FDCPA Training Seminar For Lawyers By Stan Herring

Stan Herring was asked to present legal training to lawyers in Alabama on the Fair Debt Collection Practices Act (FDCPA) and this is part of the written paper that was submitted.  The main part was the speech Stan gave but we thought this paper might have some value to attorneys in Alabama reading this and to consumers if you are interested in some of the law.

The Fair Debt Collection Practices Act from the Consumer Standpoint

By M. Stan Herring

I.          The Purpose of the Act.

In order to understand how it is a debt collector should act in order to comply with the Fair Debt Collection Practices Act (FDCPA), and for consumers to understand their rights under the fair debt collection practices act, it is important for both sides to understand the legislative history of the act.  Prior to the passage of the FDCPA, the Consumer Affairs subcommittee of the U.S. House Committee on Banking and Housing held oversight hearings in 1992. 15 U.S.C. § 1692 et seq.

At those hearings, Richard W. Bell, a former debt collector testified that abusive telephone collection strategies were routine among more than 19 collection companies he worked for over a 10 year period. While in Texas, these agencies included GC Services, American Creditors Bureau and Debt Collectors Inc. He further testified that during this time, he was only aware of one or two written consumer complaints lodged against him over this period. Id.

Bellwent on to testify to the following common abusive collection tactics. These included:

• Phoning a debtors relative.
• Impersonating a government prosecutor.
• Requesting the parent get the debtor to call about a criminal investigation.
• Calling 5 to 15 neighbors in a brief period of time.
• Threatening the debtor and/or his parents with criminal charges.
• Informing neighbors that the debtor with suspected of receiving stolen goods.
• Soliciting post dated checks in order to later threaten criminal bad check prosecution.
• Threatening to report Latinos to the INS.
• Encouraging women to engage in prostitution inMinnesotagross to pay the debt.

15 U.S.C. § 1692 et seq.; see also Big Lots Stores, Inc. v. Jaredco, Inc., 182 F. Supp. 644 (S. V. Ohio 2002).

Additionally, the FTC (Federal Trade Commission) has gathered similar information supporting Congress’s findings and since the passage of the act and its amendments. In 2003, more consumers complained to the FTC about third-party collectors than any other industry. Annual report: Fair Debt Collection Practices Act, Federal Trade Commission (2003), available at www.ftc.gov/os/statutes/FDCPA/FDCPA2003rpt.htm.

In passing the fair debt collection practices that (FDCPA), Congress stated, “there is an abundance of evidence of the use of abusive, deceptive and unfair debt collection practices by many debt collectors. Abusive debt collection practices contribute to the number of personal bankruptcies, to marital instability, to the loss of jobs, and to invasions of personal privacy.” 15U. S.C. 1692a.

Congress also stated that the purpose of the Act was to illuminate these practices and to “insure those debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged”. 15 U.S.C. 1692e; Williams V. Goldman and Steinberg Inc., Slip opinion, 2006 WL 2053715 (U.S.D.C.  N.D.  N.Y. 2006).

Congress intended that the act be broad reaching and have some real teeth to it. That is, Congress saw a need to protect consumers from abusive debt collectors while allowing legitimate debt collectors to collect on those debts they have a right to collect.

II         The Four Requirements for the Act to Apply

The FDCPA does not apply to every situation where an individual or entity is attempting to collect a debt.  Congress set up four requirements that must be met before the Act will apply to a debt collector’s conduct.

A.  Consumer

The first requirement of the Act, that the violation be against a consumer, is easily met and usually a non-issue. A consumer is defined as any natural person. 15 U.S.C. § 1692a(3). The Act basically protects everyone, except it does not apply to a corporation or business.

B.  Consumer Debt

Over the years, there has been a fair amount of litigation over what exactly constitutes a consumer debt.  The statute defines consumer debt as any obligation or alleged obligation for money, goods, or services incurred primarily for personal, family, or household purposes. 15 U.S.C. § 1692a(5).  The character of the debt is determined as of the date the debt arises, not the date collection efforts begin. Miller v. McCalla, Raymer, Patrick, Cobb, Nichols & Clark, L.L.C., 214 F. 3d 872 (7^th Cir. 2000)(holding that collection efforts against a consumer for a rental property were covered by the act because at the time of the purchase the consumer bought the house to live in, but later converted it to rental property).

This definition covers a broad range of debt.  However, no matter how egregious the violations, either in quantity or quality, if the debt was not a consumer debt, then the consumer does not fall within the protections of the FDCPA.  Below is a summary of the types of debt that are and are not considered consumer debts under the Act.

One of the most recent cases on this was the Pintos decision out of California.    The case of Pintos v. Pacific Creditors Assoc., 504 F. 3d 792 (9^th Cir. 2007), has created some concern among debt collectors as to when it is proper to pull credit reports to assist in collecting debts. In Pintos, a debt collector was sued for impermissible pulling a debtor’s credit report.

The facts are fairly simple – Pintos’ car was found by police officers with an invalid registration and was therefore towed by P&S towing.  P&S later obtained a lien for the cost of towing and storage.  Pintos failed to claim the vehicle and it was sold by P&S.  The sales price of the vehicle was not enough to cover the lien, so P&S asserted a claim against Pintos for the difference.  P&S transferred the claim to the debt collector Pacific to collect the deficiency.  504 F.3d at 796-797.

