Krumbein Consumer Legal Services, Inc.

Archive for the ‘Fair Debt Collection Practices Act’ Category

KCLS LIMITS THE GEOGRAPHY IN WHICH WE TAKE CASES.

YOU MUST BE A VIRGINIA RESIDENT.

If you are not a Virginia Resident, click here to find a lawyer near you.

The Fair Debt Collection Practices Act is designed to protect consumers from abusive or harassing conduct, false or misleading statements or unfair act by Debt Collectors.

The first questions to ask in an inquiry is “Am I a consumer who is entitled to protection?”

Lets start with the definition from the statute.

15 U.S.C. §1692a[3] says a “consumer” means any natural person obligated or allegedly obligated to pay any debt.

So, you must be a natural person.  This means that for MOST purposes if you are a business, you are not protected.  There is a key exception.  Harassment or abuse is something that is prohibited in the collection of consumer debts as to ANY person, and for this section (15 U.S.C. §1692d), any person INCLUDES non-consumers– businesses, and other entitles.

But the discussion of consumer does not end there. A consumer also owes or is alleged to owe a consumer debt.

So, just because you are a real person does not mean that you are entitled to protection.  They must owe a consumer debt.  Consumer debts are generally debts incurred for personal, family or household use.  Commercial debts, tort debts, and taxes and fines are specifically excluded.

This means that most people are protected, generally for most usual kinds of debts, but not all.

Read up on What is a “Debt”? next week.

Read more about what we can do to assist you in protecting yourself from collection harassment or abuse, false or misleading statements or unfair and deceptive acts in the main section of our website.

If you have been impacted by any of the things that we have mentioned in this or any other blog post, please contact us.

Contact us by e-mail or by telephone or fax or US Mail.

You can call us: 804.673.4358

You can fax us: 804.673.4350

You can contact us by US MAIL:

Krumbein Consumer Legal Services, Inc.

1650 Willow Lawn Drive

Suite 300

Richmond, VA 23230

KCLS LIMITS THE GEOGRAPHY IN WHICH WE TAKE CASES.

YOU MUST BE A VIRGINIA RESIDENT.

If you are not a Virginia Resident, click here to find a lawyer near you.

The Fair Debt Collection Practices Act is designed to protect consumers from abusive or harassing conduct, false or misleading statements or unfair act by Debt Collectors.

What is TeleSpoofing and is it “false and misleading” under the Fair Debt Collection Practices Act?

TELESPOOFING IN COLLECTIONS

As usual, we start with the statutory definition.  Thanks to LII.

15 U.S.C. §1692d says

A debt collector may not engage in any conduct the natural consequence of which is to harass, oppress, or abuse any person in connection with the collection of a debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section:

. . .

(6) Except as provided in section 1692b of this title, the placement of telephone calls without meaningful disclosure of the caller’s identity.

15 U.S.C. §1692e says

A debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section:

. . .

(10) The use of any false representation or deceptive means to collect or attempt to collect any debt or to obtain information concerning a consumer.

. . .

What does this mean for you?

Knoll v. IntelliRisk Management Corporation, 2006 U.S. Dist. LEXIS 77467 (Lexis citation), 2006 WL 2974190(parallel WestLaw citation) (D. Minn. October 16, 2006), says that when a debt collector misrepresents his phone number (by TELESPOOFING) it is a misrepresentation of the identity of the caller, and therefore a misrepresentation that violates the Fair Debt Collection Practices Act.  15 U.S.C. §1692e[10]  It also explains that the debt collector must meaningfully disclose his identity, and by misidentifying themselves be TELESPOOFING, they are not meaningfully disclosing their identity.  15 U.S.C. §1692d[6].

Debt collectors are allowed to use aliases, under some circumstances.  For example, if they have a way to backtrack to determine who called, that would be permissible.

On the other hand, when they refuse to identify the name of the company they work for, they are not meaningfully disclosing their identity, and they are using a false and misleading means to collect a debt.

