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When is an attorney "acting as an attorney?"


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My state requires that debt collectors be licensed, though there are some exceptions to that. One of the exceptions is as follows:

any attorney-at-law collecting a debt as an attorney on behalf of and in the name of a client;

Now then, I'm guessing that if an attorney sends out a dunning letter after having given the case meaningful review, they are covered under this exception. They certainly are covered when engaging in "purely legal" activities. However, I did receive one dunning letter on official law firm letterhead that looked like it was a communication from an attorney from before it was even possible that they had given the matter meaningful review That is an FDCPA violation in itself, especially in a district that uses the least sophisticated consumer standard.

Also contained in this letter was this sentence:

At this time, no attorney with this firm has personally reviewed the particular circumstances of your account.

In other words, despite being on official law firm letterhead and despite looking like it was signed by an attorney, they admit no attorney involvement at that point. I have tried to find out if this would still fall under the attorney exemption in the statute and have not been able to find an answer. It is frustrating because it seems like nobody knows. All that I have heard from people who are NOT knowledgeable is attorneys don't have to be licensed. When I've asked people about these particular circumstances, I don't get any answer.

My thoughts are this:

1) An attorney-in-law is an individual, therefore the law is referencing individuals, not corporations, LLCs, law firms, etc... Even though the law firm that contacted me is a law firm, contact regarding the collection of a debt that is initiated by a non-attorney before any attorney has reviewed the case should require licensing.

2) No meaningful review was given prior to this letter being sent out, meaning that even had it been an attorney-in-law, they were not acting "as an attorney." (I'm pretty sure that no meaningful review had occurred even after filing the complaint, but that's another story.)

Is there any merit to my thoughts, or am I just smoking crack here?

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LMAO

not laughing at you. im laughing at them.

there is a case/case law that comes to mind, i just dont remember the name of it. if and when i remember i'll post it here, i think its a bit relevant to your situation.

That would be beautiful. Oh, yes, you should LYAO at them.

If it is not a violation of the licensing requirements:

It is still a deceptive communication under state law, and thus I would be entitled to $100 or damages, whichever is greater. Well, that is unless it was shown that they intentionally and willfully crafted the letter to be deceptive. Then it would be $300 or trebel damages, whichever is greater.

The state will also have cause to slap them independent from any action that I take to the tune of $5,000.

If it is a violation of the licensing requirements:

The deceptive communication bit still applies, but so does another part of that same act. It's always better to have two rocks to chuck at them than one. The state would then have cause to slap them with another $5,000, but that's just the beginning.

If it is a violation, whomever was involved with sending that letter out is guilty of a felony. That's right, loss-of-rights-you-are-now-a-pariah felony. Furthermore, that would mean that they would also have to either drastically change their business practices or get a license. You know what is grounds for revoking and/or denying a license? Violating the act that requires licensing, that's what.

Let's not even get into what the state disciplinary board would do to an attorney's license if it was found that the company that attorney runs regularly committed felonies.

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one case is the one in my sig: Clomon v. Jackson, 988 F. 2d 1314 - Court of Appeals, 2nd Circuit 1993

in addition if you are in the 2nd circuit you should also read the case in my sig miller v upton, cohen & slamowitz (for Miller, there really are two cases one from 2003 and one from 2009 seperate defendants but essentially the same case:

Miller v. Wolpoff & Abramson, LLP, 321 F. 3d 292 - Court of Appeals, 2nd Circuit 2003

Miller v. Wolpoff & Abramson, LLP, 471 F. Supp. 2d 243 - Dist. Court, ED New York 2007 (i didnt intend to post this, but worth reading)

Miller v. Upton, Cohen & Slamowitz, 687 F. Supp. 2d 86 - Dist. Court, ED New York 2009

im not one to say whether to sue, but arm yourself with weapons of mass destruction.

i still think there is one more case, VERY similar to the clomon v jackson case and i cant find that one. i need a better way to organize my emails, that's where all my case law is, thousands and thousands of emails