The debt collector subsequently pulled a copy of Pintos’ credit report through Experian.  It asserted that this was done in connection with its efforts to collect on Pintos’ debt to P&S. 504 F.3d at 797.

The Court held that the pull of the credit report was not for a permissible purpose.  To get to this decision the court found that a “credit transaction” requires “voluntary consumer participation,” noting “[a] consumer who chooses to initiate a credit transaction implicitly consents to the release of his or her credit report for related purposes.”  504 F.3d at 799. Thus, the act “forges a direct link” between the consumer’s search for credit and the furnishing of the report.  This requirement offers the consumer that degree of privacy protection sought by the Act.  The two critical elements are “voluntary” and “direct participation.”  504 F.3d at 799.

Pintos provides that kind of in-depth analysis courts should undergo in determining whether the debt being collected on is a consumer debt and goes to the heart of the issue, did the consumer undertake a debt the subject of a credit transaction?  Further examples are listed below.

Not a Debt

• Business and Agricultural Loans – Turner v. Cook, 362 F. 3d 1219 (9^th cir. 2004); Bloom v. I.C. System, Inc., 972 F. 2d 1067 (9^th Cir. 1992)(business loan); Munk v. Federal Land Bank, 791 F. 2d 130 (10^th Cir. 1986)(agricultural loan).

• Debt for rental repairs– Broadnax v. Greene Credit Service, 106 F. 3d 400 (6^th Cir. 1996)
• Income taxes – IRS v. Westberry (In re Westberry), 215 F. 3d 589 (6^th Cir. 2000).

• Per capita taxes – Staub v. Harris, 626 F. 2d 275 (3d Cir. 1980)

• Property Taxes – Pollice v. National Tax Funding, L.P., 225 F. 3d 379, 401 (3d Cir. 2000)

• Unemployment Compensation – Berman v. GC Services Ltd. Partnership, 146 F. 3d 482 (7^th Cir. 1998).

• Child Support Obligations – Mabe v. GC Services, L.P., 1994 WL 6920 (D.C.W.D. Va 1994), aff’d 32 F. 3d 86 (4^th Cir. 1994).

• Any tort obligations – Hawthorne v. Mac Adjustment, 140 F. 3d 1367 (11^th Cir. 1998).

• Tow and storage charges for an illegally parked car. – Pintos v. Pacific Creditors Assoc., 504 F. 3d 792 (9^th Cir. 2007)

Covered Debt

• Consumer debts reduced to a judgment – Armstrong v. Rose Law Firm, P.A., 2002 U.S. Dist. Lexis 4039 (U.S.D.C. Minn. 2002); Ballard v. Equifax Check Services, 158 F. supp 2d 1163 (U.S.D.C. E.D. Cal 2001).

• Dishonored checks written for personal, family or household purposes.- Newman v. Checkrite, 912 F. Supp. 1354 (E.D. Cal. 1995); Rosario v. American Corrective Counseling Services, Inc., 506 F. 3d 1039 (C.A. 11 2007).

• Checks written to a casino by a consumer for the purpose of entertainment. – Rogers v. Simmons, 2002U.S. dist. Lexis 5457 (N.D.Ill. 2002).

• Back Rent – Romea v. Heiberger & Associates, 163 F. 3d 111 (2d Cir. 2002).

• Condominium association and homeowner’s association fees – Ladick v. Van Gemert, 146 F. 3d 1205 (10^th Cir. 1998), cert. denied 525 U.S. 1001 (1998); Newman v. Boehm, Pearlstein & Bright, Ltd., 119 F. 3d 477 (7^th Cir. 1997); Fuller v. Becker & Poliakoff, P.A., 192 F. Supp. 2d 1361 (M.D. Fla. 2002).

• Water and Sewer charges – Pollice v. National Tax Funding, L.P., 225 F. 3d 379, 401 (3d Cir. 2000).

C. Debt collector

A debt collector is third-party, including lawyers, who regularly collects the debts of another. 15 U.S.C. § 1692a(6).  The statute more specifically states this includes,

Any person (1) who uses any instrumentality of interstate commerce or the mails in any business the principle purpose of which is the collection of any debts, or (2) who regularly collects or attempts to collect, directly or indirectly, debts owned or due or asserted to be owed or due another.

15 U.S.C. § 1692a(6).

Creditors are excluded from this definition, except where they use a name which suggests that third-party debt collectors are involved in the collection process or where it obtains the debt in order to collect it after it has gone into default. 15 U.S.C. 1692a (4).  Debt buyers have been found to be debt collectors under the Act.

Lawyers were originally excluded from the definition of a debt collector.  However, the U.S. Supreme Court specifically addressed this issue in Heintz et al v. Jenkins, 514 U.S. 291, 115 S. Ct. 1489, 131 L. Ed. 2d 395 (1995). In Heintz, the Court found that the act applies to both debt collectors and their attorneys alike. See Heintz et al v. Jenkins, 514 U.S. 291, 115 S. Ct. 1489, 131 L. Ed. 2d 395 (1995).  Additionally, debt collectors or debt buyers can be held vicariously liable for the acts of their attorneys.  Newman v. Checkrite, 912 F. Supp. 1354 (E.D.Cal. 1995).

