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So I recently sued a debt collector and in their answer, they wrote:

 

"The long standing standard of the least sophisitcated consumer does not apply;an individual that can type up and file a conforming complaint with the Federal Court should not be considered a least sophisticated consumer for the purposes of litigation."

 

 

Thoughts?

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Purely made up - but I have an idea where they are going with this...

 

Yes, because you can read, I guess you don't have the same protection under the law.

 

rt

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I believe Coltfan has provided this citation on numerous occasions. 

 

The basic purpose of the least-sophisticated-consumer standard is to ensure that the FDCPA protects all consumers, the gullible as well as the shrewd." Clomon v. Jackson, 988 F.2d 1314, 1318 (2nd Cir.1993).

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How nice of them to rewrite a federal judge's decision to suit themselves. This is what happens when you graduate last in your class. A mind is a terrible thing to waste.....why give one to a junk debt lawyer?

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THE LEAST SOPHISTICATED CONSUMER STANDARD

B.The basic purpose of the least sophisticated consumer standard is to protect all
consumers—from the educated to the naïve.

 

 

"The long standing standard of the least sophisitcated consumer does not apply;an individual that can type up and file a conforming complaint with the Federal Court should not be considered a least sophisticated consumer for the purposes of litigation."

 

The court explained that basic purpose of the FDCPA is to protect “all consumers, the gullible as well as the shrewd,” “the trusting as well as the suspicious,” from abusive debt collection practices.

 

http://www.ftc.gov/os/statutes/fdcpa/fdcpact.shtm  Sue them again sounds like they are sore losers and just cant get enough plus they want you to spend a month in hawaii on them.

(9) The use or distribution of any written communication which simulates or is falsely represented to be a document authorized, issued, or approved by any court, official, or agency of the United States or any State, or which creates a false impression as to its source, authorization, or approval.

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So I recently sued a debt collector and in their answer, they wrote:

 

"The long standing standard of the least sophisitcated consumer does not apply;an individual that can type up and file a conforming complaint with the Federal Court should not be considered a least sophisticated consumer for the purposes of litigation."

 

 

Thoughts?

 

Thoughts? :ROFLMAO2:  :ROFLMAO2:  :ROFLMAO2:

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So I recently sued a debt collector and in their answer, they wrote:

 

"The long standing standard of the least sophisitcated consumer does not apply;an individual that can type up and file a conforming complaint with the Federal Court should not be considered a least sophisticated consumer for the purposes of litigation."

 

 

Thoughts?

 

Under what section(s) did you bring your claim? It matters.

 

While it is true the least sophisticated consumer standard applied to violations of 1692e, it does not apply to all violations of the Act. 

 

We employ the "least-sophisticated consumer" standard to evaluate whether a debt collector's communication violates § 1692e of the FDCPA. LeBlanc v. Unifund CCR Partners, 601 F. 3d 1185 (11th Cir. 2010). However, in a case where the consumer also alleged violations of § 1692d and § 1692f, the court held the standard did not apply in all circumstances. SeeKnighten v. Palisades Collections, LLC, 721 F. Supp. 2d 1261 (S.D. Fla 2010) ("First, the least sophisticated consumer standard does not apply in this instance."). In yet another case, the court held that the least sophisticated consumer standard did not apply to the latter part of subsection § 1692e(5). In Re Turner, 07-11450-DHW (Bankr. MD Ala. 2009) (The Jeter court carved an exception from the "least sophisticated consumer" standard for the second "unintended action" prong of e(5)).

 

That said, debt collector's reasoning here is crap.

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One of my claims is under section e... but I also lump violations of other consumer statutes under section e as well...

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Thoughts?

 

Just a few-

 

“Courts must presume that a legislature says in a statute what it means and means in a statute what it says there.” See, Connecticut Nat'l Bank v. Germain. 112 S. Ct. 1146, 1149 (1992).”

 

The FDCPA is a strict liability statute and is to be liberally construed in favor of consumers to effect its purpose, See, Picht v. Jon R. Hawks, Ltd, 236 F.3d 446, 451 (8th Cir. 2001).

 

The FDCPA enlists the efforts of sophisticated consumers to act as “private attorneys general” to aid their less sophisticated counterparts, who are unlikely themselves to bring suit nder the Act, but who are assumed by the Act to benefit from the deterrent effect of civil actions brought by others."  2nd Circuit Court of Appeals, Jacabson (Pro-se) V Healthcare Financial Services, 06-3147, 2007.

