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Here's a question about fdcpa violations


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That's the context. There is a JDB looking for my cousin who I have not even seen for 20 years. They won't quit calling me after telling them several times to stop. I asked for their address to send them a cease and desist, they wouldn't give it to me. In one conversation the guy actually said they were trying to find him so they could serve a summons on him. Just thought if they continued, that would shut them up pretty quick. They have been calling me for about 4 months.

I told my cousin if they find him, he has a nice counter suit. :)

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@shellieh98

 

You have standing under 1692b. The issue is whether the debt collector has reason to believe you're concealing information. If that is the case, they can get away with continuing to contact you. The 1692c cease communication protection does not apply to you, since you are not a consumer within the meaning of 1692a(3)

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Hmmm. Well I'm not concealing anything, I told them he does not live here, has never lived in colorado, and last I knew was still in az.

Not my job to contact cousin on Facebook and get an address for them, cause I really don't have it. Other than having the same last name, they have no reason.

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That's the context. There is a JDB looking for my cousin who I have not even seen for 20 years. They won't quit calling me after telling them several times to stop. I asked for their address to send them a cease and desist, they wouldn't give it to me. In one conversation the guy actually said they were trying to find him so they could serve a summons on him. Just thought if they continued, that would shut them up pretty quick. They have been calling me for about 4 months.

I told my cousin if they find him, he has a nice counter suit. :-)

 

That's a different story.  I thought you just overheard a message or phone conversation.   :-)

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Well, they would have the burden of showing you were concealing something.  If you tell them not to call, and they continue to call, that is a violation of 1692d(5), which applies to any person, not just a debtor.  In this case, a non-debtor was being called about an acct belonging to someone else.  Although he did not have a claim under 1692c(B), the court said he had a claim under 1692d, which prohibits certain "conduct" and which applies to "any person."

 

 

http://scholar.google.com/scholar_case?case=11096184541029817422&q=doyle+v+midland&hl=en&as_sdt=2003&as_ylo=2012

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Well, they would have the burden of showing you were concealing something.  If you tell them not to call, and they continue to call, that is a violation of 1692d(5), which applies to any person, not just a debtor.  In this case, a non-debtor was being called about an acct belonging to someone else.  Although he did not have a claim under 1692c( B), the court said he had a claim under 1692d, which prohibits certain "conduct" and which applies to "any person."

 

 

http://scholar.google.com/scholar_case?case=11096184541029817422&q=doyle+v+midland&hl=en&as_sdt=2003&as_ylo=2012

 

Shocker! It's a Midland case!

Not relevant to the ruling in the opinion cited above but as a follow-up, the case was appealed again because Midland offered a Rule 68 settlement offer of $1,011 (plus costs) that the plaintiff rejected. Because this was more than the plaintiff could recover in a court judgment, the court dismissed all of the plaintiff's claims as moot. The plaintiff went from having $1011 in his pocket and all of his legal fees paid to suddenly getting no money and being on the hook for all of his own legal fees (trial court and two appeals = $$$$$) just because he was greedy. BUMMER!

 

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Shocker! It's a Midland case!

Not relevant to the ruling in the opinion cited above but as a follow-up, the case was appealed again because Midland offered a Rule 68 settlement offer of $1,011 (plus costs) that the plaintiff rejected. Because this was more than the plaintiff could recover in a court judgment, the court dismissed all of the plaintiff's claims as moot. The plaintiff went from having $1011 in his pocket and all of his legal fees paid to suddenly getting no money and being on the hook for all of his own legal fees (trial court and two appeals = $$$$$) just because he was greedy. BUMMER!

 

 

As someone once said about trying to "maximize" a lawsuit. "Pigs get fed, hogs get slaughtered."

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Rule 68 is no different from any other rule. If applicable, we should learn it thoroughly. Whether attorney fees, injuctive relief, non-statutory claims, and/or other relief requested might have an impact in defusing the old $1001 statutorily limited offer of judgment, making the dispute moot, are questions I would want to be well versed in prior to rejecting a rule 68 offer.

