Violations of Fair Debt Collection Act
johnm...@yahoo.com
hardship. The mortgage is owned by Freddie Mac and is serviced (debt
collected by) Chase Bank. I sent Chase written notice of the
situation and requested that they stop calling me on the phone. I sent
the letter certified to their customer service address on the bills. I
have the proof from the post office that the letter was delivered 2
weeks ago. I am getting 2-3 phone calls per DAY from Chase engaging in
collection practices. It is driving me nuts.
Are there continued collection phone calls a violation of the FDCA and
if so what can I do about it? As I understand it each violation is a
$1,000 penalty. They must have called me 30 times already. I have the
copy of the letter I sent them with a photocopy of the certified mail
barcode on it, and I have the proof from the post office that the mail
was delivered, and I have the incoming phone calls on my cell phone
bill documenting their calls to me.
Bob
http://www.ftc.gov/bcp/edu/pubs/consumer/homes/rea10.shtm
Also, look at Schlosser v. Fairbanks Capital Corp., 323 F.3d 534 (7th
Cir. 2003).
It looks like the key is whether Chase started servicing your mortgage
before the default or after. But I'm not an expert in these matters.
Cy Pres
>Are there continued collection phone calls a violation of the FDCA and
>if so what can I do about it? As I understand it each violation is a
>$1,000 penalty. They must have called me 30 times already. I have the
>copy of the letter I sent them with a photocopy of the certified mail
>barcode on it, and I have the proof from the post office that the mail
>was delivered, and I have the incoming phone calls on my cell phone
>bill documenting their calls to me.
You should probably continue writing the perpetrators and updating
them about how many violations there are and when they were, and how
much in the way of potential fines is accumulating, so that they can't
subsequently claim you just allowed the number of calls to rack up and
that they merely lost the first letter, or some other innocent
explanation. You can also file a complaint with your state's Attorney
General.
You could also file a lawsuit either pro se or with an attorney if you
can get one. It's possible that if you get enough calls, that there
will be enough potential money to make it worth the trouble.
http://www.fair-debt-collection.com/ has some other suggestions,
though I'm not recommending it necessarily. I haven't looked at the
information on it in enough detail to know whether it's completely
legitimate. There's an 888 number on the site, so it is apparently
connected to a firm or referral agency of some sort, which I do not
vouch for.
I wouldn't give up on actually getting an attorney for a case like
this, even if the statutory damages aren't enormous. The fee shifting
provision in the statute means an attorney gets their fees paid by the
other side, not you. So an attorney who does these kinds of cases and
thinks you have a good one will not have any worries about fees, and
they won't come out of your share if they're reasonable.
Another option and, again, something you should check out yourself
before trying, is a small claims suit, but I'm not sure this is a good
idea, because even if you could pursue such a case, the cap on
liability for a small claim might make it not worth pursuing.
There are also administrative remedies as described in
http://www.fair-debt-collection.com/rules/fair-debt-collection-act.html
but while I don't have personal knowledge of these remedies'
effectiveness in typical times, these aren't typical times and I can't
imagine the FTC is being terribly effective at the moment.
Doug McCrary
<johnm...@yahoo.com> wrote in message
news:3d5c860d-be97-43cc...@c3g2000yqd.googlegroups.com...
I suggest you go here:
http://www.ftc.gov/bcp/edu/pubs/consumer/alerts/alt107.shtm
to start. You may have to suffer them for 30 days, or forever, because of
your business relationship.
Have you talked to them on the phone? You might try that if not.
Stan K
> On Fri, 4 Dec 2009 20:24:41 -0800 (PST), "johnmoli...@yahoo.com"
> >collected by) Chase Bank. �I sent Chase written notice of the
> >situation and requested that they stop calling me on the phone
> >Are there continued collection phone calls a violation of the FDCA and
> >if so what can I do about it? .....
>
> http://www.ftc.gov/bcp/edu/pubs/consumer/homes/rea10.shtm
>
> It looks like the key is whether Chase started servicing your mortgage
> before the default or after. �But I'm not an expert in these matters.
I read the above, and it sounds like Chase would be considered a Debt
Collector only if the loan was already in default, which I guess means
that's when the FDCA would apply.