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for fdcpa all you need to prove is that they violated the fdcpa. whether they intended to or not is not a concern for statutory damages, although intent may come into play as to additional or actual damages. their mistake is your win, if you can show more mistakes you're better off.

now im not pushing you to sue, ive been known to do that, but giving you some reading material to consider should you choose to hire an attorney

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for fdcpa all you need to prove is that they violated the fdcpa. whether they intended to or not is not a concern for statutory damages, although intent may come into play as to additional or actual damages. their mistake is your win, if you can show more mistakes you're better off.

now im not pushing you to sue, ive been known to do that, but giving you some reading material to consider should you choose to hire an attorney

I believe that I read one of those cases that you posted. The rest, I'll go through. The more I know, the better. I would really like to get them on the licensing bit though, and not just for personal gain. This law firm is a menace to the entire state. Nail them hard and the courts' dockets will be much less full. 30% less full when only civil cases at the trial court level are looked at, in fact. If anything, 30% is lowballing it. (Going through all of the cases filed and compiling that list was very tedious, but it was do it myself or pay somebody $40/hr to do it. Such lists are not kept by the state.)

Anyhow, thanks. That will help with the FDCPA claims at the least, and hopefully some of the meaningful review arguments can be transferred from FDCPA cases straight to the licensing issue.

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I believe that I read one of those cases that you posted. The rest, I'll go through. The more I know, the better. I would really like to get them on the licensing bit though, and not just for personal gain. This law firm is a menace to the entire state. Nail them hard and the courts' dockets will be much less full. 30% less full when only civil cases at the trial court level are looked at, in fact. If anything, 30% is lowballing it. (Going through all of the cases filed and compiling that list was very tedious, but it was do it myself or pay somebody $40/hr to do it. Such lists are not kept by the state.)

Anyhow, thanks. That will help with the FDCPA claims at the least, and hopefully some of the meaningful review arguments can be transferred from FDCPA cases straight to the licensing issue.

Another FDCPA case involving "[a]t this point in time, no attorney with this firm has personally reviewed the particular circumstances of your account" is

Lesher v. Law Office of Mitchell N. Kay, PC, 724 F. Supp. 2d 503 - Dist. Court, MD Pennsylvania 2010

"If the language that the debtor's account has not been analyzed in particular by an attorney can in some contexts dispel the representation or impression that an attorney is pursuing the case and that a legal action is down the road, it nevertheless does not of itself dispel that representation and impression in all contexts. The least sophisticated consumer would be likely to believe that the law firm is acting as an attorney for the lender in communicating with the consumer concerning the loan."

Lesher v. Law Office of Mitchell N. Kay - Google Scholar

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Another FDCPA case involving "[a]t this point in time, no attorney with this firm has personally reviewed the particular circumstances of your account" is

Lesher v. Law Office of Mitchell N. Kay, PC, 724 F. Supp. 2d 503 - Dist. Court, MD Pennsylvania 2010

"If the language that the debtor's account has not been analyzed in particular by an attorney can in some contexts dispel the representation or impression that an attorney is pursuing the case and that a legal action is down the road, it nevertheless does not of itself dispel that representation and impression in all contexts. The least sophisticated consumer would be likely to believe that the law firm is acting as an attorney for the lender in communicating with the consumer concerning the loan."

Not to mention that a sophisticated consumer is going to look at a similar letter and say "Hmm, they're a law firm. Law firms hire people who practice law. Debt collection law firms hire people who practice law with the intent to collect debts. Whether or not they've reviewed the case, they're certainly willing to practice law to collect the debt they claim I owe. Yup, if I don't pay them soon, I'm gonna get sued."

Oh, and the law firm, which I'll refer to as Scruffy & Skeezy, has their names top and center of the letters followed by "Attorneys at Law," a list of attorneys top left that also indicates which states those attorneys are licensed in and some additional contact info top right.