The Legislature followed suit by amending the act to include lawyers.  In doing so, it noted in the legislative history that collection attorneys were not being sufficiently policed by the courts and bar associations and stated that removal of the exemption  was necessary to “put a stop to the abusive and harassing tactics of attorney debt collectors.” 1986 U.S.C.CAN 1756-57. (For an in depth discussion of the quality and quantity of collection activity to make a law firm a debt collector see Goldstein v. Hutton, Ingram, Yuzak, Gainen, Carroll and Bartolotti, 374 F. 3d 56, 62-63 (2d Cir. 2004)).

D.  A Violation of the act

See Below

III.       The Four Tests for an Actionable Violation

While the Act, spells out specific conduct that constitutes violations, these can be broken down into four common sense categories.  In short, the conduct undertaken by a debt collector to collect a debt cannot be Unfair, Untrue, Undignified or Disrespectful.

Examples:

Unfair Conduct– Contacting someone’s neighbors, co-workers or family members; calling repeatedly during the day; calling at odd hours.

Untrue Conduct– Telling the debtor that suit has been filed when it hasn’t; misrepresenting oneself as an attorney or law enforcement; telling the debtor that they will be arrested if they don’t pay the debt.

Undignified – Use of profanity or racial slurs; telling the debtor they should prostitute themselves out to pay the debt.

Disrespectful – This is similar to undignified, but may also include insults, yelling or belittling the debtor. One example would be calling someone fromAlabama stupid and inbred as an explanation for why they didn’t pay their debts.

Below is a list of specific violations with statute cites.:

15 U.S.C. 1692b(1) to (6)–Contacting Third Parties

§ 1692 b(1) Contact of Third Party: Failed to identify themselves, or failed to state that collector is confirming or correcting location information

§ 1692 b(2) Contact of Third Party: Stated that the consumer owes any debt

§ 1692 b(3) Contact of Third Party: Contacted a person more than once, unless requested to do so

§ 1692 b(4) Contact of Third Party: Utilized postcards

§ 1692 b(5) Contact of Third Party: Any language or symbol on any envelope or communication indicating debt collection business

§ 1692 b(6) Contact of Third Party: After knowing the consumer is represented by an attorney

15 U.S.C. 1692c –Prohibited Communications Practices

§ 1692 c(a)(1) At any unusual time, unusual place, or unusual time or place known to be inconvenient to the consumer, before 8:00 am or after 9:00 pm

§ 1692 c(a)(2) After it knows the consumer to be represented by an attorney unless attorney consents or is unresponsive

§ 1692 c(a)(3) At place of employment when knows that the employer prohibits such communications

§ 1692 c(b) With anyone except consumer, consumer’s attorney, or credit bureau concerning the debt

§ 1692 c(c) After written notification that consumer refuses to pay debt, or that consumer wants collector to cease communication

15 U.S.C. 1692d – Harassment or Abuse

§ 1692 d Any conduct the natural consequence of which is to harass, oppress, or abuse any person

§ 1692 d(1) Used or threatened the use of violence or other criminal means to harm the consumer or his/her property?

§ 1692 d(2) Profane language or other abusive language?

§ 1692 d(3) Published a list of consumers who allegedly refuse to pay debts?

§ 1692 d(4) Advertised for sale any debts?

§ 1692 d(5) Caused the phone to ring or engaged any person in telephone conversations repeatedly

§ 1692 d(6) Placed telephone calls without disclosing his/her identity?

15 U.S.C. 1692e – False or Misleading Representations in Communications

§ 1692 e Any other false, deceptive, or misleading representation or means in connection with the debt collection

§ 1692 e(1) Affiliated with theUnited States or any state, including the use of any badge, uniform or facsimile

§ 1692 e(2) Character, amount, or legal status of the alleged debt

§ 1692 e(3) Any individual is an attorney or that any communication is from an attorney

§ 1692 e(4) Nonpayment of any debt will result in the arrest or imprisonment of any person or the seizure, garnishment, attachment

§ 1692 e(5) Threaten to take any action that cannot legally be taken or that is not intended to be taken

§ 1692 e(6) Sale or transfer of any interest in the debt will cause the consumer to lose any claim or defense to payment of the debt

§ 1692 e(7) Consumer committed any crime or other conduct in order to disgrace the consumer

§ 1692 e(8) Threatens or communicates false credit information, including the failure to communicate that a debt is disputed

§ 1692 e(9) Represent documents as authorized, issued or approved by any court, official, or agency of theUnited States or state.

§ 1692 e(10) Any false representation or deceptive means to collect a debt or obtain information about a consumer

§ 1692 e(11) Communication fail to contain the mini-Miranda warning: “This is an attempt to collect a debt… communication is from a debt collector.”

§ 1692 e(12) Debt has been turned over to innocent purchasers for value

§ 1692 e(13) Documents are legal process when they are not

§ 1692 e(14) Any name other than the true name of the debt collector’s business

§ 1692 e(15) Documents are not legal process forms or do not require action by the consumer

1692 e(16) Debt collector operates or is employed by a consumer reporting agency

15 U.S.C. 1692f – Unfair Practices

§ 1692 f Any unfair or unconscionable means to collect or attempt to collect the alleged debt

§ 1692 f(1) Attempt to collect any amount not authorized by the agreement creating the debt or permitted by law

§ 1692 f(2) Accepted or solicit postdated check by more than 5 days without 3 business days written notice of intent to deposit

§ 1692 f(3) Accepted or solicited postdated check for purpose of threatening criminal prosecution

