Jump to content

Is this a FDCPA violation?


Recommended Posts

OK so as I mentioned in my other post, I am now getting calls from Hayt Hayt & Landau saying they are a law firm handling an account owned by Midland. They also give the debt collector yada yada yada. I have a few messages from them on my answering machine, the first call I got from them was 4/17. I read the FDCPA and it says ....

 

Within five days after the initial communication with a consumer in connection with the collection of any debt, a debt collector shall, unless the following information is contained in the initial communication or the consumer has paid the debt, send the consumer a written notice containing ... 

(1) the amount of the debt;

(2) the name of the creditor to whom the debt is owed;

(3) a statement that unless the consumer, within thirty days after receipt of the notice, disputes the validity of the debt, or any portion thereof, the debt will be assumed to be valid by the debt collector;

(4) a statement that if the consumer notifies the debt collector in writing within the thirty-day period that the debt, or any portion thereof, is disputed, the debt collector will obtain verification of the debt or a copy of a judgment against the consumer and a copy of such verification or judgment will be mailed to the consumer by the debt collector; and

(5) a statement that, upon the consumer's written request within the thirty-day period, the debt collector will provide the consumer with the name and address of the original creditor, if different from the current creditor.

 

As I read it, I should have received or should be receiving a letter from these lawyers giving me all this info and a chance to validate. Are these phone calls not considered communication? If I do not receive anything from them in the mail, is this not an FDCPA violation? I am not being money hungry and trying to get anyone and everyone on a violation. But when the law firms start calling, I fear that a lawsuit may be near and I was just hoping if I went after them with a violation, somehow they may back off. I don't know. Need advice. If this is a violation how can I prove the communication? Are the messages on my answering machine ok as proof? What else would I need? Thanks for any advice as always. I browsed the forums a little but I don't recall seeing anything specific about this. I may have missed it. 

 

 

Link to comment
Share on other sites

Keep the messages. Give it a few more days although one possibility is they don't know your address. Any indication they're trying to do "location acquisition" with anyone you know? If you're up for it you could call them back asking what they have for a name and address with the account that has the phone number they're calling. It could even be someone else with a similar name. If that's what it looks like, ask them to quit calling. If it all matches for you, that lack of five day letter is a violation.

Link to comment
Share on other sites

From what I understand, the debt collector has to initiate communication with the consumer, and not the other way around:

 

http://www.creditinfocenter.com/community/topic/322193-what-is-initial-communication-for-debt-validation/

 

Furthermore, the initial communication may be in the form of a letter (which does not contain the 30 day notice) from the debt collector, so an initial telephone conversation is not necessary.

 

If it is true for a letter, why not a message on an answering machine or voice mail?

 

Edit:

 

Here are some interesting articles about this question:

 

http://www.nolo.com/legal-encyclopedia/can-debt-collector-leave-message-answering-machine.html

 

http://blog.credit.com/2011/03/what-can-debt-collectors-say-in-messages-on-answering-machines-15558/

 

http://weinerlaw.com/2013/06/28/to-leave-a-voicemail-or-not-to-leave-a-voicemail-a-collection-industry-dilemna/

 

It seems it's not a good idea for a debt collector to leave a voice message in the first place.

Link to comment
Share on other sites

Thank you all. I know the company they are representing (Midland) DOES have my address so there would be no reason that they wouldn't have it. I will check out the links and I have battled with the answering machine concept myself. I have even caught one company in a clear violation when they left a message on the machine asking us to return a call and they didn't say they were a debt collector. I called them on this and the next call they changed their ways. ;) Yeah I guess the question would be if a message is considered communication. I don't see how it would not be but this is what I need to investigate. 

Link to comment
Share on other sites

Do you have other accounts that could be out for collection besides the suit against you?

Yes they need to send out a letter within 5 days after initial communication, but a message is not a communication, they need to speak to you first.

 

I am not quite sure what you are asking as far as other accounts. I have plenty of accounts. In fact I have 3 different accounts now owned by Midland themselves. The only current lawsuit I have going on is with Capital One.

Link to comment
Share on other sites

As for an initial communication, it depends on the court. Some Federal Districts have held that it is a communication, others say no since they did not physically talk to you. They're all over the map. The best one in favor of a debtor was that the court said since the caller ID identified the CA and even if the CA did not leave a message, that was considered a communication (don't ask me how).

 

As for a five day letter, don't be surprised if a letter shows up in a week or two with a date within the 5 days. Since chances are there is no cancellation postmark on it, they can easily say, "But Your Honor, we mailed it on such and such date. We can't help it if the post office didn't deliver it in a timely manner."

