FAIR DEBT COLLECTION PRACTICES TRAINING CONFERENCE · PDF fileFAIR DEBT COLLECTION PRACTICES...
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FAIR DEBT COLLECTION PRACTICES TRAINING CONFERENCE March 7-8, 2014 San Antonio, TX Introductory Training Sponsored by: The National Consumer Law Center® (NCLC) 7 Winthrop Square, 4th Floor Boston, MA 02110 617-542-8010 www.nclc.org The National Association of Consumer Advocates (NACA) 1730 Rhode Island Avenue, NW, Suite 710 Washington, DC 20036 202-452-1989 www.naca.net Co-sponsored by: LAF Chicago Seniors Project
Transcript of FAIR DEBT COLLECTION PRACTICES TRAINING CONFERENCE · PDF fileFAIR DEBT COLLECTION PRACTICES...
FAIR DEBT COLLECTION PRACTICES TRAINING
CONFERENCE
March 7-8, 2014
San Antonio, TX
Introductory Training
Sponsored by:
The National Consumer Law Center® (NCLC) 7 Winthrop Square, 4th Floor Boston, MA 02110 617-542-8010 www.nclc.org
The National Association of Consumer Advocates (NACA)
1730 Rhode Island Avenue, NW, Suite 710 Washington, DC 20036
202-452-1989 www.naca.net
Co-sponsored by: LAF Chicago Seniors Project
Online Materials:Online Materials:Online Materials:Online Materials:
Introductory Training Materials: http://www.nclc.org/conferences-training/introductory-course-material-2014.html
No Username or Password needed
Fair Debt Collection Practices Fair Debt Collection Practices Fair Debt Collection Practices Fair Debt Collection Practices Introductory TrainingIntroductory TrainingIntroductory TrainingIntroductory Training
Featured Speakers:Featured Speakers:Featured Speakers:Featured Speakers:
Stacy Bardo Peter Barry
Brian L. Bromberg Bernard Brown
Kathy Ann Heibert-Cruz Cary L. Flitter Jean Healey
Robert J. Hobbs Peter Holland
David Humphreys Keith J. Keogh Steve Koval
Robert W. Murphy Michael T. O’Connor David J. Philipps Mary E. Philipps Richard Rubin Luke Wallace
Michelle Weinberg
ACKNOWLEDGMENTSACKNOWLEDGMENTSACKNOWLEDGMENTSACKNOWLEDGMENTS
Thanks to our speakers for volunteering their time and expertise; to NCLC staff Robert J. Hobbs,
Charles M. Delbaum, and Jessica Hiemenz for coordinating the conference, CLEs, and the materials; to Debbie Parziale, Eleanna Cruz, Beverlie Sopiep, and Marina Levy for handling registrations and finalizing
the materials; and to Svetlana Ladan for coordinating the website materials.
© © © © 2014201420142014 National Consumer Law Center® National Consumer Law Center® National Consumer Law Center® National Consumer Law Center® ---- Materials included in this book cannot be copied or reproduced in Materials included in this book cannot be copied or reproduced in Materials included in this book cannot be copied or reproduced in Materials included in this book cannot be copied or reproduced in any way without the express written permission of NCLC®.any way without the express written permission of NCLC®.any way without the express written permission of NCLC®.any way without the express written permission of NCLC®.
Introductory Course Agenda (Tentative agenda 2-21-14)* FAIR DEBT COLLECTION PRACTICES TRAINING CONFERENCE
Sponsored by NCLC, NACA, and LAF Chicago Seniors Project
5:00pm-8:00pm March 6, 2014 (Thursday) Registration
March 7, 2014 (Friday) 7:15 - 8:00am Registration Coffee and pastries
8:00 - 9:00 How Debts Are Collected, Robert Hobbs, Michelle Weinberg
9:00 - 9:10 Break
9:10 - 10:10 Fair Debt Collection Practices Act: Coverage, Violations, & Remedies, Dick Rubin
10:20 - 11:20 Establishing Substantial Damages in a Debt Collection Harassment Suit, Luke Wallace,
David Humphreys
11:20 - 11:30 Break
11:30 - 12:30pm FDCP Fundamentals: The Care and Feeding of Your FDCP Case (Client Intake, Retainers,
Recording Calls, Client Logs, Investigation), Robert Murphy, Bernard Brown
12:30pm - 2:00 Lunch on your own
2:00 - 3:15 Selecting, Developing, Valuing Letter and Overcharge Cases, David J. Philipps, Mary E.
Philipps
3:25 - 4:25 Basic Discovery in a Debt Collection Abuse Case, Michael O’Connor
4:25 - 4:35 Break
4:35 - 5:35 Selecting, Developing, Valuing Phone Harassment Cases, Peter Barry
5:45 - 7:00 Reception
March 8, 2014 (Saturday) 7:15 - 8:00am Coffee and pastries
8:00 - 9:00 Taking and Defending Depositions, Negotiating Settlement Agreements, Peter Barry
9:05 - 10:05 Debt Collectors’ Defensive Strategies, Brian Bromberg, Stacy Bardo
10:05 - 10:15 Break
10:15 - 11:15 Credit Reports: FCRA and FDCPA, Dick Rubin
11:20 - 12:20pm Telephone Consumer Protection Act Basics, Keith Keogh
12:20 - 1:40 Conference Lunch - Jean Healey
1:40 - 2:40 Ethical Issues in Fair Debt Collection Cases, Brian Bromberg
2:50 - 3:50 Developing a Private Fair Debt
Practice, Cary Flitter, Steve
Koval
Bankruptcy Practice and
FDCPA Cases, Kathy
Cruz
Developing a Fair Debt
Legal Services Practice,
Michelle Weinberg
3:50 - 4:00 Break
4:00 - 4:50 Bankruptcies, Debt Collection Suits, and FDCPA Claims, Kathy Cruz
4:55 - 5:45 Defending Consumers in State Court, Peter Holland
FAIR DEBT COLLECTION FAIR DEBT COLLECTION FAIR DEBT COLLECTION FAIR DEBT COLLECTION PRACTICES PRACTICES PRACTICES PRACTICES INTRODUCTORY INTRODUCTORY INTRODUCTORY INTRODUCTORY TRAININGTRAININGTRAININGTRAINING
TABLE OF CONTENTSTABLE OF CONTENTSTABLE OF CONTENTSTABLE OF CONTENTS FRIDAYFRIDAYFRIDAYFRIDAY How Debts Are Collected, How Debts Are Collected, How Debts Are Collected, How Debts Are Collected, Michelle WeinbergMichelle WeinbergMichelle WeinbergMichelle Weinberg, Robert Hobbs , Robert Hobbs , Robert Hobbs , Robert Hobbs
Life of a Debt Chart……………………………………………………………………………………………22
How Debts are Collected (PowerPoint)…………………………………………………………………23 Fair Debt Collection Practices Act: Coverage, Violations, & Remedies, Fair Debt Collection Practices Act: Coverage, Violations, & Remedies, Fair Debt Collection Practices Act: Coverage, Violations, & Remedies, Fair Debt Collection Practices Act: Coverage, Violations, & Remedies, Dick RubinDick RubinDick RubinDick Rubin Fair Debt Collection Practices Act…………………………………………………………………………34 Establishing Substantial Damages in a Debt Collection Harassment Suit, Establishing Substantial Damages in a Debt Collection Harassment Suit, Establishing Substantial Damages in a Debt Collection Harassment Suit, Establishing Substantial Damages in a Debt Collection Harassment Suit, Luke WaLuke WaLuke WaLuke Wallace, llace, llace, llace, David HumphreysDavid HumphreysDavid HumphreysDavid Humphreys
Fighting for the Forgotten…………………………………………………………………………………41 Selecting, Developing, Valuing Letter and Overcharge Cases, David J. Philipps, Mary E. Selecting, Developing, Valuing Letter and Overcharge Cases, David J. Philipps, Mary E. Selecting, Developing, Valuing Letter and Overcharge Cases, David J. Philipps, Mary E. Selecting, Developing, Valuing Letter and Overcharge Cases, David J. Philipps, Mary E. PhilippsPhilippsPhilippsPhilipps Outline: Selecting, Valuing, Developing Letter and Overcharge Case……………………45
Letters for Slides 7-43 Enlarged…………………………………………………………………………61 Basic Discovery in a Debt Collection Abuse CaseBasic Discovery in a Debt Collection Abuse CaseBasic Discovery in a Debt Collection Abuse CaseBasic Discovery in a Debt Collection Abuse Case, , , , Michael O’ConnorMichael O’ConnorMichael O’ConnorMichael O’Connor Sample Discovery Documents……………………………………………………………………………90 SATURDAYSATURDAYSATURDAYSATURDAY Debt Collectors’ Defensive StrategiesDebt Collectors’ Defensive StrategiesDebt Collectors’ Defensive StrategiesDebt Collectors’ Defensive Strategies,,,, Brian Bromberg, Stacy BardoBrian Bromberg, Stacy BardoBrian Bromberg, Stacy BardoBrian Bromberg, Stacy Bardo
Common Debt Collector Defenses (PowerPoint)…………………………………………………98 Telephone Consumer Protection Act BasicsTelephone Consumer Protection Act BasicsTelephone Consumer Protection Act BasicsTelephone Consumer Protection Act Basics, , , , Keith KeoghKeith KeoghKeith KeoghKeith Keogh Telephone Consumer Protection Act Basics (PowerPoint)……………………………………108 Ethical Issues in Fair Debt ColEthical Issues in Fair Debt ColEthical Issues in Fair Debt ColEthical Issues in Fair Debt Collection Caseslection Caseslection Caseslection Cases, , , , Brian BrombergBrian BrombergBrian BrombergBrian Bromberg Legal Ethics and Fair Debt Collection Litigation…………………………………………………116
B. B. B. B. Bankruptcy Practice and FDCPA CasesBankruptcy Practice and FDCPA CasesBankruptcy Practice and FDCPA CasesBankruptcy Practice and FDCPA Cases, , , , Kathy Kathy Kathy Kathy Ann HeibertAnn HeibertAnn HeibertAnn Heibert----CruzCruzCruzCruz (Online Only Materials) Barbara V. Evans v. JP Mortgan Chase Bank, N.A.; et al. Memorandum Opinion C. C. C. C. Developing a Fair Debt Legal Services PracticeDeveloping a Fair Debt Legal Services PracticeDeveloping a Fair Debt Legal Services PracticeDeveloping a Fair Debt Legal Services Practice, , , , Michelle WeinbergMichelle WeinbergMichelle WeinbergMichelle Weinberg Legal Services Corp., Fee Generating Cases………………………………………………………136
Update on Attorney Fees……………………………………………………………………………………139
FTC, Telemarketing Sales Rule Debt Relief Rule…………………………………………………145
Bankruptcies, Debt Collection Suits, and FDCPA ClaimsBankruptcies, Debt Collection Suits, and FDCPA ClaimsBankruptcies, Debt Collection Suits, and FDCPA ClaimsBankruptcies, Debt Collection Suits, and FDCPA Claims,,,, Kathy Kathy Kathy Kathy Ann Heibert Ann Heibert Ann Heibert Ann Heibert CruzCruzCruzCruz (Online Only Materials) Shawn Michael Humes v. LVNV Funding, L.L.C. and Hosto. Buchan, Prater & Lawrence, P.L.L.C., Order from District Court adopting Bank Court Findings of Fact Order from District Court awarding Fees in Full Memorandum Opinion as to Core Claims and Proposed Findings of Fact and Conclusions of Law as to Noncore Claims Proposed Order Granting Plaintiffs’s Appplication for Attorney Fees and Costs
Fair Debt Collection Practices Fair Debt Collection Practices Fair Debt Collection Practices Fair Debt Collection Practices Introductory Introductory Introductory Introductory TrainingTrainingTrainingTraining Speaker Speaker Speaker Speaker BioBioBioBio’’’’ssss
Stacy Bardo is a partner at the Consumer Advocacy Center, P.C. in Chicago, Illinois. Stacy litigates cases involving unlawful debt collection practices, consumer fraud, predatory lending, automobile fraud, wrongful repossessions, mortgage foreclosures, credit reporting disputes, identity theft, and electronic fund transfer issues, and has successfully defeated several binding mandatory arbitration clauses. She has been appointed class counsel in numerous national and statewide class actions certified in Illinois, New York, California, Michigan, Minnesota, and Washington and is licensed to practice in the State of Illinois, the U.S. District Courts for the Northern District of Illinois, the Eastern District of Wisconsin, and the Northern District of Indiana, and the U.S. Court of Appeals for the Seventh Circuit. Stacy is a former Vice-Chair of the Chicago Bar Association’s Consumer Law Committee. As a Board Member of the National Association of Consumer Advocates (“NACA”), Stacy has also served on the Steering Committee for several Association conferences and is a member of NACA’s Nominating Committee. She is a member of the Illinois State Bar Association and volunteers her time as Vice President for the Associate Board of CARPLS, Chicago’s Coordinated Advice and Referral Program for Legal Services. Stacy is a graduate of Northwestern University and Loyola University Chicago School of Law. Peter Barry has been a consumer rights lawyer admitted in the State and Federal courts of Minnesota. He is admitted in numerous other courts including the United States Supreme Court. His national practice protects consumers against illegal debt collection practices under the FDCPA. In 2005, he was named Consumer Lawyer of the Year by the National Association of Consumer Advocates. In 2010, he was hired by the Attorney General for the State of Texas and appeared as an expert witness in a consumer fraud case resulting in a nearly $14 million dollar verdict. State of Texas v. Jubilee Financial Solutions, L.P. His three-day FDCPA Boot Camps have trained nearly 1,000 consumer lawyers in all 50 states, Washington, D.C. and Puerto Rico. Pete frequently appears in local and national media discussing consumer rights issues. He volunteers as an ethics investigator, pro bono attorney through the Federal Pro Se Project, and a law student mentor. Since 2003, Pete has been an adjunct Professor of Consumer Law at William Mitchell College of Law where he teaches federal consumer rights litigation. Brian L. Bromberg is the owner of the Bromberg Law Office, P.C. in New York City. Mr. Bromberg is admitted to practice law in New York and California. He graduated from Oberlin College, with a B.A. in Philosophy in 1987, and earned his J.D. from Brooklyn Law School in 1991. Mr. Bromberg is an active member of the National Association of Consumer Advocates (NACA), the Association of the Bar of the City of New York, and many other professional organizations. He has lectured attorney groups and the public on consumer-law issues, and helped revise NACA's Class Action Guidelines. Since 1999, Mr. Bromberg has concentrated his practice on consumer-protection litigation, including violations of the Fair Debt Collection practices Act (FDCPA), the Fair Credit Reporting Act (FCRA), the Equal Credit Opportunity Act (ECOA), the Truth in Lending Act (TILA), the Home Ownership and Equity Protection Act (HOEPA), the Fair Labor Standards Act (FLSA), the Telephone Consumer Protection Act (TCPA), and various state and federal unfair and deceptive acts and practices statutes. Mr. Bromberg has prosecuted numerous consumer-protection and fraud cases against debt-collectors, banks, credit-card companies, and automobile dealers. He has filed cases both individually and on a class basis, and has been appointed class counsel by state and federal courts across the country. Bernard Brown studied as an undergraduate at St. John’s College in Annapolis, Maryland (a “Great Books” school), before obtaining his undergraduate degree from the University of Toronto (in Toronto, Ontario) and his law degree from the University of Kansas. He has been in private practice in Kansas City since 1980. Between 1984 and 1996 his office was focused on representing victims of car fraud -- such as the fraudulent sale of rebuilt wrecks and cars with odometer rollbacks. More recently he also has worked on class actions relating to vehicle sales and financing, on mortgage fraud cases (in
conjunction with Legal Aid in Kansas City), and on “no title” car cases against finance companies. His cases have resulted in many notable jury verdicts and settlements, and a sizable number of his cases have resulted in published court decisions of significance in these areas of the law. Mr. Brown began doing public interest work when he was in college, starting with volunteer work at the headquarters of Common Cause in Washington, D.C. He has worked regularly with the National Consumer Law Center, the country’s leading consumer law think tank, for many years, and has written or contributed to many items relating to consumer law. He also has served as an adjunct law school professor teaching consumer protection law. Mr. Brown is a founding member of the National Association of Consumer Advocates (“NACA”), was one of its two original Co-chairs, has twice served on the NACA board, and currently serves as chair of its Ethics Committee. He has also worked closely for many years on a number of issues with other leading consumer groups (such as Consumers for Auto Reliability and Safety, Consumers Union, Consumer Federation of America, Public Citizen, and others), and has drafted proposed legislation and testified for these groups and on his own before Congress and state legislatures. He is involved in networking, idea-sharing, and direct advocacy efforts of consumer advocates across the country, and regularly gives presentations on various consumer law issues for other attorneys, consumer advocates, law enforcement personnel, and law students. He often is consulted by members of local and national media regarding car industry consumer issues, and appeared in a 60 Minutes piece in 1993 called “Totalled”, about rebuilt salvage cars. He has been serving on a Department of Justice Advisory Committee that is dedicated to building the “National Motor Vehicle Title Information System” (“NMVTIS”) since early 2010. In 2008 he received the “Countryman” award from the National Consumer Law Center. Kathy Ann Heibert-Cruz was born in Gary, Indiana where she attended both public and private schools until graduation from high school. She received her Bachelor=s degree Magna Cum Laude from Bradley University in 1977. She then attended law school at the Northwestern School of Law of Lewis and Clark College in Portland, Oregon in 1981. She has also obtained a Masters of Science degree in forensic studies from Indiana University in 1984. Ms. Cruz was licensed to practice law in Indiana in 1984, and later moved to Arkansas where she obtained her Arkansas law license in 1987. Before opening her own private practice, Ms. Cruz was the Deputy Public Defender for Garland County, and later also served as the Deputy Prosecuting Attorney for Garland County. Ms Cruz also previously worked for several Garland County law firms where she handled numerous civil and criminal cases, both at the trial and appellate level, including trials by jury. Ms. Cruz opened The Cruz Law Firm in 1997, and has focused her practice on bankruptcy. She has filed over 5,000 bankruptcy petitions, has practiced before both the 8th Circuit Bankruptcy Appellate Panel (BAP) and the 8th Circuit on bankruptcy appeals. Currently she serves as co-counsel on several class actions stemming from proofs of claims for pre-petition foreclosure fees. Ms. Cruz joined NACBA in 1998, and served as the Arkansas state chair until last year. Ms. Cruz is a member of many legal organizations, and currently serves at the Arkansas state chair for the National Association of Consumer Advocates. Jean Healey is the Senior Counsel for Enforcement Policy and Strategy Team at the Consumer Financial Protection Bureau (CFPB). She facilitates the implementation of the CFPB's enforcement strategies regarding mortgage servicing and debt collection. Prior to joining the CFPB she was an Assistant Attorney General in Massachusetts. Cary L. Flitter practices consumer law in suburban Philadelphia, Pennsylvania, New Jersey and in Courts around the United States. Flitter litigates principally consumer credit, fair debt and auto repossession cases, both individual cases and class actions. Cary serves on the adjunct faculty at Widener University School of Law in Wilmington, Delaware and at Temple University’s Beasley School of Law in Philadelphia, where he teaches Consumer Law and Litigation including Fair Debt Collection Practices and class action. From 1991 to 1998, Flitter served on the adjunct faculty at Philadelphia