§ 1692 f(4) Depositing or threatening to deposit a post-dated check prior to actual date on the check

§ 1692 f(5) Caused any charges to be made to the consumer, e.g., collect telephone calls

§ 1692 f(6) Taken or threatened to unlawfully repossess or disable the consumer’s property

§ 1692 f(7) Communicated with the consumer by postcard

§ 1692 f(8) Any language or symbol on the envelope that indicates the communication concerns debt collection

15 U.S.C. 1692g –30 Day Validation Notice

§ 1692 g Failure to send the consumer a 30-day validation notice within five days of the initial communication

§ 1692 g(a)(1) Must state Amount of Debt

§ 1692 g(a)(2) Must state Name of Creditor to Whom Debt Owed

§ 1692 g(a)(3) Must state Right to Dispute within 30 Days

§ 1692 g(a)(4) Must state Right to Have Verification/Judgment Mailed to Consumer

§ 1692 g(a)(5) Must state Will Provide Name and Address of original Creditor if Different from Current Creditor

§ 1692 g(b) Collector must cease collection efforts until debt is validated

15 U.S.C. 1692h –Multiple Debts

§ 1692 h Collector must apply payments on multiple debts in order specified by consumer and cannot apply payments to disputed debts

15 U.S.C. 1692i –Legal Actions

§ 1692 i(a)(2) Brought any legal action in a location other than where contract signed or where consumer resides

15 U.S.C. 1692j –Deceptive Forms by Creditor

§ 1692 j Forms been designed, compiled and/or furnished to create the false belief that a person other than creditor is collecting.[1]

The standard applied in determining whether communications violate the Act are measure by the “least sophisticated consumer” or “least sophisticated debtor.” Taylor v. Perrin Landry, DeLaunay and Durand, 103 F. 3d 1232, 1236 (5^th Cir. 1997); Jeter v. Credit Bureau, Inc., 760 F. 2d 1168 (11^th Cir. 1985).  The standard was enacted to protect “all consumers, the gullible as well as the shrewd.” Taylor, 103 F. 3d at 1236.  The courts have gone on to state, “[w]hile protecting naïve consumers, the standard also prevents liability for bizarre or idiosyncratic interpretations of collection notices by preserving a quotient of reasonableness and presuming a basic level of understanding and willingness to read with care.” U.S. v. National Financial Services, Inc., 98 F. 3d 131, 136 (4^th Cir. 1996).

IV.       Liability Under the FDCPA

Generally, the FDCPA imposes strict liability on the debt collector, thus the consumer does not need to prove intent or even negligence in making out a prima facie case against a debt collector.  Russell v. Equifax A.R.S., 74 F. 3d 30 (2d Cir. 1996); Borcherderding-Dittloff v. Trasworld Sys., Inc., 598 F. Supp. 2d 1006 (W.D. Wis. 1999)(argument that no harm was done was unavailing because the FDCPA is a strict liability statute); Irwin v. Mascott, 186 F.R.D. 567 (N.D. Cal. 1999)(sending an unlawful notice imposed liability; whether the notice was received was not relevant); Pittman v. J.J. MacIntyre Co., 969 F. Supp. 609 (D. Nev. 1997) (no requirement that false representations be intentional; defendant’s culpability was a consideration only in computing damages).

While intent is not required to establish most violations, certain bona fide error defenses provide lack of intent as an element. 15 U.S.C. 1692k(c).  One such provision which requires knowledge or intent imposes a duty of inquiry on the collector.  15 U.S.C. § 1692e(8).  An e(8) violation, communicating or threatening to communicate false information, inherently requires a level of knowledge that the information being conveyed is false. Id.

A defendant may escape liability for a violation of the act if it can provide a bona fide error defense to its violation.  The statute states,

A debt collector may not be held liable in any action brought under this subchapter if the debt collector shows by a preponderance of evidence that the violation was not intentional and resulted from a bona fide error notwithstanding the maintenance of procedures reasonably adapted to avoid any such error.

15 U.S.C. 1692k(c)

This provision can provide a complete defense to a debt collector’s violation of the FDCPA. The language found in the act appears to have been borrowed from the Truth In Lending Act, and many of the decisions interpreting this provision look to the TILA decisions for guidance.  See Rutyna v. Collection Accounts Terminal, Inc., 478 F. Supp. 980, 982 (N.D.Ill. 1979).  To establish a bona fide error defense, a debt collector has the burden of proof and must plead and prove by a preponderance of the evidence that:

• The error was unintentional;
• The error was made in good faith;
• The error resulted from a mistake; and
• The collector maintained procedures reasonably adapted to check for and avoid such errors.

Defendants often confuse this standard with a simple negligence standard and have argued to me that under the bona fide error defense they can’t be liable because the violation was simply the result of a mistake.  This over looks the other requirements of the defense.  See Nielsen v. Dickerson, 307 F. 3d 623 (7^th Cir. 2002)(holding bona fide error defense was not available to creditor which was on clear notice, based on the court’s decision in Avila, that its conduct contravened settled FDCPA principles); Simmons v. Miller & Steeno, P.C., 2002 WL 31898324 (E.D. Mo. 2002)(although collector had adopted a procedure to prevent FDCPA violations, it was not in place until after the letter at issue had been sent).

As a practical matter, pleading this defense opens the door to extensive discovery, the introduction of which at trial could be very damaging to defendants.  For example, the issue of knowledge becomes relevant under this defense. This could open the defendant’s records in regards to other complaints and other lawsuits through out the country.

