If you sue a CA for a TCPA violation, can you make that an FDCPA violation too?

[1stStep]

OK - here's what I am pondering...

CA calls my cell phone for an unknown debt...pre-recorded message comes on and says "Hold on-we need to speak with you..."

They don't identify they are a debt collector the entire 45 seconds on the phone. I looked up the number and figured out they were a CA.

///

Now I am getting ready to type the complaint for a TCPA violation, but can I say stack the TCPA violation into an FDCPA violation? I'm looking at count 1 being the TCPA violation and count 2 being at least 1 FDCPA violation for failing to identify they were a debt collector. Can I also say something along the lines of " by using abusive means -violation of another Federal law, which is a violation of 1692d?"

[Coltfan1972]

I say you can. I'm somewhat doing what you are talking about. The agency that contact me was not licensed to collect in my state. I have no private right of action under the state law they violated.

So, I'm suing them for an FDCPA violation. I'm arguing they used deception as the least sophisciated (actually anybody) would assume they were licensed if they contacted them.

I'm also arguing they unfair collection methods by trying to collect when they had no legal right.

This one might be a tad more on what you're talking about. I'm arguing since they were not licensed to collect in my state, even if they violated not one single other collection law, FDCPA or state, the should have never contacted me in the first place. Therefore I was subjected to harassment since any contact with me was illegal.

I'd argue the same about the TCPA violation. They should have never contacted you in the method they contacted you. In other words you were forced to deal with a situation that should have never been put into a position of addressing. That's harassment and unfair, a violation of the FDCPA.

[1stStep]

So this is the working draft right now...

COUNT I

DEFENDANT VIOLATED THE FAIR DEBT COLLECTION PRACTICES ACT

1. Defendant violated the Fair Debt Collection Practices Act in the following ways:

a. by using abusive means in the collection of a debt through the violation another law, in violation of 15 USC 1692d;

b. by failing to identify that a debt collector was calling in violation of 15 USC 1692d(6) and 15 USC 1692e.

COUNT II

DEFENDANT VIOLATED THE TELEPHONE CONSUMER PROTECTION ACT

1. Defendant violated the Telephone Consumer Protection act in the following way:

a. By using an automated dialing device with a prerecorded message to place a non-emergency phone call to the Plaintiff’s cellular phone, in violation of 47 USC 227(

(1)(A)(iii).

[Coltfan1972]

Right, that is the way I see you need to do it. This is how I'm doing it.

Count 1. Violation of the ACAA

Defendant Scumbags communications with the Plaintiff, on or about the date of February 4, 2012, through February 14, 2012, was made while conducting the business of a collection agency and a collector, in the state of Arkansas, as defined under the ACAA. As Defendant Scumbag has and had no legal authority to act as a collection agency and/or a collector during their communications with the Plaintiff, due to their lack of a license being issued by the Arkansas State Board of Collection Agencies, but did so anyway, Defendant Synerprise has violated the ACAA, specifically, Arkansas Code Annotated 17-24-101.

Count 2. Violations of the FDCPA

Defendant Scumbag, on or about the dates of February 6, 2012 through February 14, 2012, violated the FDCPA, specifically 15 U.S.C. § 1692, (e)10. Defendant Scumbag used false and misleading representations. Specifically, presenting themselves to the Plaintiff as a collection agency authorized to do business and conduct the business of a collection agency in the state of Arkansas. The least sophisticated consumer would surly believe a collection agency calling, sending letters, referring to themselves as debt collectors in writing and making demand for payments was in fact a licensed collection agency and conducting themselves within the bounds of applicable federal and state laws.

Defendant Scumbag, on or about the dates of February 4, 2012, through February 14, 2012, violated the FDCPA. Specifically, 15 U.S.C. 1692(f), using unfair or unconscionable means to collect or attempt to collect any debt. Defendant Scumbag was not licensed to conduct the business of a collection agency in the state of Arkansas, therefore, any contact with the Plaintiff while acting as a collection agency and/or collector, when contacting the Plaintiff while the Plaintiff was located in Arkansas, whether any other conduct during the communication with the Plaintiff violated the FDCPA or not, should have never occurred. Therefore, with their communication and conduct with the Plaintiff, Defendant Scumbag has violated the FDCPA.

In your case they should have never contacted you with an auto dialer. In my case they should have never contacted me by any means. So I think we are both arguing basically the same thing/way, just different "other violations" that trigger an FDCPA violation.

[usagi555]

Right, that is the way I see you need to do it. This is how I'm doing it.

