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Are Repeated "Final" attempts to collect a FDCPA violation?


LauriL
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My husband has received three collection letters from a CA where they state, "...your account has been placed with our legal department. This will be our final attempt to collect this debt. If need be, your account will be assigned to an attorney who is licensed to practice law in your state."

 

Over the next 30 days, our investigation into your personal assets will be completed. These findings, along with a prepared affidavit ready for signature, will be forwarded to expedite authorization of your account to an attorney of our choice. A determination to file suit will be made on 10/9/2012."    (The next letter is the same except they change the date to 12/4/2012.) 

 

My question: is this a violation because they said the 1st time that it's their final attempt and they say the same thing again but change the determination date in the next letter and so on?

 

Also, I don't see this collection agency listed in the Idaho Dept of Finance license search. 

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When did you get the very first letter from them with the 30 validation notice?

 

Did the date of 10-9-12 fall within the first 30 days?

 

Does the collection agency actually have a legal department?

 

I would think you would want to talk to a consumer attorney in your state, this collector seems ripe

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This is called "overshadowing" and it is a violation. Their whole intent is to scare you into contacting them and making a payment.

 

Run - don't walk to the Federal courthouse and file suit. You might get some $$$ in your pocket by New Years.

 

You really need to locate that second letter

 

Overshadowing is a violation, but if all 3 letters are final notices it implies there were earlier letters, were there?)

 

As far as collecting from a suit goes if you put together a case today well, maybe by valentines day

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When debt collectors use terms such as lawyer, legal dept, or any language that could convince a least sophisticated consumer that an attorney may be involved is violates the fdcpa.

 

Rosenau v. Unifund Corp., 539 F.3d 218 (3d Cir. Pa. 2008)
A debt collection letter can be deceptive under the FDCPA even if it
only implies that it is from an attorney. Using the phrase "Legal
Department" could imply to the least sophisticated debtor that a lawyer
was involved in drafting or sending the letter
 

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I agree there's a violation here, but I'm not sure it's called overshadowing.  Overshadowing is when the CA obscures the meaning of something else.  For instance, if the first letter contains the 30 day notice, but it also contains a sentence that states "The full amount is due within 10 days.", that statement would contradict the 30 day notice.  How can I request validation if I have to pay within 10 days? 

 

Another example would be a first letter that gives the 30 day notice, but a week later you get a letter that states payment for the debt is due now.  That 2nd letter, because of the words "due now" contradicts the 30 day validation notice given a week earlier.  Do I have 30 days to validate, or do I have to pay now?

 

In the OP's letters, although the dates were changed, they didn't actually contradict each other.   It's not a matter of "do I do this, or do I do this other thing?"

 

In my opinion, they are false and misleading.  It's possible it might fall under 1692e(10):

 

(10) The use of any false representation or deceptive means to collect or attempt to collect any debt or to obtain information concerning a consumer.

 

The "final attempt" AND "If need be, your account will be assigned to an attorney who is licensed to practice law in your state" might be interpreted to convey a false sense of urgency.  The problem is the words "if need be".  That means "if we feel like we have to". 

 

BUT, you still have the words "final attempt".

 

It make take some case law research.

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Unfortunately, until I started reading this board after Cavalry sued me I've tossed most collection letters. I just started re-reading them because of what I'm learning from you guys. Here's the entire letter;

 

Sept 06, 2012

 

Over the past month Halsted Financial Services has made numerous attempts to contact you over the phone to resolve your account with HSBC Discover #.....Since you have not made an arrangement to satisfy this debt, we have no alternative but to inform you that your account has been placed with our legal department. This will be our final attempt to collect this debt. If need be, your account may be assigned to an attorney who is licensed to practice law in your state.

 

Over the next 30 days our investigation into your personal assets will be completed. These findings, along with a prepared affidavit ready for signature, will be forwarded to expedite authorization of your account to an attorney of our choice. A determination to file suit will be made on 10/9/2012.