Courts are split on whether mistakes of law qualify as a bona fide error.  Until recently, most courts held that mistakes of law could not provide the basis for a bona fide error defense. Picht v. Jon R. Hawks, Ltd., 236 F. 3d 446 (8^th Cir. 2001); Piples v. Credit Bureau, Inc., 886 F. 2d 22 (2d Cir. 1989).  However, the Tenth Circuit and several other district courts have held that mistakes of law are covered by the bona fide error defense.  See John V. Riddle, 305 F. 3d 1107 (10^th Cir. 2002); Bernstein v. Howe, 2003 WL 1702254 (S.D. Ind. Mar. 31 2003)(noting that that mistake of law had to be reasonable); Frye v. Bowman, Heintz, Boscia & Vician, P.C., 193 F. Supp. 2d 1070 (S.D. Ind. 2002)(where the summons form at issue matched those previously approved by the court clerks, a bona fide error defense could apply to this type of mistake of law); Taylor v. Luper, Sheriff & Niedenthal, 74 F. Supp. 2d 761 (S.D. Ohio 1999)(where state law was divided on collection of attorney fees, bona fide error mistake of law defense was upheld).

V.        Civil Liability — 15 U.S.C. § 1692k

The Act provides for a private cause of action for “any person” affected by the violation.  It also grants state and federal jurisdiction and allows the plaintiff to recover actual damages, statutory damages of up to $1000, Attorney Fees and costs. 15 U.S.C. 1692k et seq.

A. Actual damages.

“(1) any actual damage sustained by such person as a result of such failure;….” may be recovered by a plaintiff under the act.  Such damages were not defined by the Act and have been left up to the courts to define.  These have included Pecuniary losses, such as lost wages, the cost of obtaining an unlisted telephone number, and physical injuries such as heart attacks, ulcers, vomiting and insomnia  and mental anguish and emotional distress.  See George v. Jordan Marsh Co., 359 Mass 244, 268 N.E. 2d 915 (1971); Urban v. Hartford Gas Co., 139 Conn 301, 93 A. 2d 292 (1952); Boyce v. Attorney’s Dispatch Service, 1999 U.S. Dist. LEXIS 12970 (W.D. Ohio 1999).

Several years ago, the following jury instruction was upheld on appeal:

First, actual damages may be awarded the plaintiff as a result of the failure of defendants to comply with the Act.  Actual damages not only include any out of pocket expenses, but also damages for personal humiliation, embarrassment, mental anguish or emotional distress.

You must first determine a fair and adequate award of these items through the exercise of your judgment and experience in the affairs of the world after considering all the facts and circumstances presented during the trial of this case.

Smith v. Law Offices of Mitchell N. Kay, 124 F.R. 182 (Del. 1991).

            In proving mental anguish or emotion distress damages, there is a dispute among the circuits as to which standard of proof should be required.  There are three main approaches, (1)Only the consumer’s own statements are required to prove such damages: (2) The consumer must produce objective or corroborating evidence of actual distress and injury; and (3) A hybrid of the first two.

The Second, Third, Fifth and Eighth Circuits allow a consumer to rely on his or her own statements as sufficient proof of mental anguish and emotional distress.  Courts in these jurisdictions have upheld damages based on testimony such as, a consumer’s description of how he felt after learning that the defendant obtained his credit reports, testimony of humiliation and embarrassment, shock at discovering a poor credit rating, loss of sleep, nervousness, frustration and mental anguish.  See Philbin v. Trans Union Corp., 101 F. 3d 957 (3d Cir. 1996); Bakker v. McKinnon, 152 F. 3d 1007 (8^th Cir. 1998); Stevenson v. TRW, Inc., 987 F. 2d 288 (5^th Cir. 1993); Pinner v. Schmidt, 805 F. 2d 1258 (5^th Cir. 1986); Thompson v. San Antonio Retail Merchants Assoc., 682 F. 2d 509 (5^th Cir. 1982).

The Sixth, Seventh and Tenth Circuits require objective third party evidence of mental anguish or emotional distress for the plaintiff to meet his or her burden.  Without such evidence, a plaintiff’s claims in these circuits for mental anguish are not likely to get past summary judgment.  See Wantz v. Experian Info. Solution, Inc., 386 S. 3d 829 (7^th Cir. 2004); Tallon v. Lloyd & McDaniel, 497 F. Supp 2d 847 (W.D. Ky 2007); Perry v. Experian Info, Solution, Inc., 2005 WL 2861078 (N.D.Ill Oct. 28, 2005).

The Ninth Circuit employs a hybrid approach requiring the consumer to produce evidence at trial that “reasonably and sufficiently explains the circumstances of his injury and does not resort to mere conclusory statements.”  Centuori v. Experian Information Solution, Inc., 431 F. Supp 2d 1002(D. Ariz 2006).

Within the Eleventh circuit there is a split among the district courts as to which approach to take.  The Northern District of Georgia has held that a consumer can rely on his own testimony to prove mental anguish.  King v. Asset Acceptance, LLC 452 F. supp 2d 1272 (N.D. Ga. 2006).  However, the Southern District of Georgia has held that a consumer must produce third party evidence to support such claims.  Sampson v. Equifax Information Services, LLC, 2005 WL 2095092 (S.D. Ga. Aug. 29, 2005).  The Southern District of Alabama has also held that the consumer’s own testimony can support a claim for mental anguish despite the absence of corroborating or medical testimony. Riley v. Equifax Credit Information Services, Inc., 194 F. supp 2d 1239 (S.D. Ala. 2002).