 

"The purpose of the FDCPA is to `eliminate abusive debt collection practices by debt collectors,' and debt collectors are liable for failure to comply with `any provision' of the Act." See, Richmond v. Higgins, 435 F.3d 825, 828 (8th Cir. 2006).

 

Under the FDCPA, district courts are to employ and use the “unsophisticated-consumer” standard when analyzing FDCPA claims and whether conduct violates the FDCPA is to be determined by analyzing the conduct from the perspective of the least sophisticated consumer. See, Duffy v. Landberg, 215 F.3d 871, 873 (8th Cir. 2000); Peters v. General Service Bureau, Inc., 277 F. 3d 1051, 1055 (8th Cir. 2002); Freyermuth v. Credit Bureau Servs.,Inc., 248 F.3d 767, 771 (8th Cir. 2001) (quoting Duffy v. Landberg, 215 F.3d 871, 873 (8th Cir.2000); and Strand v. Diversified Collection Serv., Inc., 380 F.3d 316, 317-318 (8th Cir.2004).

 

“Impermissible practices include harassing, oppressive or abusive conduct; false, deceptive or misleading representations; and unfair or unconscionable collection methods, the case law on this issue focuses on the “debt collector's actions,” and whether an unsophisticated consumer would be harassed, misled or deceived by them.” See, Freyermuth v. Credit Bureau Services, Inc., 248 F3d 767, 771 (8th Cir. 2001).

 

“No section of the FDCPA requires an inquiry into the worthiness of the debtor or purports to protect only deserving debtors. The FDCPA protects all consumers, from the gullible to the shrewd.” See, Bass v. Stolper, Koritzinsky, Brewster & Neider, S.C., 111 F.3d 1322 (7th Cir. 1997).

 

The focus is on the debt collector's conduct, not the consumer's. See, Keele v. Wexler, 149 F.3d 589 (7th Cir. 1998).

 

“It does not seem unfair to require that one who deliberately goes perilously close to an area of proscribed conduct shall take the risk that he may cross the line.” See, FTC v. Colgate-Palmolive Co., 380 U.S. 374, 393, 85 S. Ct. 1035, 13 L.Ed. 2D 904 (1965).

 

Under the FDCPA, if the offending conduct is not unreasonable is not a defense. See, Fox v. Citicorp Credit Services, Inc., 15 F.3d 1507 (9th Cir. 1994).

 

:trainwreck:

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It is a typical tactic.....try to use a consumer protection act against the consumer it was designed to protect. The reasoning is idiotic anyway, the level of knowledge of the consumer does not mean that the violation did not happen. They always try this with TILA to prove account stated. You know, the "you received statements and held them for an unreasonable amount of time without dispute, therefore you agreed to the statement balance." Sorry, but the statute doesn't require a consumer to make a dispute, it only details what the creditor has to do if one is made.

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I know some pro se TCPA litigants who have filed many suits against telemarketers.  Sometimes the telemarketers will say that they were enticed into making the telemarketing calls by "professional plaintiffs."  They never get far with that argument.

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I know some pro se TCPA litigants who have filed many suits against telemarketers.  Sometimes the telemarketers will say that they were enticed into making the telemarketing calls by "professional plaintiffs."  They never get far with that argument.

 

The collection attorney, at my deposition, looked at me with anger and said, "You're a professional at this it"

 

I said, yep, thanks for the compliment.  

 

I mean is there defense really, well if we would have know this person was smart and not unsophisicated we would have never violated the law.   That's like telling a cop that if you would have known they were hiding behind that tree with the radar gun I would have never been dumb enough to drive 25 MPH over the limit right by you.  

 

What the heck kind of logic are they trying to prove with this argument anyway?   I hope they use this at trial.  I can't wait to turn to the jury and ask the lawyer if what they are saying is there client only violates the rights of those they know they can get away with it against and are just mad because they got caught?

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What the heck kind of logic are they trying to prove with this argument anyway?   I hope they use this at trial.  I can't wait to turn to the jury and ask the lawyer if what they are saying is there client only violates the rights of those they know they can get away with it against and are just mad because they got caught?

 

Reminds me of one debt collector who argued they weren't liable for violating the law because, "We would have stopped if he asked us to . . "

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So I recently sued a debt collector and in their answer, they wrote:

 

"The long standing standard of the least sophisitcated consumer does not apply;an individual that can type up and file a conforming complaint with the Federal Court should not be considered a least sophisticated consumer for the purposes of litigation."