University where he taught commercial law. Flitter has guest lectured on consumer law issues at Harvard Law School, The University of Pennsylvania Law School, The University of Houston’s Center for Consumer Law, and other venues. He is a graduate of the National Institute for Trial Advocacy and the Delaware Law School of Widener University, where he was named Alumnus of the Year in 2011. Mr. Flitter is a contributing author to Pennsylvania Consumer Law by Bisel Publishing Co. This is the leading treatise in Pennsylvania on consumer law. He is also a contributor to Consumer Class Actions 5th Ed. by the National Consumer Law Center. Flitter has written articles for the National Law Journal, the Legal Intelligencer and other publications. He is a frequent lecturer around the country and consultant for the media in matters of consumer credit, fair credit reporting, fair debt collection practices, auto finance and repossession, and class action. Cary was invited by the Federal Trade Commission to participate in its 2007 workshop Collecting Consumer Debts: The Challenges of Change, the FTC 2009 Roundtable, Consumer Debt Litigation, and the FTC 2011 Roundtable, Collecting Consumer Debt 2.0 in Washington, D.C. In the Court of Appeals, Cary successfully argued Brown v. Card Service Center, 464 F.3d 450 (3d Cir. 2006), Rosenau v. Unifund, 539 F.3d 218 (3d Cir. 2008) and other cases. Brown set broad standards for deception under the Fair Debt Collection Practices Act and became featured in a Time Magazine story Sue Up or Shut Up, October 19, 2006 - www.time.com/time/nation/printout/0,8816,1548158,00.html. Rosenau represented a case of first impression in the Circuit, in which the Court held it may be deceptive to the consumer to send dunning letters from a “legal department” where no attorney is involved. Flitter is the recipient of pro bono awards for Legal Services to Low Income Consumers from the President of the Pennsylvania Bar Association in 2006 and again in 2011. Flitter also serves as the year 2012 Co-Chair of the Federal Courts committee of the Montgomery (County, Pennsylvania) Bar Association, and has served on the Board of the National Associates of Consumer Advocates. Robert J. Hobbs has specialized in consumer credit issues, with particular attention to fair debt collection practices, in his more than 30 years at the National Consumer Law Center, Inc. (NCLC). He writes NCLC’s popular treatise Fair Debt Collection (7th Ed.); the bimonthly newsletter, NCLC REPORTS, now NCLC eReports on fair debt collection and repossession; The Practice of Consumer Law (2nd Ed. 2006); and he edits NCLC’s annual volume Consumer Law Pleadings on the Web. He testified on and proposed amendments adopted as part of the Fair Debt Collection Practices Act and the Truth in Lending Act, and participated in the drafting of NCLC's Model Consumer Credit Code (1974). He was the designated consumer representative in Federal Trade Commission rulemakings to regulate creditor remedies and to preserve consumers' claims and defenses. He started and helps run NCLC’s annual Consumer Rights Litigation and Fair Debt Collection Practices Conferences. He is a Deputy Director of NCLC; a former member of the Consumer Advisory Council to the Federal Reserve Board; a founder, former Director and Treasurer of the National Association of Consumer Advocates, Inc.; and a graduate of Vanderbilt University and of the Vanderbilt School of Law. Peter Holland is the Clinical Instructor, Consumer Protection Clinic, at the University of Maryland Law School. Peter is the author of two articles about debt buyer litigation: The One Hundred Billion Dollar Problem in Small Claims Court: Robo-Signing and Lack of Proof in Debt Buyer Cases; and Defending Junk Debt Buyer Lawsuits. Prior to teaching, he practiced in Annapolis, where he represented consumers in cases involving a broad array of consumer financial protection claims. Since 2009 he has run the Consumer Protection Clinic at Maryland, where he has trained law students and pro bono lawyers how to defend lawsuits filed by debt buyers. He is a frequent lecturer on the subject of debt buyer litigation. He is a member of the National Association of Consumer Advocates. David Humphreys has been practicing law since 1987. He was a member of the first class (1994) of the Gerry Spence Trial Lawyers College, Dubois, Wyoming. He was recognized in 2004 by the college, along with his partner, Luke Wallace, for his trial work and currently serves as a member of the teaching
staff. He and his partner, Luke Wallace, have participated in dozens of trials and settlements resulting in many million-dollar recoveries for their consumer law clients. His areas of special interest include debt collection abuse, predatory mortgage servicing and representing mentally challenged or vulnerable persons who have been trapped into debt by installment lenders. David has provided CLE and pro bono representation across the country and is grateful for his membership in NACA and close friendships that have resulted from his association with NCLC and NACA. He is most proud of his twenty-five-year partnership with his wife Tanya and their three children—a law student, a theatre artist, and a budding scientist. Keith J. Keogh is a partner at Keogh Law, Ltd. in Chicago, Il. Keith has been litigating TCPA class actions since early 2002 many of which have resulted in class wide settlements. He was selected as an Illinois Super Lawyer in 2014 and an Illinois Super Lawyer Rising Star each year from 2008 through 2013. In addition to litigating TCPA cases, Keith has spoken at numerous sessions on the TCPA. For example, he was a panelist for the December 2013 Strafford CLE Webinar titled Class Actions for Telephone and Fax Solicitation and Advertising Post‐Mims. Leveraging TCPA Developments in Federal Jurisdiction, Class Suitability, and New Technology; he was the sole presented for the National Association of Consumer Advocates November 2013 webinar titled Current Telephone Consumer Protection Act Issues Regarding Cell Phones; presenter for the November 2013 Chicago Bar Association Class Action Committee presentation titled Future of TCPA Class Actions; panelists for the March 20, 2013 Strafford CLE webinar titled “Class Actions for Telephone and Fax Solicitation and Advertising Post‐Mims. Leveraging TCPA Developments in Federal Jurisdiction, Class Suitability, and New Technology.” He has also spoken at several NCLC Conference for sessions on the TCPA. Steve Koval graduated summa cum laude from Emory University in Atlanta with a B.A. and M.A. in political science, and served as president of Emory's student body. He earned his law degree from American University's Washington College of Law in 1986, and returned to Atlanta to practice law. Steve has held numerous leadership positions in the legal community. He is a former chairman of the Family Law Section of the Atlanta Bar Association, and co-founder and former president of the Stonewall Bar Association. Steve attended his first NACA conference in 2004 and found it to be a life-changing experience. After the conference he shifted his practice from exclusively domestic relations to consumer law. FDCPA cases now account for approximately 90% of his law firm’s caseload, and Steve has never been happier practicing law. Robert W. Murphy is in private practice in Fort Lauderdale, Florida, focusing on consumer class action litigation. He presently serves as an adjunct professor of law at the University of Florida College of Law in Gainesville Florida. He is a past chair of the Consumer Protection Law Committee of The Florida Bar and is a Board Member, Secretary and Florida State Chairperson for the National Association of Consumer Advocates. He has spoken at many seminars and conferences hosted by a variety of state and national organizations, including The Florida Bar, The Academy of Florida Trial Lawyers, the National Consumer Law Center, the National Association of Legal Aid and Public Defenders, and the United States Military Judge Advocate Corps as well as college and law schools. In October, 2007 and April, 2011, the Federal Trade Commission designated Mr. Murphy to be panel member for the Fair Debt Collection Practices Act Symposium in Washington, DC, which addressed the rising abuses in the consumer debt collection industry. Mr. Murphy has been lead counsel in a wide variety of state-wide, regional and national consumer class actions throughout the United States . In 2003, Mr. Murphy obtained the first contested certified class under the Florida Retail Installment Sales Act as reported in Brown v. SCI Funeral Services of Florida, 212 F.R.D.602 (S.D. Fla. 2003), which was described in the South Florida Business Review as one of the most significant cases in South Florida in 2003. More recently, Mr. Murphy was lead counsel in a 2009 nationwide class action which provided over $50 million in relief to over 8,000 consumers whose vehicles had been wrongfully repossessed. To
date, Attorney Murphy has obtained class benefits estimated to be in excess of $500 million with significant cy pres awards to consumer and legal aid organizations. Mr. Murphy attended the U.S. Military Academy, and received his B.A. cum laude from Wake Forest University in 1984 and his J.D. from the University of Florida College of Law in 1987. He is admitted to practice in Florida and Georgia; the United States District Courts for the Middle District of Florida, Southern District of Florida, Northern District of Florida, Western District of Oklahoma, Northern District of Ohio, Middle District of Georgia, Northern District of Georgia; Western District of Michigan; Western District of Tennessee; United States Court of Appeals, Eleventh Circuit and has been admitted pro hac vice in numerous other state and federal courts. A regular contributor to local and national news media on consumer law topics, Mr. Murphy most recently appeared on ABC News Nightline on January 19, 2007 on the topic of consumer debt collection. He has authored and contributed to many articles and papers on consumer litigation issues, including a recent treatise on debt collection Michael T. O'Connor is a trial attorney with the Law Offices of Dean Malone, P.C. Mr. O’Connor earned his law degree from Texas Tech University School of Law, with the highest distinction of summa cum laude. Mr. O'Connor is a member of the Order of the Coif. After law school, Mr. O'Connor was a law clerk to the Honorable Charles Holcomb, Judge, Texas Court of Criminal Appeals. Mr. O’Connor serves as an officer on the Council for the Consumer & Commercial Law Section of the State Bar of Texas. Mr. O’Connor was listed in the May 2009 issue of D Magazine as one of the Best Personal Lawyers in Dallas, Texas. Mr. O’Connor was listed in the April 2011 issue of Texas Monthly as a Rising Star and one of the Top Young Lawyers in Texas. Mr. O’Connor is rated AV Preeminent by the Martindale-Hubbell Peer Review Ratings. Mr. O’Connor has spoken at numerous national and state conferences regarding consumer litigation issues. David J. Philipps and his sister, Mary E. Philipps, are partners in the law firm of Philipps & Philipps, Ltd., in southwest suburban Chicago. David is a graduate of the University of Illinois College of Law and Loyola University of Chicago. He served as law clerk to Justice Benjamin K. Miller of the Illinois Supreme Court from 1987-88. From 1988 to 1999, he practiced with the firm of Beeler, Schad & Diamond, P.C. in Chicago, Illinois, and was a shareholder in that firm from 1995 until leaving in late 1999 to found the firm that is now known as Philipps & Philipps, Ltd. David is a member of the Illinois state bar, and the bars of the U.S. District Courts for the Northern, Central, and Southern Districts of Illinois, the Northern and Southern Districts of Indiana, the United States Courts of Appeal for the Seventh and Ninth Circuits, and the United States Supreme Court. David is a founding member of the National Association of Consumer Advocates (1995), was the Illinois State Chair for NACA (2008-2013), and was elected to its Board of Directors in 2013. In 2011, he was named the NACA Private Attorney of the Year. He has lectured throughout the country at numerous FDCPA and class action seminars for NCLC/NACA and at seminars for his opponents. Their practice consists mainly of litigation for seniors and disabled persons who have been defrauded, or subject to illegal collection activity or improper credit reporting. David and Mary have worked on and/or been appointed class counsel in about 180 cases, which have recovered more than $65,000,000 for defrauded or abused consumers. Notable FDCPA appellate court cases litigated by David and Mary include: Gammon v. G.C. Services Limited Partnership, 27 F.3d 1254 (7th Cir. 1994)(unsophisticated consumer); Newman v. Boehm, Pearlstein & Bright, Ltd., 119 F.3d 477 (7th Cir. 1997)(condo and homeowner’s association dues covered by FDCPA); Turner v. J.V.D.B. & Associates, Inc., 330 F.3d 991 (7th Cir. 2003)(no intent as to false statements); Horkey v. J.V.D.B. & Associates, Inc., 333 F3d 769 (7th Cir. 2003)(calls at work and profanity); Chuway v. NAFS, Inc., 362 F.3d 944 (7th Cir. 2004)(amount of debt); Randolph v. IMBS, Inc., 368 F.3d 726,728-730 (7th Cir. 2004)(bankruptcy code does not preclude FDCPA); McMillan v. Collection Professionals, Inc., 455 F.3d 754 (7th Cir. 2006)(implying consumer was dishonest is actionable); and, Evory v. RJM Acquisitions Funding LLC, 505 F.3d 769 (7th Cir. 2007)(false statements
made to consumer’s attorney are actionable and limited-time settlement offer collection letters are actionable). Mary E. Philipps, and her brother, David J. Philipps are partners in the law firm of Philipps & Philipps, Ltd., in southwest suburban Chicago. Mary is a graduate of the University of Illinois College of Law and Northwestern University, and earned an LL.M. from the Universität Bielefeld in Germany. Mary is a member of the Illinois state bar, and the bars of the U.S. District Courts for the Northern, Central, and Southern Districts of Illinois, the Northern and Southern Districts of Indiana, and the United States Court of Appeal for the Seventh Circuit. Mary has been a member of the NACA since 2005. Their practice consists mainly of litigation for seniors and disabled persons who have been defrauded, or subject to illegal collection activity or improper credit reporting. David and Mary have worked on and/or been appointed class counsel in about 180 cases, which have recovered more than $65,000,000 for defrauded or abused consumers. Notable FDCPA appellate court cases litigated by David and Mary include: Gammon v. G.C. Services Limited Partnership, 27 F.3d 1254 (7th Cir. 1994)(unsophisticated consumer); Newman v. Boehm, Pearlstein & Bright, Ltd., 119 F.3d 477 (7th Cir. 1997)(condo and homeowner’s association dues covered by FDCPA); Turner v. J.V.D.B. & Associates, Inc., 330 F.3d 991 (7th Cir. 2003)(no intent as to false statements); Horkey v. J.V.D.B. & Associates, Inc., 333 F3d 769 (7th Cir. 2003)(calls at work and profanity); Chuway v. NAFS, Inc., 362 F.3d 944 (7th Cir. 2004)(amount of debt); Randolph v. IMBS, Inc., 368 F.3d 726,728-730 (7th Cir. 2004)(bankruptcy code does not preclude FDCPA); McMillan v. Collection Professionals, Inc., 455 F.3d 754 (7th Cir. 2006)(implying consumer was dishonest is actionable); and, Evory v. RJM Acquisitions Funding LLC, 505 F.3d 769 (7th Cir. 2007)(false statements made to consumer’s attorney are actionable and limited-time settlement offer collection letters are actionable). Richard Rubin is a private attorney in Santa Fe, New Mexico, whose federal appellate practice is limited to representing consumers in federal consumer credit protection cases, including credit reporting and debt collection abuse litigation, and to consulting for other consumer rights specialists around the country.The United States Court of Appeals for 33 the Seventh Circuit has acknowledged Mr. Rubin as a "nationally known consumer-rights attorney" (Bass v. Stolper, Koritzinsky, Brewster Neider, S.C., 1997 U.S. App. LEXIS 41397, *5 (June 6, 1997)). He and his solo practice were the subject of a profile published in the January 1993 ABA Journal. Mr. Rubin is the past chair of the National Association of Consumer Advocates and in 2000 was the recipient of NCLC’s Vern Countryman Award.Mr. Rubin has taught consumer law at the University of New Mexico School of Law, is a regular contributor to the Consumer Credit and Sales Legal Practice Series manuals published by NCLC, and presents continuing legal education and attorney-training programs nationally in the areas of consumer credit, warranty law, and debt collection abuse. Luke Wallace is a father, husband and a trial lawyer from Tulsa, Oklahoma. He is a partner in the consumer protection law firm, Humphreys Wallace Humphreys, P.C. Along with his partner, David Humphreys, he has tried consumer protection jury trials across the country. Luke very much enjoys training other lawyers in the areas of trial practice and consumer law. He speaks to national, state and local bar associations on FDCPA, wrongful collection, identity theft, false credit reporting, predatory lending, automobile fraud, wrongful foreclosures, trial skills and maximizing damages in consumer law cases. Luke is a 2001 graduate of the Gerry Spence Trial Lawyers College, Dubois, WY. In 2004, the college recognized him and his partner, David Humphreys, as Co-Warriors of the Year for the 18-state South Central region of the country. He is a member of the teaching staff of the college. Luke has been named an Oklahoma Super Lawyer since 2006. In 2002, The National Association of Consumer Advocates awarded him and his partner, David, the Trial Advocates of the Year Award.
Michelle Weinberg is a Supervisory Attorney at LAF (Legal Assistance Foundation), concentrating in the representation of seniors with consumer issues. She is a 1992 graduate of IIT-Chicago Kent College of Law. Ms. Weinberg began her career as a consumer lawyer in 1993 with the firm of Edelman & Combs, before opening a solo practice on Chicago’s North Side. After two years solo, she practiced with the firm of Horwitz Horwitz & Associates in 1999-2001, and joined LAF in June, 2001. Ms. Weinberg has handled a wide range of consumer cases, including claims under the Truth In Lending Act, the Fair Debt Collection Practices Act, the Illinois Consumer Fraud Act and other consumer protection statutes, including numerous predatory lending, automobile and home improvement fraud cases, and debt collection defense. In May, 2005, Ms. Weinberg received the Excellence in Public Interest Service Award from the United States District Court for the Northern District of Illinois and the Chicago Chapter of the Federal Bar Association. In 2011, she received the NACA Consumer Advocate of the Year for public interest work. Ms. Weinberg is frequently called upon to speak at legal conferences and to comment in the news media on emerging consumer issues. She is a former Chair of the Chicago Bar Association Consumer Law Committee, has been a member of the National Association of Consumer Advocates (“NACA”) since 1997, and is a former member of NACA’s board of directors. She is also a semi-professional musician and singer.
FFFFAIR AIR AIR AIR DDDDEBT EBT EBT EBT CCCCOLLECTION OLLECTION OLLECTION OLLECTION
TTTTRAINING RAINING RAINING RAINING CCCCONFERENCEONFERENCEONFERENCEONFERENCE
March 7March 7March 7March 7----8, 20148, 20148, 20148, 2014
San Antonio, TXSan Antonio, TXSan Antonio, TXSan Antonio, TX
Fair Debt Collection Practices Fair Debt Collection Practices Fair Debt Collection Practices Fair Debt Collection Practices IntroductoryIntroductoryIntroductoryIntroductory TrainingTrainingTrainingTraining
Participant DirectoryParticipant DirectoryParticipant DirectoryParticipant Directory
2014 Participants Directory By Name
Tom Addleman
Addleman Law Firm
255 NW Blue Parkway, Suite 200
Lee's Summit, MO 64063
816-994-6200
Micah Adkins
Burke Harvey LLC
2151 Highland Avenue suite 120
Bitmingham, AL 35205
205-747-1907
Kaitlyn Alavi
PSU Student Legal Services
PO Boc 791
Portland, OR 97207
503-725-4556
Adelaide Anderson
Consumer Law Project Public Counsel 610 South Ardmore Ave
Los Angeles, CA 90005
213-385-2977
Judith Asaad
Castle Law Office
500 N. Broadway Suite 1400
St. Louis, MO 63102
314-446-4657
Jeffrey Basinger
Mid-Missouri Legal Services
1201 West Broadway
Columbia, MO 65203
573-442-0116 206
Barak Berlin
Law Offices of Barak Berlin
41530 Enterprise Circle S Suite 209
Temecula, CA 92590
951-296-6188
Andrea Bopp Stark
Molleur Law Office
419 Alfred Street
Biddeford, ME 4005
207-283-3777
Barbara Boysen
University Student Legal Service
160 West Bank Skyway 219 19th
Avenue South
Minneapolis, MN 55455
612-624-1001
Bernard Brown
Brown Law Firm
1627 Main
Kansas City, MO 64108
816-283-3100
James Brown
Castle Law Office
500 N. Broadway Suite 1400
St. Louis, MO 63102
314-446-4650
Tim Bullock
Bullock Law LLC
827 Good Hope Drive
Castle Rock, CO 80108
888-682-3788
John Burnett
Burnett Law Office
1114 Main
Blue Springs, MO 64015
816-254-0400
Natalie Bush-Lents
California Monitor Program
401 E. Peltason Dr., Law 3800
Irvine, CA 0
949-824-4311
Francisco Cieza
Francisco Cieza, P.A. 2525 Ponce de Leon Blvd Suite 300
Coral Gables, FL 33134
786-423-8144
Jennifer Cohen
Bay Area Legal Services, Inc.
1302 N. 19th Street, Suite 400
Tampa, FL 33605
813-232-1222 143
Elliot Conn
Kemnitzer, Barron & Krieg
445 Bush Street, Floor 6
San Francisco, CA 94108
415-632-1900 122
Cory Crawford
Legal Aid of Arkansas
714 South Main Street
Jonesboro, AR 72401
870-972-9224 5305
Kathy Cruz
The Cruz Law Firm
1325 Central Ave
Hot Springs, AR 71901
501-624-3600
Joanna Darcus
Community Legal Services of
Philadelphia, Inc.