B. Statutory damages up to $1,000.

In determing the amount of statutory damages to impose courts are required by the Act to look at four factors, namely:

• Intent;
• Frequency;
• Persistence; and
• Nature of the collector’s noncompliance.

Initially, courts varied awards of statutory damages depending on the conduct or violation and how egregious it was. However, as the real value of the maximum $1000 statutory damages has declined, awards of the maximum $1000 have become the norm.

A court need not award actual damages in order to award statutory damages.  Harper v. Better Bus. Services., Inc., 961 F. 2d 1561 (11^th Cir. 1992).  However, parties are limited to one award of statutory damages per action, not per violation.  The two circuits that have addressed this issue have held that the statute only allows statutory damages of $1,000 per action.  See Harper v. Better Bus. Services., Inc., 961 F. 2d 1561 (11^th Cir. 1992) and Wright v. Financial Services of Norwalk, Inc., 22 F. 3d 647 (6^th Cir. 1994).

C. Class damages, the lesser of 500,000 or 1% net worth.

Class action cases are difficult to bring under the FDCPA if claiming actual damages as most such cases will not involve damages that are easily quantifiable for the purposes of a class. However, class actions for overcharges or statutory damages are more easily brought.  Before bringing a class under the FDCPA an attorney should carefully weigh the significant costs and substantial resources involved in bringing a class against the likely recovery

D. Costs and attorneys fees.

(3) in the case of any successful action to enforce the foregoing liability, the costs of the action, together with a reasonable attorney’s fee is determined by the court…

15 U.S.C. 1692k(a)(3).

The award of attorney fees and costs are instrumental to the goal of Congressional intent of private enforcement of the Act.  Courts have noted that Congress chose a “private attorney general” approach to enforcement of the act, thus requiring such a fee shifting provision to encourage enforcement by private attorneys. Tolentino v. Friedman, 46 F. 3d 645, 651 (7^th Cir. 1995).  However, some circuits, including the Fourth and Fifth Circuits have limited such attorney fee awards where they found limited success of the action or no award of FDCPA damages. Johnson v. Eaton, 80 F. 3d 148 (5^th Cir. 1996); Carroll v. Wolpoff & Abramson, 53 F. 3d 626 (4^th Cir. 1995); see also Nagle v. Experian Information Solutions, Inc., 297 F. 3d 1305 (11^th Cir. 2002).

The award of attorney fees for a successful FDCPA action is mandatory where more than nominal fees have been awarded. Zagorski v. Midwest Billing Servs., Inc., 128 F. 3d 1164 (7^th Cir. 1997).  However, the amount of the court awarded fees is left to the discretion of the trial court and will only be reversed on a finding of an abuse of that discretion.  Hensley v. Eckerhart, 461U.S. 424 (1983).

There are extensive discussions and case law addressing attorney fee applications, which the author will leave for another seminar.

VI.       Communication Prohibitions — 15 U.S.C. § 1692c

A. Prohibits unusual or inconvenient times or places.

15 U.S.C. 1692c(a)(1) prohibits a debt collector from contacting a consumer at any unusual time or place known, or which it should have known, to be inconvenient to the consumer.  This includes communications before 8:00 a.m. and after 9:00 p.m. local time. United States v. Central adjustment Bureau, Inc., 667 F. Supp 380 (N.D. Tex. 1986, aff’d per curiam, 823 F. 2d 880 (5^th Cir. 1987).

B. Limits contacts place of employment

15 U.S.C. 1692c(a)(3) provides that a debt collector may not communicate with a consumer at his or her place of employment at which personal communications are prohibited.

C. Other Limits on Communications

• When the consumer is known to be represented by counsel. 15 U.S.C. 1692c(a)(2).
• Communications with relatives other than the spouse. O’Connor v. CheckRite, 973 F. Supp. 1010 (D.C. Colo. 1997); West v. Costen, 558 F. Supp. 570 (W.D. Va. 1983).
• Where the debtor has written the debt collector requesting it cease communications, yet the collector continues to call or write. Carrigan v. Central Adjustment Bureau, Inc., 494 F. Supp. 824 (N.D.Ga. 1980).
• Continued contact while attempting to collect a debt that has been discharged in bankruptcy. Turner v. J.V.D.B. & Assoc., Inc., 330 F. 3d 991 (7^th Cir. 2003)

C. Stopping Communications- 15 U.S.C. § 1692c(c)

Once a consumer requests the collector cease communications, it must do so.  The Act requires the following:

1. Requires communications cease upon debtor’s written request.

2. Collector may send one last communication advising debtor of intention to take             a specific action.

VII.     Communications With a Third-party — 15 U.S.C. 1692b and 1692c

The Act limits debt collectors’ contact with third parties, unless advised by the debtor to do so or given permission by the debtor, to simply finding location information where the debt collector either does not have location information or has reason to believe the information it has is incorrect.  15 U.S.C. § 1692 b defines “location information as “home address, home phone, and workplace.”