 

States vary. I believe Arizona doubles the cost award available to the offeror on an unimproved offer of judgment. I recall reading that they have also changed up the rule where you need to object to defects/issues with the offer shortly after the offer is made and you cannot wait until the determination of a failure-to-improve happens later on and object at that time.

 

With a good understanding of my claims if I were to reject an offer of judgment I now have a line in the sand that I will fight very intensely to exceed. Realistic offers of judgment are not risk free for either party. If every time a CA gets sued for a single statutory violation they offer a rule 68 $1,001 amount it is safe to say some attentive attorneys/consumers might figure out that pattern.

 

In litigation the one best able to enforce their rights usually wins. The less able typically get slaughtered.

 

While some rule 68 losses can be relative to behavior tainted in greed I suspect the losses are more readily attributed to not fully understanding rule 68. When a consumer is represented on a contingency basis this should be a relatively rare occurrence as a clear explanation of the situation should be made plain to the plaintiff.

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Rule 68 is no different from any other rule. If applicable, we should learn it thoroughly. Whether attorney fees, injuctive relief, non-statutory claims, and/or other relief requested might have an impact in defusing the old $1001 statutorily limited offer of judgment, making the dispute moot, are questions I would want to be well versed in prior to rejecting a rule 68 offer.

 

States vary. I believe Arizona doubles the cost award available to the offeror on an unimproved offer of judgment. I recall reading that they have also changed up the rule where you need to object to defects/issues with the offer shortly after the offer is made and you cannot wait until the determination of a failure-to-improve happens later on and object at that time.

 

With a good understanding of my claims if I were to reject an offer of judgment I now have a line in the sand that I will fight very intensely to exceed. Realistic offers of judgment are not risk free for either party. If every time a CA gets sued for a single statutory violation they offer a rule 68 $1,001 amount it is safe to say some attentive attorneys/consumers might figure out that pattern.

 

In litigation the one best able to enforce their rights usually wins. The less able typically get slaughtered.

 

While some rule 68 losses can be relative to behavior tainted in greed I suspect the losses are more readily attributed to not fully understanding rule 68. When a consumer is represented on a contingency basis this should be a relatively rare occurrence as a clear explanation of the situation should be made plain to the plaintiff.

 

From "Marx v. General Revenue," 133 S.Ct. 1161. (2013).  

 

" Shortly after the complaint was filed, GRC made an offer of judgmentunder Federal Rule of Civil Procedure 68 to pay Marx $1,500, plus reasonable attorney's fees and costs, to settle any claims she had against it. Marx did not respond to the offer."

 

Marx amended her claim, pursued it further and ended up with SCOTUS establishing the precedent that losing FDCPA plaintiffs are liable for costs.

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From "Marx v. General Revenue," 133 S.Ct. 1161. (2013).  

 

" Shortly after the complaint was filed, GRC made an offer of judgmentunder Federal Rule of Civil Procedure 68 to pay Marx $1,500, plus reasonable attorney's fees and costs, to settle any claims she had against it. Marx did not respond to the offer."

 

Marx amended her claim, pursued it further and ended up with SCOTUS establishing the precedent that losing FDCPA plaintiffs are liable for costs.

Held: Section § 1692k(a)(3) is not contrary to, and, thus, does not displace a district court's discretion to award costs under, Rule 54(d)(1). Pp. 4-16.

 

http://www2.bloomberglaw.com/public/desktop/document/Marx_v_General_Revenue_Corp_No_111175_2013_BL_50247_US_Feb_26_201/1

 

III

Because we conclude that the second sentence of § 1692k(a)(3) is not contrary to Rule 54(d)(1), and, thus, does not displace a district court's discretion to award costs under the Rule, we need not address GRC's alternative argument that costs were required under Rule 68.

The judgment of the Court of Appeals is affirmed.

It is so ordered.

 

In Marx the SCOTUS did not address the issue of "costs required under Rule 68".

