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Would this attorney be considered a debt collector


PC1978
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I recently sent a CA an ITS letter with a draft copy of the complaint offering them an opportunity to settle before I sued. I had previously sent a timely DV letter, certified mail, to which I have recieved no response.

I received a letter from an attorney who they have retained that states they disagree with everything and my settlement offer is rejected. The letter then goes on to state that the attorney's counter offer is for me to pay a certain amount and the debt will be considered settled. The letter also states "This is an attempt to collect a debt." However, this letter does not inform me of my FDCPA 809 rights.

I believe that this letter is a further violation of the CA as they retained this attorney and continued to collect through the attorney after failing to respond to my DV letter.

My question is about the attorney. The are not a debt collection law firm. Their website shows that they mainly practice criminal defense and family law. They are not a debt collector per se, but would they be considered a debt collector in my specific case as they are representing a debt collector and are attempting to collect the debt on behalf of the CA.

If they had left their letter at we reject your offer they would be fine but I would like to think that since they went further and attempted to collect the debt and even stated "This is an attempt to collect a debt" that they are now acting as a debt collector. Any input is appreciated.

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If the attorney either makes a living collecting debts or regularly collects debts, then he is a debt collector. If he only does a couple of debt collection cases per year, he is not a debt collector and is not bound by the FDCPA. However, his clients may very well be bound under the FDCPA for his actions.

That being said, going toe to toe with a criminal defense attorney over a debt case could be kind of fun, unless that defense attorney is representing some local mom'n pop place.

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The attorney is submitting an offer to settle that had to have been approved by the CA which is a continued attempt to collect a debt on the part of the CA without validating the debt, sounds like a violation to me. Depending on the attorneys status as a debt collector sounds like a suit and a cross, or is it a suit squared?

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Never one to take up for the other side, but I see only one possible violation. No maxi-miranda and the atty admits they are a debt collector.

The other part about continued collections is the same as getting a collection letter, sending your DV and then the debt getting passed over to another CA.

Your beef would be with the retained attorney for possibly not disclosing all your rights in their initial communication to you. What you're trying to argue is vicarious liability on the part of the CA. That is a tough burden to prove.

I'm sure you gave them a deadline to settle by and told them to contact you about settlement? They got an attorney instead and basically passed it off to the attorney, since handle situations like this is what attorneys do. Again that would make your beef be with the attorney. You've opened the door to all this will be their argument, and not the worst argument ever made.

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Well, since you sent the CA a dv letter and they did not specifically respond to that dv, then hiring an attorney who sends you a demand for money, is continued collections. You can add this one to your pile of violations against the CA.

This would be some of the vicarious liability coltfan mentioned. If the CA had instructed the attorney to keep to the settlement language of the impending suit then there would have been no demand for money.

As to whether the attorney is a debt collector, I would say yes. I would say that the CA regularly retains this attorney when the CA is being threatened with suit or decides to sue. The key thing is to establish a "regular" pattern.

As a given, why would anyone put the statutory lanaguage "This is an attempt to collect a debt" in their letter unless they were concerned about fulfilling the debt collection requirments of the FDCPA?

It's obvious the CA will not settle without more pressure. I would file two lawsuits. One against the CA and one against the attorney. Or, you could contact a NACA attorney and let them file for you.

At any rate, the time for being nice is over.

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If they normally do criminal law they have the experience to argue a good case.

I would say the continued collection effort after not sending debt validation is continued collection activity and violates the fdcpa.

As far as the hired attorney you will have to prove how many debt cases they do in say a years time and establish a pattern of debt collection. If all they do is handle suits for their CA clients then they do not actively engage in the debt collection themselves then NO they are not a debt collector.

FDCPA:

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 term does not include --

(B) any person while acting as a debt collector for another person, both of whom are related by common ownership or affiliated by corporate control, if the person acting as a debt collector does so only for persons to whom it is so related or affiliated and if the principal business of such person is not the collection of debts; they would argue this to prove they are not.

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'B' would not apply as there is not a common ownership or affiliation by corporation control. This is the part which would cover the attorney:

or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another.

