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What if attorney did not send Cease Communications to JDB?


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I was sued by a JDB via their collection attorney a little over 4 years ago. The case was dismissed but during that time period I had issued a Cease Communications to the attorney and to the JDB. I sent both CC's to the attorney, expecting that, as the JDB's representative, he would forward the JDB's copy to them.

They both stopped contacting me after the case was dismissed but the JDB started making phone calls and sending offers for payment plans a year or two later. I blocked their numbers, but they'd just pull another one out of their hat and continued calling. I have blocked 20 to date. They also keep sending more payment plan offers.

I keep wondering if their attorney even told them about the CC letter I sent for them to his office. The no contact for one or two years indicates that he may have and that the JDB lost the CC in the shuffle but I'm not so sure. The collection attorney flagrantly violated his CC and I'm wondering if he did not even send the CC to the JDB.

I need to add that one of my claims in court against the JDB was that I sent the CC to their attorney and that the JDB continued to violate the CC regardless. I believe that all Plaintiffs are responsible to know what is in their claim and subsequent proceedings.

Speculating that the attorney did not send the CC to the JDB, isn't the attorney guilty when the JDB violates the CC? Then, if the JDB/Plaintiff did not read the proceeding which told the JDB that there was a CC in their attorney's office for them, isn't the JDB also guilty because they are required to read and understand the proceedings?

Don't I have a claim against the attorney and the JDB for every violation the JDB commits?

Edited by Downto0
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Do you send the C&D via certified mail w/RR? If so, do you still have a copy of the return receipt?

Also, do you have pictures of your phone showing their number or the old phone records? If so, consult with a consumer attorney in your area.

Also you AG in MN is really cracking down on JDBs, so if you have proof file a complaint with the AG.

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I have the green cards for all the CC's.

I have recordings of 4 phone messages, a kazillion calls from the JDB where they did not leave messages, and the payment offer dunning letters.

I want to know if:

(1)the attorney is guilty of these calls that the JDB has made because he did not send the CC to the JDB thus making the JDB think that they could call and the JDB is not culpable because the attorney did not tell them, or if

(2)the JDB is guilty of making the calls because they were notified of the CC via the proceedings, regardless to whether they read the proceedings, or not, and the attorney is not guilty because the JDB should have read the proceedings. or if

(3)both of them are guilty because the JDB should have read the proceeding which told the JDB that there was a CC sent to the JDB's attorney and because the attorney did not send the CC to the JDB or tell the JDB about the notice in the proceedings.

Who is guilty of what?

I will eventually file a clam and will have full access to their files on the matter but I'd like to have some of these questions answered so that I file the right claims about the right violations.

Edited by Downto0
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Since this is not within the 1 year, you are going to have a hard time hitting the lawyer with violations. I have twice now filed a single suit and named the JDB and their agent. Both cases settled out rather fast, but I took the position in my complaint that I did not know which did the real violations so they were both guilty.

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Since this is not within the 1 year, you are going to have a hard time hitting the lawyer with violations. I have twice now filed a single suit and named the JDB and their agent. Both cases settled out rather fast, but I took the position in my complaint that I did not know which did the real violations so they were both guilty.

off topic, but how does that work in the complaint? how do you word it to read that you did not know which did the real violations? i would think you'd say they both violated. im a bit curious how you wrote this out in the complaint

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I've already laid the groundwork to establish that I wanted them to Cease Communications with me years ago. I would have been satisfied if they would have obeyed the CC and had gone away, but they have started up again. Even if I did issue another CC, they would start up again in another year or so. This JDB is known for going after zombie debts forever.

It's time to sue. I intend to contact a NACA attorney but I want to lay as much groundwork as I can aforehand to assess the violations and damages, and who these violations and damages should be assessed to. I think NACA attorneys are like all lawyers in that they they have their own best interest at heart and more than likely would not work as hard as I would to ferret out all the violations and damages for me.

As far as the FDCPA and the $1,000 damages go, it is per action, per plaintiff. I have case law. This is why I want to know if I can sue the attorney if he did not inform his client, the JDB of the CC.

Then there is the TCPA for the phone calls in violation of the CC. The Watson case brought this issue to light when they said that debt collectors could not call a non-debtor because it invoked the privacy section of the TCPA.

I feel the same is true of violation of a CC. I asked for privacy and the JDB still called. I believe I have admissible evidence to pursue this TCPA claim.