 

Could they have reached that Rule 68 costs would have applied if the case had evolved differently? Possibly.

 

As I recall from an early review, Marx established that bringing weak claims (possibly lacking in admissible evidence) before the court can cause a loss and exposure to costs being awarded against you. I'd recommend against bringing weak claims before the court.

 

Marx did not cause me concern when I first heard of it and I fail to see why it should trouble any serious litigant not trying to push weak, non-evidenced claims. Of course everyone should be well aware that litigation has risks. Leverage those risks against opposing for the best results.

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Held: Section § 1692k(a)(3) is not contrary to, and, thus, does not displace a district court's discretion to award costs under, Rule 54(d)(1). Pp. 4-16.

 

http://www2.bloomberglaw.com/public/desktop/document/Marx_v_General_Revenue_Corp_No_111175_2013_BL_50247_US_Feb_26_201/1

 

III

Because we conclude that the second sentence of § 1692k(a)(3) is not contrary to Rule 54(d)(1), and, thus, does not displace a district court's discretion to award costs under the Rule, we need not address GRC's alternative argument that costs were required under Rule 68.

The judgment of the Court of Appeals is affirmed.

It is so ordered.

 

In Marx the SCOTUS did not address the issue of "costs required under Rule 68".

 

Could they have reached that Rule 68 costs would have applied if the case had evolved differently? Possibly.

 

As I recall from an early review, Marx established that bringing weak claims (possibly lacking in admissible evidence) before the court can cause a loss and exposure to costs being awarded against you. I'd recommend against bringing weak claims before the court.

 

Marx did not cause me concern when I first heard of it and I fail to see why it should trouble any serious litigant not trying to push weak, non-evidenced claims. Of course everyone should be well aware that litigation has risks. Leverage those risks against opposing for the best results.

 

 

And it personally cost Marx  $4, 500 in costs.   Would SCOTUS eventually have found the costs could be awarded to the losing FDCPA plaintiff under R. 54? Possibly.  The collection defense bar had been looking for an opening.  But in refusing the offer of judgment,  Marx tore a hole in her pocketbook and allowed SCOTUS to affirm the awarding of costs sooner rather than later.

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And it personally cost Marx  $4, 500 in costs.   Would SCOTUS eventually have found the costs could be awarded to the losing FDCPA plaintiff under R. 54? Possibly.  The collection defense bar had been looking for an opening.  But in refusing the offer of judgment,  Marx tore a hole in her pocketbook and allowed SCOTUS to affirm the awarding of costs sooner rather than later.

I don't see the "opening" but apparently the collection industry believes it exists. I doubt their bar is truly that naive but I suppose anything is possible.

 

The take away is simple, don't be a Marx.

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That's the context. There is a JDB looking for my cousin who I have not even seen for 20 years. They won't quit calling me after telling them several times to stop. I asked for their address to send them a cease and desist, they wouldn't give it to me. In one conversation the guy actually said they were trying to find him so they could serve a summons on him. Just thought if they continued, that would shut them up pretty quick. They have been calling me for about 4 months.

I told my cousin if they find him, he has a nice counter suit. :-)

 

Are they also violating the law with a fake caller ID?

 

"I need to finish changing the baby's diaper ... let me call you right back ... your number is?"

 

"I have these government documents about his security clearance research, would you like them?"

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You should also send them a CMRRR letter letting know of that fact, and to cease calling you.

 

If they do call after receiving that letter, then invite them to explain to the federal judge their lack of literacy... 

 

How does one send a letter without an address?

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I don't see the "opening" but apparently the collection industry believes it exists. I doubt their bar is truly that naive but I suppose anything is possible.

 

The take away is simple, don't be a Marx.

 

Adam Plotkin, reputedly one of collection industry's  top guns, was counsel.  But yes, don't be a Marx.  And if you don't want to be hit with attys fees,  don't be you know who.

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Adam Plotkin, reputedly one of collection industry's  top guns, was counsel.  But yes, don't be a Marx.  And if you don't want to be hit with attys fees,  don't be you know who.