But this leads to other questions. Are there limitations on what a
person or business can do to collect their own debt (which is what
Chase would be doing if the loan wasn't already in default when they
got it from Fannie Mae)? For example, is it harassment if I call the
person every hour even if instructed not to? Is it a crime, or even
just harassment, if I have a bot constantly text-message the person,
which means the person can incur charges if he has less than an
unlimited-text-message plan? What if the person simply denies the
debt as a way to get me off his back so he can them claim harassment?
Finally, does writing the book (i.e., Chapter 7 or Chapter 11) stop
secured-loan collection efforts?
I once saw a small business owner take aggressive action on bounced
checks. He made enlarged copies of the returned checks and hung them
on the wall. The legal advice he received was that it wasn't libel or
slander because he was telling the absolute truth about someone. But
what if he did the same thing with a bill (like hanging up copies of
the customer's statement)? Would this be as legal as displaying
copies of bounced checks? And again, would this be legal in case of a
Bankruptcy filing?
slide
>
>
> You should probably continue writing the perpetrators and updating
> them about how many violations there are and when they were, and how
> much in the way of potential fines is accumulating, so that they can't
> subsequently claim you just allowed the number of calls to rack up and
> that they merely lost the first letter, or some other innocent
> explanation. You can also file a complaint with your state's Attorney
> General.
>
> You could also file a lawsuit either pro se or with an attorney if you
> can get one. It's possible that if you get enough calls, that there
> will be enough potential money to make it worth the trouble.
>
I'm unclear if there is a violation. My understanding, which is
admittedly not comprehensive, is that the demand that the creditor
desist from contacting the debtor applies only when the alleged debt is
denied by the debtor.
Here's an example. You are contacted by a collection agency trying to
collect money from you for a cruise they say you took to the Bahamas.
You never booked that cruise. You question the agency, determine that
the 'debt' isn't valid and then write them to desist contacting you
about that matter because the it isn't a valid debt.
IF the debt is valid, as it is with the OP, then you can't get the
agencies to stop contacting you with a simple letter. If so, then every
overdue debtor would make that simple demand.
Further, the OP claims that the fine for violation is $1,000 per
incident. My understand is that it's either actual damages or $1,000
total if the plaintiff can demonstrate no (or less than $1,000) actual
damages. It's not $1,000 per incident.
Cy Pres
<dryads...@xxxxyahoo.com> wrote:
[I said a few things premised on the idea that there *is* a violation
of the Fair Debt Collection Practices Act.]
>I'm unclear if there is a violation. My understanding, which is
>admittedly not comprehensive, is that the demand that the creditor
>desist from contacting the debtor applies only when the alleged debt is
>denied by the debtor.
After reading the posts of some other people on this thread, I have to
agree that I'm not clear there is a violation, either. However, I
don't think it's because of the "denial" aspect. I think any debtor
may request relief from abusive (or deceptive) collection practices by
a debt collector such as hourly calls and other harassment.
The question is whether the current mortgage holder is a "debt
collector" or collecting its own debt. The actual creditor may not be
bound by the FDCPA. However, in that case, many states have laws
which also bind creditors themselves.
This is why someone in this situation needs to know their *local* law,
because even where something like the FDCPA *does* apply, it's
entirely possible that a state law *also* applies and is even better.
When there are overlapping state and federal laws like this, there
also gets to be tricky questions of federal preemption of state law
and, for that matter, figuring out whether the state or federal law
*is* better, whether a complaint should be drafted to omit federal
claims to avoid federal jurisdiction, whether the mortgage is subject
to arbitration or forum selection provisions and whether they're
applicable, etc.
Another prudential consideration I don't think anyone has mentioned is
that it is possible leaving the mortgage company with no harassment
options but writing letters might just provoke them into going faster
on the foreclosure. I don't know if this kind of thing often happens.
In any case, anyone in this situation should really consult a real
lawyer. Their home is at stake. Because most of these debt practices
statutes have fee shifting provisions, it's the kind of subject many
lawyers who practice in the field will give a free consultation on,
and the kind of case many lawyers will take even for relatively modest
sums if they stand to collect their fees regardless.
Bob
<dryads...@xxxxyahoo.com> wrote:
>My understanding, which is
>admittedly not comprehensive, is that the demand that the creditor [I think you mean collection agency]
>desist from contacting the debtor applies only when the alleged debt is
>denied by the debtor.