Count 1. Violation of the ACAA

Defendant Scumbags communications with the Plaintiff, on or about the date of February 4, 2012, through February 14, 2012, was made while conducting the business of a collection agency and a collector, in the state of Arkansas, as defined under the ACAA. As Defendant Scumbag has and had no legal authority to act as a collection agency and/or a collector during their communications with the Plaintiff, due to their lack of a license being issued by the Arkansas State Board of Collection Agencies, but did so anyway, Defendant Synerprise has violated the ACAA, specifically, Arkansas Code Annotated 17-24-101.

Count 2. Violations of the FDCPA

Defendant Scumbag, on or about the dates of February 6, 2012 through February 14, 2012, violated the FDCPA, specifically 15 U.S.C. § 1692, (e)10. Defendant Scumbag used false and misleading representations. Specifically, presenting themselves to the Plaintiff as a collection agency authorized to do business and conduct the business of a collection agency in the state of Arkansas. The least sophisticated consumer would surly believe a collection agency calling, sending letters, referring to themselves as debt collectors in writing and making demand for payments was in fact a licensed collection agency and conducting themselves within the bounds of applicable federal and state laws.

Defendant Scumbag, on or about the dates of February 4, 2012, through February 14, 2012, violated the FDCPA. Specifically, 15 U.S.C. 1692(f), using unfair or unconscionable means to collect or attempt to collect any debt. Defendant Scumbag was not licensed to conduct the business of a collection agency in the state of Arkansas, therefore, any contact with the Plaintiff while acting as a collection agency and/or collector, when contacting the Plaintiff while the Plaintiff was located in Arkansas, whether any other conduct during the communication with the Plaintiff violated the FDCPA or not, should have never occurred. Therefore, with their communication and conduct with the Plaintiff, Defendant Scumbag has violated the FDCPA.

In your case they should have never contacted you with an auto dialer. In my case they should have never contacted me by any means. So I think we are both arguing basically the same thing/way, just different "other violations" that trigger an FDCPA violation.

Not for your district, but none the less, it is a federal ruling:

TCA has not disputed its unlicensed status. New Mexico law prohibits collection agencies, like Defendant TCA, from engaging in debt collection activities within the state without a license. N.M.S.A.1978 § 61-18A-5(A) (1987 Repl.Pamp.).[3] Moreover, this district has held that collection activity which violates state law violates the FDCPA. See Kolker, 750 F.Supp. at 472 (under New Mexico law, conduct constituted unauthorized practice of law in violation of FDCPA); see also Gaetano v. Payco of Wisconsin, Inc., 774 F.Supp. 1404, 1415 (D.Conn.1990) (faced with a parallel Connecticut state statute, district court held that unlicensed collection activity within a state violated various provisions of the FDCPA); Kuhn, 865 F.Supp. 1443 (same). Therefore, this Court finds that Defendant TCA violated 15 U.S.C. §§ 1692e, 1692e(5), 1692e(10) and 1692f by engaging in collection activity in this state without a license, and Plaintiff will be granted Summary Judgment on these claims.

russey v rankin - Google Scholar

Lets see now, did I just give you more work to do on your complaint?

[Coltfan1972]

Thanks !! Not really for my case as I have them nailed, but I'm trying to find precedent where the court ruled any state law violation is a per se FDCPA violation. They all seem to agree the bigger state law violations, like not being licensed, are obvious FDCPA violations, but won't take that next step to say any state law violation is a per se FDCPA violation.

On the OP topic, I can't see how any court would rule that violating the TCPA is not also a violation of the FDCPA. A TCPA violation would, in my opinion, rank at the top of a seperate violation triggering a FDCPA violation.

[BV80]

Regarding the TCPA, did you ever give the OC your cell number? If so, did you revoke pemission to call your cell before the CA ever called you?

[1stStep]

I do not know who the OC is...kinda hard to do if you're not behind on any bills... plus, all of my OCs do not have my cell phone number.

I should mention that I faxed a DV letter to the CA about 10 min after getting the call...I haven't heard from them since (and I also added my Webrecon report too)

In the DV letter, I let them know that they never had, nor do they now or in the future, have consent to call my cell phone using an autodailer.

///

Also- the likelihood of this going to trial is slim to none...when I file this, I expect the CA to break out the checkbook fairly quickly...

Edited March 12, 2012 by 1stStep

[admin]

In the DV letter, I let them know that they never had, nor do they now or in the future, have consent to call my cell phone using an autodailer.

It's no contact or contact when you send a cease and desist, you don't tell them what kind of contact you will allow.

[usagi555]

It's no contact or contact when you send a cease and desist, you don't tell them what kind of contact you will allow.

He's using a different body of law for that. Because he made clear that it was a cellphone that they did not have his express consent to call, any calls will now be wilful violations of the TCPA.

[BV80]

He's using a different body of law for that. Because he made clear that it was a cellphone that they did not have his express consent to call, any calls will now be wilful violations of the TCPA.