Top gun Adam appears to have been involved in a case involving sizable attorney fees. http://scholar.google.com/scholar_case?case=14032391851486445475

I don't see his client as the winner upon my quick scan.

The Colorado Creditors Bar Association (CCBA) seemed to support a position that the majority of the CO Supreme Court eventually seemed to disagree with: http://ccba.ideasbynature.com/mab-v-flood-review-colorado-supreme-court

The district court affirmed the fee award, while reducing it to the amount actually claimed, $184,297.59. The district court also declined to award further fees, ruling that “It is also time, quite frankly, to drive a stake through the heart of this case and lay it permanently to rest.”

...

It is the CCBA’s position, in full support of MAB, that the arrangement in this case, whereby FDCPA attorney Gary Merenstein personally obligated himself to pay the hourly attorneys for separate appellate counsel appearing on behalf of his client violates both the letter and the purpose of Rule 1.8(e) of the Colorado Rules of Professional Conduct.

 

I suppose "if you don't want to be hit with attys fees,  don't be you know who." might be an apropos warning to Top gun Adam's clients.

 

Additional take away for me is: don't assume your top gun attorney makes you immune to an adverse award of sizable attorneys fees.

 

Proving up an FDCPA claim is not a trivial task in my opinion. I would want clear and convincing evidence at my finger tips, ideally based on controlling case law and I would prefer to find an attorney confident enough with my case that they would prosecute it on a contingency basis.

 

Better yet I would prefer to use tools like arbitration or that competent winning attorney's reputation as leverage to force a settlement outside of litigation. Sometimes litigation is a necessary evil. I recommend avoiding it the rest of the time.

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Top gun Adam appears to have been involved in a case involving sizable attorney fees. http://scholar.google.com/scholar_case?case=14032391851486445475

I don't see his client as the winner upon my quick scan.

The Colorado Creditors Bar Association (CCBA) seemed to support a position that the majority of the CO Supreme Court eventually seemed to disagree with: http://ccba.ideasbynature.com/mab-v-flood-review-colorado-supreme-court

The district court affirmed the fee award, while reducing it to the amount actually claimed, $184,297.59. The district court also declined to award further fees, ruling that “It is also time, quite frankly, to drive a stake through the heart of this case and lay it permanently to rest.”

...

It is the CCBA’s position, in full support of MAB, that the arrangement in this case, whereby FDCPA attorney Gary Merenstein personally obligated himself to pay the hourly attorneys for separate appellate counsel appearing on behalf of his client violates both the letter and the purpose of Rule 1.8(e) of the Colorado Rules of Professional Conduct.

 

I suppose "if you don't want to be hit with attys fees,  don't be you know who." might be an apropos warning to Top gun Adam's clients.

 

Additional take away for me is: don't assume your top gun attorney makes you immune to an adverse award of sizable attorneys fees.

 

Proving up an FDCPA claim is not a trivial task in my opinion. I would want clear and convincing evidence at my finger tips, ideally based on controlling case law and I would prefer to find an attorney confident enough with my case that they would prosecute it on a contingency basis.

 

Better yet I would prefer to use tools like arbitration or that competent winning attorney's reputation as leverage to force a settlement outside of litigation. Sometimes litigation is a necessary evil. I recommend avoiding it the rest of the time.

 

"Top guns" win and lose.  The collection defense bar also considers Tomio Narita a "top gun," but he too has won and lost.

Philip Stern, the consumer lawyer would probably be considered a "top gun," but he has also won and lost.

 

That said, you are right about a "winning attorney's reputation as leverage to force a settlement outside of litigation."  That's exactly how I got a settlement against two collection agencies for making debt collection calls to me (a non-debtor) without providing meaningful disclosure in violation of 1692d(6).   I had the leading law firm who won the leading case in my circuit.  All it took was a demand letter.

 

I should add that my statement, "If you don't want to be hit with attys fees, don't be a you know who." was in reference to bringing a FDCPA claim in bad faith, which differs from the above case.

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