1424 Chestnut St
Philadelphia, PA 19102
215-981-3728
Melissa Deutsch
DeutschJacobs, A Law Practice
900 Congress Ave Ste L120
Austin, TX 78701
512-236-1998
Mitchell Dobbs
Legal Services Alabama
224 W. Main St
Dothan, AL 36301
334-793-7932 3758
Robert Doig
Robert James Doig, LLC
2985 Broadmoor Valley Road Suite 4
Colorado Springs, CO 80906
719-227-8787
Michael Eades
John Steinkamp & Associates
5218 S. East Street Suite E1
Indianapolis, IN 46227
317-780-8300
Stefanie Ebbens Kingsley
Legal Aid of the Bluegrass
546 East Main Street
Morehead, KY 40351
606-784-8921 2129
Cassie Fleming
DNA-People's Legal Services
PO Box 116
Crownpoint, NM 87313
505-786-5277
Cyrus Frazier
Louisiana Office of the Attorney
General
1885 North 3rd Street
Baton Rouge, LA 70802
225-326-6428
2014 Participants Directory By Name
Angela Habeebullah
Law Offices
1125 Grand, Suite 1200
Kansas City, MO 64106
816-842-3266
Timothy Harper
Castle Law Office
500 N. Broadway Suite 1400
St. Louis, MO 63102
314-446-4662
Casey Harris
NACA 1730 Rhode Island Ave NW Suite 710
Washington, DC 20036
202-452-1989 202
Jessica Hiemenz
National Consumer Law Center
7 Winthrop Sq., 4th Floor
Boston, MA 2110
617-542-8010
Joshua Hillin
Law Offices of John T. Orcutt
6616-203 Six Forks Rd
Raleigh, NC 27615
919-847-9750
Robin Hood
Robin Hood, Attorney at Law
3020 Bay Brg. Dr.
Flowood, MS 39232
601-862-9489
Calvin Hwang
Land of Lincoln
8787 State Street Suite 101
East Saint Louis, IL 62203
618-398-0958 273
William Jaworski
Law Office of william F. Jaworski
1274 S. Governors Avenue
Dover, DE 19904
302-730-8511
Jeanne Johons
New Mexico Legal Aid
301 Gold Ave SW, Suite 204 PO
Box 25486
Albuquerque, NM 87125
505-768-6112
Robert June
Law Offices of Robert June, P.C.
415 Detroit Street, 2nd Floor
Ann Arbor, MI 0
734-481-1000
Mohahammad Kazerouni
Kazerouni Law Group, APC
245 Fischer Ave Suite D-1
Costa Mesa, CA 92626
800-400-6808 3
Abbas Kazerounian
Kazerouni Law Group, APC
245 Fischer Ave Suite D-1
Costa Mesa, CA 92626
800-400-6808 2
Tashi Lhewa
The Legal Aid Society of New York
120-46 Queens Blvd.
Kew Gardens, NY 11415
718-286-2474
Dave Maxfield
Dave Maxfield, Attorney, LLC
5217 N. Trenholm Road, Suite B
Columbia, SC 29206
803-509-6800
Laureen McCloskey
Law Office of Laureen
McCloskey
848 Ella Street
Pittsburgh, PA 15243
412-706-2681
Jonathan Miller
Bromberg Law Office, P.C.
40 Exchange Place, Suite 2010
New York, NY 10005
212-248-7906
Nelson Mock
Texas RioGrande Legal Aid
4920 N. IH 35
Austin, TX 78751
512-374-2723
Tara Newberry
Connaghan Newberry Law Firm
7854 W Sahara Ave
Las Vegas, NV 89117
702-608-4232
Michelle Newman
Nevada Legal Services
204 Marsh Ave, Suite 101
Reno, NV 89509
775-284-3491 226
Angela Owens
Sices Law
2000 N. Central Expressway Suite 209
Plano, TX 75074
972-360-3253
Michael Pereira
Law Office of Ahmad Keshavarz
16 Court St., 26th Floor
Brooklyn, NY 11241
718-522-7900
Eric Peters
Eric G. Peters, Attorney At Law
710 Court St
Lynchburg, VA 24504
434-846-8737
Jacob Petry
Texas Attorney General's Office
300 W. 15th St
Austin, TX 78701
512-475-4184 [email protected]
Chet Randall
Molleur Law Office
419 Alfred Street
Biddeford, ME 4005
207-283-3777
Jason Rapa
Rapa Law Office, P.C.
141 S. 1st Street
Lehighton, PA 18235
610-377-7730
David Raulerson
Viles & Beckman, L.L.C.
6350 Presidential Ct
Fort Myers, FL 33919
239-334-3933
Cynthia Ravosa
Massachusetts Bankruptcy
Center
One South Avenue
Natick, MA 1760
508-655-3013
2014 Participants Directory By Name
Ira Rheingold
NACA
1730 Rhode Island Ave. NW
Washington, DC 20036
202-452-1989
Angie Robertson
Philipps & Philipps, Ltd.
9760 S. Roberts Road Suite 1
Palos Hills, IL 60465
708-974-2900
R. Lee Roland Law Offices of John T. Orcutt, P.C.
6616-203 Six Forks Road
Raleigh, NC 27615
919-847-9750
John Roper
The Roper Law Firm
5353 Veterans Parkway Suite D
Columbus, GA 31904
706-596-5353
Susan Rotkis
Consumer Litigation Assoc. P.C.
763 J. Clyde Morris Blvd Suite 1-A
Newport News, VA 23601
757-930-3660
Michael Salorio
Lenderman & Salorio
Attorneys At Law 303 S. 8th St.
El Centro, CA 92243
760-353-7949
Carla Sanchez-Adams
Texas RioGrande Legal Aid, Inc.
4920 N. IH 35
Austin, TX 78751
512-374-2763
Jordan Sartell
Zamparo Law Group, P.C.
1600 Golf Road Suite 1200
Rolling Meadows, IL 60008
224-875-3202
Virginia Schramm
Texas RioGrande Legal Aid
1111 North Main Ave
San Antonio, TX 78212
210-212-3706
Shelley Slafkes
Levitt and Slafkes
76 South Orange Ave Suite 305
South Orange, NJ 7079
973-313-1200
Jocelyn Smith
Legal Advocacy Center of Central
Florida, Inc.
128 Orange Avenue
Daytona Beach, FL 32114
386-255-6573 2513
Larry Smith
SmithMarco, P.C.
205 N. Michigan Ave. Suite 2940
Chicago, IL 60601
312-324-3532
John Steinkamp
John Steinkamp & Associates
5218 S. East Street #E-1
Indianapolis, IN 46227
317-780-8300
Bo Thomas
Addleman Law Firm
255 NW Blue Parkway, Suite 200
Lee's Summit, MO 64063
816-994-6200
Andrew Thomasson
Thomasson Law, LLC
101 Hudson Street, 21st Floor
Jersey City, NJ 7302
973-665-2056
Linda Tirelli
Garvey, Tirelli & Cushner, Ltd.
Westchester Financial Center 50 Main
St., Ste.390
White Plains, NY 10606
914-946-2200
Scott Ugell
Ugell Law Firm, P.C.
151 North Main Street suite 203
New City, NY 10956
845-639-7011
Marcus Viles
Viles & Beckman, L.L.C.
6350 Presidential Ct
Fort Myers, FL 33919
239-334-3933
Jason Watson
Law Offices of John T. Orcutt
6616-203 Six Forks Rd
Raleigh, NC 27615
919-673-9109
Ronald Weiss
Law Offices of Ronald S. Weiss
7035 Orchard Lake Road Suite 600
West Bloomfield, MI 48322
248-737-8000
Jeremy White
Virginia Legal Aid Society
513 Church Street
Lynchburg, VA 24504
434-846-1326 12
2014 Participants Directory By State
AZ, Phoenix, David McGlothlin, Hyde & Swigart CA, Santa Clara, Ben Dupre, Dupre Law Office CA, San Jose, Ronald Wilcox, Attorney at Law CA, Santa Ana, Abbas Kazerounian, Kazerounian Law Group, APC CA, San Diego, Robert Hyde, Hyde & Swigart CA, Santa Clara, William Kennedy, Consumer Law Office of William E. Kennedy CA, Burbank, Stephanie Tatar, Tatar Law Firm, APC CA, San Diego, Joshau Swigart, Hyde & Swigart CT, Rocky Hill, Dan Blinn, Consumer Law Group LLC CT, Hartford, Sarah Poriss, Sarah Poriss, Attorney at Law, LLC CT, New Haven, Joanne Faulkner, Law Office FL, Fort Lauderdale, Robert Murphy, Law Office of Robert W. Murphy FL, Daytona Beach, Kimberly Derry, Community Legal Services of Mid-Florida, Inc. FL, Lake Mary, Taras Rudnitsky, Rudnitsky Law Firm FL, Jacksonville Beach, Wendell Finner, First Coast Consumer Law FL, Jacksonville Beach, Ryan Moore, First Coast Consumer Law FL, Coral Gables, Leo Bueno, LEO BUENO, ATTORNEY, P.A. FL, Melbourne Beach, Michael Howard, Law Office of Michael G. Howard, P.A. GA, Macon, David Addleton, Addleton Ltd Co GA, Atlanta, Steve Koval, The Koval Firm LLC IL, Palos Hills, Mary Philipps, Philipps & Philipps, Ltd. IL, Chicago, Keith Keogh, Keogh Law, Ltd. IL, Chicago, Stacy Bardo, The Consumer Advocacy Center, P.C. IL, Chicago, Michelle Weinberg, LAF IL, Chicago, Craig Shapiro, Keogh Law, Ltd. IL, Palos Hills, David Philipps, Philipps & Philipps, Ltd. KS, Kansas City, AJ Stecklein, Consumer Legal Clinic LLC MA, Boston, Charles Delbaum, National Consumer Law Center MA, Arlington, Yvonne Rosmarin, Law Office of Yvonne W. Rosmarin MI, Davison, Rex Anderson, Rex Anderson, P.C. MO, Union, Steven White, Purschke, White, Robinson & Becker NC, Chapel Hill, Suzanne Begnoche, Suzanne Begnoche, Attorney at Law NJ, Maplewood, Philip Stern, Philip D. Stern & Associates, LLC NJ, Jersey City, John Ukegbu, Northeast new Jersey Legal Services NY, New York, Evan Denerstein, MFY Legal Services, Inc. NY, New York, Carolyn Coffey, MFY Legal Services NY, New York, Brian Bromberg, Bromberg Law Office, P.C. NY, new york, James Fishman, Fishman & Mallon, LLP NY, Spring Valley, Shmuel Klein, Shmuel Klein NY, New York, Robert Martin, DC 37 AFSCME Municipal Employees Legal Services NY, New York, Daniel Schlanger, Schlanger & Schlanger, LLP NY, West Islip, Joseph Mauro, The Law Office of Joseph Mauro, LLC NY, Brooklyn, Ahmad Keshavarz, Law Office of Ahmad Keshavarz NY, New York, Peter Lane, Schlanger & Schlanger, LLP NY, New York, Michael Litrownik, Bromberg Law Office, P.C. OH, Niles, Philip Zuzolo, Zuzolo law offices llc OK, Tulsa, Luke Wallace, Humphreys Wallace Humphreys P.C. OK, United States of America, David Humphreys, Humphreys Wallace Humphreys, PC PA, Dunmore, Carlo Sabatini, Sabatini Law Firm, LLC PA, Philadelphia, David Pearson, David E. Pearson
2014 Participants Directory By State
PA, Pittsburgh, Clayton Morrow, Morrow & Artim, PC PA, Philadelphia, Mark Mailman, Francis & Mailman PA, Philadelphia, Irv Ackelsberg, Langer Grogan & Diver, PC PA, Narberth, Cary Flitter, Flitter Lorenz, P.C. PA, Broomall, Daniel DeLiberty, The DeLiberty Law Firm, P.C. SC, Florence, Penny Cauley, Hays Cauley, P.C. TX, Austin, Amy Kleinpeter, Hill Country Consumer Law TX, Houston, Dana Karni, Karni Law Firm, P.C. TX, Fort Worth, Jerry Jarzombek, The Law Office of Jerry Jarzombek, PLLC TX, Bellaire, Ira Joffe, Ira D. Joffe, Attorney at Law UT, Salt Lake City, Ronald Ady, Ronald Ady, PLLC VA, Petersburg, Dale Pittman, The Law Office of Dale W. Pittman, PC VT, Thetford Ctr, Clare Kelsey, Law in the Public Interest, WA, Bellingham, James Sturdevant, Law Office of James Sturdevant WI, Big Bend, Devonna ("Dani") Joy, Consumer Justice Law Center LLC
MATERIALS
22
1
Robert Hobbs
National Consumer Law Center
Author, Fair Debt Collection (7th Ed. 2011)
Boston, Ma.
Copyright National Consumer Law Center, Inc.® 2014
How Debts Are Collected
Michelle Weinberg
Legal Assistance Foundation of Chicago
Chicago, Ill.
Introduction to Representing Consumers Abused
by Debt Collectors
� There is much of law on fair debt collection practices, and we can only cover a small part of it in the next two days.
� At the end of the presentation I will recommend additional resources to dig deeper into this area of the law.
� A good starting point is NCLC’s Fair Debt Collection (7th Ed. 2011) treatise—now 1268 pages
CONSUMER COMPLAINTS ABOUT
DEBT COLLECTORS
� Consumers complain more about debt collectors to the Federal Trade Commission than any other industry.
� The number of complaints increased yearly to 2011, then dropped slightly in 2012.
� Complaints have grown from about 11,000 to over 100,000 in the last 14 years.
23
2
Consumer Complaints About Collections Reported to FTC
0
10
20
30
40
50
60
70
80
90
100
1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009
(Th
ousan
ds)
3rd Party In-House
Source: FTC Annual Reports on the FDCPA, 2000-2010http://www.ftc.gov/reports/index.shtm
Unemployment Rate, U.S.A.January, 1995-2010
0.0
2.0
4.0
6.0
8.0
10.0
12.0
1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010
(Perc
ent)
Source: Bureau of Labor Statisticshttp://www.bls.gov/data/
24
3
Source: FRB Statistical Releases
http://www.federalreserve.gov/datadownload/
Bank Credit Card Chargeoffs
0
2
4
6
8
10
12
1985
Q1
1986
Q1
1987
Q1
1988
Q1
1989
Q1
1990
Q1
1991
Q1
1992
Q1
1993
Q1
1994
Q1
1995
Q1
1996
Q1
1997
Q1
1998
Q1
1999
Q1
2000
Q1
2001
Q1
2002
Q1
2003
Q1
2004
Q1
2005
Q1
2006
Q1
2007
Q1
2008
Q1
2009
Q1
Perc
ent
How Debt Collectors Operate
� The Myth: “Consumers all owe the debts
anyway.” (“They are all deadbeats
anyway.”)
� The depressing life of a debt collector
�Who collects debts
� How they collect
� Debt collectors flood our courts
THE MYTH: “THEY ARE ALL DEADBEATS ANYWAY”
97+% of consumers
pay their bills on time every month
(in a good economy)
IT’S IMPORTANT TO DEVELOP THE CONSUMER’S STORY!
25
4
THE MYTH:
“THEY ARE ALL DEADBEATS ANYWAY”
3% do not pay because of reasons not totally
within their control:
• Laid off
• Sick, disabled, or dead (or death of a spouse)
• Family breakup (new expenses for 2nd household)
• Dispute the obligation (ID theft, scammed,etc.)
• Creditor marketing of excessive credit
These inform an important part of the consumer’s
story.
THE MYTH:
“THEY ARE ALL DEADBEATS ANYWAY”
Can pay but won’t is about .1% (one in
a thousand)
• These may be the “deadbeats”
• Many debt collectors will not spend time on these accounts (as a waste of time)
•Some debt collectors will quickly sue these
consumers
THE MYTH:
“THEY ARE ALL DEADBEATS ANYWAY”
The “Myth” is pervasive!
It must be pushed aside by the client’s - story
- the facts
- the documents and records
� The myth is held by some judges, court clerks, legislators, public officials –anticipate it.
� The industry relies on the myth, but usually won’t argue with the data.
26
5
The Depressing Life
of a Debt Collector
�No one went college to be a debt collector.
�Debt collectors call millions of consumers each day, but only reach a few.
�Debt collectors get paid more the more money they bring in.
�Some debt collectors make good salaries ($60k +); most don’t
Imagine a warehouse full of cubbies,
with autodialers lining up continuous
calls for 8 hours each day. Almost no
one answers!
TYPES OF DEBT COLLECTORS
& INCENTIVES
� Flat Rate Collection Agencies
� Contingent Fee Collection Agencies
� Debt Buyers
� Collection Law Firms/Collection Agencies
� Repo Companies
� Specialty Collection Agencies: (Foreclosure Law Firms, decedent’s
estates & survivors, medical, child
support, checks, shoplifting)
27
6
COMMON METHODS OF
COLLECTION
� Phone Calls: Good, bad, and ugly
� Letters ( "duns" or "dunning letters")
� Adverse credit reports (lowers credit
score)
� Foreclosure, Repossession, Eviction
� Late fees, collection attorney fees,
interest
� Suit
� Arbitration
COMMON ILLEGAL DEBT
COLLECTION CONDUCT:
- Cursing, obscenities, name calling
- Calling neighbors, relatives, workplace
- False threats, like suit, arrest, jail,
seizing social security or other exempt property
Collection Lawsuits� Will the Creditor Actually Sue You?
� How to Respond to the Collector’s Lawsuit
� Fighting Back by Raising Defenses and Counterclaims
� What a Court Judgment Against You Really Means
� What Property and Income Is at Risk
� How to Respond to a Debtor’s Examination
28
7
Finding Cocounsel to Help Sue a
Debt Collector
� Attorney Directory: www.naca.net
� What You Should Tell Your Client
� Start a telephone call log in case litigation becomes necessary.
� Write up a chronology of the debt collection abuse and the events leading to it
� What If the FDCPA Does Not Apply?
FROM "Collecting Consumer Debt in America" BY ROBERT M. HUNT
Debt Buyer Lawsuits as a Collection Tool
� 575,000 debt suits in Massachusetts, 2000-2005
� 457,000 suits by 26 debt buyers in NYC, 2006 -2008
� 375,000 suits by Encore Capital Group in 2009
� 420,000 suits by Mann Bracken in 2008
29
8
Debt Buyer Lawsuits as a
Collection Tool
“Do not be intimidated by the Court House. The Small Claims Court is going to actually help you make money. It is the vehicle that flushes out payment. ”
--Larry K. Neil, The Complete Guide to Buying Debt (2013) (available at www.beadebtcollector.com).
COMMON CREDIT CARD
LITIGATION PROBLEMS
� Suing wrong person:
� Identity theft
� Authorized user v. account holder
� Similar names, e.g. Sr. and Jr.
� Suing for wrong amount:
� Payment not credited
� Unauthorized fees (check contract, state law)
� Suing on time barred debt (which state’s SOL?)
400 CONSUMER ATTORNEYS to WORK with
YOU to SUE ABUSIVE DEBT COLLECTORS
� Find out from an experienced NACA attorney about co-counseling:
� Does this collector sue on this small a debt?
� How do the local courts respond to suits
� against collection lawyers?
� Does this collection lawyer regularly collect consumer
debts bringing him within the FDCPA’s
coverage?
� Search for co-counsel with the lawyer directory on:
www.naca.net
30
9
Preparing a Consumer
to Sue a Debt Collector
�Preparation for lawyer intake:� Consumer starts a telephone call login case litigation becomes necessary.
� Tape recording calls may be criminal; save voicemails & letters.
� Consumer writes up a chronology of the debt collection abuse and the events leading to it.
� Consumer preserves documentsrelated to the transaction.
More on Debt Buyers
� Jurgens & Hobbs, “The Debt Machine: How the Collection Industry Hounds Consumers and Overwhelms Courts” (July 2010), available free at www.nclc.org.