Down at the bottom where it is signed, it says

Very Truly Yours, (LOL)

SCRUFFY & SKEEZY

[space here for signatures - first letter has an indecipherable scribble]

Joe Bob Scruffy,

Jimmy Ray Skeezy

Edited by usagi555
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Not to mention that a sophisticated consumer is going to look at a similar letter and say "Hmm, they're a law firm. Law firms hire people who practice law. Debt collection law firms hire people who practice law with the intent to collect debts. Whether or not they've reviewed the case, they're certainly willing to practice law to collect the debt they claim I owe. Yup, if I don't pay them soon, I'm gonna get sued."

Oh, and the law firm, which I'll refer to as Scruffy & Skeezy, has their names top and center of the letters followed by "Attorneys at Law," a list of attorneys top left that also indicates which states those attorneys are licensed in and some additional contact info top right.

Down at the bottom where it is signed, it says

Very Truly Yours, (LOL)

SCRUFFY & SKEEZY

[space here for signatures - first letter has an indecipherable scribble]

Joe Bob Scruffy,

Jimmy Ray Skeezy

Good points. It just galls me when I see that quote about ...."'no attorney with this firm has personally reviewed the particular circumstances of your account." What is the legal purpose of that phrase? We know it's there for a "legal" reason, yet it seems so counter to the fact that they are sending a letter on legal letterhead about a contract dispute.

Why do they want/need the debtor to believe no attorney has looked at anything? I'm sure in the big firms, no lawyer has looked at it.

What up with that?

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Good points. It just galls me when I see that quote about ...."'no attorney with this firm has personally reviewed the particular circumstances of your account." What is the legal purpose of that phrase? We know it's there for a "legal" reason, yet it seems so counter to the fact that they are sending a letter on legal letterhead about a contract dispute.

Why do they want/need the debtor to believe no attorney has looked at anything? I'm sure in the big firms, no lawyer has looked at it.

What up with that?

It probably does protect them from something. A lawyer threatening to sue when that lawyer is not poised and willing to do so can put that lawyer into hot water. I'd have to read my state's rules of professional conduct to be sure, but I'd give better than even odds that such an action could land an attorney in front of the state's disciplinary board. While a kilobuck being taken from them for an FDCPA violation is not desirable, having one's license to practice law yanked is a whole other ballgame.

This also leads to another thing: Scruffy & Skeezy files lawsuits in my state at a rate that averages out to about 260 per lawyer per month. One of the lawyers has other duties that involve running the firm and is also licensed in another state, where their behavior is reputed to be even worse, so it's really most likely significantly more cases per lawyer per month when you look at the attorneys who actually do the grunt work. Considering that they did not notice that the amount over the credit limit added to the credit limit does not even come close to equaling the balance and that I DID NOT make any payments on the date the affidavit claims that I made the last payment, how on earth are they going to claim meaningful review had occurred prior to the communication that I received in the form of a summons?

Oh yeah, and they have supposedly been retained by the OC. I say supposedly because, while I don't doubt that the account was sent to them, I suspect that they don't have formal authorization, or if they do, it is from a subsidiary of the OC and not the OC itself.

Edited by usagi555
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FDCPA section 803(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. 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 U. S. Supreme Court has stated that any person or business who regularly collects debts in their course of business, whether it be a Collection Agency or a Law Firm is still to be considered a debt collector and are therefore subject to the FDCPA

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FDCPA section 803(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. 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 U. S. Supreme Court has stated that any person or business who regularly collects debts in their course of business, whether it be a Collection Agency or a Law Firm is still to be considered a debt collector and are therefore subject to the FDCPA

Which leads me to thinking if that statement is on the letter......i.e. ...."'no attorney with this firm has personally reviewed the particular circumstances of your account" - then they therefore must be acting as debt collectors and should be licensed as such.

Pick one - are you attorneys or debt collectors? You must be functioning in one of those capacities when the letter was sent.

