drummer55 Posted January 13, 2012 Report Share Posted January 13, 2012 I'm just a little bit confused so straighten me out. Company X is the creditorLaw firm Y is calling and attempting to collect on the debt. Is Law firm Y is the actual debt collector?If so how does that work out when you want to do a counterclaim for FDCPA violations against the debt collector when Law Firm Y is both trying to collect the debt and representing Company X in a lawsuit? Does that make sense? Link to comment Share on other sites More sharing options...
1stStep Posted January 13, 2012 Report Share Posted January 13, 2012 You don't counterclaim the law firm for FDCPA violations. You sue them separately. Link to comment Share on other sites More sharing options...
usagi555 Posted January 13, 2012 Report Share Posted January 13, 2012 It could just be a NM thing, but there are cases in NM where the law firm was "counter claimed" as a third party defendant, and the courts seemed to be OK over that. I admittedly haven't pulled the cases to see what the third party causes of action were, but I know that in one of the cases, it was because the law firm sued the wrong person.To answer the OP's questions, a law firm can also be a debt collector. If they collect debts for a third party on a regular basis (suing people counts as collection activities,) they are subject to the FDCPA. The creditor may or may not be a debt collector. It depends on who the creditor is and how they came to own the debt. If Citibank, for example, extends credit or buys an account that is NOT in default, they are not a debt collector for purposes of the FDCPA. If everybody's favorite, Midland, buys an account that is in default with the intent of collecting on it, they are a debt collector. Link to comment Share on other sites More sharing options...
legaleagle Posted January 13, 2012 Report Share Posted January 13, 2012 Law firms perform both functions. They work for specific lenders as a rule, like Solomon & Solomon in NY, they work for Citibank. Not very good at it, either, but that's their problem. They can be retained as a debt collector, and later, when the OC decides to sue, they hire the same firm to represent them in court. They use law firms because there is much less chance that an attorney will violate the FDCPA. The FDCPA also applies to law firms who do collections for a living as USAGI555 pointed out. Law firm Y is entitled to call you up and until the point where they cease to be a debt collector and sign on as counsel.They rarely violate the FDCPA, claims against them usually go nowhere. They will transfer the claim to federal court if you sue. Are you prepared to argue a federal case? Most pro ses are not up to it. Even so, you really have to have a solid case grounded in law. Otherwise, you'll be the one "grounded" into hamburger, and you may wind up sanctioned for costs because you brought a suit when you had no clue. Link to comment Share on other sites More sharing options...
drummer55 Posted January 13, 2012 Author Report Share Posted January 13, 2012 (edited) Thanks for the replies…awesome as usual. I’ve got the law firm, when it was acting as a debt collector, dead to rights violating FDCPA 805 © calling me after I sent my CMRRR VOD saying only contact me via mail. I record all my phone calls and have the voicemails as well. In the phone calls they also violate Oregons FDCPA 646.639 (2)(g)( (i). Now that the law firm has been hired as council I need to separate this out from the Counter Claim and file against them separately. Basically anything done during this debt collection period cant be used in the counterclaim. Not much chance of a counterclaim via the FDCPA then is there? Edited January 13, 2012 by drummer55 Link to comment Share on other sites More sharing options...
usagi555 Posted January 13, 2012 Report Share Posted January 13, 2012 Law firms perform both functions. They work for specific lenders as a rule, like Solomon & Solomon in NY, they work for Citibank. Not very good at it, either, but that's their problem. They can be retained as a debt collector, and later, when the OC decides to sue, they hire the same firm to represent them in court. They use law firms because there is much less chance that an attorney will violate the FDCPA. The FDCPA also applies to law firms who do collections for a living as USAGI555 pointed out. Law firm Y is entitled to call you up and until the point where they cease to be a debt collector and sign on as counsel.They rarely violate the FDCPA, claims against them usually go nowhere. They will transfer the claim to federal court if you sue. Are you prepared to argue a federal case? Most pro ses are not up to it. Even so, you really have to have a solid case grounded in law. Otherwise, you'll be the one "grounded" into hamburger, and you may wind up sanctioned for costs because you brought a suit when you had no clue.I disagree with law firms not violating the FDCPA. I have sitting in front of me a letter where they (Citibank's attorneys in NM) misrepresented the amount. They added $181.00 to the balance, and from the current collection efforts against me (LOL) the amount Citibank is claiming that I owe lesser amount, which was listed in the complaint. I'm betting it was $132.00 for court costs and $49.00 for the process server. No judgment, no court costs from me. However, it is a minor violation IMO. That's not even getting into the crap that they tried to pull on me in discovery. IMO, the high volume default-judgment-only firms have a hard time not violating. They don't have time to actually review the case before filing it, and with how bad the banks' records are, they take risks that they are going to file something rotten with the court and not know about until it comes back to bite them. Link to comment Share on other sites More sharing options...