•“
D
e
b
t
W
•“Debt Deception, How Debt
Buyers Abuse the Legal System to Prey on Lower-
Income New Yorkers” (May 2010), available free at
www.mfy.org.
Recorded Webinars for Free on www.nclc.org :
Free Resources for Fair Debt Collection Suits
Stopping Debt Collection Harassment and Responding to Debt Collection
Suits (May 2009) , Robert J. Hobbs, National Consumer Law Center®,
Michelle A. Weinberg, Legal Assistance Foundation of Metropolitan Chicago
Introduction to Representing Consumers Abused by Debt Collectors (July
2011), Robert Hobbs (NCLC), Robert Murphy (Law Offices of Robert W. Murphy).
Claudia Wilner (Neighborhood Economic Development Advocacy Project
(NEDAP)
31
10
Free Resources for Fair Debt Collection Suits
Excerpt from NCLC’s Fair Debt Collection p. 227
For More Information on Legal Remedies
to Fight Debt Collector Abuses
Visit the NCLC Exhibit Table forFair Debt Collection, Collection Actions and Surviving Debt :
Definitive Legal Practice Publications from National Consumer Law Center
www.nclc.org
32
11
SAVE THE DATE
CONSUMER RIGHTS LITIGATION CONFERENCE
Nov. 6-8 2014
TAMPA MARRIOT WATERSIDE TAMPA, FLORIDA
IDEAS INSPIRATION INSIGHT!
33
15 U.S.C. § 1692. Congressional findings and
declaration of purpose [FDCPA
§ 802]
(a) There is abundant 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 individual privacy.
(b) Existing laws and procedures for redressing these injuries are
inadequate to protect consumers.
(c) Means other than misrepresentation or other abusive debt
collection practices are available for the effective collection of
debts.
(d) Abusive debt collection practices are carried on to a substantial
extent in interstate commerce and through means and instrumen-
talities of such commerce. Even where abusive debt collection
practices are purely intrastate in character, they nevertheless di-
rectly affect interstate commerce.
(e) It is the purpose of this subchapter to eliminate abusive debt
collection practices by debt collectors, to insure that those debt
collectors who refrain from using abusive debt collection practices
are not competitively disadvantaged, and to promote consistent
State action to protect consumers against debt collection abuses.
15 U.S.C. § 1692a. Definitions [FDCPA § 803]
As used in this subchapter—
(1) The term ‘‘Bureau’’ means the Bureau of Consumer Finan-
cial Protection.
(2) The term ‘‘communication’’ means the conveying of infor-
mation regarding a debt directly or indirectly to any person
through any medium.
(3) The term ‘‘consumer’’ means any natural person obligated
or allegedly obligated to pay any debt.
(4) The term ‘‘creditor’’ means any person who offers or
extends credit creating a debt or to whom a debt is owed, but
such term does not include any person to the extent that he
receives an assignment or transfer of a debt in default solely for
the purpose of facilitating collection of such debt for another.
(5) The term ‘‘debt’’ means any obligation or alleged obligation
of a consumer to pay money arising out of a transaction in
which the money, property, insurance, or services which are the
subject of the transaction are primarily for personal, family, or
household purposes, whether or not such obligation has been
reduced to judgment.
(6) The term ‘‘debt collector’’ means any person who uses any
instrumentality of interstate commerce or the mails in any
business the principal purpose of which is the collection of any
debts, or who regularly collects or attempts to collect, directly or
indirectly, debts owed or due or asserted to be owed or due
another. Notwithstanding the exclusion provided by clause (F)
of the last sentence of this paragraph, the term includes any
creditor who, in the process of collecting his own debts, uses
any name other than his own which would indicate that a third
person is collecting or attempting to collect such debts. For the
purpose of section 1692f(6) of this title, such term also includes
any person who uses any instrumentality of interstate commerce
or the mails in any business the principal purpose of which is the
enforcement of security interests. The term does not include—
(A) any officer or employee of a creditor while, in the name
of the creditor, collecting debts for such creditor;
(B) any person while acting as a debt collector for another
person, both of whom are related by common ownership or
affiliated by corporate control, if the person acting as a debt
collector does so only for persons to whom it is so related or
affiliated and if the principal business of such person is not
the collection of debts;
(C) any officer or employee of the United States or any State
to the extent that collecting or attempting to collect any debt
is in the performance of his official duties;
(D) any person while serving or attempting to serve legal
process on any other person in connection with the judicial
enforcement of any debt;
(E) any nonprofit organization which, at the request of con-
sumers, performs bona fide consumer credit counseling and
assists consumers in the liquidation of their debts by receiv-
ing payments from such consumers and distributing such
amounts to creditors; and
(F) any person collecting or attempting to collect any debt
owed or due or asserted to be owed or due another to the
extent such activity (i) is incidental to a bona fide fiduciary
obligation or a bona fide escrow arrangement; (ii) concerns a
debt which was originated by such person; (iii) concerns a
debt which was not in default at the time it was obtained by
such person; or (iv) concerns a debt obtained by such person
as a secured party in a commercial credit transaction involv-
ing the creditor.
(G) Redesignated (F).2
(7) The term ‘‘location information’’ means a consumer’s place
of abode and his telephone number at such place, or his place of
employment.
(8) The term ‘‘State’’ means any State, territory, or possession of
the United States, the District of Columbia, the Commonwealth
of Puerto Rico, or any political subdivision of any of the
foregoing.
[Pub. L. No. 111-203, tit. X, § 1089(2), 124 Stat. 2092 (July 21,
2010)]
15 U.S.C. § 1692b. Acquisition of location
information [FDCPA § 804]
Any debt collector communicating with any person other than the
consumer for the purpose of acquiring location information about
the consumer shall—
(1) identify himself, state that he is confirming or correcting
location information concerning the consumer, and, only if
expressly requested, identify his employer;
(2) not state that such consumer owes any debt;
(3) not communicate with any such person more than once
unless requested to do so by such person or unless the debt
collector reasonably believes that the earlier response of such
2 15 U.S.C. § 1692a(6)(E), (F), (G) amended by Pub. L. No.
99-361, 100 Stat. 768 (July 9, 1986). See §§ 3.3.2, 5.5.14, supra.
Appx. A.2 Fair Debt Collection
71834
person is erroneous or incomplete and that such person now has
correct or complete location information;
(4) not communicate by post card;
(5) not use any language or symbol on any envelope or in the
contents of any communication effected by the mails or tele-
gram that indicates that the debt collector is in the debt collec-
tion business or that the communication relates to the collection
of a debt; and
(6) after the debt collector knows the consumer is represented
by an attorney with regard to the subject debt and has knowl-
edge of, or can readily ascertain, such attorney’s name and
address, not communicate with any person other than that
attorney, unless the attorney fails to respond within a reasonable
period of time to communication from the debt collector.
15 U.S.C. § 1692c. Communication in connection
with debt collection [FDCPA
§ 805]
(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 con-
sumer 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 com-
municating 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.
(b) Communication with third parties
Except as provided in section 1692b of this title, without the prior
consent of the consumer given directly to the debt collector, or the
express permission of a court of competent jurisdiction, or as
reasonably necessary to effectuate a postjudgment judicial remedy,
a debt collector may not communicate, in connection with the
collection of any debt, with any person other than the consumer,
his attorney, a consumer reporting agency if otherwise permitted
by law, the creditor, the attorney of the creditor, or the attorney of
the debt collector.
(c) Ceasing communication
If a consumer notifies a debt collector in writing that the consumer
refuses to pay a debt or that the consumer wishes the debt collector
to cease further communication with the consumer, the debt col-
lector shall not communicate further with the consumer with
respect to such debt, except—
(1) to advise the consumer that the debt collector’s further
efforts are being terminated;
(2) to notify the consumer that the debt collector or creditor may
invoke specified remedies which are ordinarily invoked by such
debt collector or creditor; or
(3) where applicable, to notify the consumer that the debt
collector or creditor intends to invoke a specified remedy.
If such notice from the consumer is made by mail, notification
shall be complete upon receipt.
(d) ‘‘Consumer’’ defined
For the purpose of this section, the term ‘‘consumer’’ includes the
consumer’s spouse, parent (if the consumer is a minor), guardian,
executor, or administrator.
15 U.S.C. § 1692d. Harassment or abuse [FDCPA
§ 806]
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:
(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 meeting the requirements of section 1681a(f) or 1681b(3)
of this title.
(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.
15 U.S.C. § 1692e. False or misleading
representations [FDCPA § 807]
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.
Text of the Fair Debt Collection Practices Act Appx. A.2
71935
(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 sub-
chapter.
(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 per-
son 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 com-
munication is from a debt collector, except that this paragraph
shall not apply to a formal pleading made in connection with a
legal action.3
(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, com-
pany, or organization.
(15) The false representation or implication that documents are
not legal process forms or do not require action by the con-
sumer.
(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.
15 U.S.C. § 1692f. Unfair practices [FDCPA § 808]
A debt collector may not use unfair or unconscionable means to
collect or attempt to collect any debt. Without limiting the general
application of the foregoing, the following conduct is a violation of
this section:
(1) The collection of any amount (including any interest, fee,
charge, or expense incidental to the principal obligation) unless
such amount is expressly authorized by the agreement creating
the debt or permitted by law.
(2) The acceptance by a debt collector from any person of a
check or other payment instrument postdated by more than five
days unless such person is notified in writing of the debt
collector’s intent to deposit such check or instrument not more
than ten nor less than three business days prior to such deposit.
(3) The solicitation by a debt collector of any postdated check
or other postdated payment instrument for the purpose of threat-
ening or instituting criminal prosecution.
(4) Depositing or threatening to deposit any postdated check or
other postdated payment instrument prior to the date on such
check or instrument.
(5) Causing charges to be made to any person for communica-
tions by concealment of the true purpose of the communication.
Such charges include, but are not limited to, collect telephone
calls and telegram fees.
(6) Taking or threatening to take any nonjudicial action to effect
dispossession or disablement of property if—
(A) there is no present right to possession of the property
claimed as collateral through an enforceable security interest;
(B) there is no present intention to take possession of the
property; or
(C) the property is exempt by law from such dispossession or
disablement.
(7) Communicating with a consumer regarding a debt by post
card.
(8) Using any language or symbol, other than the debt collec-
tor’s address, on any envelope when communicating with a
consumer by use of the mails or by telegram, except that a debt
collector may use his business name if such name does not
indicate that he is in the debt collection business.
15 U.S.C. § 1692g. Validation of debts [FDCPA
§ 809]
(a) Notice of debt; contents
Within five days after the initial communication with a consumer
in connection with the collection of any debt, a debt collector shall,
unless the following information is contained in the initial com-
munication or the consumer has paid the debt, send the consumer
a written notice containing—
(1) the amount of the debt;
(2) the name of the creditor to whom the debt is owed;
(3) a statement that unless the consumer, within thirty days after
receipt of the notice, disputes the validity of the debt, or any
portion thereof, the debt will be assumed to be valid by the debt
collector;
(4) a statement that if the consumer notifies the debt collector in
writing within the thirty-day period that the debt, or any portion
thereof, is disputed, the debt collector will obtain verification of
the debt or a copy of a judgment against the consumer and a
copy of such verification or judgment will be mailed to the
consumer by the debt collector; and3 15 U.S.C. § 1692e(11) amended by Pub. L. No. 104-208 § 2305,
110 Stat. 3009 (Sept. 30, 1996). See §§ 3.3.2, 5.5.14, supra.
Appx. A.2 Fair Debt Collection
72036
(5) a statement that, upon the consumer’s written request within
the thirty-day period, the debt collector will provide the con-
sumer with the name and address of the original creditor, if
different from the current creditor.
(b) Disputed debts
If the consumer notifies the debt collector in writing within the
thirty-day period described in subsection (a) of this section that the
debt, or any portion thereof, is disputed, or that the consumer
requests the name and address of the original creditor, the debt
collector shall cease collection of the debt, or any disputed portion
thereof, until the debt collector obtains verification of the debt or
a copy of a judgment, or the name and address of the original
creditor, and a copy of such verification or judgment, or name and
address of the original creditor, is mailed to the consumer by the
debt collector. Collection activities and communications that do
not otherwise violate this subchapter may continue during the
30-day period referred to in subsection (a) of this section unless the
consumer has notified the debt collector in writing that the debt, or
any portion of the debt, is disputed or that the consumer requests
the name and address of the original creditor. Any collection
activities and communication during the 30-day period may not
overshadow or be inconsistent with the disclosure of the consum-
er’s right to dispute the debt or request the name and address of the
original creditor.
(c) Admission of liability
The failure of a consumer to dispute the validity of a debt under
this section may not be construed by any court as an admission of
liability by the consumer.
(d) Legal pleadings
A communication in the form of a formal pleading in a civil action
shall not be treated as an initial communication for purposes of
subsection (a) of this section.
(e) Notice provisions
The sending or delivery of any form or notice which does not relate
to the collection of a debt and is expressly required by the Internal
Revenue Code of 1986, title V of Gramm-Leach-Bliley Act [15
U.S.C. § 6801 et seq.], or any provision of Federal or State law
relating to notice of data security breach or privacy, or any
regulation prescribed under any such provision of law, shall not be
treated as an initial communication in connection with debt col-
lection for purposes of this section.
[Pub. L. No. 109-351, tit. VIII, § 802(a)–(c), 120 Stat. 2006 (Oct.
13, 2006)]
15 U.S.C. § 1692h. Multiple debts [FDCPA § 810]
If any consumer owes multiple debts and makes any single pay-
ment to any debt collector with respect to such debts, such debt
collector may not apply such payment to any debt which is
disputed by the consumer and, where applicable, shall apply such
payment in accordance with the consumer’s directions.
15 U.S.C. § 1692i. Legal actions by debt
collectors [FDCPA § 811]
(a) Venue
Any debt collector who brings any legal action on a debt against
any consumer shall—
(1) in the case of an action to enforce an interest in real property
securing the consumer’s obligation, bring such action only in a
judicial district or similar legal entity in which such real prop-
erty is located; or
(2) in the case of an action not described in paragraph (1), bring
such action only in the judicial district or similar legal entity—
(A) in which such consumer signed the contract sued upon; or
(B) in which such consumer resides at the commencement of
the action.
(b) Authorization of actions
Nothing in this subchapter shall be construed to authorize the
bringing of legal actions by debt collectors.
15 U.S.C. § 1692j. Furnishing certain deceptive
forms [FDCPA § 812]
(a) It is unlawful to design, compile, and furnish any form knowing
that such form would be used to create the false belief in a
consumer that a person other than the creditor of such consumer is
participating in the collection of or in an attempt to collect a debt
such consumer allegedly owes such creditor, when in fact such
person is not so participating.
(b) Any person who violates this section shall be liable to the same
extent and in the same manner as a debt collector is liable under
section 1692k of this title for failure to comply with a provision of
this subchapter.
15 U.S.C. § 1692k. Civil liability [FDCPA § 813]
(a) Amount of damages
Except as otherwise provided by this section, any debt collector
who fails to comply with any provision of this subchapter with
respect to any person is liable to such person in an amount equal
to the sum of—
(1) any actual damage sustained by such person as a result of
such failure;
(2)
(A) in the case of any action by an individual, such additional
damages as the court may allow, but not exceeding $1,000; or
(B) in the case of a class action, (i) such amount for each
named plaintiff as could be recovered under subparagraph
(A), and (ii) such amount as the court may allow for all other
class members, without regard to a minimum individual
recovery, not to exceed the lesser of $500,000 or 1 per
centum of the net worth of the debt collector; and
(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 as determined by the court. On a finding by the
court that an action under this section was brought in bad faith
Text of the Fair Debt Collection Practices Act Appx. A.2
72137
and for the purpose of harassment, the court may award to the
defendant attorney’s fees reasonable in relation to the work
expended and costs.
(b) Factors considered by court
In determining the amount of liability in any action under subsec-
tion (a) of this section, the court shall consider, among other
relevant factors—
(1) in any individual action under subsection (a)(2)(A), the
frequency and persistence of noncompliance by the debt col-
lector, the nature of such noncompliance, and the extent to
which such noncompliance was intentional; or
(2) in any class action under subsection (a)(2)(B) of this section
of this section, the frequency and persistence of noncompliance
by the debt collector, the nature of such noncompliance, the
resources of the debt collector, the number of persons adversely
affected, and the extent to which the debt collector’s noncom-
pliance was intentional.
(c) Intent
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.
(d) Jurisdiction
An action to enforce any liability created by this subchapter may
be brought in any appropriate United States district court without
regard to the amount in controversy, or in any other court of
competent jurisdiction, within one year from the date on which the
violation occurs.
(e) Advisory opinions of Bureau
No provision of this section imposing any liability shall apply to
any act done or omitted in good faith in conformity with any
advisory opinion of the Bureau, notwithstanding that after such act
or omission has occurred, such opinion is amended, rescinded, or
determined by judicial or other authority to be invalid for any
reason.
[Pub. L. No. 111-203, tit. X, § 1089(1), 124 Stat. 2092 (July 21,
2010)]
15 U.S.C. § 1692l. Administrative enforcement
[FDCPA § 814]
(a) Federal Trade Commission
The Federal Trade Commission shall be authorized to enforce
compliance with this title, except to the extent that enforcement of
the requirements imposed under this title is specifically committed
to another Government agency under any of paragraphs (1) through
(5) of subsection (b), subject to subtitle B of the Consumer
Financial Protection Act of 2010. For purpose of the exercise by
the Federal Trade Commission of its functions and powers under
the Federal Trade Commission Act (15 U.S.C. 41 et seq.), a
violation of this title shall be deemed an unfair or deceptive act or
practice in violation of that Act. All of the functions and powers of
the Federal Trade Commission under the Federal Trade Commis-
sion Act are available to the Federal Trade Commission to enforce
compliance by any person with this title, irrespective of whether
that person is engaged in commerce or meets any other jurisdic-
tional tests under the Federal Trade Commission Act, including the
power to enforce the provisions of this title, in the same manner as
if the violation had been a violation of a Federal Trade Commis-
sion trade regulation rule.
(b) Applicable provisions of law4
Subject to subtitle B of the Consumer Financial Protection Act of
2010, compliance with any requirements imposed under this sub-
chapter shall be enforced under—
(1) section 8 of the Federal Deposit Insurance Act [12 U.S.C.
§ 1818], by the appropriate Federal banking agency, as defined
in section 3(q) of the Federal Deposit Insurance Act (12 U.S.C.
1813(q)), with respect to—
(A) national banks, Federal savings associations, and Federal
branches and Federal agencies of foreign banks;
(B) member banks of the Federal Reserve System (other than
national banks), branches and agencies of foreign banks
(other than Federal branches, Federal agencies, and insured
State branches of foreign banks), commercial lending com-
panies owned or controlled by foreign banks, and organiza-
tions operating under section 25 or 25A of the Federal
Reserve Act; and
(C) banks and State savings associations insured by the
Federal Deposit Insurance Corporation (other than members
of the Federal Reserve System), and insured State branches of
foreign banks;
(2) the Federal Credit Union Act [12 U.S.C. §§ 1751 et seq.], by
the National Credit Union Administration with respect to any
Federal credit union;
(3) subtitle IV of Title 49, by the Secretary of Transportation
with respect to all carriers subject to the jurisdiction of the
Surface Transportation Board;
(4) the Federal Aviation Act of 1958 [part A of subtitle VII of
Title 49], by the Secretary of Transportation with respect to any
air carrier or any foreign air carrier subject to that Act; and
(5) the Packers and Stockyards Act, 1921 [7 U.S.C. § 181 et
seq.] (except as provided in section 406 of that Act [7 U.S.C.
§§ 226, 227]), by the Secretary of Agriculture with respect to
any activities subject to that Act; and
(6) subtitle E of the Consumer Financial Protection Act of 2010,
by the Bureau, with respect to any person subject to this title.