 

As for not identifying themselves as a debt collector, there was a case before a Federal Appellate Court that was directly on point. The name of the case escapes me, but the CA said there were caught in between a rock and a hard place, i.e., if they said in the msg that they were a debt collector they felt they would be in violation of FDCPA. If they didn't identify themselves, that would also be in violation. I don't know how the judge ruled on that point as I was researching another type of possible violation, once I saw that the case didn't fit what I was researching, I stopped reading it.

Link to comment
Share on other sites

Thank you numbersguy. Yes, I know all of the message things can get pretty iffy as far as if they violate or not. I won't ever go there as far as trying to file a claim on it unless maybe I have another violation and I can throw it in. I have researched that a lot actually. I just threw that in there because of trying to figure out if the message is a communication. 

 

I guess I didn't realize that things aren't postmarked anymore? LOL I will have to look at all my mail from now on. I realize I wouldn't really have anything if things aren't postmarked. And I would definitely not try to go right now on it, I will give them a fair amount of time.

 

I guess maybe I should just answer the phone next time. I just don't want to haggle with them and I don't want to TELL them to mail me anything. I want to give them the chance to mess this up.

Link to comment
Share on other sites

Unless things have changed that I'm not aware of, all they have to show is that they have the means in place to send this letter out (and I believe show that the letter was generated to send to you within the time frame).

There is a possibility that the letter was sent and the US Postal service delivered it to the wrong address or just misplaced it.

 

What I would do:

I would send them a request for debt validation (CMRR) explaining that you have received verbal contact from them but have not received anything from them by mail advising you of your rights and opportunity to have this debt validated and that this letter is their notice of that and you expect validation within 30 days, etc.  You can also put them on notice in the letter that all correspondence is to be done by mail from now on and no further phone calls.

Link to comment
Share on other sites

There is a possibility that the letter was sent and the US Postal service delivered it to the wrong address or just misplaced it.

That would lead to another question. Does the JDB have an ancillary endorsement (Address Service Requested is one choice) on their mailing envelopes to assist with their error checking?

http://pe.usps.com/businessmail101/addressing/specialAddress.htm

 

I'm not saying you'd ask the person on the phone this since they probably don't know but if this was a lawsuit and the JDB starts pulling bona fide error excuses, I'd expect they'd have a lot of explaining to do to prove that.

Link to comment
Share on other sites

You can also put them on notice in the letter that all correspondence is to be done by mail from now on and no further phone calls.

 

The FDCPA does not provide for a partial cease and desist which is what that is.  The creditor can treat the "all calls are inconvenient" statement as a full cease and desist or ignore it.  The current thinking is NOT to send them a statement like this as it can merely inspire them to just proceed to a lawsuit.

Link to comment
Share on other sites

I just started thinking of something as I sat here and listened to another message on my answering machine from this law office .... if all of these debt collectors need to abide by FDCPA regulations of identifying themselves as debt collectors, amongst other things, even in a message on an answering machine, than an answering machine message SHOULD be considered a communication. Hmmmm not saying that courts see it that way, but it only makes sense. And if this rule of having to send out all of the info in a letter, including the part about your right to validate, is not enforceable because of all of these quirks mentioned, mail service not being reliable, only having to show that they have the means to have this into sent out etc., then why have this regulation in the first place?

Link to comment
Share on other sites

@MurphyMac When the FDCPA was written in the 70s answering machines were still pretty rare, so one of those things not considered. Now there's enough answering machine case law to give collectors headaches for compliance. They can't disclose too much in case a third party overhears which is another FDCPA violation but other sections say they're supposed to disclose certain information. One section even mentions telegrams which I believe no longer exist. Parts of it have been updated since but others still need it.

 

As for mail service, court cases run on that every day without everything being sent certified mail, certificate of service court form is enough most of the time. A collector if it came down to it is not going to get by with saying months later "we have the means to mail stuff, therefore it was mailed, must have got lost". It's going to be like proving any other piece of evidence.

Link to comment
Share on other sites

@MurphyMac

 

@Blue Squad

 

From what I understand, the debt collector has to initiate communication with the consumer, and not the other way around:

 

 

That's correct.

 

I just started thinking of something as I sat here and listened to another message on my answering machine from this law office .... if all of these debt collectors need to abide by FDCPA regulations of identifying themselves as debt collectors, amongst other things, even in a message on an answering machine, than an answering machine message SHOULD be considered a communication.