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who signed it? (dont need to know their name, kinda just speaking out loud)

did someone actually sign it at the bottom? or are you having trouble determining whether jimmy ray or joe bob signed it?

scruffy LMAO

Actually, what it looks like could best be described by what you would picture in this scenario:

"Sir, could you please sign here?"

"Uhh, I can't read or write."

"Alright, just make your mark here then."

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I knew this case was in my school books some where and here it is.....3rd Circuit Court of Appeals, which covers Pennsylvania, New Jersey and Delaware June 21 2011

The case, Lesher vs. Mitchell N. Kay, PC, 10-3194 (6/21/2011), held that a letter from a law firm which authorized a 75% settlement of a Washington Mutual credit card account if paid within 30 days violated the FDCPA because it mislead consumers into believing that an attorney was involved in collecting the debt, when –in fact—no attorney had reviewed the account.

Indeed, the front of the lawyer’s letter directed the recipient to four disclosures on the reverse side of the letter. One of these disclosures stated: “[a]t this point in time, no attorney with this firm has personally reviewed the particular circumstances of your account”. However, the Court held that this disclaimer was contradicted by the body of the letter which indicated that the creditor had retained the law firm in connection with the debt. What could be more misleading than a letter from an attorney seeking to collect a debt when no lawyer was involved in reviewing the file?

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It probably does protect them from something. A lawyer threatening to sue when that lawyer is not poised and willing to do so can put that lawyer into hot water. I'd have to read my state's rules of professional conduct to be sure, but I'd give better than even odds that such an action could land an attorney in front of the state's disciplinary board. While a kilobuck being taken from them for an FDCPA violation is not desirable, having one's license to practice law yanked is a whole other ballgame.

This also leads to another thing: Scruffy & Skeezy files lawsuits in my state at a rate that averages out to about 260 per lawyer per month. One of the lawyers has other duties that involve running the firm and is also licensed in another state, where their behavior is reputed to be even worse, so it's really most likely significantly more cases per lawyer per month when you look at the attorneys who actually do the grunt work. Considering that they did not notice that the amount over the credit limit added to the credit limit does not even come close to equaling the balance and that I DID NOT make any payments on the date the affidavit claims that I made the last payment, how on earth are they going to claim meaningful review had occurred prior to the communication that I received in the form of a summons?

Oh yeah, and they have supposedly been retained by the OC. I say supposedly because, while I don't doubt that the account was sent to them, I suspect that they don't have formal authorization, or if they do, it is from a subsidiary of the OC and not the OC itself.

It might depend on the court as to whether the "no attorney has reviewed" protects them or not. In Lesher v. Law Offices of Mitchell N. Kay, the letters from Kay had that statement, and the court ruled the letters were still in violation of the FDCPA.

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I knew this case was in my school books some where and here it is.....3rd Circuit Court of Appeals, which covers Pennsylvania, New Jersey and Delaware June 21 2011

The case, Lesher vs. Mitchell N. Kay, PC, 10-3194 (6/21/2011), held that a letter from a law firm which authorized a 75% settlement of a Washington Mutual credit card account if paid within 30 days violated the FDCPA because it mislead consumers into believing that an attorney was involved in collecting the debt, when –in fact—no attorney had reviewed the account.

Indeed, the front of the lawyer’s letter directed the recipient to four disclosures on the reverse side of the letter. One of these disclosures stated: “[a]t this point in time, no attorney with this firm has personally reviewed the particular circumstances of your account”. However, the Court held that this disclaimer was contradicted by the body of the letter which indicated that the creditor had retained the law firm in connection with the debt. What could be more misleading than a letter from an attorney seeking to collect a debt when no lawyer was involved in reviewing the file?

I know that I can nail them on the debt collection letters under the FDCPA. If I can just get them on state law, they will get nailed a lot harder. The AG's office here tends to frown upon nasty debt collection practices and has successfully screwed a few CAs and JDBs up in the courts. While the AG's office won't do anything while my case is pending, having a favorable outcome in the case that I can hand off to the office would help them a lot. If I can win with it, they have a ready made case.

