When is an attorney "acting as an attorney?"

[usagi555]

I am not aware of any state that requires an attorney to obtain a debt collector license (except under very specific circumstances). With respect to New Mexico, 61-18A-2.C(6) looks like that state's attorney exception.

As far as being subject to the FDCPA, Heintz v. Jenkins, 514 U.S. 291 (1995) is still controlling on that question as far as I know.

Again, that goes back to NM's exemptions from the licensing requirements being word-for-word identical to the pre-1986 FDCPA's exemptions. Now, 61-18A-2C(6) NMSA 1978 is the only only difference between the two. It's pretty clear that NM was mirroring the FDCPA, and thus similar reasoning should apply to the two acts. That leads into FTC v Shaffner:

Appellee contends all three of the exceptions are present here. First, he argues that the FTC is clearly violating his right to be free from investigation secured by the Fair Debt Collection Practices Act. While the statute clearly excludes "any attorney-at-law collecting a debt as an attorney on behalf of and in the name of a client" from the definition of a "debt collector," it does not state that an attorney, by reason of mere possession of a license to practice law, is not subject to the compulsory process of the FTC. The statutory exclusion does not merely say "any attorney-at-law," it says "any attorney-at-law collecting a debt as an attorney on behalf of and in the name of a client." While the exclusion is not a narrow one, it is readily apparent that Congress did not intend to vest in every attorney a right to be free from investigation. Needless to say, many who hold licenses to practice law, do not practice law, but engage in other businesses. We do not believe Congress intended to shield one debt collection business from investigation simply because it is owned by an attorney, while subjecting other debt collectors to scrutiny by the FTC. The compulsory process of the FTC may be used to determine whether an attorney is in fact acting as an attorney practicing law, or in some other capacity.

The lawfirm took some actions that were consistent with being debt collectors and not consistent with being attorneys. I would also love to read the retainer between Citibank and the law firm, or even the one between Target National Bank and the law firm. Unfortunately, they've never had to cough up the former and the latter is under a protection order. The closest that I've come to reading such an agreement comes from Docket no 95 in Yazzie v Farrell & Seldin:

The relationship between Target National Bank and Farrell & Seldin is a far cry from the traditional attorney/client relationship. Farrell & Seldin also acted as Target National Bank's collection agent. Prior to the filing of the state court debt collection lawsuit, Farrell & Seldin sent out letters about the account and made collection calls to Plaintiff. See Docket No. 38, Exhibit E, letter; Docket No. 94, p. 10, [pp] 113. With these actions, Farrell & Seldin acted as a collections agent, not as an attorney...

While they had not claimed the same causes of action as I would have been, the jury thought that F&S & Target National Bank should cough up $1.26 million.

I also have two letters from the law firm with an identical signature. I mean overlay them and every last little ink dot matches. They're sending out form letters, which doesn't necessarily exclude attorney involvement, it just makes it more likely that there wasn't any. On top of that, there are 4 attorneys with the firm licensed in my state, one of which lives in Colorado and clearly has other (i.e. management) duties, so it's really 3 attorneys practicing in my state. I have a list covering a 91 day period where they filed almost 3100 cases in NM, and that list is incomplete. It's also worth more than its weight in gold, because NM doesn't keep those kinds of statistics. In other words, they don't have enough time to give any meaningful attorney review prior to filing a lawsuit, and they sure as hell aren't going to have any time for it when sending out a simple dunning letter. I was going to push this and use Boyd v Wexler plus discovery for that.

A few things that would have helped: The issue of when an attorney is acting as an attorney in my state probably would have stopped a removal to federal court dead in its tracks. The regulation of the practice of law in NM is the jurisdiction of the NM Supreme Court, and even the Federal Court has recognized this. I also had a judge that they did not like. They asked for preemptive excusal almost always when she was assigned to one of their cases, and if they filed the request outside of the allotted 10 days, she would almost always deny the request as untimely. She was the only judge in the state who would deny them untimely requests.

Edited December 1, 2011 by usagi555

[tropicaljo]

I like this way of thinking, but like others have said throughout this thread and as the Courts have said - a letter that comes from an attorney holds more weight and is of a more serious nature than one that comes from a collection agency. Letters from attorneys are serious, and should be taken as such. An attorney who sends out a letter with the intention of filing a lawsuit is definitely rendering a legal service.

The letter I received was on a lawfirm letterhead, but contained that nifty disclaimer regarding "not attorney has reviewed the particulars of your personal account..." and it was not signed by anyone, just rubber stamped with the name of the lawfirm in the signature line. No mention of any intent file a lawsuit, either.

I've read thru several of the cases mentioned here and and elsewhere and those cases don't seem apporpriate in my situation because they seem to hinge on whether the dun letters contained an attorney's signature/name.

[usagi555]

Thanks for that, but that link doesn't help me much as it relates to OC's and JDB's. I'm suing the lawfirm/collection agency for FDCPA violations after they dismissed thier clients complaint for a bs reason.