NON COLLECTIONS TELESPOOFING

But collections are not the only time we need to worry about TELESPOOFING.  Scammers come in all types.  There was a recent new story on my local Fox affiliate, in which they talked about telespoofing.  There are a number of companies that provide the services, and the scammer can appear to be anyone they want to be.  They can be your friend, your neighbor, your child or grandchild.  And they often will ask for money.

In the story on the news, a local lady had a call from someone who said he was her grandson and he had been in an accident, and he needed $5,000.00.  The Caller ID showed that it was from a hospital.  So, she was all too happy to send money to her “grandson”.  Only afterwards, did she realize that it was all a scam.

Can we get that money back?  Maybe, but that will depend on if we are able to identify the culprit.  It is easier with a debt collector, because they will either eventually tell you who they really are, or they will have you send the money somewhere.  But if they have you send the money by Western Union, or other wire service, it may be all but unreachable.

Stay tuned and come visit us NEXT WEEK when we talk about COMMUNICATING WITH THE CONSUMER in collection practices.

If you have been impacted by anything we mentioned here, you can make an appointment to see us.

NO FEE IN YOUR FDCPA CASE UNLESS WE RECOVER!!

OUR LEGAL FEES:

The rights afforded to you, as a consumer, under the FCRA and the FDCPA means that a corporation or party who has violated your rights may ultimately be made to pay for statutory damages, actual damages, and your legal fees. Therefore, if we agree to represent you in any case, you won’t pay any attorney’s fees unless we are successful and we recover on your behalf. We are here to serve and have assisted many consumers TO enforce their legal rights. Let us try and see if we can help you too. That means you pay no fee in your case unless we recover.

Contact us by e-mail or by telephone or fax or US Mail.

You can call us: 804.673.4358

You can fax us: 804.673.4350

You can contact us by US MAIL:

Krumbein Consumer Legal Services, Inc.

1650 Willow Lawn Drive

Suite 300

Richmond, VA 23230

KCLS LIMITS THE GEOGRAPHY IN WHICH WE TAKE CASES.

YOU MUST BE A VIRGINIA RESIDENT.

If you are not a Virginia Resident, click here to find a lawyer near you.

How can a debt collector communicate with a consumer under the Fair Debt Collection Practices Act?

As usual, we start with the language of the statute.

15 USC §1692c(a) Communication with the consumer generally

Without the prior consent of the consumer given directly to the debt collector or the express permission of a court of competent jurisdiction, a debt collector may not communicate with a consumer in connection with the collection of any debt—

(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;

(2) if the debt collector knows the consumer is represented by an attorney with respect to such debt and has knowledge of, or can readily ascertain, such attorney’s name and address, unless the attorney fails to respond within a reasonable period of time to a communication from the debt collector or unless the attorney consents to direct communication with the consumer; or

(3) at the consumer’s place of employment if the debt collector knows or has reason to know that the consumer’s employer prohibits the consumer from receiving such communication.

So, what does this mean?

Debt collectors are not allowed to contact you in manners that are inconvenient.  The statute defines what is pre-determined to be inconvenient.  If the debt collector knows that the time or place that they are contacting you is inconvenient, they are not allowed to contact you.  For example, before 8 am or after 9 pm.  There are exceptions to this, for example, if you work night shift, then 8am to 9pm is inconvenient- that’s when you sleep.

But they can’t call you at work if they know that you are not allowed to get personal phone calls at work.  How would they know this?

You can tell them, but that becomes a swearing match- you swear you told them, and they swear you never said that.

You could tell them and record, but many debt collectors are in states that require the consent of all parties to the conversation, so recording may be a crime.  You get the money, but go to jail in the process.  Our opinion is that there is no amount of money for which it is worth going to jail.

But you can write them a letter, and tell them in the letter.  If you send them a letter Certified Mail Return Receipt Requested (CMRRR), you can prove that you sent it and you can prove that they received it.