Exactly. The TCPA is about implied express consent. He made sure they don't have it.

[legaleagle]

Thanks !! Not really for my case as I have them nailed, but I'm trying to find precedent where the court ruled any state law violation is a per se FDCPA violation. They all seem to agree the bigger state law violations, like not being licensed, are obvious FDCPA violations, but won't take that next step to say any state law violation is a per se FDCPA violation.

On the OP topic, I can't see how any court would rule that violating the TCPA is not also a violation of the FDCPA. A TCPA violation would, in my opinion, rank at the top of a seperate violation triggering a FDCPA violation.

Check this out, could apply to your case, first paragraph. Don't know what case he is referring to, doesn't say.

Q&A | Law Office of Patrick C Burpee LLC | Seattle Washington

However, we have:

A recent opinion this year in Bradshaw v. Hilco Receivables, No. RDB-10-113, 2011 U.S. Dist. LEXIS 17954 (D. Md. Feb. 23, 2011) found that a debt collection firm attempting to collect debts without being properly licensed in the state is a violation of the FDCPA. (Texas)

Essentially, Plaintiffs argue that Hilco’s violation of MCALA’s licensing requirement is a per se violation of Section 1692e(5)’s prohibition on threats to take action that cannot legally be taken. There is precedent for that argument. In Gaetano v. Payco of Wisconsin, Inc., the United States District Court for the District of Connecticut concluded that unlicensed collection activity violated various provisions of the FDCPA. 774 F. Supp. 1404, 1415 (D. Conn. 1990). Similarly, other district courts faced with violations of parallel state laws that mandate licensure by collection agencies have held that violations of those laws constitute per se violations of the FDCPA. See, e.g., Sibley v. Firstcollect, Inc., 913 F. Supp. 469,471-72 (M.D. La. 1995); [*21] Russey v. Rankin, 911 F. Supp 1449, 1459 (D.N.M. 1995); Kuhn v. Account Control Tech., Inc., 865 F. Supp. 1443, 1452 (D. Nev. 1994).

[usagi555]

Check this out, could apply to your case, first paragraph. Don't know what case he is referring to, doesn't say.

Q&A | Law Office of Patrick C Burpee LLC | Seattle Washington

However, we have:

A recent opinion this year in Bradshaw v. Hilco Receivables, No. RDB-10-113, 2011 U.S. Dist. LEXIS 17954 (D. Md. Feb. 23, 2011) found that a debt collection firm attempting to collect debts without being properly licensed in the state is a violation of the FDCPA. (Texas)

Essentially, Plaintiffs argue that Hilco’s violation of MCALA’s licensing requirement is a per se violation of Section 1692e(5)’s prohibition on threats to take action that cannot legally be taken. There is precedent for that argument. In Gaetano v. Payco of Wisconsin, Inc., the United States District Court for the District of Connecticut concluded that unlicensed collection activity violated various provisions of the FDCPA. 774 F. Supp. 1404, 1415 (D. Conn. 1990). Similarly, other district courts faced with violations of parallel state laws that mandate licensure by collection agencies have held that violations of those laws constitute per se violations of the FDCPA. See, e.g., Sibley v. Firstcollect, Inc., 913 F. Supp. 469,471-72 (M.D. La. 1995); [*21] Russey v. Rankin, 911 F. Supp 1449, 1459 (D.N.M. 1995); Kuhn v. Account Control Tech., Inc., 865 F. Supp. 1443, 1452 (D. Nev. 1994).

CIC: The Linux of Consumer Litigation

[1stStep]

OK-so the complaint is almost done...

**For the FDCPA violations, I am asking $1k in statutory damages;

**For the TCPA violation, I am asking $500.

Also asking for court costs, and other fees, and other relief as appropriate (in case I need to get an attorney).

[Coltfan1972]

Exactly. The TCPA is about implied express consent. He made sure they don't have it.

And also made sure it goes from a $500.00 violation to a $1500.00 willful violation if they do it again. I always throw in what not to call and even my phone number. In other words, the please comply with my request while inside just praying they ignore my request.

[1stStep]

Yayyy---

So this morning, I missed a call from the CA - and they left a nice pre-recorded message stating that they are attempting to contact me "regarding an important personal matter."

Keep in mind that I sent a DV letter to which they never responded, and I revoked consent to call my cell phone and leave pre-recorded messages...

So now here's how it's going to look:

**FDCPA violations - $1k statutory

**TCPA violation - $500 for the first call, $1,500 for the second call as it constitutes willful violation.

Edited March 14, 2012 by 1stStep

[IndiraMehta]

CIC: The Linux of Consumer Litigation

ABSOLUTELY. (coming from a Linux user)