15 U.S.C. 1692c states a debt collector cannot ever contact Third parties in an effort to collect a debt. The only non-debtors the Act allows a collector to contact are the consumer’s attorney, a credit reporting agency, the creditor, the creditor’s or collector’s attorney, the consumer’s spouse, the parent of the consumer if the consumer is a minor, a guardian, executor or administrator, and codebtors. 15 U.S.C. 1692c(d).

Under the narrow location information exception, the debt collector can contact third parties in an effort to learn the debtor’s residential address and phone number or the debtor’s work address.15 U.S.C. 1692a(7).  The FTC has given opinions that debt collectors cannot leave messages with neighbors or co-workers for the debtor to call the collector, even when the collector has not been able to contact the debtor recently.  Atteberry, FTC Informal Staff Letter (Feb. 22, 1990)See also FTC Official Staff Commentary § 805(b)1 and 4.

Where a collector calls a third party to obtain location information.  The contact must be extremely limited.  The Act only allows the following:

• Collectors to disclose identity;
• State that he is confirming or correcting location information concerning the consumer; and
• Only if expressly requested, identify the his employer.
• Not state that the consumer owes any debt;

• Promotes only one contact with a third-party.

• Not communicate by postcard.

• Limits language and symbols on envelopes;
• After the collector knows the consumer is represented by an attorney, not communicate with any third party when he can readily ascertain or knows the attorney’s name and address, unless the attorney fails to communicate within a reasonable period of time.

15 U.S.C. § 1692b.

VIII.    A Validation Notice — 15 U.S.C. § 1692g

When attempting to collect debt by means of a written letter, the FDCPA has certain requirements set up the protect the debtor so that he or she can easily understand, what debt is being collected, by whom, on who’s behalf, how much is allegedly owed and what the consumer’s rights are in response to the letter. 15 U.S.C. § 1692g.

The Act requires the debt collector disclose that the communication is from a debt collector and that any information obtained will be used for that purpose.  The Act also requires that a validation notice be sent with initial written contact or thin 5 days of first initial contact.  The letter must include “validation” statements:

• Amount of the debt owed;
• Name and address creditor to whom the debt is owed;
• Statement that unless the consumer, with 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 collector;
• A statement that if the consumer notifies the debt collector in writing with in 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
• A statement that, upon the consumer’s written request with 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

Section 1692g (b) provides that if a consumer disputes the debt, the collector must cease all further collection activity until it has validated the debt.  A debt collector was held to have violated the law where it received a validation request, but then filed suit before and obtained a default judgment before validating the debt. Spears v. Brennan, 745 N.E. 2d 862 (Ind. App. 2d Dist. 2001).

Some collectors have tried to get creative with the letter in order to maximize the return on the letter.  The courts however, have consistently held that the amount of the debt, pursuant to § 1692g(a)(1), must be clearly stated.  For instance, one collector, instead of listing the debt, put in the letter that the debtor had to call to get the amount of the debt. (Obviously, getting someone on the phone increases the likelihood of success of collecting a debt).   The 7^th Circuit found this to be a violation of the Act.  Miller v. McCalla, Raymer, Padrick, Cobb, Nichols & Clark L.L.C., 214 F. 3d 872 (7^th Cir. 2000).  Courts have also held that treble damages, court costs, or attorney’s fees not reduced to a judgment cannot be a part of the claimed debt.  Veach v. Sheeks, 316 F. 3d 690, 692-93 (7^th Cir. 2003).

The inclusion of attorney fees, so long as allowed in the original contract, in the original debt does not violate the FDCPA, so long as they are itemized in the amount owed.  Failure to do so has been deemed to be unfair the consumer and a violation of the FDCPA. Fields v. Wilber Law Firm, P.C., 383 F. 3d 562 (7^th Cir. 2004).

The validation letter may not be “overshadowed” or contradicted by other language or materials included in the collection letter. Swanson v. Southern Oregon Credit Service, Inc., 869 F. 2d 1222 (9^th Cir. 1988).  The 7^th Circuit noted that even though the 1692g information was properly found in the letter, other messages and information in the letter over shadowed the requirements, thus sending mixed and confusing messages to the debtor. Chauncey v. JDR Recovery Corp., 118 F. 3d 516, 518 (7^th Cir. 1997).

Examples of overshadowing include using “screaming headlines” with colors and large lettering and words like “IMMEDIATE FULL PAYMENT,” PHONE USTODAY,” and “NOW.”  Miller v. Payco-General American Credit, Inc., 943 F. 2d 482, 484 (4^th Cir. 1991).  Another example demands payment within ten days or suit will be filed.  Gaziano v. Harrison, 950 F. 2d 107 (3d Cir. 1991).  The Second Circuit, addressing less threatening examples, stated that a collection letter can be deceptive when the least sophisticated consumer could read the demand to have two or more meanings, one of which is inaccurate. Russell v. Equifax A.R.S.,  74 F. 3d 30 (2d Cir. 1996).

IX.       Harassment Prohibited — 15 U.S.C. § 1692d.

15 U.S.C. § 1692d  prohibits harassment of debtors in the process or in the furtherance of collection of a debt. The FDCPA specifically prohibits, “any conduct the natural consequence of which is to harass, oppress, or abuse any person in connection with the collection of a debt.” 15 U.S.C. 1692d. This includes no threats of violence or harm to the person, reputation or property. This also includes no abusive, obscene or profane language, no advertising debts or publishing lists, and no abusive phone use, such as constant ringing.