I have two letters in my possession dated before the creation of the affidavit filed with the complaint. While it may or may not be a long shot, there is also a letter that states something to the effect of "We have been authorized by the OC to settle for a lump sum payment for 75%, payable within 10 days of the date of this letter." This too is obviously on their letterhead, and IMO, an unsophisticated consumer would be led to believe that there is a (false) sense of urgency. I see that as a carrot-and-stick approach. "See, we're being nice and cutting you a 25% break, but we're lawyers and we know how to sue you, so pay up and pay up now."

Speaking of the affidavit, that doesn't quite prove that they had actually been retained at the date of the 1st letter, but an interrogatory or two should be able to cinch that down. It sure does imply that they had been retained at that point though.

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Guest usctrojanalum
Good points. It just galls me when I see that quote about ...."'no attorney with this firm has personally reviewed the particular circumstances of your account." What is the legal purpose of that phrase?

It's called the Greco standard. Some dude named Andrew Greco tried to sue a few debt collectors over the exact issue you are talking about and lost pretty badly.

412 F.3d 360: Andrew A. Greco, on Behalf of Himself and All Others Similarly Situated, Plaintiff-appellant, v. Trauner, Cohen & Thomas, L.l.p., Robert Trauner, Michael J. Cohen and Russell S. Thomas, Defendants-appellees.docket No. 04-4605-cv :: US C

"The district court determined, as a matter of law, that the letter was not misleading in its representation of attorney involvement, or in its explication of the debtor's rights, and hence that it could not support Greco's claims for relief under FDCPA. First, the district court determined that the letter did not misstate the level of attorney participation, because the letter prominently stated in normal typeface that "[a]t this time, no attorney with this firm has personally reviewed the particular circumstances of your account," and merely advised the creditor that "if you fail to contact this office, our client may consider additional remedies to recover the balance due." Thus, the district court reasoned, even the least sophisticated of debtors would understand that, while this was a letter from a law firm, no attorney had specifically examined the recipient's account information, and hence no attorney had yet recommended filing a lawsuit against the creditor."

Above is the important part of the decision, which affirmed the lower Courts ruling.

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I would argue the fact that they had to pay the law office some thing to generate a letter, Attorneys don't work for free. In order for the law firm to make you an offer to settle I would argue that the law office must have been retained to work on their behalf.

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It's called the Greco standard. Some dude named Andrew Greco tried to sue a few debt collectors over the exact issue you are talking about and lost pretty badly.

412 F.3d 360: Andrew A. Greco, on Behalf of Himself and All Others Similarly Situated, Plaintiff-appellant, v. Trauner, Cohen & Thomas, L.l.p., Robert Trauner, Michael J. Cohen and Russell S. Thomas, Defendants-appellees.docket No. 04-4605-cv :: US C

"The district court determined, as a matter of law, that the letter was not misleading in its representation of attorney involvement, or in its explication of the debtor's rights, and hence that it could not support Greco's claims for relief under FDCPA. First, the district court determined that the letter did not misstate the level of attorney participation, because the letter prominently stated in normal typeface that "[a]t this time, no attorney with this firm has personally reviewed the particular circumstances of your account," and merely advised the creditor that "if you fail to contact this office, our client may consider additional remedies to recover the balance due." Thus, the district court reasoned, even the least sophisticated of debtors would understand that, while this was a letter from a law firm, no attorney had specifically examined the recipient's account information, and hence no attorney had yet recommended filing a lawsuit against the creditor."

Above is the important part of the decision, which affirmed the lower Courts ruling.

Actually, that case is very helpful. Thank you for posting it.