The terms used in paragraph (1) that are not defined in this
subchapter or otherwise defined in section 3(s) of the Federal
Deposit Insurance Act (12 U.S.C. 1813(s)) shall have the meaning
given to them in section 1(b) of the International Banking Act of
1978 (12 U.S.C. 3101).
(c) Agency powers
For the purpose of the exercise by any agency referred to in
subsection (b) of this section of its powers under any Act referred
to in that subsection, a violation of any requirement imposed under
this subchapter shall be deemed to be a violation of a requirement
4 15 U.S.C. § 1692l amended by Pub. L. No. 95-473 § 3(b), 92
Stat. 1466 (Oct. 17, 1978); Pub. L. No. 95-630 Title V § 501, 92
Stat. 3680 (Nov. 10, 1978); Pub. L. No. 98-443 § 9n, 98 Stat.
1708 (Oct. 4, 1984); Pub. L. No. 101-73, Title VII § 744(n), 103
Stat. 440 (Aug. 9, 1989); Pub. L. No. 102-242, Title II § 212(e),
105 Stat. 2301 (Dec. 19, 1991); Pub. L. No. 102-550, Title XVI
§ 1604(a)(8), 106 Stat. 4082 (Oct. 28, 1992); Pub. L. No.
104-88, Title III § 316, 109 Stat. 949 (Dec. 29, 1995).
Appx. A.2 Fair Debt Collection
72238
imposed under that Act. In addition to its powers under any
provision of law specifically referred to in subsection (b) of this
section, each of the agencies referred to in that subsection may
exercise, for the purpose of enforcing compliance with any re-
quirement imposed under this subchapter any other authority
conferred on it by law, except as provided in subsection (d) of this
section.
(d) Rules and regulations
Except as provided in section 1029(a) of the Consumer Financial
Protection Act of 2010 [12 U.S.C. § 5519(a)], the Bureau may
prescribe rules with respect to the collection of debts by debt
collectors, as defined in this title.
[Pub. L. No. 111-203, tit. X, § 1089(3), (4), 124 Stat. 2092 (July
21, 2010)]
15 U.S.C. § 1692m. Reports to Congress by the
Bureau; views of other
Federal agencies [FDCPA
§ 815]
(a) Not later than one year after the effective date of this subchap-
ter and at one-year intervals thereafter, the Bureau shall make
reports to the Congress concerning the administration of its func-
tions under this subchapter, including such recommendations as
the Bureau deems necessary or appropriate. In addition, each
report of the Bureau shall include its assessment of the extent to
which compliance with this subchapter is being achieved and a
summary of the enforcement actions taken by the Bureau under
section 1692l of this title.
(b) In the exercise of its functions under this subchapter, the
Bureau may obtain upon request the views of any other Federal
agency which exercises enforcement functions under section 1692l
of this title.
[Pub. L. No. 111-203, tit. X, § 1089(1), 124 Stat. 2092 (July 21,
2010)]
15 U.S.C. § 1692n. Relation to State laws
[FDCPA § 816]
This subchapter does not annul, alter, or affect, or exempt any
person subject to the provisions of this subchapter from complying
with the laws of any State with respect to debt collection practices,
except to the extent that those laws are inconsistent with any
provision of this subchapter, and then only to the extent of the
inconsistency. For purposes of this section, a State law is not
inconsistent with this subchapter if the protection such law affords
any consumer is greater than the protection provided by this
subchapter.
15 U.S.C. § 1692o. Exemption for State
regulation [FDCPA § 817]
The Bureau shall by regulation exempt from the requirements of
this subchapter any class of debt collection practices within any
State if the Bureau determines that under the law of that State that
class of debt collection practices is subject to requirements sub-
stantially similar to those imposed by this subchapter, and that
there is adequate provision for enforcement.
[Pub. L. No. 111-203, tit. X, § 1089(1), 124 Stat. 2092 (July 21,
2010)]
15 U.S.C. § 1692p. Exception for certain bad
check enforcement programs
operated by private entities
[FDCPA § 818]
(a) In general—
(1) Treatment of certain private entities
Subject to paragraph (2), a private entity shall be excluded from
the definition of a debt collector, pursuant to the exception
provided in section 1692a(6) of this title, with respect to the
operation by the entity of a program described in paragraph
(2)(A) under a contract described in paragraph (2)(B).
(2) Conditions of applicability
Paragraph (1) shall apply if—
(A) a State or district attorney establishes, within the juris-
diction of such State or district attorney and with respect to
alleged bad check violations that do not involve a check
described in subsection (b) of this section, a pretrial diversion
program for alleged bad check offenders who agree to par-
ticipate voluntarily in such program to avoid criminal pros-
ecution;
(B) a private entity, that is subject to an administrative
support services contract with a State or district attorney and
operates under the direction, supervision, and control of such
State or district attorney, operates the pretrial diversion pro-
gram described in subparagraph (A); and
(C) in the course of performing duties delegated to it by a
State or district attorney under the contract, the private entity
referred to in subparagraph (B)—
(i) complies with the penal laws of the State;
(ii) conforms with the terms of the contract and directives
of the State or district attorney;
(iii) does not exercise independent prosecutorial discretion;
(iv) contacts any alleged offender referred to in subpara-
graph (A) for purposes of participating in a program re-
ferred to in such paragraph—
(I) only as a result of any determination by the State or
district attorney that probable cause of a bad check
violation under State penal law exists, and that contact
with the alleged offender for purposes of participation in
the program is appropriate; and
(II) the alleged offender has failed to pay the bad check
after demand for payment, pursuant to State law, is made
for payment of the check amount;
(v) includes as part of an initial written communication
with an alleged offender a clear and conspicuous statement
that—
(I) the alleged offender may dispute the validity of any
alleged bad check violation;
(II) where the alleged offender knows, or has reasonable
cause to believe, that the alleged bad check violation is
the result of theft or forgery of the check, identity theft,
Text of the Fair Debt Collection Practices Act Appx. A.2
72339
or other fraud that is not the result of the conduct of the
alleged offender, the alleged offender may file a crime
report with the appropriate law enforcement agency; and
(III) if the alleged offender notifies the private entity or
the district attorney in writing, not later than 30 days
after being contacted for the first time pursuant to clause
(iv), that there is a dispute pursuant to this subsection,
before further restitution efforts are pursued, the district
attorney or an employee of the district attorney autho-
rized to make such a determination makes a determina-
tion that there is probable cause to believe that a crime
has been committed; and
(vi) charges only fees in connection with services under the
contract that have been authorized by the contract with the
State or district attorney.
(b) Certain checks excluded
A check is described in this subsection if the check involves, or is
subsequently found to involve—
(1) a postdated check presented in connection with a payday
loan, or other similar transaction, where the payee of the check
knew that the issuer had insufficient funds at the time the check
was made, drawn, or delivered;
(2) a stop payment order where the issuer acted in good faith
and with reasonable cause in stopping payment on the check;
(3) a check dishonored because of an adjustment to the issuer’s
account by the financial institution holding such account with-
out providing notice to the person at the time the check was
made, drawn, or delivered;
(4) a check for partial payment of a debt where the payee had
previously accepted partial payment for such debt;
(5) a check issued by a person who was not competent, or was
not of legal age, to enter into a legal contractual obligation at the
time the check was made, drawn, or delivered; or
(6) a check issued to pay an obligation arising from a transaction
that was illegal in the jurisdiction of the State or district attorney
at the time the check was made, drawn, or delivered.
(c) Definitions
For purposes of this section, the following definitions shall apply:
(1) State or district attorney
The term ‘‘State or district attorney’’ means the chief elected or
appointed prosecuting attorney in a district, county (as defined
in section 2 of title 1, United States Code), municipality, or
comparable jurisdiction, including State attorneys general who
act as chief elected or appointed prosecuting attorneys in a
district, county (as so defined), municipality or comparable
jurisdiction, who may be referred to by a variety of titles such
as district attorneys, prosecuting attorneys, commonwealth’s
attorneys, solicitors, county attorneys, and state’s attorneys, and
who are responsible for the prosecution of State crimes and
violations of jurisdiction-specific local ordinances.
(2) Check
The term ‘‘check’’ has the same meaning as in section 5002(6)
of Title 12.5
(3) Bad check violation
The term ‘‘bad check violation’’ means a violation of the
applicable State criminal law relating to the writing of dishon-
ored checks.
[Pub. L. No. 109-352, tit. VIII, § 801(a)(2), 120 Stat. 2004 (Oct.
13, 2006)]
A.3 Senate Report No. 95-382 on the
Fair Debt Collection Practices Act6
Report of the Committee on Banking,
Housing and Urban Affairs
U.S. Senate
Aug. 2, 1977
[Page 1]
The Committee on Banking, Housing, and Urban Affairs, to which
was referred the bill (H.R. 5294) to amend the Consumer Credit
Protection Act to prohibit abuses by debt collectors, having con-
sidered same, reports favorably thereon with an amendment and
recommends that the bill as amended do pass.
HISTORY OF THE LEGISLATION
On May 12 and 13, 1977, the Consumer Affairs Subcommittee
held hearings on four bills to regulate debt collection practices: S.
656, introduced by Senator Biden; S. 918, introduced by Senator
Riegle; S. 1130, introduced by Senator Garn for himself and
Senators Schmitt and Tower; and H.R. 5294, passed by the House
of Representatives on April 4, 1977. After these hearings and
before markup by the committee, Senator Riegle offered a com-
posite bill, designated Committee Print No. 1, as a substitute for S.
918.
The Committee met in open markup sessions on June 30 and
July 26, 1977, and approved Committee Print No. 1, with amend-
ments, by voice vote. The committee substituted the text of its bill
for that of H.R. 5294, which is herewith reported without objec-
tion.
NATURE AND PURPOSE OF THE BILL
This legislation would add a new title to the Consumer Credit
Protection Act entitled the Fair Debt Collection Practices Act. Its
purpose is to protect consumers from a host of unfair, harassing,
and deceptive debt collection practices without imposing unnec-
essary [Page 2] restrictions on ethical debt collectors. This bill was
strongly supported by consumer groups, labor unions, State and
Federal law enforcement officials, and by both national organiza-
tions which represent the debt collection profession, the American
Collectors Association and Associated Credit Bureaus.
5 (6) Check
The term ‘‘check’’—
(A) means a draft, payable on demand and drawn on or
payable through or at an office of a bank, whether or not
negotiable, that is handled for forward collection or return,
including a substitute check and a travelers check; and
(B) does not include a noncash item or an item payable in
a medium other than United States dollars.
12 U.S.C. 5002 (6).
6 § 3.3.2, supra, describes the legislative history for the Fair Debt
Collection Practices Act, and the key place of Senate Report
No. 95-382 in that process.
Appx. A.3 Fair Debt Collection
72440
Establishing Substantial
Damages in a Debt
Collection Harassment Suit
9202 South Toledo Avenue
Tulsa, Oklahoma 74137
Phone: 918-747-5300 | Fax: 918-747-5311
[email protected] | [email protected]
David Humphreys • Luke Wallace
What is debt collection harassment?
• Intent to annoy, abuse, or harass using the
telephone
• False, deceptive, or misleading representation or
means
• False representation or implication in order to
disgrace consumer
• Unfair or unconscionable means to collect or
attempt to collect
41
Credibility
• Overreaching
• “Owning it”
• Vulnerability
What constitutes Big Damages?
• Emotional Distress
• Credit
• Out of pocket
• Punitive (non-FDCPA theory)
Documenting and Understanding
Your Client’s Damages
• Interviewing your client and witnesses
• Understanding ED
• Medical records
42
Why consider other theories of
recovery?
• Scope of relevant evidence
• Scope of available damages
• Your state’s FDCPA (injunctive/punitive),
TCPA, CPA, DTPA
• Torts: Invasion of privacy, IIED, NIED, IIER,
Defamation, Mal pro, Abuse of pro
Discovery (informal, written,
depositions)
• Social media/internet/work comp/former
employees
• ESI
• Video depositions
• Culture
Pattern Evidence
• Other complaints: State AG/BBB/PACER/
State court actions
• Internet searches
• Discovery
43
Focus Groups
• Goals
• How many to conduct
• How much
• Preparation
Trial
• The Hammer
• Fear Management
• Themes and Theories
• Scene selection
44
1
SELECTING, VALUING, DEVELOPING
LETTER AND OVERCHARGE CASES DAVID J. PHILIPPS
MARY E. PHILIPPS
ANGIE K. ROBERTSON
PHILIPPS & PHILIPPS, LTD.
NCLC 2014 FDCPA Conference San Antonio, Texas
1
I. First Case –
Broome v. Feingold (1991) 2
Won’t debt collectors start complying with the FDCPA and make this practice area obsolete?
N.D. Ill. S.D. Ind. Other Districts Total
2011 195 26 4 225
2012 209 40 4 253
2013 183 36 2 221
II. Developing Relationships with Co-
Counsel; Obtaining Referrals 3
i. Bankruptcy Attorneys
ii. Family & Friends
iii. Debt Collector Referrals
iv. Defending Small Claims Lawsuits
v. Referrals from Legal Aid Organizations
a. Good Sources:
b. Good Practices i. Fax machine – accurate time and
date with proof of receipt
ii. Know your limits; know the
law’s limits
iii. Be wary of internet “experts” /
unreasonable expectations
45
2
c. Is There a Viable Defendant? 4
i. Check Pacer.gov
-Has the collection agency, debt buyer, or collection attorney been sued before?
-If so, did the defendant file an appearance, or was there a default judgment?
ii. Check membership rosters on Debut Buyers Association and ACA International.
-If your potential defendant is a member, they are likely insured.
-www.dbainternational.org and www.acainternational.net
iii. Ask your colleagues on the NACA listserv.
iv. Avoid cases involving loans originating with Native American Tribes.
v. Advise clients having issues with non-viable defendants to report them to the CPFB, FTC, and their state’s attorney general.
d. Path of a Typical Fair Debt Case
5
i. Valuation
-Fram Oil Filter
-Taxi at the Curb of the Courthouse with the meter running
ii. Demand Letter vs. Lawsuit
iii. Individual v. Class Action
iv. Settlement
v. Accounting for Fees and Costs
vi. Settlement Agreement and Release –
The Devil is in the Details
SAMPLE COLLECTION LETTERS
6
. . . a debt collector may not communicate with a
consumer in connection with the collection of any
debt – (2) if the debt collector knows the consumer is represented by an attorney with respect to
such debt and has knowledge or, 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 a debt collector or unless the attorney consents to direct
communication with the consumer;
See, NCLC Fair Debt Manual Collector Section 5.7-Validation of a Debt; May Not Contact
Consumer it Knows to be Represented by an Attorney
I. § 1692c(a)(2): Communications with a
Consumer Represented by Counsel
46
3
7
What’s wrong
with this letter?
8
How about
this letter?
9
Nothing really wrong, except. . .
. . . except this letter was sent in between.
47
4
II. § 1692c(c): CEASING COMMUNICATIONS
10
If a consumer notifies a debt collector in writing that the
consumer refuses to pay a debt or that the consumer wishes the
debt collector to cease further communication with the
consumer, the debt collector shall not communicate further with
the consumer with respect to such debt, except –
(1) to advise the consumer that the debt collector’s further efforts are being terminated;
(2) to notify the consumer that the debt collector or creditor may invoke specified remedies which
are ordinarily invoked by such debt collector or creditor; or
(3) where applicable, to notify the consumer that the debt collector or creditor intends to invoke a
specified remedy.
See, Section 2.3.7 in NCLC Fair Debt Manual - Consumer’s Lawyer May Send a Letter
Requesting the Collector Stop Contacts; Section 5.3.3.
11
12
48
5
13
III. False, Deceptive or Misleading
Statements 14
A debt collector may not use any false, deceptive, or misleading representation in connection with the collection of any debt.
a. Debts Discharged in Bankruptcy
b. False Statement of the Amount of the Debt
c. False threat of lawsuit
d. False statement that consumer committed a crime
e. False statement regarding ability to collect attorney’s fees
f. False statement regarding ability to credit report a debt.
a. Collecting on a debt subject to, or
discharged in, a bankruptcy 15
“A demand for immediate payment while a debtor is in bankruptcy (or after the debt’s discharge) is “false” in the sense that it asserts that money is due, although, because of the automatic stay . . . or the discharge injunction . . ., it is not. A debt collector’s false statement is presumptively wrongful under the Fair Debt Collection Practices Act, see 15 U.S.C. § 1692e(2)(A), even if the speaker is ignorant of the truth; but a debt collector that exercises care to avoid making false statement has a defense under § 1692k(c).
-Randolph v. IMBS, Inc., 368 F.3d 726, 728 (7th Cir. 2004);
See also, Simon v. FIA Card Services, et al., 2013 U.S. App. LEXIS 20403 (3rd Cir. 2013)
Note, 9th Circuit follows Walls v. Wells Fargo Ban, N.A., 276, F.3d 502 (9th Cir. 2002), which holds that a violation of the bankrutpcy automatic stay/discharge does not create a private right of action under the FDCP
See, Sections 2.2.2 in NCLC Manual – FDCPA Claims in Bankruptcies -- and 5.5.4 in NCLC Fair Debt Manual - Collectors May Not Falsely Represent the Character, Amount or Legal Status of any Debt.
49
6
16
17
18
50
7
b. False statement of the amount of the
debt 19
A debt collector may not use any false, deceptive or
misleading representation 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:
(2) The false representation of –
(A) the character, amount, or legal status of any debt;
See, Section 5.7.2.6 in NCLC Fair Debt Manual - Content of Validation Notice; and, Section
5.5.4 - Collectors May Not Falsely Represent the Character, Amount, or Legal Status of
any Debt
20
21
51
8
22
23
24
52
9
c. Other False Statements 25
(7) The false representation or implication that the
consumer committed any crime or conduct in order
to disgrace the consumer. See, Section 5.5.10 in NCLC Fair Debt Manual - Misrepresenting that the Consumer Committed a
Crime or Engaged in Other Misconduct in Order to Disgrace the Consumer is Prohibited
26
McMillan v. Collection
Professionals, 455 F. 3d
754 (7th Cir. 2006)
d. False Threat of Lawsuit
27
See also, Section 5.5.2.11 in
NCLC Fair Debt Manual: Threat of
Suit May be Deceptive
53
10
Tips for Identifying False Threat of Suit:
28
You can determine whether this threat is false by
checking state court records for the numbers and
nature of cases filed by the creditor, debt collector,
debt buyer, or their attorney.
Have they ever sued anyone in your jurisdiction?
Have they ever brought a lawsuit for a de minimis
amount?
e. False Statements
Regarding Right to Attorneys’
Fees
29
Lox v. CDA, 689 F.3d 818 (7th Cir. 2012)
30
7th Circuit found that a statement regarding attorney fees was
materially false on its face and, therefore, required no
extrinsic evidence.
“[U]nder the so-called ‘American Rule,” a losing party cannot
be charged with the winning party’s attorney fees unless a
statute or contract explicitly states otherwise.” (at 823)
“The naive, trusting, unsophisticated consumer is therefore likely
to believe a debt collector when it says that attorney fees are
a potential consequence of nonpayment, and the language at
issue is therefore misleading.” (at 825)
54
11
31
Gonzales v. Arrow, 660 F.3d 1055 (9th Cir. 2011)
32
In 2002, Arrow purchased a portfolio of debts owed to health
clubs. All of the debts in the portfolio were more than seven
years old. Therefore, pursuant to the FCRA, none of them
could be reported to a credit reporting agency.
“Arrow wisely concedes that it had no intention of reporting the
health club debts to a credit bureau and was legally
prohibited from doing so.”
f. False Statement Regarding Ability to Report a
Debt to a Credit Reporting Agency
Gonzales v. Arrow, 660 F.3d 1055 (9th Cir. 2011)
33
“To the least sophisticated debtor, the phrase ‘if we are reporting the account, the appropriate credit bureaus will be notified that this account has been settled’ suggests two possibilities. It suggests the possibility that Arrow was not reporting the debt to a credit reporting agency, and would accordingly make no further report in the event of settlement. But the phrase also suggests that, under some set of circumstances applicable to the recipient, Arrow could and would report the account. Absent any possibility that Arrow could report the accounts, there would be no reason for Arrow to assert its intention to make a positive report in the event of payment. Only the first reading is actually correct, but the second reading is far from ‘bizarre’ or ‘idiosyncratic’—it is eminently reasonable. As there is no circumstance under which Arrow could legally report an obsolete debt to a credit bureau, the implication that Arrow could make a positive report in the event of a payment is misleading.” (at 1062-3), emphasis added.