>
>Here's an example. You are contacted by a collection agency trying to
>collect money from you for a cruise they say you took to the Bahamas.
>You never booked that cruise. You question the agency, determine that
>the 'debt' isn't valid and then write them to desist contacting you
>about that matter because the it isn't a valid debt.
>
>IF the debt is valid, as it is with the OP, then you can't get the
>agencies to stop contacting you with a simple letter. If so, then every
>overdue debtor would make that simple demand.
"How can I stop a debt collector from contacting me?
If a collector contacts you about a debt, you may want to talk to them
at least once to see if you can resolve the matter � even if you don�t
think you owe the debt, can�t repay it immediately, or think that the
collector is contacting you by mistake. If you decide after contacting
the debt collector that you don�t want the collector to contact you
again, tell the collector � in writing � to stop contacting you.
Here�s how to do that:
Make a copy of your letter. Send the original by certified mail, and
pay for a �return receipt� so you�ll be able to document what the
collector received. Once the collector receives your letter, they may
not contact you again, with two exceptions: a collector can contact
you to tell you there will be no further contact or to let you know
that they or the creditor intend to take a specific action, like
filing a lawsuit. Sending such a letter to a debt collector you owe
money to does not get rid of the debt, but it should stop the contact.
The creditor or the debt collector still can sue you to collect the
debt. "
http://www.ftc.gov/bcp/edu/pubs/consumer/credit/cre18.shtm
>Further, the OP claims that the fine for violation is $1,000 per
>incident. My understand is that it's either actual damages or $1,000
>total if the plaintiff can demonstrate no (or less than $1,000) actual
>damages. It's not $1,000 per incident.
Not quite. $1000 is the maximum in statutory damages (not per
violation), but you can collect actual damages and statutory damages.
See 15 USC 1692k(a).
Cy Pres
>>Further, the OP claims that the fine for violation is $1,000 per
>>incident. My understand is that it's either actual damages or $1,000
>>total if the plaintiff can demonstrate no (or less than $1,000) actual
>>damages. It's not $1,000 per incident.
>Not quite. $1000 is the maximum in statutory damages (not per
>violation), but you can collect actual damages and statutory damages.
>See 15 USC 1692k(a).
I see that you're correct, though it doesn't exactly jump out of the
statutory language, although the limit of statutory damages is also
per plaintiff.
Under Fair Debt Collection Practices Act, maximum amount of additional
damages that is authorized is $ 1,000 per action, not per statutory
violation. Harper v Better Business Servs., Inc., 961 F.2d 1561
(1992).
"15 USCS � 1692k(a(2(A) limits other damages to $1,000 per proceeding,
not to $1,000 per violation." Wright v Finance Serv. (1994, CA6 Ohio)
22 F3d 647, 1994 FED App 125P.
"Debtors are limited to single recovery of statutory damages per
plaintiff per lawsuit under 15 USCS � 1692(a)(2)(A), even though
debtors assert violations of 15 USCS �� 1692e(2)(a), 1692e(5) and
1692g(a), because Congress seems to have concluded that potential
liability for actual damages plus up to $ 1,000 statutory damages plus
attorneys' fees would suffice to deter would-be violators of Fair Debt
Collection Practices Act (15 USCS �� 1692 et seq.) without need to
provide multiple awards of statutory damages." Beattie v D.M.
Collections, Inc., 764 F. Supp 925 (D.C. Del., 1991).
This strikes me as somewhat perverse, because it means a debt
collection company can make a practice of violating the law because
they determine that $1,000 is simply not enough of a loss to deter an
otherwise profitable practice, i.e. they collect X number of debts of
$X value by using this abusive practice, most plaintiffs can't prove
actual damages, and even with attorney fees, this doesn't
counterbalance the profits. Further, once they've committed one
statutory violation, they are now at liberty to violate it by any
modality they feel like without increasing their statutory liability.
Since there are no punitive damages, they can be as vile as they like,
short of violating other laws.
Barry Gold
[Concerning use of the FDCPA to prevent a collector from contacting
the debtor]
slide <dryads...@xxxxyahoo.com> wrote:
>I'm unclear if there is a violation. My understanding, which is
>admittedly not comprehensive, is that the demand that the creditor
>desist from contacting the debtor applies only when the alleged debt is
>denied by the debtor.