But you don’t really need that to prove that they did something.  It works just as well to take pictures of your caller ID.

Those work calls can be very annoying.  All you need to do, supposedly,  is tell them you cannot take calls.  They should NOT call back.  But they may do so anyway.

If you have any of these problems, first, you can use our call log, to track these calls, and second- contactus.

If you have been impacted by anything we mentioned here, you can make an appointment to see us.

NO FEE IN YOUR FDCPA CASE UNLESS WE RECOVER!!

OUR LEGAL FEES:

The rights afforded to you, as a consumer, under the FCRA and the FDCPA means that a corporation or party who has violated your rights may ultimately be made to pay for statutory damages, actual damages, and your legal fees. Therefore, if we agree to represent you in any case, you won’t pay any attorney’s fees unless we are successful and we recover on your behalf. We are here to serve and have assisted many consumers TO enforce their legal rights. Let us try and see if we can help you too. That means you pay no fee in your case unless we recover.

Contact us by e-mail or by telephone or fax or US Mail.

You can call us: 804.673.4358

You can fax us: 804.673.4350

You can contact us by US MAIL:

Krumbein Consumer Legal Services, Inc.

1650 Willow Lawn Drive

Suite 300

Richmond, VA 23230

KCLS LIMITS THE GEOGRAPHY IN WHICH WE TAKE CASES.

YOU MUST BE A VIRGINIA RESIDENT.

If you are not a Virginia Resident, click here to find a lawyer near you.

The Fair Debt Collection Practices Act is designed to protect consumers from abusive or harassing conduct, false or misleading statements or unfair act by Debt Collectors.

What is “false and misleading” under the Fair Debt Collection Practices Act?

As usual, we start with the statutory definition.  Thanks to LII.

15 U.S.C. §1692e says

A debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section:

(1) The false representation or implication that the debt collector is vouched for, bonded by, or affiliated with the United States or any State, including the use of any badge, uniform, or facsimile thereof.

(2) The false representation of—

(A) the character, amount, or legal status of any debt; or

(B) any services rendered or compensation which may be lawfully received by any debt collector for the collection of a debt.

(3) The false representation or implication that any individual is an attorney or that any communication is from an attorney.

(4) The representation or implication that nonpayment of any debt will result in the arrest or imprisonment of any person or the seizure, garnishment, attachment, or sale of any property or wages of any person unless such action is lawful and the debt collector or creditor intends to take such action.

(5) The threat to take any action that cannot legally be taken or that is not intended to be taken.

(6) The false representation or implication that a sale, referral, or other transfer of any interest in a debt shall cause the consumer to—

(A) lose any claim or defense to payment of the debt; or

(B) become subject to any practice prohibited by this subchapter.

(7) The false representation or implication that the consumer committed any crime or other conduct in order to disgrace the consumer.

(8) Communicating or threatening to communicate to any person credit information which is known or which should be known to be false, including the failure to communicate that a disputed debt is disputed.

(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.

(10) The use of any false representation or deceptive means to collect or attempt to collect any debt or to obtain information concerning a consumer.

(11) The failure to disclose in the initial written communication with the consumer and, in addition, if the initial communication with the consumer is oral, in that initial oral communication, that the debt collector is attempting to collect a debt and that any information obtained will be used for that purpose, and the failure to disclose in subsequent communications that the communication is from a debt collector, except that this paragraph shall not apply to a formal pleading made in connection with a legal action.

(12) The false representation or implication that accounts have been turned over to innocent purchasers for value.

(13) The false representation or implication that documents are legal process.

(14) The use of any business, company, or organization name other than the true name of the debt collector’s business, company, or organization.

(15) The false representation or implication that documents are not legal process forms or do not require action by the consumer.

(16) The false representation or implication that a debt collector operates or is employed by a consumer reporting agency as defined by section 1681a (f) of this title.

What does this mean for you?

