sec. 26-222 -2251

* 225 Ill. Comp. Stat. 425/1 to /25

* Ind. Code Ann.Sec. 25-11-1-1 to -13

* Ind. Code. Ann. Code. Sec. 24-4.55-107

* Iowa Code Ann. Sec. 537.7101 -.7103

* Kan. Stat. Ann. Sec. 16a-5-107

* Ky. rev. Stat. ann. Sec. 24A-240 (re: CA in small claims ct)

* La.rev.Stat. Sec. 9:3576.1 -3576.24

* La. rev. Stat. Sec. 9:3557-9:3562

* Me.Rev.Stat.Amm. tit.32, Sec. 11,001 - 11,054

* Me.Rev.Stat.Ann. tit.9-A, Sec. 5-107, -116, -117, -201

* Md.Ann.Code. Bus. Reg. Sec. 7-101 -502

* Mass. Gen Laws Ann ch 93, Sec. 49

* Mich. Comp. Laws ann. sec. 339.901 -.920

* Mich.Comp.Laws Ann. sec. 445.251 -.258

* Minn. Stat. ann. Sec. 331.31 -.50

* Miss. Code Sec. 97-9-1

* Mo. Rev. Stat. Sec. 425.300

* N.H. Rev. Stat. Sec. 358-C:1 - C:4

* N.J. Stat. Ann. Sec. 45:18 -6.1

* N.M. Stat.Ann. Sec. 61-18A-a -33

* N.Y. Gen. Bus. Law Sec. 600-603, Rules of the City of New York Sec. 5-76-5-80

* N.C. Gen.Stat. Sec. 58-70-90 -130

* N.C. Gen. Stat. Sec. 75-50 -56

* N.D. Cent. Code Sec. 13-05-01 -10

* Ohio Rev. Code Ann. Sec. 1319.12

* Okla. Stat. tit. 14A, Sec. 5-107

* Or. Rev. Stat. Sec. 646.639 -.656

* Or.Rev.Stat. Sec, 697.005 -.095

* 18 Pa. Const. Stat. Ann. Sec. 7311

* 73 Pa. Cons. Stat. Sec. 2270.1 -.6

* S.C. Code Sec. 37-5-108

* Tenn. Code. Ann. Sec. 62-20-101 -126

* Tex. Fin. Code Sec. 392.001 -.404, 396.001 -.353

* Utah Code Ann. Sec. 12-1-1 -10

* Utah Code Ann Sec. 70C-7-104 -106

* Vt. Stat. Ann. tit 9, Sec. 2451a -2461

* Va. Code. 18.1-213

***** Wash. Rev. Code.Ann. Sec. 19.16.100 -.950*****

* W.Va. Code. Sec. 47-165-1 -5

* W. Va. Code. Sec. 46A-2-122 -129a

* Wis. Stat. Ann. Sec. 218.04

* Wis. Stat. Ann. 427.101 -.105

* Wyo. Stat. Sec. 33-11-101 -116

* Wyo. Stat. Sec. 40-14-507

Do you get this now,AMERIKANNER ? Looks like several states( including your own state ) have their own "gospel". Maybe you need to do some more research..

Edited March 18, 2011 by Prosay