55
12
34
IV. § 1692g: Claims pertaining to validation requirements
and the consumer’s right to dispute a debt
35
§ 1692g Validation of debts
(a) Within five days after the initial communication with a consumer in
connection with the collection of any debt, a debt collector shall, unless the
following information is contained in the initial communication or the
consumer has paid the debt, send the consumer a written notice containing --
(1) the amount of the debt;
(2) the name of the creditor to whom the debt is owed;
(3) a statement that unless the consumer, within thirty days after receipt of the notice, disputes the validity of the debt, or any portion thereof, the debt will be assumed valid by the debt collector.
See, Section 5.7.2.7 in NCLC Fair Debt Manual - Collectors May Not Obscure, Confuse or Contradict Validation Rights
See, Section 5.7.2.6 in NCLC Fair Debt Manual - Content of Validation Notice; and Section 5.5.4 - Collectors May Not Falsely Represent the Character, Amount, or Legal Status of any Debt
36
56
13
37
Who’s the
Creditor?
Braatz v. Leading
Edge, 2012 U.S. Dist.
LEXIS 70796
(N.D. Ill. 2012)
38
39
Walls v. UCB,
2012 U.S. Dist.
LEXIS 68079
(N.D. Ill. 2012)
57
14
“Alleged
Creditor”
40
41
42
58
15
43
§ 1692g(a) – validation notice requirements (cont.’d)
44
(4) a statement that if the consumer notifies the debt collector in writing within the thirty-day period that the debt, or any portion thereof, is disputed, the debt collector will obtain verification of the debt or a copy of a judgment against the consumer and a copy of such judgment will be mailed to the consumer by the debt collector; and
§ 1692g(b) Any collection activities and communications during the 30-day period may not overshadow or be inconsistent with the disclosure of the consumer’s right to dispute the debt or request the name and address of the original creditor.
45
How long does the consumer have to dispute validity?
59
16
46
Additional resources:
47
Fair Debt Collection (7th Ed.) –
order on-line at www.nclc.org or call
(617) 542-9595
The National Consumer Law Center
7 Winthrop Square
Boston, MA 02110-1245
(617) 542-8010
(617) 542-8028 (FAX)
www.nclc.org
The National Association of Consumer Advocates
1730 Rhode Island NW, Suite 710
Washington, DC 20036
(202) 452-1989
(202) 452-0099
www.naca.net
60
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BASIC DISCOVERY
IN A DEBT COLLECTION ABUSE CASE
Michael T. O'Connor
March 7 r 2014
Visit our website: www.deanmalone.com
TEXAS TRIAL LAWYERS
PRINCIPAL OFFICE: DALLAS TEXAS: (714) 670'9989TOLL FREE: (86ó) 670-9989
Lnw OrrtcEs oF DENT\T MELONE,FIC.
90
SAMPLE INTERROGATORIES
Interrogatory No. 1: State the name(s) of all collection software used by you (to create and
maintain collection notes and records and/or for an automated or predictive telephone dialer)
when attempting to collect the Account.Answer:
Interrogatory No. 2: Identify (by name, address, and telephone number) all long distance
telephone service providers which you used to attempt to collect the Account, as well as yqulprimary billing address and your telephone number(s).Answer:
Interrogatory No. 3: State the legal and assumed names; home addresses; date of birth; and
gender of all natural persons who attempted to collect the Account from the Plaintiff.Answer:
Interrogatory No. 4: Identify (by style, court, and cause number) all lawsuits which were hledduring the last three years and in which it was alleged that you engaged in improper attempts to
collect one or more debts.Answer:
InterrogatoryNo.5: Have you or your attorney made any audio recording of the Plaintiff or
the Plaintifls attorneys within the last two years (excluding recordings made during
depositions)?Answer:
91
SAMPLE REOUESTS FOR ADMISSIONS
Request for Admission No. 1: Admit that the Plaintiff is not personally liable for any
amount allegedly due on the Account.Response:
Request for Admission No' 2:
payment of the Account.Response:
Admit that you contend that the Plaintiff is liable for
Request for Admission No. 3
Response:
Admit that you do not own the Account'
Request for Admission No. 4: Admit that you attempted to collect the Account from the
Ptaintiff during the Relevant Time Period.
Response:
Request for Admission No. 5
to collect the Account.Response:
Admit that you used a telephone autodialer in your attempts
Request for Admission No' 6
policy.Response:
Admit that you have an Errors and Omissions insurance
Request for Admission No. 7:
collection calls.Response:
Admit that, in 2013, you recorded some or all of your
Request for Admission No. 8:
collection calls.Response:
Admit that, in 2013, you did not record any of your
Request for Admission No' 9
to the Plaintiff.Response:
Admit that you recorded some or all of your collection calls
92
SAMPLE REOUESTS FOR PRODUCTION
Request for Production No. 1: Produce your records (typewritten, handwritten, and
computer-generated) of your attempts to collect the Account.Response:
Request for Production No. 2: Produce all recordings (including audio and video), and any
typed or written transcripts thereof, that evidence your attempts to collect the Account.Response:
RequestforProductionNo.3: Produce copies of only the pages of your telephone long
distance billing records which indicate upon them calls placed by you when attempting to collectthe Account.Response:
Request for Production No. 4: Produce copies of all e-mails you sent to or received from
the Plaintiff during the Relevant Time Period.Response:
RequestforProductionNo.5: Produce all audio recordings of the Plaintiff and the
Plaintiff s attorneys (other than recordings of depositions)'Response:
Request for Production No. 6: Produce all documents evidencing the transmission of any
information to or from any credit bureau and/or credit reporting agency regarding to the
Account.Response:
Request for Production No. 7: Produce all records of disciplinary actions against all
natural persons who attempted to collect the Account.
Response:
Request for Production No. 8: Produce all debt collection training records of all natural
persons who attempted to collect the Account.Response:
93
Request for production No. 9: Produce copies of all Better Business Bureau complaints
.ecËiued by you during the last three years which included allegations that one of your
employees or agents engaged in improper debt collection practices (as well as any responses you
made to such complaints).Response:
Request for production No. l0: Produce all documents evidencing any felony conviction ofany natural person who attempted to collect the Account'
Response:
Request for production No. 1 l: Produce all form letters and telephone collection scripts
you used to attempt to collect the Account'Response:
RequestforproductionNo, 12: Produce copies of all debt collector policies, procedures,
and techniqueìs which you gave to persons who attempted to collect the Account.
Response:
RequestforproductionNo. 13: Produce the user and programming manuals for collection
software you used to collect the Account'Response:
Request for production No. 14: Produce all documents which list and defltne, or act as a key
for, codes and abbreviations you used for your collection software when attempting to collect the
Account.Response:
RequestforproductionNo. 15: Produce all documents that indicate or suggest that the
Plaintiff does not owe any monies for the Account'
Response:
RequestforproductionNo. 16: Produce all documents which indicate or suggest that the
Acóount was incurred for something other than personal, family, or household purposes'
Response:
RequestforproductionNo. 17: Produce copies of all pages from the Plaintiffs pages on
any social networking website (including Facebook)'
Response:
94
CAUSE NO
CONSUMER,
Plaintiff,
COLLECTION AGENCY,
Defendant.
$
$
$
$
$
$
$
$
$
IN THE DISTRICT COURT OF
DALLAS COLINTY, TEXAS
JUDICIAL DISTRICT
N
TO: Defendant Collection Agency, by and through its attorney of record,
Michael T. O'Connor, attorney for the Plaintiff in the case described in the caption
above, will take the oral deposition of Defendant Collection Agency (hereinafter "CA") at 10:00
a.m. on
-,2014
at Unless otherwise noted, the
4)
relevant time period for the topics listed below is January l, 2OI3 through the day of the
deposition. The deposition will be on the following matters:
1) CA,s policies and procedures regarding debt collection and responding to
complaints regarding debt collecti on;
2) CA's communications (including the substance and content of those
conversations) with the Pìaintiff and anyone else related to collection of the
alleged debt referenced in the Plaintiffls live pleading in this lawsuit;
3) Audio recordings of any telephone conversations related to collection of the
alleged debt referenced in the Plaintiff s live pleading in this lawsuit;
Any change in policy or procedure made by cA as a result of lawsuits in which
CA was úu.ty for ány piriod of time during the last three (3) years in which it
was allegeà tnât CA violated the Federal Fair Debt Collection Practices Act or
was liable under any other statute or cause of action due to alleged attempts to
collect a purported debt;
ISAMPLE]Notice to Take oral/Video Deposition of Defendant - Page 1 of 3
95
Telephone records and collection notes evidencing or referring to calls CA placed
to anyone while attempting to collect the alleged debt referenced in the Plaintifflslive pleading in this lawsuit;
CA's pleadings in this lawsuit (including all allegations therein and the factual
bases for such allegations);
CA's discovery responses and objections in this lawsuit (including all documents
and tangible items produced);
CA's collection efforts regarding the alleged debt referenced in the Plaintiff s livepleading in this case;
9) CA's training procedures for its debt collector employees;
l0) The alleged debt referenced in the Plaintiff s live pleading in this lawsuit;
11) CA's procedures regarding investigating the background of prospective and
current debt collector emPloYees;
12) Any complaints, charges, allegations, or lawsuits against any CA employees who
attémpted to collect the alleged debt from the Plaintiff (related to their alleged
activities as an alleged CA agent and/or employee);
13) CA's supervision of its employees who attempted to collect the alleged debt
referenced in the Plaintifls live pleading in this lawsuit;
14) CA's relationship with the alleged creditor of the alleged debt referenced in the
Plaintiff s live pleading in this lawsuit;
15) CA's communications (regarding the PlaintifT, the PlaintifÎs alleged debt, and
this lawsuit) with the alleged creditor of the alleged debt referenced in the
Plaintiff s live pleading in this lawsuit;
16) Any agreement between CA and the alleged creditor of the alleged debt
referenced in the Plaintiffls live pleading in this lawsuit;
17) Any responses to andlor change in policy or procedure made by CA as a result of' complaints and/or allegations against CA and/or its employees filed with or
transmitted to the Better Business Bureau and/or the Texas State Attorney
General;
I S) The general environment in the CA office from which calls to the Plaintiff were
made, during the time of the alleged acts giving rise to this case;
s)
6)
7)
8)
ISAMPLE] Notice ro Take oral/video Deposition of Defendant - Page 2 of 3
96
19) CA's general business practices, purpose, and model;
20) CA's net worth; and
21) All recordings (including all transcripts) produced by CA in this lawsuit(including the content of those recordings and the identity of any current and/orformer CA employee on those recordings).
CA must - a reasonable time before the deposition - (1) designate one or more English-
speaking individuals to testify on its behalf and (2) set forth, for each individual designated, the
matters on which the individual will testify. Further, each individual designated must testify as
to matters known or reasonable available to CA.
The deposition will continue from day-to-day until completed, A court reporter shall
record the deposition stenographically. In addition, the Plaintiff may cause the deposition to be
recorded by sound or sound-and-visual.
[SAMPLE] Notice to Take Oral/Video Deposition of Defendant - Page 3 of 3
97
Common Debt Collector Defenses
�How to Prevail (and How to Avoid Them)
�Brian L. Bromberg, Bromberg Law Office, P.C., NYC
�Stacy M. Bardo, Consumer Advocacy Center, P.C., Chicago, Illinois
Or “Stupid Debt Collector Tricks”
� “Bona Fide Error”
� The Rooker-Feldman Doctrine
� State Court Sanctions Do Not Trump the FDCPA’s Protections
� The Noerr-Pennington Rule
� Statute of Limitations
� Materiality
� The “Litigation Privilege”
� Pre-suit consideration for defenses you likely cannot win
Strict Liability
�Parking ticket analogy
�DON’T be swayed by attacks on your client or whether the debt is owed
�DO consider whether your client makes a good witness, can stand up at trial, and plan your case accordingly
98
The “Bona Fide Error”
� 15 U.S.C. § 1692k(c) - Intent. A debt collector may not be held liable in any action brought under this title [15 U.S.C. § 1692, et seq.] 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.
Three Factors
�Error
�Procedures
�Procedures adapted to avoid the error not the complained of violation
�PRACTICE TIP: Consider a motion to strike this affirmative defense
Burden of Proof
�The debt collector has the burden of proof on this affirmative defense by a preponderance of the evidence.
�Take discovery on what the procedure is – the procedure must address the error made, not the violation alleged.
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No Errors of Law
� It is now settled that “bona fide error” does not mean a misunderstanding of what the FDCPA requires. See Jerman v. Carlisle, 559 U.S. 573 (2010). The defense does not apply to mistakes of law.
Obligation to takeAffirmative Action
� “A debt collector is not entitled under the FDCPA to sit back and wait until a creditor makes a mistake and then institute procedures to prevent a recurrence.” Reichert v. National Credit Systems, 531 F.3d 1002 (9th Cir. 2008).
� To qualify for the bona fide error defense under the FDCPA, the debt collector has an affirmative obligation to maintain procedures designed to avoid discoverable errors, including, but not limited to, errors in calculation and itemization.” Id.
Procedures Must Be Reasonable
� Engelen v. Erin Capital Management, 2013 U.S. App. LEXIS 22359 (9th Cir. Nov. 4, 2013) (“Construing the evidence in the light most favorable to Engelen, Rosen & Loeb's procedures, which consisted of legal compliance training, a written policy describing how payment notifications were to be handled, and periodic spot-checking of the bookkeeper's work, were not, as a matter of law, "reasonable preventive procedures aimed at avoiding the errors.")
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The Rooker-Feldman Doctrine
� In Exxon Mobil Corp. v. Saudi Basic Industries Corp., 544 U.S. 280 (2005), the Supreme Court held that Rooker-Feldman applies only where plaintiffs who "had litigated and lost in state court[ ]" filed "federal complaints . . . [that] essentially invited federal courts of first instance to review and reverse unfavorable state-court judgments.” Id. at 283.
R-F bars Review by Federal Court of State Court Judgments
� “‘[A] party losing in state court is barred from seeking what in substance would be appellate review of the state judgment . . . based on the losing party’s claim that the state judgment itself violates the loser’s rights.’”
� Zurich American Insurance Company, 326 F.3d at 822 (quoting Lewis v. Anderson, 308 F.3d 768, 772 (7th Cir. 2002)).
� PRACTICE TIP – DON’T FORGET TO CHECK THE STATUS OF ANY STATE COURT PROCEEDING
Doctrine does not apply when no judgment exists
� In Johnson v. Riddle, et al., 305 F.3d 1107 (10th Cir. 2002), the Tenth Circuit refused to apply the Rooker-Feldman doctrine to bar the FDCPA claim against defendant where the state court case regarding the alleged debt was dismissed.
� PRACTICE TIPS: Get the state-court case dismissed before you file your FDCPA claim and BEWARE of signing releases. Don’t underestimate the power of filing an appearance in state court – debt collectors operate on the assumption of the default judgment
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Avoid Rooker-Feldmanapplication by arguing . . .
� “Plaintiff seeks relief for Defendants’ abusive debt collection practices. These claims are independent of whether Joe Consumer actually owed the alleged debt sought in the state court lawsuit.”
� Your claims must not be “inextricably intertwined” with the judgment.
� In other words, it’s not a defense to most FDCPA claims that your client owed the debt. For example, harassment, abuse, calls to work, communications with third-parties.
State Court Sanctions Do Not Trump the FDCPA’s Protections
� Defendants will often argue collector law firms are governed by state court sanctions remedies. But, “Plaintiff seeks recovery not for frivolous litigation but for abusive practices in debt collection, a federal policy codified by the FDCPA.”
State Court Procedural Rules Do Not Trump Federal Laws
� A state court procedural rule cannot preempt federal law when the conduct complained of gives rise to independent causes of action.
� See, e.g., Shady Grove Orthopedic
Associates, P.A. v. Allstate Ins. Co., 559 U.S. 393 (2010)
102
We cannot comply with state law without violating federal law
� Romea v. Heiberger & Associates, 163 F.3d 111 (2d Cir. 1998)
� A state law is not a shield to liability – in fact, Section 1692(e) of the FDCPA states that one of the primary purposes of the Act is to promote consistent state action in protecting consumers from debt collection practices
Conflicting FDCPA Violations
� A debt collector was not entitled to a bona fide error defense when it intentionally violated one provision of the FDCPA in order to avoid the risk of violating another provision. Edwards v. Niagara Credit Solutions, Inc., 584 F.3d 1350 (11th Cir. 2009)
� “In an oft-repeated statement from the Vietnam War, an unidentified American military officer reputedly said that ‘we had to destroy the village to save it.’ That oxymoronic explanation may be apocryphal, but the debt collection agency in this case offers up much the same logic to explain why it violated the Fair Debt Collection Practices Act: it was necessary to violate the Act in order to comply with the Act.”
The Noerr-Pennington Rule
�Under the Noerr-Pennington rule of statutory construction, federal statutes must be construed to avoid burdening conduct that implicates the protections afforded by the Petition Clause, unless the statute clearly provides otherwise
103
The Noerr-Pennington Rule
� Most courts denying this argument correctly rely on the United States Supreme Court ruling in Heintz v. Jenkins, 514 U.S. 291 (1995), where the FDCPA was held to apply “to attorneys who ‘regularly’ engage in consumer-debt-collection activity, even when that activity consists of litigation.”
� Since the FDCPA applies to attorneys collecting debts through litigation according to the Supreme Court, there is clearly no bar to asserting FDCPA violations committed during such litigation.
Statute of Limitations
� Should you calculate SOL from the date a collection complaint was filed in court or the date the complaint was served? See Naas v. Stolman, 130 F.3d 892 (9th Cir. 1997)(the date the underlying lawsuit is filed is the appropriate date).
� But Naas and the cases it relied on did not involve situations where service occurred after the SOL had expired.
� PRACTICE TIP: REMIND YOUR CLIENTS OF THE VERY SHORT 1 YEAR SOL
Materiality – Does the conduct matter?
� Miller v. Javitch, Black & Rathbone, 561 F.3d 588, 596 (6th Cir. 2009) � a false statement must be material to be actionable under the FDCPA
� Hahn v. Triumph Partnerships, LLC, 557 F.3d 755 (7th Cir. 2009)(“Materiality is an ordinary element of any federal claim based on a false or misleading statement.”)
� BUT, statements are material if they: (1) influence a consumer’s decision to pay an alleged debt; or (2) impair the consumer’s ability to challenge the alleged debt.
� Watch out for communications that are NOT debt collection efforts or that do not come from true debt collectors
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More Materiality
� Gabrielle v. American Home Mortgage Servicing, Inc., No. 12-985-cv, 2012 WL 5908601 (2d Cir. Nov. 27, 2012) (unpublished decision)
� Lee v. Forster & Garbus LLP, 926 F.Supp.2d 492(E.D.N.Y. Mar. 1, 2013)
� Easterling v. Collecto, Inc., 692 F.3d 229 (2d Cir. 2012)
The Litigation Privilege
� FDCPA claims must be presented as challenging the debt collector’s practices, not that there is a procedural defect in the state court complaint. State pleading defects are not FDCPA violations. See, e.g., Beler v. Blatt, Hasenmiller, 480 F.3d 470 (7th Cir. 2007)(“[W]e suggested (though we did not have an occasion to hold) that the state’s rules of procedure, not federal law, determine which facts, and how much detail, must be included in documents filed with a clerk of court for presentation to a judge.”)