Short version is that they cannot lie about anything.   They can’t tell you that you owe money if you don’t.  They can’t tell you that you will go to jail over a regular old debt, (though that might be abuse under the act, also), and they can’t tell you anything untrue, generally.

Lets talk about some of the specifics.

§1692e[2] says they cannot misrepresent the amount, character or status of the debt.  Examples of this are representing that the debt is still owed if you have already won the collection lawsuit, or if you have filed for Bankruptcy.  In fact, there is caselaw that says that collecting on a debt Discharged in Bankruptcy is a violation, Turner v J V D B Assocs Inc, 330 F. 3d. 991 (7th Cir. 2003).  Note that there are defenses that are winnable for the debt collector. And certainly, a junk debt buyer who has sued and lost and still sends letter a- knows you have a lawyer and b-knows they lost and that they are collecting a debt the judges says you don’t owe.

§1692e[3] says that they cannot say they are an attorney if they are not.  Examples of this are when the letter says it comes from an attorney’s office, but the attorney never looked at the letter or the file. But they can put language in the letter that says that no attorney has looked at the file, and that (apparently) makes it all OK.  (I don’t agree, but then I am not a judge.).

§1692e[4] says that they can’t tell you that you will go to jail or that they can garnish you if they can’t.  Examples of this are where they don’t have a judgment, and they don’t sue.  There are lots of debt collectors who just simply don’t sue.  They aren’t lawyers (note the theme from above), and they don’t hire lawyers.  Also, you can’t go to jail for the non-payment of most debts.  There are exceptions.  Some of the exceptions are for checks that are drawn on closed or overdrawn accounts (commonly called bad checks). But a credit card that you didn’t pay, or a payday loan that you did not pay is NOT a criminal violation, and you cannot go to jail.  In fact, for payday loans, it is a violation of the Virginia Payday Lending Act for the payday lender to tell you that you can go to jail for writing a check that bounces (note: a closed account is different- you can go to jail for that.)

§1692e[8] says that they cannot communicate false credit information.  This dovetails into the Fair Credit Reporting Act.  This includes if you dispute the debt, and they don’t bother to tell anyone that you disputed, but somehow, they say that you still owe the money.  There is case law on this point also.  If they update your credit file, they are required to identify your account as disputed.

§1692e[9] says they can’t simulate court documents. This essentially means they can’t send you something that LOOKs like a lawsuit if it is NOT a lawsuit.

§1692e[10] says they can’t use false or misleading means to collect.  This applies to EVERY communication.  Examples of this are when they talk to your neighbors or co-workers (which may violate other provisions also), or tell you something that is not true.  This may be a redundant section, but there are some things that fall into the grey areas that are caught here.

§1692e[11] requires that the debt collector tell you that they are debt collectors.  Often they will forget to use this language in voice-mails. A voice mail left on your voice mail that just says “we are calling about an important business matter, please call us back at phone number ___”  There is actually a name for this syndrome by debt collectors, this violation is called a Foti (after Foti v. NCO)  violation, though I think it should be renamed a Edwards (after Edwards v. Niagra Credit (11^th Cir)) violation.

§1692e[13] dovetails with 1692e[9].  It says they can’t simulate legal process.  That means that they can’t make a document look like a summons or warrant (civil or criminal).

If they are a lawyer or they do sue, §1692e[15] would come into play.  This subsection says that if they send you a summons or warrant, they can’t tell you that its NOT a court document.  Here’s where I have some issues, and we may see a long blog post about this particular issue.  I am not sure that it is (or isn’t) OK for them to sue you (in Virginia, the form is called a Warrant in Debt) and then tell you that you don’t have to show up for court.  Technically, this is half true.  If you owe the money, and you don’t dispute anything, and you are just going to tell the judge that you owe the money, then coming to court for that is a waste of time.  The judge will enter judgment against you.  If you don’t show, the judge will enter judgment against you.  So what’s the difference?  I think that if the collector tells you that you don’t have to show, they should also HAVE to tell you that if you don’t show that a judgment will be entered against you.  What if they agreed to a payment plan?  Did they agree to continue the case and not enter the judgment?  If not, when they agreed to the payment you may end up with a judgment so they can enforce your payment plan.  That MAY be a violation.  I think it falls into a better violation of Unfair and Deceptive act.