willingtocope Posted January 13, 2012 Report Share Posted January 13, 2012 I’ve got the law firm, when it was acting as a debt collector, dead to rights violating FDCPA 805 © calling me after I sent my CMRRR VOD saying only contact me via mail. That's not an FDCPA violation. You can't force them to only use mail. You can tell them to stop contacting you with regard to the debt ("Cease and Desist"), but without a C&D they can still call. Link to comment Share on other sites More sharing options...
Guest usctrojanalum Posted January 14, 2012 Report Share Posted January 14, 2012 I’ve got the law firm, when it was acting as a debt collector, dead to rights violating FDCPA 805 © calling me after I sent my CMRRR VOD saying only contact me via mail. I record all my phone calls and have the voicemails as well. In the phone calls they also violate Oregons FDCPA 646.639 (2)(g)( (i). This is not a violation of the FDCPA. If Oregon's statute is the same or similar, it does not violate that one either. Link to comment Share on other sites More sharing options...
Downto0 Posted January 14, 2012 Report Share Posted January 14, 2012 The way the FDCPA reads the Cease Communications Order is a complete stop contacting me Order.I would suggest that the you use 805(a)(1):a debt collector may not communicate with a consumer in connection with the collection of any debt --(1) at any unusual time or place or a time or place known or which should be known to be inconvenient to the consumer.To be sure, in your next letter I would specifically state that "all calls from you are inconvenient" but previously telling the collector that they should cease communications with you except for writing should sufficiently pass as already telling the collector that it is inconvenient for them to call. Link to comment Share on other sites More sharing options...
antiquedave Posted January 14, 2012 Report Share Posted January 14, 2012 I disagree with law firms not violating the FDCPA. I have sitting in front of me a letter where they (Citibank's attorneys in NM) misrepresented the amount. They added $181.00 to the balance, and from the current collection efforts against me (LOL) the amount Citibank is claiming that I owe lesser amount, which was listed in the complaint. I'm betting it was $132.00 for court costs and $49.00 for the process server. No judgment, no court costs from me. However, it is a minor violation IMO. That's not even getting into the crap that they tried to pull on me in discovery. IMO, the high volume default-judgment-only firms have a hard time not violating. They don't have time to actually review the case before filing it, and with how bad the banks' records are, they take risks that they are going to file something rotten with the court and not know about until it comes back to bite them.I'm with you, they violate as often as any other collector, the reason being that there is money to be made in violating the law, they close more cases by being tough and being illegal, the rare bird that sues them is just the cost of doing business and their profit outweighs any money they pay out to settle FDCPA cases. Link to comment Share on other sites More sharing options...
antiquedave Posted January 14, 2012 Report Share Posted January 14, 2012 That's not an FDCPA violation. You can't force them to only use mail. You can tell them to stop contacting you with regard to the debt ("Cease and Desist"), but without a C&D they can still call.You mean they can still call after they validate the debt? Link to comment Share on other sites More sharing options...
willingtocope Posted January 14, 2012 Report Share Posted January 14, 2012 You mean they can still call after they validate the debt? Yep. In theory, they should not call if you DV within 30 days of first communication until they do actually provide FDCPA validation, but, once they do...the calls can start again. And, the "inconvient at any time" ploy isn't really in the FDCPA. As long it isn't befor 8am or after 9pm, and not at work...they can call... Link to comment Share on other sites More sharing options...
Downto0 Posted January 14, 2012 Report Share Posted January 14, 2012 Yep, it's there as I posted it. I haven't seen it tested in the courts yet, however. I'd use it as a violation and let the local court decide. The theory is that if you tell them it's inconvenient for them to call then they know, or should know, that it is inconvenient. The FDCPA doesn't specify that one must list the reason why it is inconvenient and that those reasons must pass some quality test.Doesn't hurt to try. Link to comment Share on other sites More sharing options...
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