Courts have noted that “claims under section 1692d should be viewed from the prospective of a consumer whose circumstances make him relatively more susceptible to harassment, oppression, and abuse.” Jeter v. Collection Bureau, Inc., 760 F. 2d 1168, 1179 (11^th Cir. 1985).  Such conduct includes, but is not limited to the following:

• Debt collection letters –Harveyv. United Adjusters, 509 F. Supp 1218 (D.C. Or. 1991)
• Immediate return phone calls using abusive comments. – Bingham v. Collection Bureau, Inc., 505 F. Supp. 864 (D.C. N.D. 1981).
• Using aliases while placing calls without meaningful disclosure of the caller’s identity. – Arslan v. Florida First Federal Group, 1995 WL 731175 (M.D. Fla. 1995).
• Contact with a consumer or consumer’s employer that jeopardizes the consumer’s employment. – Pittman v. J.J. MacIntyre Co., 969 F. Supp 609 (D.C.Nev. 1997).

X.        False Statements Prohibited– 15 U.S.C. 1692e

15 U.S.C. 1692e prohibits false statements to be used in the furtherance of collection of a debt. The analysis of whether a communication is false and misleading turns “not on the question of what the debt collector knew, but on whether the debt collector’s communication would have deceived or mislead the unsophisticated, but reasonable, consumer.”  Turner v. J.V.D.B. & Assoc., Inc., 330 F. 3d 991 (7^th Cir. 2003).  The statute lists sixteen examples.  However, the list was not intended to be all inclusive.  Some examples of these violations are as follows:

• As to the character, amount, or legal status of the debt.
• That the collector is an attorney.
• That the collector is affiliated with a credit bureau.
• That the collector is a government representative.
• That the debtor committed a crime.
• The papers are or are not legal.

15 U.S.C. 1692e.

Further, the collector cannot threaten suit within a short time period where it has not been authorized by the creditor or where the collector does not file suit within that period.  Bentley v. Great Lakes Collection Bureau, 6 F. 3d 60 (2d Cir. 1993); Graziano v. Harrison, 950 F. 2d 107 (3d Cir. 1991).  An attorney not licensed to practice within that state cannot threaten suit.  Newman v. Checkrite California Inc., 913 F. Supp. 1354 (E.D. Cal. 1995).   A collector threatening wage garnishment or attachment on a house to pay a debt without first disclosing that it must obtain a judgment in order to do so violates the FDCPA.  Woolfold v. Van Ru Credit Corp., 783 F. Supp. (U.S.D.C. Conn. 1990).

Collectors cannot falsely represent that they are an attorney or that the communication is from an attorney.  Collectors will sometimes send out large amounts of letter on attorney letterhead.  The third circuit held this to be a violation of the Act noting, “[a] debt collection letter on an attorney’s letterhead conveys authority and credibility.”  Crossley v. Lieberman, 868 F. 2d 566, 570 (3d Cir. 1989).  In order for a letter to go out on attorney letterhead, the attorney must have reviewed the letter and determined in the attorney’s professional judgment that the threatened action has been authorized by the client and is appropriate.  See 15 U.S.C. § 1692a(3); Sonmore v. Checkrite Recovery Services, 2001U.S. Dist. Lexis 14688.

XI.       Unfairness Prohibited – 15 U.S.C. § 1692f

15 U.S.C. 1692f  the prohibits “unfairness.” This includes things such as no interest, late fees, or collection charges unless authorized by the original debt agreement or allowed by law. This further precludes solicitation of or depositing a post dated checks to create prosecution, threat of judicial dispossession of property unless legal; no collection language or symbols on envelopes; no collect calls telegram charges and postcards.

A debt collector may be liable for violating § 1692e(5) if he or she adds an unauthorized collection fee to the amount of debt owed. Eads v. Wolpoff & Abramson, LLP, 538 F. Supp. 2d 981 (W.D. Tex. 2008)

A debt collector may not contact a consumer who it knows to be represented by counsel with respect to a debt. 15 U.S.C. §§ 1692b(6) & 1692c(a)(2). Eads v. Wolpoff & Abramson, LLP, 538 F. Supp. 2d 981 (W.D. Tex. 2008)  In Eads, Wolpoff served the debtor directly with pleadings, even though it knew he was represented.  The court held that despite the fact that the acts were done in the process of litigating a case, the actions could constitute a violation and plaintiff’s claims went to the jury. Eads 538 F. Supp. 2d at 988.

XII.     Case Selection.

As a Consumer attorney, before I take a case, I always look at how the case will ultimately try to a jury.  In doing this, I focus on the conduct of the defendant, first of all.  The FDCPA presents an interesting challenge because while the statute is a strict liability statute, debt collectors will often plead a bona fide error defense.  I know that in litigating this type case, I will have to be clear with the jury that this isn’t a straight negligence case.  That is, the debt collector is not simply held to a reasonableness standard.  They must prove that they had reasonable procedures in place, that they followed those procedures despite the fact that a mistake was made.

1. Start with the end in mind

– Was there bad conduct that a jury will look to punish the debt collection  agency or debt collector for?

– How will the plaintiff present to the jury?

– Is the plaintiff credible?

– Are the debt collectors credible?

– Will the jury try to punish the debt collection agency or debt collector?

2  Case selection is important.

– Is there a clear violation?

– Do we have a viable defendant?

3. Client Issues.

– Presentability.

– Credibility.

– Reliability.