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Can a Law Firm use robo-calls for debt collection?


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Approximately a month ago a collection account appeared on one of my credit reports. I did not recognize the alleged debt, or the collection agency. I disputed with the credit bureau, and it came back verified. I sent a DV to the collection agency, who immediately violated the telephone cease and desist language and called me. The guy identified himself as an owner, but would not give a name, and claimed they were not a collection agency, but "passive debt buyers."  I think this is the new mantra among junk debt buyers who are trying to circumvent the FDCPA, and other consumer protection laws.

 

I strongly suggested they delete the item from my credit report, and reminded the guy that his call was deemed collection activity, and posting the collection account to my credit report was, too. I also suggested that since they were not licensed as debt collectors in Florida, or any other state, unless they ceased collection activity I would sue them in federal court. A few choice words later, he hung up on me. Twenty minutes later, I received a robo call from a party with the same small town area code with an automated voice identifying themselves as a law firm, with an urgent matter to discuss with me.

 

Since then I've received half a dozen similar robo calls on my cell phone from this "law firm". At least they claim to be a law firm - I can't locate any law firm with their name.  Let's assume for now they really are attorneys. While I know attorneys can be held to the FDCPA, my cease and desist was to their client, not the law firm.

 

Are the attorney's calls in violation of the cease and desist and FDCPA? Can an attorney use robo calls, or are they violating the TCPA?

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I strongly suggested they delete the item from my credit report, and reminded the guy that his call was deemed collection activity, and posting the collection account to my credit report was, too.

 

First:  reporting a trade line is has not definitively been established to be collection activity.  The courts are still divided on this issue and until SCOTUS issues a ruling defining whether it is or not then you have a 50/50 chance of a federal court agreeing with you.  Second,  because the trade line was there and that motivated your dispute they can leave it on your CR but must mark it as disputed.  Had they dunned you by letter or phone then you disputed THEN they posted the trade line you would have better odds on prevailing.

 

Twenty minutes later, I received a robo call from a party with the same small town area code with an automated voice identifying themselves as a law firm, with an urgent matter to discuss with me.

 

This may be a coincidence because a phone call from a law firm you cannot find sounds like the payday loan scam.

 

Are the attorney's calls in violation of the cease and desist and FDCPA? Can an attorney use robo calls, or are they violating the TCPA?

 

No because you didn't cease and desist their office only the JDB.  You must cease and desist them separately if you do not want contact.  

 

If they are calling your cell phone and did not have permission they violate the TCPA.

 

I would file a complaint with the CFPB.  

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Just because you tell them not to call anymore does not mean that they will. As far as I know they have no legal cause to stop. Only if you give them a full C&D must they quit. You only hope that they will quit when you ask them to otherwise.

The trick is how you tell them. The law reads that collectors cannot call before 8 am or after 9 pm local time, or any time that is "inconvenient." So I always state "all calls to all phone numbers at all times are inconvenient." Then, if they call, they are violating.

 

LOL, I answered the phone by mistake one day, and a woman from a CA started barking at me. I calmly told her that all calls were inconvenient. She responded, "I don't care what's convenient for you!" I pointed out that the FDCPA did, and hung up. Of course, the phone rang again, immediately, from the same number.

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The courts are still divided on this issue and until SCOTUS issues a ruling defining whether it is or not then you have a 50/50 chance of a federal court agreeing with you.

The only way this would be true is if you live in a district that has not in the past ruled one way or the other. If your District has previously ruled that it is collection activity, then they will continue to follow that ruling barring some extraordinary circumstances. And vice versa.

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Thanks for the replies everyone. @Clydesmom, I agree a JDB posting a collection item to a credit report has not been definitively proven to be collection activity. I was just trying to get rid of the pest. However, I'll take 50-50 odds on this issue in potential litigation of this kind.  My experiences show even if I was 100% right, I would still have 50-50 odds depending on the Judge and jurisdiction.  The robo calls are definitely of the scam variety, but I'm nearly certain its a result of the JDB interaction.  I like CFPB complaints for certain issues, but I may file a suit if they continue.

 

@TomnTex, I have sent a full telephone call FDCPA Cease and Desist to the JDB, who immediately violated it.  I have not yet sent one to the law firm.

 

@Wins the Battle, I'm not recording. In Florida, I would have to ask for consent, and I have not spoken to the law firm by phone. However, I have saved all of their robo call voice mails.

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The only way this would be true is if you live in a district that has not in the past ruled one way or the other. If your District has previously ruled that it is collection activity, then they will continue to follow that ruling barring some extraordinary circumstances. And vice versa.

 

I agree Harry. In this instance, I could probably check out two jurisdictions for rulings - where the calls are emanating from, and my district, too.

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I agree Harry. In this instance, I could probably check out two jurisdictions for rulings - where the calls are emanating from, and my district, too.