If the CA regularly (not all the time) hires the attorney to collect debts then the attorney is a debt collector for the purposes of the FDCPA. Even if the attorney does 99% criminal cases, if they regularly do debt collection for the CA for the other 1% then they would be a debt collector.

Support for this argument would be that the attorney abides by the FDCPA when it anounces that "this is an attempt to collect a debt". Why else would they put this statutory language in their letter except to abide by the FDCPA because they are a debt collector?

You should be Googling the attorney's name + FDCPA + debt collection, etc to see what you find. Also, take a look on your courts online to see what else they have done.

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Guest usctrojanalum

If the CA regularly (not all the time) hires the attorney to collect debts then the attorney is a debt collector for the purposes of the FDCPA. Even if the attorney does 99% criminal cases, if they regularly do debt collection for the CA for the other 1% then they would be a debt collector.

Yes. It depends on how many cases the attorney gets from the CA per year. If it is like 20 cases and the rest of his practice is criminal work, then no - attorney is not bound by the FDCPA.

If its over 100 cases per year, then we are talking about something different.

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I googled the attorney and fdcpa and one document came up. I will look up the case tonight. Person sued a CA, this attorney was retained. Attorney called consumer, consumer asked if they wanted to settle. Attorney said no, we debt collectors call you a pro, used profanity and said I'll get you to pay your debt and I'll be calling you back to discuss you paying your debt. Person filed an ammended complaint and included the attorney based on this phone conversation. Attorney filed a motion to dismiss claiming he was not a debt collector, motion to dismiss was denied around 11/11. I would be worried that if the attorney is sued and it is ruled that he is not a debt collector it might be considered frivolous.

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This one sounds borderline. This could be his first credit case for all we know. The letter is a settlement offer, the mini miranda is standard so as to comply with the law. I think it is required whether he does this as a regular part of his practice or not. The part you have to prove is "regularly." This guy sounds like a typical smartass criminal defense attorney. You can either take his juris number or name and do a case search on line for your state. That will show you his cases. See the link.

Tracy Winkler - Clerk of Courts

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I would be worried that if the attorney is sued and it is ruled that he is not a debt collector it might be considered frivolous.

I would not worry about this. In Thomas v Santander Consumer USA the court followed this reasoning:

Bad faith is ‘not simply bad judgment or negligence, but implies the conscious doing of a wrong because of a dishonest purpose or moral obliquity; . . . it contemplates a state of mind affirmatively operating with furtive design or ill will.’”

The attorney would have to somehow show that you knew that they weren't a debt collector and sued anyway. This probably wouldn't be enough either as you are a simple consumer and the court should judge you the same as an unsophisticate consumer. An unsophisticated consumer would think that a debt collector was sending the demand letter because the letter said "this is an attempt to collect a debt".

The best, although not the cheapest, way to find out if the attorney regularly collects debts for the CA is to file a lawsuit. They will have to establish that they are not and the lawsuit will be dropped. You would be out your filing fees but the attorney could not sue for costs unless they could establish ill will on your part.

Attorney said no, we debt collectors call you a pro, used profanity and said I'll get you to pay your debt and I'll be calling you back to discuss you paying your debt.

Well, where there's a little smoke there's a little fire. I'm going to guess that the attorney backpeddled on that statement but the court still dismissed the claim that the attorney was not a debt collector.

Check to see if the attorney has a web site and read what they offer for services.

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In your first post, you stated the attorney sent you a letter that says they disagree with everything. With what did they disagree? Did they disagree that they had not sent a response to your DV? What did he mean by "everything"?

He specifically stated that he disagreed with all of the factual allegations of the draft complaint I sent.

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I would not worry about this. In Thomas v Santander Consumer USA the court followed this reasoning:

Bad faith is ‘not simply bad judgment or negligence, but implies the conscious doing of a wrong because of a dishonest purpose or moral obliquity; . . . it contemplates a state of mind affirmatively operating with furtive design or ill will.’”

The attorney would have to somehow show that you knew that they weren't a debt collector and sued anyway. This probably wouldn't be enough either as you are a simple consumer and the court should judge you the same as an unsophisticate consumer. An unsophisticated consumer would think that a debt collector was sending the demand letter because the letter said "this is an attempt to collect a debt".