 

Please do not make this action necessary. We want to extend a helping hand in getting this matter resolved internally. This office is prepared to reduce your debt and offer you a generous settlement of 40% off. That's a savings of $687.69. This offer is only available for a limited amount of time. Please respond to this letter by 10/9/2012 to take advantage of this offer. We can be reached at 888-xxx-xxxx ext xxx.

 

This letter is null and void if prior arrangements have been made or if this account in (sp) no longer in our office.

 

this letter was sent from a professional debt collection agency. This is an attempt to collect a debt. Any information obtained will be used for that purpose.

 

Sincerely,

Sam Anthony

Department Manager

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Did you ever DV them and/or elect arbitration in that letter?

Yes, I DV'd them Nov. 30th, received the green card back on Dec. 8th. Getting the card back and reading some posts on here yesterday is what caused me to think there might be violations in their collection letters. 

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The letter makes it sound that suit is imminent, they give you a deadline and then when that didn't work they gave you another one, I think that next letter with the same threat is an issue because they did not sue you or apparently refer the debt to a collection attorney after the first deadline,

 

Pipiles v Credit Bureau 2nd circuit, or Riviera v MAB Collections, Baker V Citibank is a South Dakota case might provide some help.

 

other issues would be whether or not making the referral to an attorney was or was not within the contractual authority of the CA or that the suit was not actually intended at the time the threat was made, which I think you can make that claim because of the multiple threatening letters. In any event the discovery of contractual authority and determining whether or not suit was intended are really issues for Discovery in the suit

 

I agree 1692e(10) and

 

1692e(5) you need to show that the least sophisticated debtor would believe a suit was imminent and that the debt collector did not intend to take legal action.

 

Your letter stated 6 things and taken as a whole look like trouble for the collector, these cases may shed some light one way or the other

 

Your account has been placed with our legal department. (They MUST have a legal department or violate)

 

This will be our final attempt to collect this debt. (it was not the final attempt)

 

If need be, your account will be assigned to an attorney who is licensed to practice law in your state." (United States v Central Adjustment Bureau)

By itself this statement may not be a violation but in context in the whole letter more likely) Maybe Thomas v National Business Assistants.

possibly Ferguson v Credit Management Control,

 

Over the next 30 days, our investigation into your personal assets will be completed. (Swanson v Oregon Credit Services or maybe Davis v Commercial Check Control) This is a veiled threat to sieze your assetts.

 

These findings, along with a prepared affidavit ready for signature, will be forwarded to expedite authorization of your account to an attorney of our choice. (Threat of imminent suit, but they state her that they do not have authorization to sue) Clark v Retrieval Masters

 

A determination to file suit will be made on 10/9/2012." (This is called a species deadline that they did not apparently follow, is the collection agency is implying that they will make the decision to sue on 10-9-12) Jeter v Credit Bureau or maybe Nielsen v Dickerson

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Yes, I DV'd them Nov. 30th, received the green card back on Dec. 8th. Getting the card back and reading some posts on here yesterday is what caused me to think there might be violations in their collection letters. 

The above letter was dated September...when did you get their first letter to you, the one you DVed last month?

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The above letter was dated September...when did you get their first letter to you, the one you DVed last month?

The first letter (not sure if there were previous ones I may have round-filed) that I kept was the Sept. 06th. It's got coffee all over it, so I think I tossed the 2nd one as I remember spilling coffee all over my desk and ruining quite a few things. The third one that is identical in content but gives deadlines of 12/4/12 and was dated November 6th. 

 

AntiqueDave: Thank you very much for all your work picking this thing apart. I think I should contact a local attorney on this as I've never filed a suit before.

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Over the next 30 days, our investigation into your personal assets will be completed. (Swanson v Oregon Credit Services or maybe Davis v Commercial Check Control) This is a veiled threat to sieze your assetts.

 

That wasn't said in Swanson.  The reference to assets in Swanson wasn't ruled on by the court.  It involved an implied threat to contact the consumer's employer.  In Davis, the CA implied criminal penalties.  An investigation into personal assets does not threaten to seize assets.  An investigation and seizure are 2 different things.  You also have to keep the sentence in context. 