 

 

Most courts consider an answering machine or voice mail message to be a communication.   However, if you were to sue, there's the possibility that the CA would claim that a letter containing the required information was sent to you.  It would be your word against theirs.  Here's how one court viewed a claim by a consumer:

 

Quander v. Hillcrest, Davidson, and Associates, LLC, Dist. Court, D. Maryland 2012

Finally, Plaintiff contends that Hillcrest violated 15 U.S.C. § 1692g(a) in that it failed to send a letter to Plaintiff within five days of its initial contact with her. According to that provision, "[w]ithin five days after initial communication with a consumer in connection with the collection of any debt, a debt collector shall, unless the following information is contained in the initial communication . . . send the consumer a written notice . . ." 15 U.S.C. § 1692(a). Initially, Plaintiff alleges never having received any letter advising her of her rights. However, Defendant provided a copy of the letter it sent to Plaintiff on July 7, 2011 as an exhibit to its first Motion to Dismiss (ECF No. 4-1). In response, Plaintiff claims that the letter was never mailed to her and was "created just for this litigation." Pl.'s Resp. at 10, ECF No. 9. In order to state a claim, the plausibility standard requires "[f]actual allegations [sufficient] to raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 545 (2007). The bold contention that Defendants intentionally fabricated the July 7, 2011 letter filed with this Court is not only more than speculative — it is absolutely unsubstantiated. Therefore Plaintiff fails to sufficiently allege that Hillcrest violated 15 U.S.C. § 1692g(a).

Link to comment
Share on other sites

@BV80 that Quander decision is another one with a summary not disclosing detail. Sounds like the consumer Plaintiff thought they'd throw spaghetti against the wall and hope something would stick. No idea what they asked for in discovery or if they put much effort into the case since the debt was only $1,200. For all these cases that end up in google scholar and such is there a way to see what went on in the case, not just the decision summary?

 

It also sounds like the federal court looks at a complaint under the Twombly-Iqbal standard (I'm not sure how well a complaint has to be crafted to pass) before they give it the time of day.

Link to comment
Share on other sites

@CCRP626

 

Some courts may have documents available online, but usually in order to view docs in a federal lawsuit, you must have an account with Pacer.

 

The point was to show that some courts are going to require more than allegations.  Personally, I wouldn't hang my hat on a 1692g(a) violation alone based upon the circumstances in this thread.  As @myscoresawful has pointed out, if a CA can show it has procedures in place to comply with that section, it could become a he said/she said.

Link to comment
Share on other sites

Certificate of service. I am going to have to look into this. Is this not something a plaintiff can use?

 

Rushing out the door to work. I will post tomorrow. Thank you all again!

 

A certificate of service is something used when you are in a court proceeding.  It's a short paragraph, signed by the attorney or pro se litigant, that states that the preceding pleading was mailed to the other party or parties.

 

If you are looking for proof that something is mailed, outside of a court case, it's best to use certified mail.

Link to comment
Share on other sites

CC,

 

Get a PACER account. It's free if you only download a minimal number of documents. 

 

 

Public Access to Court Electronic Records
https://www. pacer.gov/
  •  
PACER
Public Access to Court Electronic Records (PACER) is an electronic public access service that allows users to obtain case and docket information online from ...
  • Like 1
Link to comment
Share on other sites

@MurphyMac

 

All debt collection calls, even those made to a non-debtor, must provide "meaningful disclosure," (the mini-miranda") or it is a violation of 15 USC 1692d(6).  I, as a non-debtor, settled with two debt collection agencies when they left messages on my answering machine without the the "mini-miranda."  I did have to contact 5 lawyers, though, before one finally took my case.

 

Let all debt collection calls go to voicemail, then record that onto an audio tape for possible use later on.

  • Like 1
Link to comment
Share on other sites

Thank you all! I am going to sit tight on this one for now. I will let them mess up somewhere else before I decide to pursue anything. I am reading somewhere else that these people usually bail out of lawsuits anyway. Which is all I am trying to get at with this. Thanks again. 

Link to comment
Share on other sites

The FDCPA does not provide for a partial cease and desist which is what that is.  The creditor can treat the "all calls are inconvenient" statement as a full cease and desist or ignore it.  The current thinking is NOT to send them a statement like this as it can merely inspire them to just proceed to a lawsuit.

 

Gotcha.  Well what if you have good reason to do it that way?  For example I'm severely hearing impaired (medically documented as disabling) and I always put in my request for validation "please make all further communication by USPS instead of telephone due to my severe hearing impairment"  

Link to comment
Share on other sites

@bassplayr

 

As I said, through my lawyers, Skaar and Feagle, I settled with two debt collectors for not giving proper disclosure.  They were not location calls under 1692B(1) delivered by a rep. They were debt collection calls underr 1692d(6).  There is a difference.   My lawyer didn't even need to sue them.  They just haggled over the amount and settled.  