Agree 100%, even if you lost the FDCPA suit against the atty, no way your getting hit with it being frivilous.

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He specifically stated that he disagreed with all of the factual allegations of the draft complaint I sent.

If one of your allegations is that they didn't respond to your DV, then they're saying they did respond. That's an I said/they said situation. If they would claim they did respond, then they'd also claim they're not in violation for getting the attorney to respond to your ITS.

If you go through with the suit, you'd have to show they didn't respond to your DV request.

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It's interesting that you bring this up as I've thought about the same thing myself.

I have yet to read a case where this scenario has come up but in order for the claim of, "I sent it" to succeed the CA would have to come up with an affidavit from the OC which states that the CA did, in fact, contact them for validation of the debt.

As far as the attorney goes, if they are a debt collector then they have to send their own maxi-Miranda regardless to whether the CA sent one or not.

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It's interesting that you bring this up as I've thought about the same thing myself.

I have yet to read a case where this scenario has come up but in order for the claim of, "I sent it" to succeed the CA would have to come up with an affidavit from the OC which states that the CA did, in fact, contact them for validation of the debt.

As far as the attorney goes, if they are a debt collector then they have to send their own maxi-Miranda regardless to whether the CA sent one or not.

They also never sent an initial demand letter with notification of my rights. I have received no written communication from them ever. The only way I knew who they were was a pre-recorded voicemail they left. They would have to claim that they sent me two different documents, and I didn't get either, in order for there to be no violations.

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Here is a link to the Order Denying this attorney's motion to dismiss in the other case he was involved in:

Document 18 :: D'Angola v. Upstate Management Services LLC :: 1:2011cv00087 :: New Hampshire District Court :: US Federal District Courts Cases :: Justia

If you read his motion to dismiss on pacer he went hard at the frivolous suit angle and tried to get attorney fees.

This is actually my wife's debt they are attempting to collect, if it were mine I would just file the lawsuit. She is not comfortable with possibly having to go to court so I will probably see if I can get an attorney to take the case.

I doubt an attorney is going to want to go after this attorney though, probably just the CA, as it is not a sure thing and I can't find any case law to back up him being considered a debt collector.

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Here is a link to the Order Denying this attorney's motion to dismiss in the other case he was involved in:

Document 18 :: D'Angola v. Upstate Management Services LLC :: 1:2011cv00087 :: New Hampshire District Court :: US Federal District Courts Cases :: Justia

If you read his motion to dismiss on pacer he went hard at the frivolous suit angle and tried to get attorney fees.

This is actually my wife's debt they are attempting to collect, if it were mine I would just file the lawsuit. She is not comfortable with possibly having to go to court so I will probably see if I can get an attorney to take the case.

I doubt an attorney is going to want to go after this attorney though, probably just the CA, as it is not a sure thing and I can't find any case law to back up him being considered a debt collector.

If there is an online court lookup website in the relevant state(s), you can find evidence that he is a debt collector. You tediously go through case by case, looking for him being listed as the attorney, then log those. Once you have enough to determine who his clients are, you start searching for cases with those clients and see if he is listed. Record every single case number.

The above approach is a PITA, but it is what you have to do in states that don't track which attorneys file which cases.

Alternatively, you can sue and engage in some nasty discovery that'll make him crap his pants. I read that judge's ruling, and he [benson] sounds like a SCODB.

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If there is an online court lookup website in the relevant state(s), you can find evidence that he is a debt collector.

Thanks for the advice. I think I found what I need. It looks like he has just recently gotten into the debt collection business. He filed 6 lawsuits in 2011 on behalf of the same CA agency in my situation in a local court near to him. It looks like he is doing the local cases for this particular CA.

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It's interesting that you bring this up as I've thought about the same thing myself.

I have yet to read a case where this scenario has come up but in order for the claim of, "I sent it" to succeed the CA would have to come up with an affidavit from the OC which states that the CA did, in fact, contact them for validation of the debt.

As far as the attorney goes, if they are a debt collector then they have to send their own maxi-Miranda regardless to whether the CA sent one or not.