 

In the Piples case, the court stated "The clear import of the language, taken as a whole, is that some type of legal action has already been or is about to be initiated and can be averted from running its course only by payment."

 

That's close, but still not the same as the OP's letter.    In that case, the letter implied that the only way legal action could be avoided was to pay.  The OP's letter doesn't imply that in the same way.  You still have the words "If need be".  That doesn't mean "we will".  

 

Then you have the fact that they sent other letters.  Sending more letters extending that "final attempt" date doesn't imply that they want to sue.  This is not a slam dunk.

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The first letter (not sure if there were previous ones I may have round-filed) that I kept was the Sept. 06th. It's got coffee all over it, so I think I tossed the 2nd one as I remember spilling coffee all over my desk and ruining quite a few things. The third one that is identical in content but gives deadlines of 12/4/12 and was dated November 6th. 

 

AntiqueDave: Thank you very much for all your work picking this thing apart. I think I should contact a local attorney on this as I've never filed a suit before.

 

BV will most likely find some other case law to post, it is very important to save all of these letters, it makes it harder I think when you don't have copies of everything they send you, also its important to send a DV within the first 30 days after receipt of the first letter.

 

The attorney I work with gets copies of everything I receive the day I receive it, if you don't find an attorney right away keep trying

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Over the next 30 days, our investigation into your personal assets will be completed. (Swanson v Oregon Credit Services or maybe Davis v Commercial Check Control) This is a veiled threat to sieze your assetts.

 

That wasn't said in Swanson.  The reference to assets in Swanson wasn't ruled on by the court.  It involved an implied threat to contact the consumer's employer.  In Davis, the CA implied criminal penalties.  An investigation into personal assets does not threaten to seize assets.  An investigation and seizure are 2 different things.  You also have to keep the sentence in context. 

 

In the Piples case, the court stated "The clear import of the language, taken as a whole, is that some type of legal action has already been or is about to be initiated and can be averted from running its course only by payment."

 

That's close, but still not the same as the OP's letter.    In that case, the letter implied that the only way legal action could be avoided was to pay.  The OP's letter doesn't imply that in the same way.  You still have the words "If need be".  That doesn't mean "we will".  

 

Then you have the fact that they sent other letters.  Sending more letters extending that "final attempt" date doesn't imply that they want to sue.  This is not a slam dunk.

 

I think I read about 100 summaries this morning on deceptive practices and threats to sue, didn't find a single one that had all of the elements of the OP's letter, peices and parts of it here and there but not all of the elements, there is a lot to consider in that letter and while no one element may make the case the letter as a whole may very well do that. Again though having all of the letters would make it easier.

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I've made an appt with an attny for Monday. She also wants us to pull husband's credit reports and to check on SOL, etc. on this. Not being licensed in Idaho is another violation. The 1st letter was forwarded from our Montana address, the 3rd one was sent to our new Idaho home address. 

 

Idaho Code 26-2223. COLLECTION AGENCY, DEBT COUNSELOR, CREDIT COUNSELOR, OR CREDIT REPAIR ORGANIZATION -- LICENSE REQUIRED. 

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BV will most likely find some other case law to post, it is very important to save all of these letters, it makes it harder I think when you don't have copies of everything they send you, also its important to send a DV within the first 30 days after receipt of the first letter.

 

The attorney I work with gets copies of everything I receive the day I receive it, if you don't find an attorney right away keep trying

 

I'm not trying to say there's no case law, we just have to find the appicable case law.  As you know, it depends on the rulings in the OP's courts, if any.  While I consider the letter to be deceptive, a judge could look at the words "if need be" and decide otherwise.  Judges can be strange characters.