It wouldn't hurt, although I'm pretty sure the court would find the cause of action occurred at the consumer's location. E.g. the 8am to 9pm restriction is placed on then in your home, not their call center. Although I guess you could say the decision to make the call was the original violation, but I still think it would be at your end of things.

Check both to be safe. Just like you said. :-)

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@Determined1

 

I have sent a full telephone call FDCPA Cease and Desist to the JDB, who immediately violated it.  I have not yet sent one to the law firm.

 

 

The problem with requesting that phone calls be ceased is that is not the language in the FDCPA.  To date, there is no case law that I know of that says a debt collector must abide by a "partial C&D".

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@Determined1

 

 

The problem with requesting that phone calls be ceased is that is not the language in the FDCPA.  To date, there is no case law that I know of that says a debt collector must abide by a "partial C&D".

 

Thanks @BV80. When you say "partial C&D" can you define further? What I sent was a letter that allows them to send me validation by mail, but also states:

 

"I also hereby request that no future telephone contact be made by your offices to my home or to my place of employment. If your offices attempt future telephone communications with me, including but not limited to computer generated calls, it will be considered harassment under the Fair Debt Collection Practices Act, Florida Consumer Collections Practices Act and Telephone Consumer Protection Act . All future communications with me must in writing and mailed to the address noted in this letter."

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@Determined1

The problem with requesting that phone calls be ceased is that is not the language in the FDCPA.  To date, there is no case law that I know of that says a debt collector must abide by a "partial C&D".

I think that using the "phone calls at any time are not convenient" language distinguishes this from a C&D and think they would have a hard time explaining why they continued to make phone calls in spite of this very plain language.

I understand the overly cautious debt collector that ceases all communication upon receipt of this type of letter and don't fault them for it, but they can't have it both ways. Either they believed it was a full C&D and stopped all communication or they continued to make calls at times they knew were inconvenient.

Just my thoughts...

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Thanks @BV80. When you say "partial C&D" can you define further? What I sent was a letter that allows them to send me validation by mail, but also states:

 

"I also hereby request that no future telephone contact be made by your offices to my home or to my place of employment. If your offices attempt future telephone communications with me, including but not limited to computer generated calls, it will be considered harassment under the Fair Debt Collection Practices Act, Florida Consumer Collections Practices Act and Telephone Consumer Protection Act . All future communications with me must in writing and mailed to the address noted in this letter."

Well, so per my last post, you didn't include the "not convenient" language so I don't think they violated by continuing to call. :-/

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Well, so per my last post, you didn't include the "not convenient" language so I don't think they violated by continuing to call. :-/

 

The "not convenient" language does cite the FDCPA verbatim (and I'll add it to future letters). However, I still think I can make a strong argument that they violated the statute by calling after my C&D. I think I have them on other FDCPA violations and FL FCCPA violations, too.

 

I must reiterate, while the JDB called me once after my cease and desist, its the law firm robo calls to my cell phone that are the aggravating issue here.

 

Edit: The false credit reporting is a serious issue, too.

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If I have learned anything about DVing, it's to always use the "inconvenient" language.

 

I was taught that every.single.word in laws need to be taken into consideration. That's the biggest thing that even the worst DC lawyer has over the best pro se. In order to get through law school and be admitted to the bar, they need to have that concept firmly etched in their brains, and they use it to deconstruct every word we say.

 

Use the words of the law, and they have no recourse.

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@Harry Seaward

 

@Determined1

 

 

I think that using the "phone calls at any time are not convenient" language distinguishes this from a C&D and think they would have a hard time explaining why they continued to make phone calls in spite of this very plain language.

I understand the overly cautious debt collector that ceases all communication upon receipt of this type of letter and don't fault them for it, but they can't have it both ways. Either they believed it was a full C&D and stopped all communication or they continued to make calls at times they knew were inconvenient.

Just my thoughts...

 

1692c(1) says:

 

(1) at any unusual time or place or a time or place known or which should be known to be inconvenient to the consumer. In the absence of knowledge of circumstances to the contrary, a debt collector shall assume that the convenient time for communicating with a consumer is after 8 o’clock antemeridian and before 9 o’clock postmeridian, local time at the consumer’s location;

 

"All calls are inconvenient" doesn't inform a CA as to a time or place.

 

Bakewell v. FEDERAL FINANCIAL GROUP, INC., Dist. Court, ND Georgia 2007


The court cannot find that Plaintiff is entitled to summary judgment on her 15 U.S.C. § 1692c© claim. Upon reading Plaintiff's letters, the court cannot find that as a matter of law Plaintiff invoked the protection of this subsection. First, Plaintiff does not tell Defendant that she refuses to pay the debt. Moreover, in her letters, Plaintiff never tells Defendant to cease further communication. Instead, she tries to limit Defendant's communications, seeking only written communications as opposed to phone calls. Plaintiff has not provided and the court is not aware of any case law which allows a debtor through section 1692c© to limit the type of communications made by a debt collector.