I don't think a CA has to come up with an affidavit from the OC. The court in the Chaudry case stated:

"Verification of a debt involves nothing more than the debt collector confirming in writing that the amount being demanded is what the creditor is claiming is owed; the debt collector is not required to keep detailed files of the alleged debt."

If the CA got their information from the OC when they were hired, there's nothing that states they have to contact the OC again in order to verify or validate the debt.

If the CA in this case sent never gave the 30 day notice miranda, they violated. I simply brought up the "I said/they said" scenario for something to think about.

Just to be safe, I'd speak to an attorney just to find out what I might be up against.

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If the CA got their information from the OC when they were hired, there's nothing that states they have to contact the OC again in order to verify or validate the debt.

The FDCPA does not state specifically how validation must be obtained but there is the "Wollman" opinion letter which states this:

You ask whether a collection agency for a medical provider will fulfill the requirements of that Section if it produces "an itemized statement of services rendered to a patient on its own computer from information provided by the medical institution . . .” in response to a request for verification of the debt. You also ask who is responsible for mailing the verification to the consumer.

The statute requires that the debt collector obtain verification of the debt and mail it to the consumer (emphasis mine). Because one of the principal purposes of this Section is to help consumers who have been misidentified by the debt collector or who dispute the amount of the debt, it is important that the verification of the identity of the consumer and the amount of the debt be obtained directly from the creditor. Mere itemization of what the debt collector already has does not accomplish this purpose. As stated above, the statute requires the debt collector, not the creditor, to mail the verification to the consumer.

"Verification of a debt involves nothing more than the debt collector confirming in writing that the amount being demanded is what the creditor is claiming is owed; the debt collector is not required to keep detailed files of the alleged debt."

This looks good but it is taken out of context. The debt collector, in the Chaudhry case, did sent to the creditor for validation of the debt after the Chaudhrys asked for validation:

On January 4, 1996, Kiley wrote to Gallerizzo, disputing the amounts that NationsBank claimed were due. Pursuant to the FDCPA, he requested that Gallerizzo verify the amounts claimed in the Demand Letter. After receiving Kiley's January 4th letter, Gallerizzo telephoned Jeffrey Richman, another bank representative in Special Assets, and requested that he confirm the sums that were owed for principal, interest and inspection fees. By letter dated January 18, 1996, Gallerizzo sent Kiley a verification of the indebtedness and assured Kiley that the Chaudhrys did, in fact, owe the verified sums. The next day, Gallerizzo again wrote to Kiley and set forth the amounts necessary to pay off the Construction Loan. Subsequently, in a telephone conversation, Gallerizzo asked Kiley whether he had the information he requested. Kiley responded that he had received everything he needed except for verification of the attorneys' fees.

The Chaudhry case defined validation as this:

The court ruled that "[v]erification only requires a debt collec- tor to confirm with his client that a particular amount is actually being claimed, not to vouch for the validity of the underlying debt."

In the Chaudhry case it was clear that the debt collector had confirmed with their client the amount owed after the debtors requested validation. They did not reach into their file and bring out a sheet the creditor had previously sent.

They also never sent an initial demand letter with notification of my rights. I have received no written communication from them ever. The only way I knew who they were was a pre-recorded voicemail they left. They would have to claim that they sent me two different documents, and I didn't get either, in order for there to be no violations.

So you sent them a dv request without ever receiving your maxi-Miranda? What were your violations in your ITS? I'm not sure failing to validate would be a violation as you have not been given your rights. These rights puportedly start the day you receive them, not before.

What the collector is guilty of is overshawdowing by not sending your maxi-miranda rights after initial contact. It may be that your validation rights should have been given to you and that the collector should have either ceased their collection activities or returned validation.

I would argue that point. The collector should have given them to you and they should have been effect 5 days after intial contact.

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Started receiving calls and when they did not send an initial demand letter, after about 20 days, I sent a letter informing them of this violation and disputing/requesting validation. After they received the letter they continued making collection calls and left a pre-recorded messgage. I then sent the ITS and got the attorneys letter a few weeks later. I have received no written communication from the CA at any time.

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