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Unfortunately, until I started reading this board after Cavalry sued me I've tossed most collection letters. I just started re-reading them because of what I'm learning from you guys. Here's the entire letter;

 

Sept 06, 2012

 

Over the past month Halsted Financial Services has made numerous attempts to contact you over the phone to resolve your account with HSBC Discover #.....Since you have not made an arrangement to satisfy this debt, we have no alternative but to inform you that your account has been placed with our legal department. This will be our final attempt to collect this debt. If need be, your account may be assigned to an attorney who is licensed to practice law in your state.

 

Over the next 30 days our investigation into your personal assets will be completed. These findings, along with a prepared affidavit ready for signature, will be forwarded to expedite authorization of your account to an attorney of our choice. A determination to file suit will be made on 10/9/2012.

 

Please do not make this action necessary. We want to extend a helping hand in getting this matter resolved internally. This office is prepared to reduce your debt and offer you a generous settlement of 40% off. That's a savings of $687.69. This offer is only available for a limited amount of time. Please respond to this letter by 10/9/2012 to take advantage of this offer. We can be reached at 888-xxx-xxxx ext xxx.

 

This letter is null and void if prior arrangements have been made or if this account in (sp) no longer in our office.

 

this letter was sent from a professional debt collection agency. This is an attempt to collect a debt. Any information obtained will be used for that purpose.

 

Sincerely,

Sam Anthony

Department Manager

Like i said earlier its a violation for misrepresent the legal status of a debt.

 

§ 807.  False or misleading representations  [15 USC 1962e]

 

(2) The false representation of --

(A) the character, amount, or legal status of any debt;

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Did they ever respond to you dv back in September or when ever it was.....if they did not respond it is continued collection efforts

§ 809.  Validation of debts   [15 USC 1692g]

(B) If the consumer notifies the debt collector in writing within the thirty-day period described in subsection (a) that the debt, or any portion thereof, is disputed, or that the consumer requests the name and address of the original creditor, the debt collector shall cease collection of the debt, until the debt collector obtains verification of the debt or any copy of a judgment, or the name and address of the original creditor, and a copy of such verification or judgment, or name and address of the original creditor, is mailed to the consumer by the debt collector. Collection activities and communications that do not otherwise violate this title may continue during the 30-day period referred to in subsection (a) unless the consumer has notified the debt collector in writing that the debt, or any portion of the debt, is disputed or that the consumer requests the name and address of the original creditor. Any collection activities and communication during the 30-day period may not overshadow or be inconsistent with the disclosure of the consumer's right to dispute the debt or request the name and address of the original creditor.

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Like i said earlier its a violation for misrepresent the legal status of a debt.

 

§ 807.  False or misleading representations  [15 USC 1962e]

 

(A) the character, amount, or legal status of any debt;

 

The OP didn't state they misrepresented the amount.  How are they misrepresenting the character or legal status?

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here is some case law that you can apply to those letters.

 

In re Belile, 209 B.R. 658 (Bkrptcy. ED, PA . 1997) (threatening
to take imminent action, where no one in the creditor’s legal department was admitted to practice in the debtor’s
jurisdiction was a violation of the act);

 

Wilson v. Quadramed, 225 F.3d 350, 354 (3d Cir.
2000). “[A] communication that would not deceive or mislead
a reasonable debtor might still deceive or mislead the least
sophisticated debtor.”

 

315 U.S.C. § 1692e(5) prohibits a debt collector from threatening “to take any action that cannot legally be taken orthat is not intended to be taken.”

Brown v. Card Serv. Ctr., 464 F.3d 450, 453 (3d Cir. 2006)

This standard, of the least sophisticated consumer, is lower than the standard of a reasonable debtor.
We concluded that “it would be deceptive under
the FDCPA for [the collection agency] to assert that it could
take an action that it had no intention of taking and has never or
very rarely taken before.” Id. at 455.

 

Gonzales v. Arrow Financial Services LLC CALI
found a collection letter to be in violation of § 1692e(1O) based on what the least sophisticated debtor "could likely believe. the court also stated "This Court has unearthed no case in which the plaintiff
was required to present [extrinsic evidence], to support the Court's finding in plaintiffs favor under the 'least sophisticated debtor' standard.

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