[snip]
>IF the debt is valid, as it is with the OP, then you can't get the
>agencies to stop contacting you with a simple letter. If so, then every
>overdue debtor would make that simple demand.
No. It doesn't matter whether the debt is valid, nor whether you
dispute it. If you write the collection agency and tell them to
"cease contact", then they must do so, with a few exceptions:
(1) To advise the consuemr that the collector is giving up
(2) To notify the consumer that the creditor/collector can invoke
_specified_ remedies ordinarily used by such creditor/collector
(3) To notify the consumer that the creditor/collector intends to
invoke a specified remedy (e.g., to file a lawsuit).
However, these rules apply only to a "collection agency" -- someone
hired to collect a debt for somebody else, or who "buys" a debt that
is past due with the intent of collecting whatever they can on it.
They do not apply to the original creditor (the person/corporation who
lent the money in the first place). They presumably also don't apply
to subsequent purchasers of the debt *if* the debt is current at the
time of purchase. So your current "servicer"(*) _can_ continue to
contact you, without being subject to section 1692c.
http://www.law.cornell.edu/uscode/15/1692c(c).html
http://www.law.cornell.edu/uscode/15/1692a.html
However, if the communication is so frequent as to constitute
harrassment, it is _still_ a tort and the creditor can be sued on that
basis. In addition, the consumer can go to court and obtain an
injunction against the harrassing behavior. Violating that order will
bring a contempt citation and significant fines or even jail time.
>Further, the OP claims that the fine for violation is $1,000 per
>incident. My understand is that it's either actual damages or $1,000
>total if the plaintiff can demonstrate no (or less than $1,000) actual
>damages. It's not $1,000 per incident.
True. But AFAIK there is nothing to prevent the consumer from filing a
separate lawsuit for each incident (or perhaps each day of
violation). Note also that the consumer will often be awarded
attorney's fees, so that $1000 can easily turn into $10,000 if the
collection agency is stupid enough to fight the case.
--
Barry Gold, webmaster:
Conchord: http://www.conchord.org
Los Angeles Science Fantasy Society, Inc.: http://www.lasfsinc.org
Bob
>This strikes me as somewhat perverse, because it means a debt
>collection company can make a practice of violating the law because
>they determine that $1,000 is simply not enough of a loss to deter an
>otherwise profitable practice, i.e. they collect X number of debts of
>$X value by using this abusive practice, most plaintiffs can't prove
>actual damages, and even with attorney fees, this doesn't
>counterbalance the profits. Further, once they've committed one
>statutory violation, they are now at liberty to violate it by any
>modality they feel like without increasing their statutory liability.
>Since there are no punitive damages, they can be as vile as they like,
>short of violating other laws.
As I was glancing at cases, I noticed that punitive damages are
available at least in some states under state law.
Barry Gold
>>Further, the OP claims that the fine for violation is $1,000 per
>>incident. My understand is that it's either actual damages or $1,000
>>total if the plaintiff can demonstrate no (or less than $1,000) actual
>>damages. It's not $1,000 per incident.
Barry Gold <bg...@nyx.net> wrote:
>True. But AFAIK there is nothing to prevent the consumer from filing a
>separate lawsuit for each incident (or perhaps each day of
>violation). Note also that the consumer will often be awarded
>attorney's fees, so that $1000 can easily turn into $10,000 if the
>collection agency is stupid enough to fight the case.
Correction: as others have noted, the statute limits you to $1000 _per
plaintiff_, not per suit. So in fact they face "only" the sum of:
. actual damages
. statutory damages of $1,000
. attorney's fees.
Presumably attorney's fees are limited by a standard of
"reasonableness." YOu would not be allowed to charge, say, $10,000 of
attorney's fees if all that is required is to write the collection
agency and demand payment.
OTOH, if the collection agency files a long and complicated answer,
claiming that they are not liable for this reason and that reason
and..., there _would_ be justification for the plaintiff's lawyer to
charge some reasonable hourly rate for the time required to reasearch
and document why those various "defenses" are bogus.
This produces an interesting "game theory" problem for the collection
agency that is set on collecting debts without regard to the FDCPA.
