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1692e and consumer surveys


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Folks,

 

I'm in the middle of a lawsuit against one of the most well known and disliked JDB's around.  It's fun stuff.  My attorney and I had filed an MSJ against them for a violation of FDCPA 1692e.  (Confusing/misleading communications.)

 

The judge ended up denying the MSJ on the grounds that the communications was not so stupidly confusing as to warrant an MSJ, however left it wide open for a jury.  She also said that the 7th circuit (federal) has some precedence regarding "evidence" that a communication is confusing/misleading to the "least sophistiated consumer".

 

Now, while I am biased, their communication really is insanely confusing.  I have a letter that states I owe $5k to Creditor A.  When I asked for validation I got another letter stating I owe $5k, but they sent me three bank statements.  2 of those statements from Creditor A, and one statement is from Creditor B.  Different account numbers, different banks, magically the exact same balance...however in the balance due it says zero.  payment due is also zero. 

 

In all seriousness, I am not the least sophisticated consumer and I am legitimately confused.  Do I owe creditor A, or Creditor B?  If I make the payment, does it cover both alleged debts or just one?  If I owe a debt why do the statements have a zero balance?  Why is the payment due zero?  I honestly have no idea. 

 

 

Here is my primary question to the group.

 

In the 7th circuit you have to provide some form of evidence that the communication was confusing.  In the ruling, the judge specifically called out consumer surveys which apparently have been used in the past.  So I need to find a company or school or someone that does legitimate consumer surveys.  Has anyone had to deal with anything like that?  The company can be anywhere in the country. 

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Which creditor's statement showed a -0- balance?  Was it Creditor B's statement?  If so, that could mean that Creditor A took over the account from Creditor B.  

 

Was Creditor B an OC?   Who is Creditor A (OC or JDB)?

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Both say zero.  and when I say two accounts, I mean two accounts from two different OC's. 

 

The JDB sent a letter claiming I owe the JDB and the OC is OC A.

I asked for validation.

They then sent me another letter stating I owe OC A, but then sent me 3 statements...two from OC A, and then another statement from OC B.  Both OC's are in fact, OC's, and both accounts are real with two separate #'s and opened at different times with similar max balances. 

On all three statements they had the amount in question as exactly the same in the body of the statement.  But then at the bottom where it says "new balance" the balance is zero.  furthermore all three statements say "total minimum due" = zero.

 

My concern is that as a sophisticated consumer, I'm confused.  I'm not sure what they're trying to do with this mess.  But I can see the least sophisticated consumer being railroaded by this.  Making a payment on this could easily restart the SOL in some states.

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@Jreed

 

Obviously, the statement from Creditor B was a mistake.  I agree that someone who's never dealt with CAs/JDBs before could be confused by their sloppiness. 

 

The only reason I could think that the statements would have a zero balance is that the statements were issued right after the accounts were sold.  Again, those who have no idea that an OC can sell a debt to a JDB would not understand a zero balance especially when the original balance is provided at the top of the statement. 

 

Have you checked the OC's entry on your CR?  If the OC is reporting, take note of the date the OC stopped updating and compare it to the date on the statement.  If they're around the same date, then the statement could have been issued after the account was sold and the OC would no longer have a balance.

 

Assuming the cc statements show a zero balance because the accounts were sold, is it the duty of the JDB to explain that when an OC sells a debt, the balance with the OC becomes -0-?  If that's not the duty of the JDB, can the JDB be held responsible for the consumer's confusion?   I don't know.  I'm not sure there's case law regarding this issue, but it's worth a look.

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does it really matter if you are sophisticated or unsophisticated?  The FDCPA says "No section of the FDCPA requires an inquiry into the worthiness of the debtor or purports to protect only deserving debtors, to the contrary, the FDCPA protects all consumers, from the gullible to the shrewd. See, Bass vs Stolper, Koritzinsky, Brewster, and Neider, S.C. 111 f3d. 1322, 1330, (1997)."

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does it really matter if you are sophisticated or unsophisticated?  The FDCPA says "No section of the FDCPA requires an inquiry into the worthiness of the debtor or purports to protect only deserving debtors, to the contrary, the FDCPA protects all consumers, from the gullible to the shrewd. See, Bass vs Stolper, Koritzinsky, Brewster, and Neider, S.C. 111 f3d. 1322, 1330, (1997)."

 

It's not about whether the plaintiff is a sophisticated consumer or not.  A violation is a violation no matter the consumer.   For instance, if the CA in a dunning letter doesn't include the phrase "this communication is from a debt collector" or "this is an attempt to collect a debt", that's a blatant violation.

 

In a case like this where the violation is not so blatant, It's about whether or not the violation would confuse a least sophisticated consumer.   Whether the plaintiff is considered a sophisticated consumer or not makes no difference.  The ruling affects all consumers.

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Ok, guys, we can argue confusing and misleading all day.  My question is more along the lines of how do I go about proving it.

 

So in this case, in the 7th circuit the judge specifically sited customer surveys.  I take that to mean I need to give their communications to this company, they create a survey of some kind and give it to "people" to see if they find it confusing.

 

Is anyone aware of companies that do this? 

 

The problem with this is that we can get an "expert", but then the defense will just get their own "expert".  What we're trying to do, and the 7th circuit has mentioned this in rulings as well, is find a good unbiased place that both parties can agree to and then have the court appoint them. 

 

That way we're both somewhat bound by the response of these surveys and we don't get into an expert witness pissing match.  We may not be able to do that as the defense may not play ball. 

 

The 7th circuit may force the issue as well...we just want to be prepared.  I've heard certain universities do surveys like this.  Not 100% on that.

 

http://www.masstortdefense.com/2010/03/articles/seventh-circuit-decides-fdcpa-class-claims-and-offers-survey-guidance/

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right BV80, I was being sarcastic. :-)  The judge understood it, but could see why a lay person may not understand it.  I think it is a nobrainer, but I am one of those least sophisticated consumers lol.

 

The judge never said she "understood" it.  She simply said we didn't meet the burden of proof in the 7th circuit.  She did actually say that on its face it might be confusing, she didn't go further than that.

 

In a way her ruling was a win for us as she did make note of some of the discrepencies and issues she saw.  She just wasn't willing to give us the win without meeting our burden.

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@Jreed

 

There are a number of 7th Circuit cases that mention consumer surveys as a means to determine if a letter is confusing.  Two of them are Johnson v. Revenue Management and Evory v. RJM Acquisition.  However, in none of the cases is a survey company actually mentioned.  In Muha v. Encore Receivables Management, the plaintiff hired an expert, but the name of the expert is not provided.  Also, the survey was rejected because the plaintiff's attorney drafted the questions for the expert's survey.

 

I'd contact a consumer attorney who handles FDCPA cases and inquire about experts or companies that conduct this type of survey.   That would be the quickest way to get some names.

 

Most of the 7th Circuit cases I've read in regard to confusing and misleading communications involve confusing statements made in the same letter.  In your case, the confusion is caused by the documentation provided in the validation response.  That's a little different than statements made in one letter.  Whether by case law or survey, you would need to make that distinction.

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