More Litigation Privilege
� But: “Beler involved allegations regarding the contentof a state complaint and actions that potentially violated other federal statutes but not the FDCPA itself; it did not deal with allegations of misrepresentations in pleadings.” Guevara v. Midland Funding NCC-2 Corp. and Blatt, Hasenmiller, Leibsker & Moore, LLC, No. 07 C 5858, 2008 U.S. Dist. LEXIS 47767, *15 (N.D. Ill. June 20, 2008)(emphasis in original).
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Communications to Counsel –Circuit Split
� Guerrero v. RJM Acquisitions LLC, 499 F.3d 926 (9th Cir. 2007) – communications to the consumer’s attorney are not actionable
� Rationale: the Act’s underlying policy is to protect consumers, and the attorney acts as “an intermediary between a debt collector and a consumer [so] we assume the attorney, rather than the FDCPA, will protect the consumer…”
� BUT, see, e.g., Sayyed v. Wolpoff & Abramson, 485 F.3d 226 (4th Cir. 2007), broad definition of “communication” under the Act renders communications to debtor’s counsel covered
Communications to Counsel –Practical Considerations
�Which Circuit are you in? Second and Ninth vs. Third, Fourth, Seventh, and Tenth
�Fact Patterns: “I’m going to arrest your client” vs. “The amount of the debt is $450.00”
�Review Section 4.6.6 of the NCLC Manual
Pre-Suit Considerations (i.e., Defenses You Can’t Win)
� You haven’t sued on a “consumer debt”
�Watch out for business debts and debts incurred in the absence of a “transaction” (e.g., traffic/parking tickets, impound fees, child support orders, shoplifting, subrogation claims).
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More Pre-Suit Considerations
�Are you pursuing the original creditor?
�Was the debt in default when it was acquired?
�Don’t forget about Section 1692f(6) –expands debt collector definition to those attempting to collect security interests
Any Questions?
� Brian L. Bromberg: [email protected]
� Telephone: (212) 248-7906
� Stacy M. Bardo: [email protected]
� Telephone: (312) 782-5808
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Telephone Consumer Protection Act Basics San Antonio 2014
Keith J. Keogh
KEOGH LAW, LTD.
OVERVIEW OF THE TCPA
Junk Faxes Autodialed calls Text Message Ads Pre-Records Do Not Call Violations
to Cell
The TCPA prohibits sending an unsolicited advertisement to a telephone facsimile machine.
47 U.S.C. §227(b)(1)(c) provides in part:
(b) Restrictions on use of automated telephone equipment
(1) Prohibitions
It shall be unlawful for any person within the United States–
...
(c) to use any telephone facsimile machine, computer, or
other device to send an unsolicited advertisement to a telephone
facsimile machine;...
The TCPA defines “unsolicited advertisement”
as “any material advertising the commercial availability or quality of any property, goods, or
services which is transmitted to any person without that person’s express invitation or
permission, in writing or otherwise.” 47 U.S.C. §227(a)(5).
108
The “established business relationship” exception to liability requires three factors:
(I) the unsolicited advertisement is from a sender with an established business relationship with the recipient
(ii) the sender obtained the number of the telephone facsimile machine through –
(I) the voluntary communication of such number, within the context of such established business
relationship, from the recipient of the unsolicited advertisement, or
(II) a directory, advertisement, or site on the Internet to which the recipient voluntarily agreed to
make available its facsimile number for public distribution... ; and
(iii) the unsolicited advertisement contains a notice meeting the requirements under
paragraph (2)(D) .... 47 U.S.C. § 227(b)(l)(C); see also 47 U.S.C. § 227(b)(2)(D) (“OPT OUT NOTICE”)
Opt Out Notice required even if the recipients did provide “prior express invitation or permission.” 47 CFR
64.1200(a)(3)(iv); Holtzman v. Turza, 2010 U.S. Dist. LEXIS 80756, *14 (N.D. 2010) (“47 U.S.C. §§ 227(b)(1)(C)(iii)
and (b)(2)(D) require that all fax advertisements include a clear and conspicuous opt-out notice informing a
recipient that she can request that the sender not transmit any future unsolicited fax advertisements”);
MSG Jewelers, Inc. v. C & C Quality Printing, Inc., Case No. 07AC-028676 at *3 (Mo. Cir. July 17, 2008)("[a]ll
advertising faxes including those sent with the express permission of the recipient - must include a proper
opt-out notice.").
But See Nack v Walburg, 2011 WL 310249, at * 4 (E D Mo) (Opt Out Notice only required for unsolicited faxes).
The TCPA makes it unlawful for any person within the United States . . . to make any call (other
than a call made for emergency purposes or made with the prior express consent of the called
party) using any automatic telephone dialing system or an artificial or prerecorded voice . . .”
47 U.S.C. § 227(b)(1)(A)(iii)
Congress found that unwanted automated calls were a “nuisance and an
invasion of privacy, regardless of the type of call” and that banning such calls
was “the only effective means of protecting telephone consumers from this
nuisance and privacy invasion.” Pub. L. No. 102-243, §§ 2(10-13)(Dec. 20, 1991)
codified at 47 U.S.C. § 227.
The TCPA defines ATDS as “equipment which has the capacity - (A) to store or produce telephone
numbers to be called, using a random or sequential number generator; and (B) to dial such
numbers.” 47 U.S.C § 227(a)(1).
Focus on ATDS is whether it has the capacity and not whether it actually used that capacity.
Satterfield, 569 F. 3d at 951; Lozano, 702 F. Supp. 2d at 1010-1011; Griffith v. Consumer Portfolio
Serv., 2011 U.S. Dist. LEXIS 91231 (N.D. Ill. Aug. 16, 2011); Vance v. Bureau of Collection
Recovery LLC, No. 10-06324, 2011 U.S. Dist. LEXIS 24908 at *6 -7 (N.D.Ill., March 11, 2011);
Lozano v. Twentieth Century Fox Film Corp., 702 F. Supp. 2d 999, 1010-1011 (N.D. Ill. 2010);
Hicks v. Client Services, Inc., 2009 WL 2365637 (S.D.Fla. June 9, 2009); See also Joffe v. Acacia Mtg
Corp., 121 P.3d 831, 839 ( Ariz. App. 2005). Kazemi v. Payless Shoesource, Inc., 2010 U.S. Dist. LEXIS
27666 (N.D. Cal. Mar. 12, 2010).
CAPACITY TO AUTODIAL & CONSENT
Capacity issue is important as virtually no one uses a pure autodialer. Instead, most
most companies use some variation of a predictive dialer, which is simply a more
productive dialer.
The TCPA directed the FCC to prescribe regulations implementing the restrictions on the use of
autodialers. 47 U.S.C. § 227(b)(2). Following Congress’s directive, the FCC has expanded the
definition of an ATDS to include predictive dialers. In the Matter of Rules and Regulations
Implementing the Telephone Consumer Protection Act of 1991, CG Docket No. 02-278, 18 FCC Rcd
14014, 14093 (June 26, 2003) (“2003 Order”).
In 2008, in response to a petition by debt collection trade association ACA International,
the FCC held the TCPA applied to debt collectors and again expressly reaffirmed that predictive
dialers used for collections calls are ATDS when it is “equipment paired with predictive dialing
software and a database of numbers.” In the Matter of Rules and Regulations Implementing the
Telephone Consumer Protection Act of 1991; Request of ACA International for Clarification and
Declaratory Ruling, CG Docket No. 02-278, 23 FCC Rcd 559, 565-566 (Dec. 28, 2007)
Unless the cell was provided by the consumer (not skipped traced) there is no consent even
under the FCC’s 2008 order and the caller has the burden to prove consent.
The FCC’s holdings with respect to predictive dialers are final and controlling under the Hobbs
Act. CE Design, Ltd. v. Prism Business Media, Inc., 606 F. 3d 443, 446 (7th Cir. 2010).
109
Text Messages are calls under the TCPA. Satterfield v. Simon & Schuster, Inc., 569 F.3d 946
(9th Cir. 2009); Lozano v. Twentieth Century Fox Film Corp., 702 F. Supp. 2d 999, 1010-1011 (N.D. Ill.
2010); Abbas v. Seeling Source, LLC, 2009 WL 4884471, 2009 U.S. Dist. LEXIS 116697 (N.D. Ill. 2009)
(“[N]either the above-quoted dictionary definition nor the TCPA requires that a ‘call’ be ‘oral.’
Indeed, if such a requirement existed, the TCPA’s prohibition on calls to ‘a paging service,’ would be of
little effect.”)
A “telephone solicitation” is defined as “the initiation of a telephone call or message for the
purpose of encouraging the purchase or rental of, or investment in, property, goods, or services,
which is transmitted to any person,
but such term does not include a call or message (A) to any person with that person’s
prior express invitation or permission, (B) to any person with whom the caller has an
established business relationship, or (C) by a tax- exempt nonprofit organization. ”
47 U.S.C. § 227(a)(3); 47 C.F.R. § 64.1200(f)(12).
A “prerecorded messages containing free offers and information about goods and services that
are commercially available are prohibited to residential telephone subscribers, if not otherwise
exempt.” TCPA Revisions Report and Order, 18 FCC Rcd 14097-98 (2003).
Telemarketing to phone numbers (residential or cell) on the federal or company
specific do-not-call list strictly prohibited.
Does not matter if prerecorded or automatic.
Anyone who is on the DNC list that has received two telemarketing calls within
a twelve month period can sue (for both calls).
No PROA if just one call. 47 U.S.C. 227(c)(5).
110
47 U.S.C. § 227(b) Restrictions on use of automated telephone equipment (1) Prohibitions It
shall be unlawful for any person within the United States, or any person outside the United
States if the recipient is within the United States—
(A) to make any call (other than a call made for emergency purposes or made with the prior
express consent of the called party) using any automatic telephone dialing system or an
artificial or prerecorded voice—
(i) to any emergency telephone line (including any “911” line and any emergency line of a
hospital, medical physician or service office, health care facility, poison control center, or
fire protection or law enforcement agency);
(ii) to the telephone line of any guest room or patient room of a hospital, health care
facility, elderly home, or similar establishment; or
(iii) to any telephone number assigned to a paging service, cellular telephone service,
specialized mobile radio service, or other radio common carrier service, or any service
for which the called party is charged for the call;
(B) to initiate any telephone call to any residential telephone line using an artificial or
prerecorded voice to deliver a message without the prior express consent of the called party,
unless the call is initiated for emergency purposes or is exempted by rule or order by the
Commission under paragraph (2)(B);
Telemarketing EBR: 47 CFR
64.1200(f)(5)• (5) The term established business relationship for purposes of telephone
solicitations means a prior or existing relationship formed by a voluntary two-way communication between a person or entity and a residential subscriber with or without an exchange of consideration, on the basis of the subscriber's purchase or transaction with the entity within the eighteen (18) months immediately preceding the date of the telephone call or on the basis of the subscriber's inquiry or application regarding products or services offered by the entity within the three months immediately preceding the date of the call, which relationship has not been previously terminated by either party.
• (i) The subscriber's seller-specific do-not-call request, as set forth in paragraph (d)(3) of this section, terminates an established business relationship for purposes of telemarketing and telephone solicitation even if the subscriber continues to do business with the seller.
• (ii) The subscriber's established business relationship with a particular business entity does not extend to affiliated entities unless the subscriber would reasonably expect them to be included given the nature and type of goods or services offered by the affiliate and the identity of the affiliate.
Section 227(b)(3)(B) provides a minimum of $500.00 in statutory damages per fax, call or message.
Hinman v. M and M Rental Center Inc., 596 F. Supp. 2d 1152 (N.D. Ill. 2009). Awarding $500 per
facsimile for a total of $3,862,500 based on the total of 7,725 unsolicited advertisements that
defendant sent to the class. The TCPA prohibits the sending of unsolicited fax advertisements and
make no reference at all to receipt. Id. at 1159.
If a violation was “willful or knowing”, the court can treble the amount under 227(b)(3)(c).
The FCC has held:
It is irrelevant to a finding of willfully or knowingly whether the junkfaxer intended to violate
federal law. FCC Staff Opinion (letter from Acting Chief of the Enforcement Division, Common
Carrier Bureau, Glenn T. Reynolds to Robert Biggerstaff, dated July 27, 1999).
Sengenberger v. Credit Control Services, Inc., 2010 U.S. Dist. LEXIS 43874 (N.D. Ill. May 5, 2010)
(granting summary judgment on TCPA claim and finding that an intentional act equates to willfully
or knowingly); See Nicholson v. Hooters of Augusta, Inc., 95-RCCV-616, Richmond County, Ga
(Judge Brown, April 25, 2001), Jury awarded $3,000 for each of the 1,321 class members for the
transmitting of six unsolicited facsimile advertisements. The Court tripled that amount to $9,000
per class member for a total of $11,889,000.
111
FEDERAL COURTS HAVE JURISDICTION OVER TCPA CLAIMS
Cite as: 565 U. S. ____ (2012) 1
Opinion of the Court NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Wash- ington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.
SUPREM E COURT OF THE UNITED STATES No. 10-1195
MARCUS D. MIMS, PETITIONER v. ARROW FINANCIAL SERVICES, LLC
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
[January 18, 2012]
JUSTICE GINSBURG delivered the opinion of the Court.
Mims v. Arrow Financial Services, Inc., 132 S.Ct. 740 (Jan. 18, 2011).
In re Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, GC
Doc. 02-278, 23 FCC Rcd. 559, 565 (January 4, 2008) predictive dialers are ATDS and creditor on
whose behalf debt collector is calling is liable for calls.
On February 15, 2012, the FCC issued a new Report and Order that redefined “prior express
consent” for all telemarketing calls.
- Debt collection calls and several other categories of calls are not affected.
- signed by the consumer and be sufficient to show that he or she:
- (1) received “clear and conspicuous disclosure” of the consequences of providing the
requested consent, i.e., that the consumer will receive future calls that deliver
prerecorded messages by or on behalf of a specific seller; and
- (2) having received this information, agrees unambiguously to receive such calls at a
telephone number the consumer designates.
The “Hobbs Act” a/k/a “Administrative Orders Review Act” 28 USC 2342(1); 47 USC 402(a)
provides specific remedies for reviewing FCC orders, which do not include District Court review.
CE Design, Ltd. v. Prism Bus. Media, Inc., 606 F.3d 443 (7th Cir. 2011), but compare Leyse v. Clear
Channel Broad., Inc., 2012 FED App. 0307P (6th Cir.) (6th Cir. Ohio 2012) holding that same FCC
Regulations regarding the TCPA is only entitled to Chevron deference and Hobbs Act does not
prevent court from reviewing.
Debt Collection Calls to Cell
Keogh Law, Ltd.
The FCC’s rules do not discriminate based on the content of any autodialed call to a cell
phone. Rather, the broad prohibitions of § 227(b)(1)(A)(iii) apply “regardless of the
content of the call. 2008 Ruling.
The 2008 Ruling did excluded debt collection calls for calls to land lines and held must be
telemarketing. Not surprisingly, courts have followed suit. i.e. Meadows v. Franklin
Collection Serv., 414 Fed. Appx. 230 (11th Cir. 2011) (“…47 U.S.C. § 227(b)(1)(B). That
section makes it unlawful ‘to initiate any telephone call to any residential telephone line
using…’”).
The fact that the FCC and the Eleventh Circuit recognizes that § 227(b)(1)(B) held limited
to telemarketing calls to land lines is unremarkable and wholly irrelevant to a violation of
227(b)(1)(A)(iii). See also Mims v. Arrow Fin. Serv., LLC, 132 S. Ct. 740 (2012), which
involved debt collection calls to a cell phone under the TCPA.
Gager v Dell, 3rd Circuit-rejected creditor's argument that its autodialed debt collection
calls should be exempt from TCPA liability based on their content, as the particular calls
were placed to the debtor's cell phone. Held debt collection exemptions "do not apply
to cellular phones; rather, these exemptions apply only to autodialed calls made to land-
lines"
112
“The plain language of section 227(b)(1) makes it clear that the "recipient" of a
call violative of that provision may sue — not merely, as ERC argues, the
"intended recipient."
Soppet v. Enhanced Recovery Co., LLC, 679 F.3d 637 (7th Cir. 2012)
“Wrong Number” calls, where plaintiff inherited a debtor’s phone
number, are actionable because not made with “prior express consent”
of recipient.
Use of cell phone airtime minutes constitutes “out of pocket” loss.
The court made loose use of the term subscriber, which some defendants are
now arguing that the end user of the cell phone must be the
“subscriber” on the bill in order to have standing.
Standing to Sue
Keogh Law, Ltd.
DON’T NEED TO BE A CALLED PARTY
The TCPA uses the term “called party,” only when setting forth an exception to liability,
stating that a person does not violate the TCPA if the call is “made for emergency
purposes or made with the prior express consent of the called party.”See47 U.S.C. §
227(b)(1)(A). The statute does not use the term “called party” when defining who may
assert a TCPA claim.
1. Page v. Regions Bank, 2012 U.S. Dist. LEXIS 185440 (N.D. Ala. Aug. 22, 2012)
2. Page collects the following cases that support this holding:
Harris v. World Fin. Network Nat'l Bank, 867 F.Supp.2d 888, 2012 WL 1110003, at *5
(E.D.Mich. Apr. 3, 2012); Anderson v. AFNI, Inc., No. 10–4064, 2011 WL 1808779, at *7
(E.D.Pa. May 11, 2011); D.G. ex rel Tang v. William W. Siegel & Assocs., Attorneys at Law,
LLC, 791 F.Supp.2d 622, 625 (N.D.Ill.2011); Tang v. Med. Recovery Specialists, LLC, No. 11–
C2109, 2011 WL 6019221, at *2 (N.D.Ill. July 7, 2011) (slip op.); Kane v. Nat'l Action Fin.
Servs., No. 11–cv–11505, 2011 WL 6018403, at *7 (E.D.Mich. Nov. 7, 2011) (slip op.)
The burden is on the caller to show that the wireless number was provided by the consumer to
the creditor, and that such number was provided during the transaction that resulted in the debt
owed. See In the Matter of Rules and Regulations Implementing the Telephone Consumer
Protection Act of 1991 (“2008 FCC Ruling”), 23 F.C.C.R. 559 at ¶ 10 (Dec. 28, 2007)(Emphases added).
"during the transaction that resulted in the debt owed," includes voluntary providing the cell
sometime after the account is opened. Moore v. Firstsource Advantage, LLC, 2011 U.S. Dist.
LEXIS 104517, 30-31 (W.D.N.Y. Sept. 15, 2011). Also held revocation of consent must be in writing.
During Transaction may not be limited to Initial Contract
113
Keogh Law, Ltd.
On February 15, 2012, the FCC issued a new Report and Order that redefined “prior
express consent” for all telemarketing calls.
- Debt collection calls and several other categories of calls are not affected.
- signed by the consumer and be sufficient to show that he or she:
- (1) received “clear and conspicuous disclosure” of the consequences of
providing the requested consent, i.e., that the consumer will receive future
calls that deliver prerecorded messages by or on behalf of a specific seller; and
- (2) having received this information, agrees unambiguously to receive such
calls at a telephone number the consumer designates.
The FCC unequivocally held that consumers may effectively revoke consent under the
TCPA In re Rules and Regulations Implementing the Telephone Consumer Protection Act of
1991, Declaratory Ruling as to Petition of SoundBite Communications, Inc., CG Docket No.
20-278 (Nov. 29, 2012) (“SoundBite Ruling”).
Recognizing “neither the text of the TCPA nor its legislative history directly addresses the
circumstances under which prior express consent is deemed revoked,” the FCC, citing its
powers to interpret the TCPA, held that a consumer can opt-out of “prior express consent”
under §227(b)(1)(A). A one-time text message confirming a consumer’s request to opt out
of autodialed text messages to her cell phone would not violate the TCPA, but additional
messages would violate the TCPA because consent to call has been revoked
FCC “CLARIFIES” CONSENT
Keogh Law, Ltd.
Gager v. Dell Fin. Servs.
3rd Circuit examined:
(1) whether the TCPA allows a consumer to revoke her "prior express consent" to be
contacted via an automated telephone dialing system on her cellular phone and
(2) if a revocation right exists, whether there is a temporal limitation on that right.