Stay tuned and come visit us NEXT WEEK when we talk about UNFAIR AND DECEPTIVE collection practices.

If you have been impacted by anything we mentioned here, you can make an appointment to see us.

NO FEE IN YOUR FDCPA CASE UNLESS WE RECOVER!!

OUR LEGAL FEES:

The rights afforded to you, as a consumer, under the FCRA and the FDCPA means that a corporation or party who has violated your rights may ultimately be made to pay for statutory damages, actual damages, and your legal fees. Therefore, if we agree to represent you in any case, you won’t pay any attorney’s fees unless we are successful and we recover on your behalf. We are here to serve and have assisted many consumers TO enforce their legal rights. Let us try and see if we can help you too. That means you pay no fee in your case unless we recover.

Contact us by e-mail or by telephone or fax or US Mail.

You can call us: 804.673.4358

You can fax us: 804.673.4350

You can contact us by US MAIL:

Krumbein Consumer Legal Services, Inc.

1650 Willow Lawn Drive

Suite 300

Richmond, VA 23230

KCLS LIMITS THE GEOGRAPHY IN WHICH WE TAKE CASES.

YOU MUST BE A VIRGINIA RESIDENT.

If you are not a Virginia Resident, click here to find a lawyer near you.

What is abusive under the Fair Debt Collection Practices Act?

Lots of things are “abuse”.  The statute in the Fair Debt Collection Practices Act, or FDCPA is 15 USC §1692d.

§1692d says that “A debt collector may not engage in any conduct the natural consequence of which is to harass, oppress, or abuse any person in connection with the collection of a debt. . . “ It then goes on to say that certain things ARE abuse, but the list is not exhaustive.

The list provided in the statute is

(1) The use or threat of use of violence or other criminal means to harm the physical person, reputation, or property of any person.

(2) The use of obscene or profane language or language the natural consequence of which is to abuse the hearer or reader.

(3) The publication of a list of consumers who allegedly refuse to pay debts, except to a consumer reporting agency or to persons [that are like a credit reporting agency.  Examples include TeleCheck, ChexSystems, Certigy, Equifax’s check recovery department, and others.]

(4) The advertisement for sale of any debt to coerce payment of the debt.

(5) Causing a telephone to ring or engaging any person in telephone conversation repeatedly or continuously with intent to annoy, abuse, or harass any person at the called number.

(6) Except as provided in section 1692b of this title, the placement of telephone calls without meaningful disclosure of the caller’s identity.

So, lets go through these.

CRIMINAL THREATS: Obviously, threats of criminal harm should be considered abusive.  When they threaten to send “Vinny” around to break your knees if you don’t pay up—they are threatening to do something to you that is prohibited, not by civil law, but criminal law.  That means if “Rocco” does show up, and break your knees, “Rocco” goes to jail. But under the Fair Debt Collection Practices Act, or FDCPA, “Rocco” whether or not “Rocco” shows up, “Rocco’s” employer get sued.

But it doesn’t really stop there- If they threaten to tell everyone something illegal about you, like a threat to tell the police that you are a child molester, that too is a violation of the Fair Debt Collection Practices Act, or FDCPA

In some states, in fact, threats of criminal harm are also criminal acts, and you can have someone arrested for this.

PROFANE LANGUAGE: Use of profane language abounds in our society.  But some people are prohibited from using such language.  Just think about the words that the Federal Communications Commission prohibits from use on the open airwaves, and only permits on cable/satellite.  You cannot say certain words on the radio or TV.  Those words are prohibited from being used in the context of debt collection.