If they "roll over" and pay when they receive the first letter, they
minimize their costs for that case, but if that is all it takes, lots
of plaintiffs will go after them.
OTOH, if they fight the lawsuit tooth and nail, they *might* find an
out (or persuade plaintiff's attorney to give up) and have to pay
nothing (except the salary of their own in-house lawyers). But if
they lose, that $1,000 could turn into $10,000 *or more*.
So they need to figure out a strategy that will dissuade _some_
(alleged) debtors from pursuing them, while not costing them "too
much" for the cases that get pursued and they end up having to pay
for.
And, of course, any collection agency that engages in a repeated
pattern of violations risks being noticed by the FTC, which could
pursue several different forms of relief:
. Recission of the contracts involved
. Refund of money (not only to the complainants, but to all other
consumers similarly situatied)
. payment of damages
. public notification about the rule violation
http://www.law.cornell.edu/uscode/15/usc_sec_15_00000057---b000-.html
Cy Pres
I will merely note that I approve of states which do this, but I will
also note that I suspect that the terms of the FDCPA may preempt such
state remedies. I hope my speculations are entirely wrong.
Cy Pres
wrote:
>Correction: as others have noted, the statute limits you to $1000 _per
>plaintiff_, not per suit. So in fact they face "only" the sum of:
> . actual damages
> . statutory damages of $1,000
> . attorney's fees.
I'm only responding to this, since I may have uttered stupidities
prior to this post, in order to indicate that this interpretation of
the statute is pretty much the right one.
If I said anything contrary to this, it was probably bullshit,
although the enervated variant of the Fair Debt Collection Act which
exists in reality is much less to my liking than the version I wish
existed.
Mike
"Debtors are limited to single recovery of statutory damages per
plaintiff per lawsuit under 15 USCS � 1692(a)(2)(A), even though
debtors assert violations of 15 USCS �� 1692e(2)(a), 1692e(5) and
1692g(a), because Congress seems to have concluded that potential
liability for actual damages plus up to $ 1,000 statutory damages plus
attorneys' fees would suffice to deter would-be violators of Fair Debt
Collection Practices Act (15 USCS �� 1692 et seq.) without need to
provide multiple awards of statutory damages." Beattie v D.M.
Collections, Inc., 764 F. Supp 925 (D.C. Del., 1991).
This would seem that you CAN file multiple lawsuits and get $1000 on
each one as long as each alleges a separate violation ("per plaintiff
per lawsuit.") So if they call me on Mon, Wed and Fri, it would seem
that I can file 3 separate suits and get $3000 total (but I might have
to go through 3 separate trials, etc.)
Cy Pres
wrote:
>"Debtors are limited to single recovery of statutory damages per
>plaintiff per lawsuit under 15 USCS � 1692(a)(2)(A), even though
>debtors assert violations of 15 USCS �� 1692e(2)(a), 1692e(5) and
>1692g(a), because Congress seems to have concluded that potential
>liability for actual damages plus up to $ 1,000 statutory damages plus
>attorneys' fees would suffice to deter would-be violators of Fair Debt
>Collection Practices Act (15 USCS �� 1692 et seq.) without need to
>provide multiple awards of statutory damages." Beattie v D.M.
>Collections, Inc., 764 F. Supp 925 (D.C. Del., 1991).
>This would seem that you CAN file multiple lawsuits and get $1000 on
>each one as long as each alleges a separate violation ("per plaintiff
>per lawsuit.") So if they call me on Mon, Wed and Fri, it would seem
>that I can file 3 separate suits and get $3000 total (but I might have
>to go through 3 separate trials, etc.)
It seems pretty unlikely the drafters of the legislation would have
intended to create a situation that would force filing multiple
lawsuits over the same course of conduct. There is generally, in most
states, something like the entire controversy doctrine, which requires
that, to the greatest extent possible, one bring all one's gripes
against the other party in the same lawsuit, or else they're waived.
Filing multiple lawsuits over effectively the same conduct would
result either in the lawsuits after the first being dismissed or,
perhaps, consolidated into the same suit.
Also, it would invite a debtor to "save up" offending phone calls and
then file some absurd number of suits all at once.