In my situation, the lawfirm filed a complaint after I had invoked the arb clause twice, in writing prior to thier filing the complaint.

They sought a MTS after I denied the court had jurisdiction due to the fact that I had invoked the arb clause prior to their filing of the complaint. Their MTS was granted and the Order was stipulated (in the judges handwriting) that the arb not exceed 90 days.

8 months later they requested a hearing and tried to take the complaint back to the court due to their allegation that they were "precluded' from filing arbitration with AAA in or around February 2011 due to the moritorium on business initiated consumer debt arbitration filings.

I filed a MTD with prejudice and filed documents from AAA that showed they were not 'precluded' from filing b/c the moratorium had been lifted in October of 2010. In fact, I was told by AAA that they never even attempted to file an application for arb on the clients claims.

They fought that and filed their own MTD without prejudice using the same "preclusion" allegations and stated they were choosing to non-suit. The judge ignored my MTD and signed theirs 20 minutes before oral arguements were to be heard.

So I'm not sure what all to ask for in discovery. I do plan to ask for the full names, job titles, etc of each and every agent that attempted to call my home and discuss the alleged debt after they received my C&D, as well as the full name, etc. of the person in their firm who informed me that the attorney at hand had not informed the client of my invoking the arb clause until after that attorney had filed the complaint. Beyond that, I'm kinda at a loss as to what else to ask for.

I hadn't gotten to the point where I was asking for discovery over this issue yet. You need to start digging. I hadn't formulated exact discovery requests yet, but I had a pretty good idea of what I wanted from them. Do they file a large volume of cases? If so, start digging into their dunning letter practices. A lot of cases is going to translate to even more dunning letters. A lot of dunning letters could very well translate into them not acting as attorneys. If you can get to the point where you can justify asking for the retainer agreement, ask for it. Retainers are not privileged.

I seem to remember having some discussion with you over this in the past and from what I recall, you would have a much more uphill battle than I would have. You would have been fighting some case law, and my state has no binding case law that I can find regarding this issue whatsoever. I do have some federal case law that deals with a word-for-word match with the specific NM statute that I would have been dealing with.

[nascar]

I've read thru several of the cases mentioned here and and elsewhere and those cases don't seem apporpriate in my situation because they seem to hinge on whether the dun letters contained an attorney's signature/name.

The Miller v. Upton case deals specifically with those letters.

[usagi555]

The letter I received was on a lawfirm letterhead, but contained that nifty disclaimer regarding "not attorney has reviewed the particulars of your personal account..." and it was not signed by anyone, just rubber stamped with the name of the lawfirm in the signature line. No mention of any intent file a lawsuit, either.

I've read thru several of the cases mentioned here and and elsewhere and those cases don't seem apporpriate in my situation because they seem to hinge on whether the dun letters contained an attorney's signature/name.

I had one with that disclaimer as well. It's the Greco disclaimer from Greco v Trauner, Cohen & Thomas. My letter, however, had a signature. This would have put it in that twilight zone where it's not clear if it was a violation of the FDCPA, and I have yet to find case law dealing with the exact issues. I was going to search some more to make sure, then if I still failed to find anything, I was going to include that as well. That would have put them in a very difficult situation regarding the licensing claims, and I feel that it is a legitimate question that should be answered.

[tropicaljo]

I hadn't gotten to the point where I was asking for discovery over this issue yet. You need to start digging. I hadn't formulated exact discovery requests yet, but I had a pretty good idea of what I wanted from them. Do they file a large volume of cases? If so, start digging into their dunning letter practices. A lot of cases is going to translate to even more dunning letters. A lot of dunning letters could very well translate into them not acting as attorneys. If you can get to the point where you can justify asking for the retainer agreement, ask for it. Retainers are not privileged.

I seem to remember having some discussion with you over this in the past and from what I recall, you would have a much more uphill battle than I would have. You would have been fighting some case law, and my state has no binding case law that I can find regarding this issue whatsoever. I do have some federal case law that deals with a word-for-word match with the specific NM statute that I would have been dealing with.

Honestly, in my case the initial dun letter is the least of their worries. The lawfirm I'm dealing with freely admit they are classified as a collection agency and as much as admitted in a letter to me that my FDCPA claims could apply to them, however, they claim that none of my other claims are relevant. For instance, they said to me in writing that there's a "plethora of case law" that says they are not liable for respondeat superior for the violations committed by their individual employees. I haven't let them know that I'm aware there is a plethora of case law that says they are.

I've come to accept that the licensing issue is a topic more suited for the state AG to decide. Wish I could be the one to make this happen, but I'm just not that smart or durable. I haven't filed a report with the AG yet, but will probably do so eventually.

Thanks for the tip on getting the retainer agreement. I have never believed that they were hired with the exclusive intent to sue... else why did they spend almost a year committing all the standard violative collection tactics and antics prior to the actual filing of the suit?