The FDCPA may, or may not, be out of reach for the attorney, depending upon whether the attorney informed the JDB of the CC, or not, which has caused the JDB to violate. If the attorney is guilty via vicarious liability then the violations are current since the JDB is calling several times each week.

off topic, but how does that work in the complaint? how do you word it to read that you did not know which did the real violations? i would think you'd say they both violated. im a bit curious how you wrote this out in the complaint

No, it's right on topic. Once I figure who is guilty, the next thing will be writing up the complaint.

My thoughts are that the safe way would be to write up a complaint for both of them individually. That way you would be assured that any judge would have to consider the violations as two actions. But there is at least one court which said that the FDCPA allowed $1,000 per defendant. In Overcash v United Abstract Group the court opined:

Accordingly, in consideration of the frequency and nature of the noncompliance, the court awards the full amount of "additional damages" available under the statute: $1,000 per defendant.

This case is a good read.

FindACaseā„¢ | Overcash v. United Abstract Group

What I am trying to accomplish at this juncture is who is guilty of what. This is important because the JDB may not actually be guilty since the attorney may not have passed the CC letter on to the JDB. Or they may be guilty anyway because they should have read the proceedings instead of relying on their attorney to inform them of actions they needed to take.

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Here's some possible obstacles to your Complaint:

Does the attorney still represent the JDB? If not, that may present a problem with vicarious liability.

You didn't send a letter directly to the JDB. It might be your word against their's that their attorney informed them of the CC.

Was the case dismissed with or without prejudice? That might make a difference as to whether or not they can continue to contact you.

The problem with the Watson case is that the Plaintiff never owed the debt in the first place. NCO had the wrong person. Also, the court did not rule on the Plaintiff's TCPA claim. They merely refused to reconsider NCO's request to dismiss the claim.

Also, although persuasive, a Pennsylvania case would not be binding precedent in your state.

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Guest usctrojanalum

If the attorney closed their file and never contacted you again, I do not think you are going to be successful against the attorney for something the JDB did two years later.

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I agree with USC, you have time work against you on the lawyer.

In my case I had JDB on several violations and just before I was ready to file they assigned it to CA that listed it on my Credit Report and did not list it as disputed. I invoked the "Failed to communicate that the debt is disputed" provision of the FDCPA. Either JDB failed to inform CA or CA failed to inform the CRAs.

I do advocate filing against everyone you can in a specific case. I have found that they can and will screw up faster when there are more than one defendant. However you must be able to demonstrate a colorable claim or you will be paying their attorney fees.

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It would not matter if the attorney still represents the JDB as to whether the attorney is guilty of not passing on the CC. Nor would it matter how the case was dismissed. After the CC, a collector cannot contact the consumer again, legal proceedings excluded, except for a few specified remedies. A kazillion phone calls is not acceptable.

I did not directly send the CC to the JDB. This does not matter either. The FDCPA states that the consumer only need give notice. Notice via the attorney is still notice.

The question now is, "Did the attorney give the legal notice to his client and what are the ramifications if he did not?"

No matter what, it will still come down to my word against the attorney's that I even sent a CC. The green card only states that the attorney signed for an envelope. It does not verify what was in the envelope, if anything at all.

But the kicker here is that I also filed a claim about violation of a CC where I stated that a CC was sent to the JDB/Plaintiff via their attorney. This is "public" third-party verification that a CC was issued to the JDB. Everyone who would read the case file would assume that a CC was sent to the JDB via the JDB's attorney.

Their time to object to the delivery of the CC has since passed. It was stated in a public forum and neither of them denied receiving the CC.

My thoughts are that the attorney will deny receiving the CC but he will also have to explain why he did not deny receiving the CC for the JDB at trial.

What could he say in his defense?

The Plaintiff in the Watson case was a non-debtor but the issue was over the privacy section of the TCPA. This opened the door for other privacy issues. The JDB violated my privacy by violating the CC.

If the attorney closed their file and never contacted you again, I do not think you are going to be successful against the attorney for something the JDB did two years later.

If the attorney was remiss in his duty to inform the JDB of the CC then it is because of his inaction that the JDB is now violating the CC. I don't think the JDB is faultless because notice was also given in the proceeding where the JDB was Plaintiff of the complaint and Defendant of the counterclaims. This is probably a case of where the JDB relied entirely on the attorney and the attorney failed in his duty to notify the JDB.

I agree with USC, you have time work against you on the lawyer.

Here are the question that will be on the judge's mind:

(1)Why did Downto0 file a claim stating that he sent a CC to the attorney if he did not. What would be the purpose of saying such a thing if Downto0 did not send a CC to the Plaintiff?

(2)Why did not the Plaintiff or Plaintiff's attorney object to being sent a CC?