 

1692b(1)

https://www.law.cornell.edu/uscode/text/15/1692b

 

 

 

They were pre-recorded calls, lacking proper disclosure in violation of 1692d(6)

 

 

" I have a message concerning important personal business.  To hear this message in English, press one on your answer key." The message was repeated three times

 

1692d(6)

https://www.law.cornell.edu/uscode/text/15/1692d

 

 

 

https://scholar.google.com/scholar_case?case=11685010449214004998&q=1692d(6)+illinois&hl=en&as_sdt=203&as_ylo=2011

 

Finally, Siegel argues that Plaintiff fails to state a claim for relief under the FDCPA. A debt collector violates the FDCPA by placing a telephone call and failing to meaningfully disclose its identity. 15 U.S.C. § 1692d(6). Courts have found that a debt collector fails to meaningfully disclose its identity if the caller does not state that it is a debt collector or an employee or agent of a debt collector, or the nature of the communication. Hutton v. C.B. Accounts, Inc., 2010 WL 3021904, at *3 (C.D.Ill. Aug. 3, 2010)Edwards v. Niagara Credit Solutions, Inc., 586 626*626 F.Supp.2d 1346, 1360 (N.D.Ga.2008). Plaintiff alleges that Siegel violated the FDCPA because Siegel's voice message did not meaningfully disclose the caller's identity. Plaintiff further specifically pleads the contents of the message left by Siegel which does not state the identity of the caller or that the caller is attempting to collect a debt. Therefore, Plaintiff alleges sufficient facts to state a claim for relief under Section 1692d(6) of the FDCPA.

 

 

Tang was a non-debtor,as I was.

 

 

 

Below  is one of the leading cases in my circuit.  

 

 

https://scholar.google.com/scholar_case?case=17179442022115988835&q=1692d(6)+illinois&hl=en&as_sdt=203&as_ylo=2011

 

 

From the case:

 

Plaintiff argues that, because the callers in the messages identified themselves only as "Jennifer" [last name unclear] and "Mrs. Strickland," and did not identify themselves as agents or employees of Niagara or as debt collectors who were calling regarding a debt, the callers did not make a "meaningful disclosure of the caller's identity" as required by 15 U.S.C. § 1692d(6). The Court agrees. Indeed, Defendant does not dispute that the prerecorded telephone messages at issue did not contain any "meaningful disclosure of the caller's identity," as required by 15 U.S.C. § 1692d(6).

Instead, Defendant argues that, despite the failure of its callers to identify themselves as calling on behalf of Niagara, the messages did not violate 15 U.S.C. § 1692d(6) because the messages did not harass, oppress, or abuse the Plaintiff. That section, however, defines the specific conduct deemed to harass, oppress, or abuse to include "the placement of telephone calls without meaningful disclosure of the caller's identity." 15 U.S.C. § 1692d(6). Based on a plain reading of the statute, the Court concludes that, when a debt collector places a telephone call to a consumer without meaningful disclosure of the identity of the caller, it is not required that the telephone calls also be considered harassing, oppressing or abusive to the consumer in order to be in violation of 15 U.S.C. § 1692d(6). Defendant has not cited to a single case holding to that effect, and the Court has discovered none.

Accordingly, because it is undisputed that the messages failed to identify the callers as being employed by or associated with Niagara in any way, the Court finds that Defendant violated 15 U.S.C. § 1692d(6) by placing telephone calls to Plaintiff without making any meaningful disclosure of the identity of the caller. See Wright v. The Credit Bureau of Georgia, Inc., 548 F.Supp. 591 (N.D.Ga.1982) ("Rather, the `meaningful disclosure' required by section 1692d(6) has been made if an individual debt collector who is employed by a debt collection company accurately discloses the name of her employer and the nature of her business and conceals no more than her real name.");see also Masciarelli v. Richard J. Boudreau & Assoc., 529 F.Supp.2d 183, 186 (D.Mass. 2007) ("Given the clear and unambiguous language of 15 U.S.C. Section 1692 et seq., a collection agent must follow the disclosure requirement of identifying himself as a debt collector in all communications. Where, as here, the disclosure was not provided, summary judgment is appropriate."); Hosseinzadeh v. M.R.S. Assocs., Inc., 387 F.Supp.2d 1104, 1112 (C.D.Cal. 2005) ("The Court concludes that defendant violated § 1692d(6) when its employees failed to disclose defendant's identity and the nature of defendant's business in the messages left on plaintiff's answering machine.").

 

 

 

A 1692d(6) case from another circuit decided three months ago

 

 

 

https://scholar.google.com/scholar_case?case=15505683000425768402&q=%221692d(6)%22&hl=en&as_sdt=203&as_ylo=2015

Link to comment
Share on other sites

Join the conversation

You can post now and register later. If you have an account, sign in now to post with your account.

Guest
Reply to this topic...

×   Pasted as rich text.   Paste as plain text instead

  Only 75 emoji are allowed.

×   Your link has been automatically embedded.   Display as a link instead

×   Your previous content has been restored.   Clear editor

×   You cannot paste images directly. Upload or insert images from URL.

 Share

×
×
  • Create New...

Important Information

We have placed cookies on your device to help make this website better. You can adjust your cookie settings, otherwise we'll assume you're okay to continue.. For more information, please see our Privacy Policy and Terms of Use.