MOLTZ v. FIRSTSOURCE ADVANTAGE, LLC, Dist. Court, WD New York 2011


Here, it is uncontested that Plaintiff merely told Defendant not to call him at all. There is no evidence that Plaintiff specifically notified Defendant that the collection calls were at an inconvenient time or that he was being reached at work. Nor were the calls placed at a time that would be considered per se unreasonable. E.g., 15 U.S.C. § 1692c(a)(1) ("in absence to knowledge of circumstances to the contrary, a debt collector shall assume that the convenient time for communicating with a consumer is after 8 o'clock antemeridian and before 9 o'clock postmeridian, local time at the consumer's location"). Although Plaintiff may have found these calls inconvenient, there is no evidence that he ever informed Defendant of this and the calls were not presumptively inconvenient under § 1692c(a)(1). Therefore, Defendant is entitled to summary judgment on the § 1692c(a)(1) claim.

 

However, if you tell them not to call but they do so continuously, you might have a claim for 1692d(5)...harassment.

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Great info @BV80, very helpful!

 

Perhaps its time for an updated cease and desist letter. How is this language:  

 

"Pursuant to the Fair Debt Collection Practices Act, all telephone calls from your company including but not limited to calls between 8:00 AM - 9:00 PM to my home or place of employment are to be considered inconvenient, and will be deemed harassment."

 

It states they are inconvenient, note the time and places I cannot accept these calls, and cites FDCPA terminology. 

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@Determined1

 

Of course you could try it, but it's still limiting the type of communication.  There's just not much case law out there on this issue. 

 

The chance that one takes with a partial C&D is that a CA may not want to take a chance with any contact at all.  At that point, their only option might be to sue.

 

BTW, Unless you know for a fact that the robo-calls are related to the account on your CR, since you can't locate the law firm, they might be a scam as @Clydesmom pointed out.   Have you googled the phone number?

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Great info @BV80, very helpful!

Perhaps its time for an updated cease and desist letter. How is this language:

"Pursuant to the Fair Debt Collection Practices Act, all telephone calls from your company including but not limited to calls between 8:00 AM - 9:00 PM to my home or place of employment are to be considered inconvenient, and will be deemed harassment."

It states they are inconvenient, note the time and places I cannot accept these calls, and cites FDCPA terminology.

Too wordy.

"Telephone calls are inconvenient for me at all times."

"there is no evidence that he ever informed Defendant of this and the calls were not presumptively inconvenient under § 1692c(a)(1)."

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@Determined1

 

Of course you could try it, but it's still limiting the type of communication.  There's just not much case law out there on this issue. 

 

The chance that one takes with a partial C&D is that a CA may not want to take a chance with any contact at all.  At that point, their only option might be to sue.

 

BTW, Unless you know for a fact that the robo-calls are related to the account on your CR, since you can't locate the law firm, they might be a scam as @Clydesmom pointed out.   Have you googled the phone number?

 

I don't think there would be any C&D that the Judge in Bakewell v. Federal Financial Group Inc. would allow.  However, the Judge in Moltz v. FirstSource Advantage appears more reasonable, and in my opinion, understands the need of a consumer to limit communication with debt collectors.

 

I think I'm going to modify my cease and desist in language similar to what I stated. Its not perfect, but I think it strikes a fair balance. Personally, I'm not too concerned with debt collection suits right now, its mostly zombie junk debt buyers harassing me.  For anyone within SOL, I guess its a personal judgment call as to how strong a message they want to send.

 

I googled the number, and it is associated with the name of an LLC that per the NY Secretary of State Division of Corporations, is legally registered. I have their address and registered agent. However, I can't find anything that says they are a law firm. I don't think its unrelated. When the JDB owner and I spoke by phone, and I "invited him to federal court" he responded with, "You'll be hearing from my lawyer, click." 20 minutes later, these yahoos call.  

 

Coincidence? Maybe. Scammers? I think they're all scammers lol.

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@Harry Seaward

 

"Here, it is uncontested that Plaintiff merely told Defendant not to call him at all.  There is no evidence that Plaintiff specifically notified Defendant that the collection calls were at an inconvenient time or that he was being reached at work."

Ok then...

"Telephone calls at any time are inconvenient."

:-)

I get where you are going but also know these are cases from a variety of Districts. IMO, if it hasn't been smacked down in your particular District it's worth a shot as long as you understand there is no guarantee.

Again, my thoughts and I'm not trying to be argumentative or persuade someone into doing something that *I* happen to think is a good idea.

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