Saturday, July 2, 2011

Fair Debt Collection violations

•False statements in the complaint, affidavits, etc., e.g., that the affiant has personal knowledge of records establishing debt, that the plaintiff is holder in due course, etc., are violations. A debt collector’s misrepresentation in a pleading that it is a subrogee was held to be actionable in Gearing v. Check Brokerage Corp., 233 F.3d 469 (7th Cir. 2000). See also Sayyed v. Wolpoff & Abramson, 485 F.3d 226 (4th Cir. 2007). Filing false affidavits in state court collection litigation is actionable. Todd v. Weltman, Weinberg & Reis Co., 434 F.3d 432 (6th Cir. 2006); Delawder v. Platinum Financial Services Corp., 443 F.Supp.2d 942 (2005), reconsideration denied in part, 2007 WL 1245848 (S.D. Ohio Apr. 27, 2007); Griffith v. Javitch, Block & Rathbone, LLP, No. 1:04cv238 (S.D. Ohio July 8, 2004); Hartman v. Asset Acceptance Corp., 467 F.Supp.2d 769 (S.D. Ohio 2004); Gionis v. Javitch, Block & Rathbone, 405 F.Supp.2d 856 (S.D. Ohio 2005); Blevins v. Hudson & Keyse, Inc., 395 F.Supp.2d 655, motion denied, 395 F.Supp.2d 662 (S.D. Ohio 2004); Stolicker v. Muller, Muller, Richmond, Harms, Meyers & Sgroi, P.C., No. 1:04-CV-733, 2005 WL 2180481 (W.D.Mich. Sept. 9, 2005); Eads v. Wolpoff & Abramson, LLP, 538 F.Supp.2d 981 (W.D.Tex. 2008).

•Filing a single lawsuit without having in hand the means of proving it is not a violation (Harvey v. Great Seneca Financial Corp., 453 F.3d 324, 330 (6th Cir. 2006)), but a practice of filing lawsuits with the intent of dismissing them if they are contested may be a violation (Mello v. Great Seneca Financial Corp., 526 F.Supp.2d 1020 (C.D.Cal. 2007)).

•Suing or threatening to sue on time-barred debts is a violation. Kimber v. Federal Financial Corp., 668 F.Supp. 1480 (M.D.Ala. 1987); Goins v. JBC & Associates, P.C., 352 F.Supp.2d 262 (D.Conn. 2005); Parkis v. Arrow Financial Services, LLS, No. 07 C 410, 2008 WL 94798 (N.D.Ill. Jan. 8, 2008); Ramirez v. Palisades Collection LLC, No. 07 C 3840, 2008 WL 2512679 (N.D.Ill. June 23, 2008); Schutz v. Arrow Financial Services, LLC, 465 F.Supp.2d 872 (N.D.Ill. 2006). “A threat to sue a consumer on a claim that the debt collector knows is barred by the statute of limitations violates section 1692e(2)(A) of the FDCPA.” Aronson v. Commercial Financial Services, Inc., No. Civ. A. 96-2113, 1997 WL 1038818 at *2 (W.D.Pa. Dec. 22, 1997). It should be noted that a February 2009 FTC report states: “It thus is a violation of the FDCPA to sue or threaten to sue consumers to recover on time-barred debt.” Collecting Consumer Debts: The Challenges of Change: A Workshop Report, p. 63 (Feb. 2009),

•Failure to provide validation notice is a violation. 15 U.S.C. §1692g.

•Adding unauthorized amounts to debts, e.g., attorneys’ fees, is a violation. Shula v. Lawent, 359 F.3d 489 (7th Cir. 2004), aff’g 2002 WL 31870157 (N.D.Ill. Dec. 23, 2002).

•Misrepresentation of components of debts is a violation. Fields v. Wilber Law Firm, P.C., 383 F.3d 562 (7th Cir. 2004).

•Proceeding with collection attempts after verification is demanded, but not provided, is a violation.

•Threatening to enforce creditor remedies that cannot be enforced at the time stated or to the extent stated is a violation. For example, a debt collector may threaten to obtain a wage garnishment or execution without disclosing that this can be done only after notice, hearing, and judgment or may threaten to garnish “all” of a consumer’s wages when the law clearly imposes limitations on the amount that may be garnished. Oglesby v. Rotche, No. 93 C 4183, 1993 WL 460841 (N.D.Ill. 1993) (threat to garnish all wages and attach all property); Woolfolk v. Van Ru Credit Corp., 783 F.Supp. 724 (D.Conn. 1990) (oppressive list of postjudgment remedies); Seabrook v. Onondaga Bureau of Medical Economics, Inc., 705 F.Supp. 81 (N.D.N.Y. 1989) (threat to garnish wages in excess of amounts permitted under federal law); Cacace v. Lucas, 775 F.Supp. 502 (D.Conn. 1990) (letter stating that litigation could result in seizure of real estate and bank account deceptive; mere filing of litigation could not have any of stated effects); Holt v. Wexler, No. 98 C 7285, 1999 U.S.Dist. LEXIS 8785 at *1 (N.D.Ill. May 28, 1999) (“Additional legal proceedings will be implemented to enforce collection; credit bureaus have recorded the fact in your credit report that you are a judgment debtor and skip tracers may contact your references, your former employers, your relatives and your neighbors in an effort to gain information about your assets.”).

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