“Our analysis of the scope of the TCPA is guided by the text of the statute, the FCC's
interpretation of the statute, the statute's purpose, and our understanding of the
concept of consent as it exists in the common law. See Restrepo v. Att'y Gen. of U.S., 617
F.3d 787, 793 (3d Cir. 2010). Considering all of these factors, we conclude that Gager has
stated a plausible claim for relief because (1) the TCPA affords her the right to revoke her
prior express consent to be contacted on her cellular phone via an autodialing system
and (2) there is no temporal limitation on that right.”
Gager v. Dell Fin. Servs., LLC, 2013 U.S. App. LEXIS 17579 (3d Cir. Pa. Aug. 22, 2013)
4 Years Default SOL Applies
Hawk Valley, Inc. v. Taylor, Civ. A. No. 10-cv-00804, 2012 U.S. Dist. LEXIS 47024, at *20 (E.D. Pa.
Mar. 30, 2012) (the court concluded that based on Mims, the TCPA claim was "subject to the
federal four-year 'catch-all' statute of limitations.") See also City Select Auto Sales, Inc. v. David
Randall Assocs., Civ. A. No. 11-2658, 2012 U.S. Dist. LEXIS 16118, at *2-3 (D.N.J. Feb. 7, 2012)
("[A] four-year statute of limitations applies to actions under the Telephone Consumer
Protection Act.");
Still litigated because of prior split in authority, but should not survive
Sawyer v. Atlas Heating and Sheet Metal Works, Inc., 642 F.3d 560, 561 (7th Cir. 2011)
applied federal default SoL 28 U.S.C. 1658. 2nd Circuit found state law SOL applicable and not 4
years under 28 U.S.C. § 1658(a). Giovanniello v. ALM Media, LLC, 660 F.3d 587, 591-592 (2d Cir.
2011)
The 2nd Cir. construed the TCPA's "otherwise permitted" provision, to mean TCPA claim
"cannot be brought if not permitted by state law. Reasoning based on cases holding
that there was no federal jurisdiction under the TCPA.
114
ON BEHALF OF LIABILITY
Keogh Law, Ltd.
FCC Orders Previously held: Party “on whose behalf” a telephone solicitation is made
bears ultimate responsibility for any violations of the TCPA.
Previously debate whether this was strict liability or vicarious liability
2013 FCC ORDER
FCC clarified its prior orders and held that “the prohibitions contained in section 227(b)
incorporate the federal common law of agency and that such vicarious liability principles
reasonably advance the goals of the TCPA.” 2013 FCC Order at p. 14, ¶ 35.
Keogh Law, Ltd.
To provide guidance, the 2013 Order stated:
“apparent authority may be supported by evidence that the seller allows the outside
sales entity access to information and systems that normally would be within the
seller’s exclusive control, including: access to detailed information regarding the
nature and pricing of the seller’s products and services or to the seller’s customer
information. The ability by the outside sales entity to enter consumer information into
the seller’s sales or customer systems, as well as the authority to use the seller’s trade
name, trademark and service mark may also be relevant.” 2013 Order p. 19, ¶ 46.
“a seller may be bound by the unauthorized conduct of a telemarketer if the seller is
aware of ongoing conduct encompassing numerous acts by the telemarketer and the
seller fails to terminate, or, in some circumstances, promotes or celebrates the
telemarketer.” Id at p. 14, n. 104.
In summary, the FCC stated that: “we see no reason that a seller should not be liable
under [227(b)] for calls made by a third-party telemarketer when it has authorized
that telemarketer to market its goods or services.” p. 20, ¶ 47 (emphasis added).
Keogh Law, Ltd.
Smith v. State Farm Mut. Auto. Ins. Co., 2013 U.S. Dist. LEXIS 135230 (N.D. Ill. Sept. 23,
2013) (Granting motion to dismiss for failure to sufficiently allege agency.)
Defendant can be vicariously liable for a third-party telemarketer's behavior under (1)
formal agency, (2) apparent authority, and (3) ratification theories.
Smith found that plaintiff needs to specifically identify which theory of liability applies
here, and sufficiently allege facts to support any of those theories.
Creates pleading problem when you need discovery before you can allege facts to
support agency.
Expect to see more motions to dismiss especially from debt collectors where contracts
disclaim agency.
NEED TO ALLEGE AGENCY
115
Legal Ethics and
Fair Debt Collection
Litigation
Brian L. Bromberg(Bromberg Law Office, P.C. New York City)
©2014
(Materials developed with
Daniel Blinn and Stephen Gardner)
Topics:
1. Taping telephone calls.
2. Representing multiple clients.
3. Questionable agreements with
defendant.
4. Attorney Fee Issues
5. Advertising
Topic 1:
Can we tape?
116
Maybe.
State Wiretap Laws
State law often only prohibits the
“interception” of a communication, but in about 10 states, consent of both parties is required.
But if it’s legal, it’s ethical, right?
GENERALLY NOT.ABA Opinion 337 (1974) held that recording without consent was conduct
involving fraud, dishonesty or misrepresentation, which is prohibited by
Rule 8. 4(a).
The idea is that surreptitious taping by a
lawyer is seen as deceptive by the public.
117
WELL, OK, BUT...
In 2002, the ABA reversed itself
and held that “the mere act of secretly but lawfully recording a conversation inherently is not
deceitful.” Opinion 01-422
NOT SO FAST—MAYBE NOT.
Some states may still follow the
older opinion:
“Attorneys should not electronically record a conversation with another party, without first informing that
party that the conversation was being recorded.”
Texas Ethics Op. 514 (1996)
So can I just get my client to tape?
AGAIN, GENERALLY NO.
An attorney may not solicit the aid of his or her clients to undertake an action that the attorney is
ethically prohibited from undertaking.
118
“An attorney may not circumvent
his or her ethical obligations by requesting that clients secretly
record conversations to which the attorney is a party.” Tex. Ethics Op. 514.
So, I’d better not, right?
But wait, there’s more ambiguity, at least in two sets of circumstances.
1. In a 2003 Formal Opinion, the
Association of the Bar of the City of New York concluded that attorneys
may not ROUTINELY tape record conversations without disclosing the
act of recording, but they may do so if
the attorney reasonably believes that disclosure of the tape recording would
impair pursuit of a societal good…
119
such as: thwarting ongoing criminal or
other significant misconduct –e.g. threats against the attorney, the
attorney's client, or regarding a witness whom the attorney has reason to believe may commit perjury.
However, "merely wishing to obtain an accurate record of what was said does
not justify undisclosed taping." Formal Op. 2003-02.
� 2. Some courts have allowed
surreptitious tape recording by clients or
by the attorney's investigators, where the
recordings did not solicit privileged
information or attempt to trick the other
party into engaging in conduct that they
would not otherwise do.
One of the Key Decisions
� See, e.g., Mena v. Key Food Stores Co-
op., Inc., 758 N.Y.S.2d 246, 247 (N.Y.
Sup. Ct. 2003) (racial harassment claims;
plaintiffs' attorney directed them to tape
record manager who made racist
remarks).
� Note: This is a trial court decision.
120
Implied Consent?
� What if when the d/c calls, he says the call
may be monitored or recorded for quality
assurance purposes? = consent to recording by
your client?
� Note: The failure of a business in a one-party-consent state to
give notice of recording to a consumer in a two-party consent
state may give rise to a private right of action. Kearney v.
Salomon Smith Barney, Inc., 39 Cal.4th 95 (2006) (illegal to
record calls by clients in California to brokers in Georgia
without giving notice).
Bottom line: research your ownState’s laws carefully.
A good place to start your research is:“Can We Tape?” Article at
The Reporters Committee for Freedom of the Press website:
www.rcfp.org/taping/index.html
Topic 2:
Representing
Multiple Clients
121
REPRESENTING MULTIPLE
CLIENTS
� Rule 1.7 Conflict Of Interest: Current
Clients
� (a) Except as provided in paragraph (b), a
lawyer shall not represent a client if the
representation involves a concurrent conflict of
interest.
� A concurrent conflict of interest exists if:
� (1) the representation of one client will be directly adverse to another client; or
� (2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.
� (b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if:
� (1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client;
*******************
� (4) each affected client gives informed consent, confirmed in writing.
122
Be Careful With Aggregate
Settlements!!� SETTLEMENTS:
� Rule 1.8 (g) A lawyer who represents two or more
clients shall not participate in making an aggregate
settlement of the claims of or against the clients
unless each client gives informed consent, in a
writing signed by the client. The lawyer's disclosure
shall include the existence and nature of all the claims
involved and of the participation of each person in the
settlement.
What to do???
� Sample Retainer Letter Term:
�Understand firm represents multiple
clients
�This may give rise to potential conflicts
of interest by the firm and its clients
�AND
� In the event of an aggregate settlement
for all clients on XXX issue, your
individual recovery will be subject to
your agreement, but if agreement can
not be reached, then the matter will be
decided by a special master, mediator
or court.
123
Topic 3:
Controversial Agreements
with Defendants.
� What if defense counsel conditions settlement
on your agreeing not to sue the defendant
again on behalf of another plaintiff.
� If you don’t currently have another plaintiff
with an unfiled claim, are you even permitted
to agree to this to get the deal done?
� NO!
� Rule 5.6 Restrictions On Right To Practice
� A lawyer shall not participate in offering or
making:
� (b) an agreement in which a restriction on the
lawyer's right to practice is part of the
settlement of a client controversy
124
� So you refuse. But the lawyer still wants other
agreements from you. Four examples are:
� 1. Agree not to use information learned during
the case in any future representation against
the opposing party.
NO – SAME REASON –Rule 5.6(b)
� 2. Keep the terms of the settlement
confidential:
�A. Individual clients – ok if they consent.
�B. Class plaintiffs – never.
� 3. Keep the underlying dispute issues
confidential:
Potential problem – MRPC 3.4(f) provides that an attorney may
not “request a person other than a client to refrain from
voluntarily giving relevant information to another party unless:
(1) the person is a relative or an employee or other agent of a
client; and
(2) the lawyer reasonably believes that the person's interests will
not be adversely affected by refraining from giving such
information.
125
So, that’s defense counsel’s
problem, right? Not so fast:
Rule 8.4 prohibits an attorney from knowingly
assisting another attorney in committing an
ethical violation.
Best course is to insist on getting an ethics ruling
before communicating such an offer to the
client.
� 3. Agree to confidentiality of materials
obtained in discovery.
� A. Trade secrets and the like
� B. Other information - Public policy may counsel
your refusal to agree, but you can’t jeopardize a
settlement your client wants unless your client
consents.
State Bars clarify.
Attorney may not enter into settlement
agreement that restricts attorney’s right to
practice law by prohibiting future representation
of clients in cases where attorney might use
information not protected as a confidence or
secret under Code but nevertheless covered by
terms of settlement agreement.
NYS Bar Op. 730
Accord, DC Bar Op. 335 & LA County Bar Op. 512
126
ABA’s Position
� “Although a lawyer may participate in a settlement agreement
that prohibits him from revealing information relating to the
representation of his client, the lawyer may not participate or
comply with a settlement agreement that would prevent him
from using information gained during the representation in
later representations against the opposing party, or a related
party, except in limited circumstances. An agreement not to
use information learned during the representation effectively
would restrict the lawyer's right to practice and hence would
violate Rule 5.6(b).”� Formal Opinion 00-417, Settlement Terms Limiting a Lawyer’s Use of Information
Topic 4:
Fee Agreements
ATTORNEY FEE ISSUES
� Rule 1.5: Communicate the fee agreement to
the client, preferably in writing, before or
within a reasonable time after commencing the
representation.
� Contingent fee agreements must be signed by
the client.
� Contingent fee agreements must explain how
the fee will be calculated.
127
� HYBRID AGREEMENTS: contingent fee agreements between counsel and client are valid in cases where statutory fees are available. Venegas v. Mitchell, 495 U.S. 82, 86-89 (1990).
� Fee must still be reasonable.
� Is it ok to provide that the attorney shall receive the greater of her hourly rate or the contingent fee amount? Or that it’s at the attorney’s option?
� Does the possibility that an attorney fee award is taxable affect reasonableness?
� It’s not a listed factor in the ABA Rule
� Our advice: include a provision that explains
the purpose of “fee shifting” statutes and that
the attorney fees may exceed the recovery
available to the client.
128
� Simultaneous negotiation of damages and
attorney fees.
� Undesirable.
� Permissible. Evans v. Jeff D., 475 U.S. 717
(1986).
� Is negotiating separate amounts for damages and
attorney fees unethical?
� A division of a fee between lawyers who are not in the same firm may be made only if:
� (1) the division is in proportion to the services performed by each lawyer OR each lawyer assumes joint responsibility for the representation;
� (2) the client agrees to the arrangement, including the share each lawyer will receive, and the agreement is confirmed in writing; and
� (3) the total fee is reasonable.
Liability for
Costs and Expenses
� Query: Can plaintiff’s counsel advance all the
costs and expenses of litigation and agree to
recover those costs and expenses only if the
suit is successful?
� Related Query: What about in a class action?
129
History
� Traditionally, contingent fee agreements in
civil cases were illegal – they were considered
a form of champerty.
� Champerty: “An agreement between an officious intermeddler
in a lawsuit and a litigant by which the intermeddler helps
pursue the litigant’s claim as consideration for receiving part
of any judgment proceeds; specif., an agreement to divide
litigation proceeds between the owner of the litigated claim
and a party unrelated to the lawsuit who supports or helps
enforce the claim.” Black’s Law Dictionary (9th ed. 2009).
Contingent Fees:
The “Modern” View� “The rule as to champerty has been generally relaxed
under modern decisions and a majority of courts now
recognize that an agreement by which the attorney is
to receive a contingent fee, i.e., a certain part of the
avails of a suit or an amount fixed with reference to
the amount recovered, is valid as long as the attorney
does not agree to pay the expenses and costs of the
action.” Walter Wheeler Cook, “Quasi-Contracts,” in
1 American Law and Procedure 129 (1952)
(emphasis added).
The “Modern” View (Cont’d)
� The “modern” rule that lawyers may advance
the costs of litigation to a client provided that
the client remains “ultimately liable.”
� This “ultimately liable” language was adopted
Disciplinary Rule 5-103(b) of the ABA’s
Model Code of Professional Responsibility.
130
Effect on Class Actions
� In states in which the “ultimately liable”
language is used, federal courts have
frequently adopted a requirement that class
representatives must be willing to pay for a pro
rata share of costs should the suit be
unsuccessful. See, e.g., Berrios v. Sprint
Corporation, CV-97-0081(CPS), 1998 WL
199842 (E.D.N.Y. March 16, 1998).
The “Contemporary” View
� The “contemporary” view, as reflected in Rule
1.8(e) of the ABA’s Model Rules of
Professional Conduct, is that counsel can not
only advance costs, but may do so with the
expectation that counsel will cover the costs
even if the suit is unsuccessful.
Two Questions for Consideration
� First, is it a good idea to agree to cover the
costs of an unsuccessful lawsuit?
� On the one hand, does an agreement to eat the
costs strip the client of the sense of involvement in
the case?
� On the other hand, does a clause requiring the
client to eat the costs create undue fear in the
client?
131
What is the effect on class actions
of the new rule?
� The “contemporary” rule – i.e., the ABA
Model Rule 1.8(e) – undermines the rational
behind requiring clients to agree to pay a pro
rata share of the costs should a suit be
unsuccessful.
� So the pro rata share clauses should come out
of class-action retainer agreements . . .
� But who wants to be the guinea pig?
Finding Clients
� Topic 5: Advertising
Clients Wanted
Advertisements
Nonmisleading attorney advertisements are entitled to
First Amendment protection. Bates v. Arizona State
Bar, 433 U.S. 412 (1978)
Rule 7.2 contains substantial requirements and
limitations.
In-person solicitations are subject to state regulations
because they are “inherently conducive to . . .
misconduct.” Ohralik v. Ohio State Bar Ass’n, 436
U.S. 447 (1978). But see In re Primus, 436 U.S. 412
(1978), below.
132
Permitted Solicitations – Rule 7.2
A lawyer shall not initiate personal or live
telephone contact, including telemarketing
contact, with a prospective client for the
purpose of obtaining professional employment
. . .
Primary exceptions are for close friends,
relatives, and former clients
Another Exception
� Solicitation of prospective litigants by nonprofit organizations
that engage in litigation as a form of political expression and
political association constitutes expressive and associational
conduct entitled to First Amendment protection as to which
government may regulate only with narrow specificity. In re
Primus, 436 U.S. 412 (1978) (ACLU).
� In other words, some not-for-profit organizations (like the
ACLU) can do things that private for-profit attorneys are not
allowed to do. But if you work for a not-for-profit, do not
blindly rely on In re Primus.
Written Communications to
Prospective Clients
133
Written Communications to
Prospective Clients
Rule 7.3(b): Prohibits written solicitations that
are misleading or coercive or that are directed
to prospective clients who are particularly
vulnerable, are represented, or who do not
wish to receive solicitations
Requirements for Written
Communications
� Clearly and prominently labeled
“Advertising Material” in red ink on the first page of the
communication and the lower left corner of the envelope.
� The first sentence of any written communication shall be: “If
you have already retained a lawyer for this matter, please
disregard this letter.”
“Advertising Material”
Final Tips:
� Check Your State’s Rules for Variations
� For example, check for prohibitions on the use
of trade names or certain symbols (e.g., scales
of justice, courthouse, etc.)
� Check for record-keeping requirements (e.g.,
New York requires attorneys to file templates
of solicitation letters with the bar, together
with mailing lists of those to whom the letter
was sent).
134
More Final Tips:
� Check for prohibitions on making certain
representations: for example, many states
restrict the use of the word “specialize” – in
those states, use the words “focus” or
“concentrate” instead.
� If in doubt, call an ethics hotline or write to
ask for a formal opinion from a bar
association.
Even More Final Tips:
�But most important, if it
feels creepy, don’t do it!
�Ask yourself, “WWSD?”
WWSD:
What Would Spock Do?
135
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137
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140
141
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2011 SECOND EDITION WITH 2013 SUPPLEMENT
COLLECTION ACTIONS: DEFENDING CONSUMERS AND THEIR ASSETS WITH COMPANION WEBSITE (596 pp. and 175 pp. supp.) $170. Conference price only: $125 !
The only treatise to detail consumer defenses to debt buyer and creditor collection lawsuits on credit card, medical, and other consumer debts. Includes steps to take after judgment for the collector or consumer and discussion on the new Treasury Rule protecting Social Security funds in bank accounts. The website contains sample answers, discovery, motions to dismiss, and
motions to set aside judgments, 50 state summary of exemption protections, federal exemption statutes, federal statutes on government collections, the Servicemembers’ Civil Relief Act and a practice manual on the Act.
2011 SEVENTH EDITION (IN TWO VOLS.) WITH 2013 SUPPLEMENT
FAIR DEBT COLLECTION WITH COMPANION WEBSITE (1274 pp. and 520 pp. Supp.) $210. Conference price only: $165 !
Cited three times by the U.S. Supreme Court in Jerman v. Carlisle 130 S.Ct. 1605 (2010).
“. . . the most widely used manual in the field.” — Aslam v. Malen & Assoc. 2009 WL 3853191 (E.D.N.Y. 2009)
The definitive FDCPA treatise: Preparation of a debt collection harassment case and FDCPA scope, requirements, remedies and defenses. Also covers punitive damages, state claims against creditors, unauthorized practice of law, credit counseling and debt settlement.
2012 FIRST EDITION WITH 2013 SUPPLEMENT
FEDERAL DECEPTION LAW: FTC and CFPB Rules, RICO, False Claims Act, Telemarketing, Debt Relief, and Parallel State Statutes WITH COMPANION WEBSITE (408 pp. and 110 pp. supp.) $120. Conference price only: $75 !
Full discussion of the Telephone Consumer Protection Act (TCPA) and other essential private remedies for marketplace deception.
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developments with your annual subscription to any NCLC treatise! (a $60 value)
― Conference Discounts expire Saturday, March 8, 2014 ―
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