Put another way, our prior precedents demonstrate that an attorney can, in fact, send a debt collection letter without being meaningfully involved as an attorney within the collection process, so long as that letter includes disclaimers that should make clear even to the "least sophisticated consumer" that the law firm or attorney sending the letter is not, at the time of the letter's transmission, acting as an attorney.

It's not legally binding here, but that is exactly what I was looking for. Large amounts of case law on these matters that is binding here, where it is most relevant to me, do not exist. However, that does support my argument that they do not fall under the attorney exception for licensing under state law, which is actually quite a bit more serious than an FDCPA claim. Now, I can ensnare them in a Catch-22. They can't both be acting as attorneys and not acting as attorneys.

Oh, and there is one very important difference between my letter and the Greco letter: Mine has been illegibly "signed" in some way. While they'll most like whine about how it wasn't an attorney's signature, how the hell is anybody who doesn't know what the signatures of the lawyers at that firm look like unless they've already seen them? Besides, most of the attorneys' signatures are illegible anyway. The 2nd letter, however, was signed by an attorney, and that letter is dated before it would have been possible to have given the matter meaningful review and before they could have been poised to file the complaint.

As I've stated before, I know the filing patterns of this firm in my state, and they have attorneys licensed in another state where they are reputed to be worse. They will file over 100 cases per day on a regular basis in my state and on some days will put 100 cases to shame. I've heard (yeah, this is hearsay, but it is believable given what I already know) that they have filed nearly 1000 cases in one day in the other state. Just imagine what would be uncovered in discovery regarding dunning letter practices. Certainly a lot of people never get to the court stage with these clowns.

Edited by usagi555
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confused....restating just so I understand it, and I'll explain where I'm coming from.....

right now, I have a Midland suit pending.......now on the initial complaint, there is a signature of "A****** *******" listed specifically as "Counsel for Plaintiff set forth in the Entry of Appearance"

next page, which is an "Entry of Appearance"....this page lists A***** ***** as the attorney (different name), with license #

(just as a side not, I think it's funny.......both attorney's have the same initials first and last......and the only signature by either is illegible except for the initials....but anyway...)

the final page, the wording in it reads: "At this time, no attorney with the firm has personally reviewed the particular circumstances of your account"

as I read in the post, this is NOT kosher........?

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confused....restating just so I understand it, and I'll explain where I'm coming from.....

right now, I have a Midland suit pending.......now on the initial complaint, there is a signature of "A****** *******" listed specifically as "Counsel for Plaintiff set forth in the Entry of Appearance"

next page, which is an "Entry of Appearance"....this page lists A***** ***** as the attorney (different name), with license #

(just as a side not, I think it's funny.......both attorney's have the same initials first and last......and the only signature by either is illegible except for the initials....but anyway...)

the final page, the wording in it reads: "At this time, no attorney with the firm has personally reviewed the particular circumstances of your account"

as I read in the post, this is NOT kosher........?

Edited heavily:

Wait, has this complaint been filed against you in court, or is it just a dunning letter? 'Cause if they filed that with the courts, have fun tearing them apart! If they didn't and that's just a dunning letter, you can have all sorts of fun with that too!

The issue that we're getting at with the dunning letters in my possession are a) does the letter look like it came from an attorney and B) was there any meaningful involvement by an attorney at that point.

Edited by usagi555
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This was filed with the court.....came as part the entire package from the local courthouse.....in PA if it makes a difference.....

as per tearing them apart in court, I have the feeling they will be a "no show" anyway......

it was funny, this law office was calling daily after they filed......and since receiving my intent to defend....not a peep.....

it's bad enough, the complaint that was filed did not even list the original creditor........listed the last 4 of an account # but no reference to the original creditor besides "we own the rights to the "account".....

I am hoping to have fun with this....but like I said, I'd be suprised if anyone even shows (is a 2 1/2 hour drive from this law office in particular to the local court here)

on another note......if they show or not, I should have some FDCPA and state recourse here, shouldn't I? If nothing else for the pitiful filing and "wasting of the Court's time"???

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