 

 

Thoughts?

 

I was doing some research on court decisions and found this statement interesting. It was written by a Federal Judge that denied a debt collectors motion to dismiss.

 

Finally, Defendant’s argument that there can be no violation because Plaintiff himself was

not misled is of no consequence, as the Court has already stated that it must review these

allegations pursuant to the “least sophisticated consumer” standard – not based on what
Plaintiff knew or believed.
 
Maybe you can use it!

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I was doing some research on court decisions and found this statement interesting. It was written by a Federal Judge that denied a debt collectors motion to dismiss.

 

Finally, Defendant’s argument that there can be no violation because Plaintiff himself was

not misled is of no consequence, as the Court has already stated that it must review these

allegations pursuant to the “least sophisticated consumer” standard – not based on what
Plaintiff knew or believed.
 
Maybe you can use it!

 

This is pretty much across the board, but can you cite the case if you have it.   I'm building an aersonal because that is what the other side is arguing against me, that I'm not unsophisicated and I baited them.

 

It's a loser no doubt, but as you know, I don't like to win,  I want to annhiliate the other side.

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"The long standing standard of the least sophisticated consumer does not apply;an individual that can type up and file a conforming complaint with the Federal Court should not be considered a least sophisticated consumer for the purposes of litigation."

 

My understanding of the "Least sophisticated consumer" standard is that it doesn't matter how sophisticated the actual plaintiff is in any particular case. It's irrelevant because the standard by which the collector's behavior is to be judged as to whether they broke the law is that involving a hypothetical "least sophisticated consumer" 

 

Either I don't understand it correctly, or these lawyers don't understand it, or they are deliberately misunderstanding it. Amazing.

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they are deliberately misunderstanding it. Amazing.

 

This is basically it.   Although not all conduct is judged as the LSC, most, espically what we talk about most on this board is.   

 

For example, if you claim emotional distress, that's an actual damage and you have to show your emotional distress, not that the LSC would have emotional distress.   Basically most of the elements that trigger liability are judged using the LSC, much to the disappointment of the other side.   However, they love getting a LSC on the phone and driving them to the brink of suscide to squeeze out a payment, but the second the tables are turned they talk about how unfair it is.

 

Look at the collectors board.  They love to talk about friviolus suits, yet they file thousands with the only hope of winning being a default.  They use the courts as an extension of their collection agency but when a consumer uses the courts they cry about how unfair it is the consumer is using the courts.  You throw on top a pro se litigant that does not have to worry about attorney fees for themselves and it turns into a full blown screaming and hollering tandrum.   

 

Now don't get me wrong, I've run into attorney's that had no clue how the FDCPA worked.  They were just plain dumb, and not pretending not to know better, they really were just that plain dumb.  I went up against one lady that broke a heel stomping out of the courtroom she was so mad at losing a motion to compel.

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STONECYPHER v. FINKELSTEIN

 

P.A. All I can say  is that you are good!

 

How did you  figure this one out so quickly?

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This is pretty much across the board, but can you cite the case if you have it.   I'm building an aersonal because that is what the other side is arguing against me, that I'm not unsophisicated and I baited them.

 

It's a loser no doubt, but as you know, I don't like to win,  I want to annhiliate the other side.

 

This is another quote from the judge on that same order.

Accordingly, the Court concludes that Plaintiff's Amended Complaint alleges a possible claim for which relief may be granted and that Defendant's Second Motion to Dismiss Plaintiff's Amended Complaint pursuant to Fed. R. Civ. P. 12b(6) is not well taken. : :censored::

 

In the motion to dismiss they attacked everything from SOL to changing balances to disclosure of attorney fees & interest. "Contract? We don't need no stinkin contracts".  :-)=

 

Apparently the judge thought differently and was not amused! :catholic:

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Look at the collectors board.  They love to talk about friviolus suits, yet they file thousands with the only hope of winning being a default.  They use the courts as an extension of their collection agency but when a consumer uses the courts they cry about how unfair it is the consumer is using the courts.  You throw on top a pro se litigant that does not have to worry about attorney fees for themselves and it turns into a full blown screaming and hollering tandrum.   

 

And it's also good when you're using the courts to make exactly that point and then they cry about how unfair that is. 

 

(I may have just torpedoed a particular large bank's ability to sue over CC debt, in part, because of this.  The other side is being mysteriously silent after the judge got angry with them and their co-defendant.) 

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