Most lawsuits have multiple causes of action. It would be a very bad
idea to allow each individual claim to be brought in a different
lawsuit, perhaps before different judges, with different courts coming
to contradictory conclusions about the same facts. Also, it would
basically invite pure harassment by forcing people to defend multiple
lawsuits about the same thing.
Perhaps you could sue again if they continued doing the same thing
even after you initiated the first lawsuit, or get an injunction
against them continuing to do the same thing and then have them
sanctioned or held in contempt if they violate the injunction.
Daniel R.Reitman
wrote:
>. . . .
>This would seem that you CAN file multiple lawsuits and get $1000 on
>each one as long as each alleges a separate violation ("per plaintiff
>per lawsuit.") So if they call me on Mon, Wed and Fri, it would seem
>that I can file 3 separate suits and get $3000 total (but I might have
>to go through 3 separate trials, etc.)
A defendant faced with that situation probably would be able either to
get the suits consolidated or argue that the plaintiff was
claim-splitting and that a ruling in the first case precluded action
on the others.
Daniel Reitman
FOR EDUCATIONAL PURPOSES ONLY. NO ATTORNEY-CLIENT RELATIONSHIP
INTENDED.
Mike
> On Sun, 27 Dec 2009 13:36:29 -0500, Mike <prab...@shamrocksgf.com>
> wrote:
>
>> . . . .
>
>> This would seem that you CAN file multiple lawsuits and get $1000 on
>> each one as long as each alleges a separate violation ("per plaintiff
>> per lawsuit.") So if they call me on Mon, Wed and Fri, it would seem
>> that I can file 3 separate suits and get $3000 total (but I might have
>> to go through 3 separate trials, etc.)
>
> A defendant faced with that situation probably would be able either to
> get the suits consolidated or argue that the plaintiff was
> claim-splitting and that a ruling in the first case precluded action
> on the others.
OK, I agree that it'd, in all likelihood, be wrong and not allowed to
split them like that when they're right together like that. But what
about if they called me on 1/1/09, we went to court on 2/1/09 and I won
and then they called me again on 2/2/09? Could I then file a suit for
THAT call as long as the first suit was found in my favor AND as long as
the suits didn't overlap? Also what about if they called on 1/1/09, I
filed suit on 1/10/09, they get served on 1/20/09 with a court date of
2/10/09 and then they call me again on 2/1/09? Could I file a second
suit for that call (where the first suit had been started but not
finished yet?)
Also, in a more generalized case where it was some other tort that I CAN
receive damages for each occurrence, such as if someone ran their car
into my house on two consecutive days, would I have to combine the suits
there? Or, alternatively, CAN I combine them to save legal fees?
Daniel R.Reitman
wrote:
>Daniel R.Reitman wrote:
>> On Sun, 27 Dec 2009 13:36:29 -0500, Mike <prab...@shamrocksgf.com>
>> wrote:
>>
>>> . . . .
>>
>>> This would seem that you CAN file multiple lawsuits and get $1000 on
>>> each one as long as each alleges a separate violation ("per plaintiff
>>> per lawsuit.") So if they call me on Mon, Wed and Fri, it would seem
>>> that I can file 3 separate suits and get $3000 total (but I might have
>>> to go through 3 separate trials, etc.)
>>
>> A defendant faced with that situation probably would be able either to
>> get the suits consolidated or argue that the plaintiff was
>> claim-splitting and that a ruling in the first case precluded action
>> on the others.
>
>OK, I agree that it'd, in all likelihood, be wrong and not allowed to
>split them like that when they're right together like that. But what
>about if they called me on 1/1/09, we went to court on 2/1/09 and I won
>and then they called me again on 2/2/09? . . .
Sure, you could file a new action, particularly since, as you noted,
the initial suit probably would still be going on February 2. More
likely than not, it would be consolidated, but the chances of getting
the full $1,000 would be increased.
>Also, in a more generalized case where it was some other tort that I CAN
>receive damages for each occurrence, such as if someone ran their car
>into my house on two consecutive days, would I have to combine the suits
>there? Or, alternatively, CAN I combine them to save legal fees?
Those could well be consolidated because of issues involving proof of
which collision caused what damages, and, if it was the same
defendant, I'd look into that possibility if I was plaintiff's
attorney.
Daniel Reitman