But the law goes further than that. It also prohibits language that the natural consequence of which is to abuse the reader or hearer.  That means use of racial epithets, being impolite to people based on race, religion or national origin, accent.  These are all examples of “abuse”, and prohibited by the Fair Debt Collection Practices Act, or FDCPA.

PUBLICATION OF LIST OF NON-PAYING CONSUMERS: This means that if you discover that you have been “blacklisted” from obtaining credit or services, or writing checks, or other things, you may have a violation.  Examples here are the Telecheck and ChexSystems networks.  That MAY be considered publication of a list of non-paying consumers if they send a “list” around.  Imagine going into a doctor’s office, and posted there on the wall is a list of people they are not permitted to take a check from.  They used to do this.  Usually, though, it was a list that that doctor had posted, and there was a separate list at the grocery store.  Now, imagine that when you were on the doctor’s list, that there was a central list, and that list was also posted at the grocery store.  That means if you bounce a check at the doctor, you can’t write a check at grocery store, either.  That would be very embarrassing.  And it would be prohibited by the Fair Debt Collection Practices Act, or FDCPA.

ADVERTISING THE SALE OF DEBT: This one is harder to explain.  Imagine that you owe a credit card company- it doesn’t matter who- Capital One, CitiBank, Chase, Applied Bank, First National Bank of Marin, HSBC, it doesn’t matter who- for some reason you run into financial difficulty.  Job loss, divorce, illness, whatever the reason.  The account goes into collections.  The collector, whom we will call “Fictional Collector” threatens to puts into the local newspaper that they own a portfolio of defaulted debts, originally owed to your credit card company, and that you are that portfolio.  They are threatening to advertise for sale your debt.  This would be prohibited by the Fair Debt Collection Practices Act, or FDCPA. In states OTHER than Virginia, this might be an invasion privacy, called publication of private facts, however, the Virginia General Assembly has expressly stated that this is not invasion of privacy, and the courts have upheld that.

MAKING THE PHONE RING: They call, and they call, but the only purpose is to annoy you.  They know that they are only calling to annoy you, abuse you, and waste your time.  The problem with this case is that we must prove what is in their mind.  We have to show that they knew that there would be no point in a call, and they tried anyway.  Good examples of this are multiple calls after they received a letter demanding that they cease communications, or calls where they admit that they knew that they were not supposed to call- they admit that the account is paid, or included in a Bankruptcy.  Its hard, but doiable.

FAILING TO DISCLOSE THEIR IDENTITY: This is the call where they call and say “Can I talk to Joe?” and the person answering says something along the lines of Joe is not here, can I take a message?  And the response is “No, I’ll call back” or something like that.  They are supposed to tell the person who they are.  They are NOT permitted to tell them they are a debt collector, but they must give a name.  So for example, in that situation, if they said something like “My name is Bill, and I am calling about a private matter” that MIGHT be permissible.  But there are OTHER provisions of law that might be impacted.

Stay tuned and come visit us NEXT WEEK when we talk about LIES, FALSE REPRESENTATIONS, AND MISLEADING STATEMENTS.

If you have been impacted by anything we mentioned here, you can make an appointment to see us.

NO FEE IN YOUR FDCPA CASE UNLESS WE RECOVER!!

OUR LEGAL FEES:

The rights afforded to you, as a consumer, under the FCRA and the FDCPA means that a corporation or party who has violated your rights may ultimately be made to pay for statutory damages, actual damages, and your legal fees. Therefore, if we agree to represent you in any case, you won’t pay any attorney’s fees unless we are successful and we recover on your behalf. We are here to serve and have assisted many consumers TO enforce their legal rights. Let us try and see if we can help you too. That means you pay no fee in your case unless we recover.

Contact us by e-mail or by telephone or fax or US Mail.

You can call us: 804.673.4358

You can fax us: 804.673.4350

You can contact us by US MAIL:

Krumbein Consumer Legal Services, Inc.

1650 Willow Lawn Drive

Suite 300

Richmond, VA 23230