The bottom line is that the attorney, by not sending the CC to his client, has caused the JDB to violate the CC.

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The bottom line is that the attorney, by not sending the CC to his client, has caused the JDB to violate the CC.

I would take the focus off the attorney as too much time has passed. Simply put, you provided notice and they violated. If they want to get into a he said, she said about giving notice to the attorney, it is a matter between them, not a matter for your case.

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Here's the problem.

Assuming that the JDB ignores my ITS, as JDB's typically do, I file a complaint against the JDB. The JDB denies receiving the CC. The attorney has purged his file on this particular matter.

What I have for admissible evidence is:

(1)my testimony that I sent the CC

(2)the court documents where I also testified that I sent the CC to the JDB via their attorney

(3)three green cards which were returned from the attorney's office

(4)copies of CC letters I sent to the attorney for the JDB on my hard drive.

This does not seem like enough because the JDB will claim that they have a system in place to watch for important documents and place them in the file. If they would have gotten the CC document, it would have been in their file. It's not in their file so they must not have gotten it.

The JDB will say that they have given strict instructions to their attorney to quickly forward important documents to them. Again, the CC document is not in their file so their lawyer must not have gotten the CC document.

However, this problem is not that much different than if I would have sent the CC directly to the JDB. If the JDB loses the CC document in the shuffle of time how could anyone prove that they did actually put a CC document in the envelope that the JDB signed for? They can't.

There must be a way or the CC clause in the FDCPA would be pointless. I've only read one case which has dealt with CC and it was more about Specified Remedies. Delivery of CC was not in question.

BTO, you hit the nail right on the head. That's why I said earlier that it would not do much good to reissue the CC because they would be back in another year or two.

So really, how does one establish that they did send a CC if the JDB won't fess up?

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Actually you are highly unlikely to get that far. InsideARM recently had an article that the expense of filing a Summary Judgement motion and all related efforts in an FDCPA case costs about $3,000. A JDB also has to answer to their insurance carrier and there is a huge downside to not settling out a single plaintiff FDCPA case very quickly. You can always prompt them to settle faster by dumping a few motions and discovery on them that they must then start spending money on. The ones they typically fight are class actions where they can lose huge amounts of money.

There are a few exceptions to this, but mostly this is the case.

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I get your point. Put together a reasonable claim and proceed with deliberate caution so that the JDB will understand that it will be a long costly battle to stay the course.

Wouldn't this work if I brought the attorney into it as well? It really doesn't cost any less for an attorney to represent themselves, does it?

Or is there that "Good Old Boy" club thing where the judges don't want to go against one of their own, but they'll throw the JDB to the dogs because the judges don't like JDB's anymore than we do? Or that the attorneys will fight harder for themselves than they would for a JDB?

It might be better to go for the easy $1,000 than the laborious $2,000.

Edited by Downto0
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Guest usctrojanalum

I honestly do not think you have a case against the attorney. You can try and sue him, but if you sue him and have no case - just be careful that you do not end up paying his attorney fees for defending a frivolous action.

If you sent a CC to attorney and he never contacted you ever again you have no claim against him. That is pretty cut and dry.

The attorney not sending the CC letter to the JDB might, and I emphasize might (because I do not believe it to be true) be a violation of some attorney/client relationship clause, and the JDB could have a malpractice claim against the attorney. You would not be involved in that, nor would you have standing for any damages in such a case.

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Guest usctrojanalum

If the attorney was remiss in his duty to inform the JDB of the CC then it is because of his inaction that the JDB is now violating the CC. I don't think the JDB is faultless because notice was also given in the proceeding where the JDB was Plaintiff of the complaint and Defendant of the counterclaims. This is probably a case of where the JDB relied entirely on the attorney and the attorney failed in his duty to notify the JDB.

If this is the case, you definitely have no claim against the attorney. The JDB has more of a case against the attorney than you do.

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Okay, I get it. I sue the JDB because they violated the CC. The attorney caused the JDB to violate the CC because he did not pass the CC on to his client but that is a violation of an attorney/client relationship, not a violation of the CC itself by the attorney.

The JDB, however, could sue their attorney for whatever they might have to pay out to me for their unknowing violation of the CC.

It makes me think of the car accident where one swerves to avoid a car which has crossed the center line. The car which crossed the line is guilty of crossing the line. It is not liable for the damages sustained to the car that swerved because it did not actually hit the car and make it go into the ditch.

I don't necessarily agree with this anecdote but it's like my case in that the one who really caused the damages isn't culpable.

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