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FAIR DEBT COLLECTION PRACTICES ACT ("FDCPA") & DEBT COLLECTION DEFENSE

I have substantial experience with and have successfully handled numerous FDCPA cases and claims, brought both as affirmative claims as well as in the context of counterclaims in response to lawsuits or payment demands brought or issued by debt collectors. For example, I have handled cases involving letters issued by debt collectors/debt collection agencies that are misleading - for example, a letter that is confusing or contradictory with respect to what one must do to preserve one's rights to dispute or receive validation of a debt under the FDCPA - or that contain inaccurate payment demands (i.e. the amount claimed is wrong).

Similarly, I have successfully defended numerous clients against claims by credit card companies or their assignees in conjunction with alleged credit card debt. Often the assignee has failed to obtain the proper documentation required to effectively and lawfully convey an ownership interest in the debt. See, e.g., Hutto v. CACV of Colorado, LLC (2011)[2011 WL 904212](plaintiff's counsel in that case is a fellow NACA member). See http://caselaw.findlaw.com/ga-court-of-appeals/1559838.html. And the courts have become rather strict about what is required in this regard. The same is true of claims brought directly by banks, such as Citibank or Discover, against consumers. Often times the bank no longer has the original Cardholder Agreement or other contractual documentary proof necessary to accurately establish either the existence or the exact terms of any putative applicable contract.

Thus, courts have frequently dismissed claims brought by credit card banks or their assignees when they cannot or do not provide the evidence required to establish their claim. [If you would like to learn more information about the particulars of the cases in which I have been involved, you can search the Fulton County State Court Docket online, for example, to find cases in which I am listed as counsel. However, as of 2011, I do not believe you can obtain the actual pleadings filed in the case without either a legal research tool like Westlaw or LexisNexis. However, you can use that information to obtain or review such documents from/at the Clerk's Office.]

In 2010 the U.S. Supreme Court issued a very significant Fair Debt Collection Practices Act [FDCPA] opinion in the case of Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich LPA, — U.S. —, 130 S. Ct. 1605 (2010), which addressed the issue of the "in writing" requirement in conjunction with the FDCPA's Debt Validation provisions. See also Camacho v. Bridgeport Fin., Inc., 430 F.3d 1078 (9th Cir. 2005) and In Re: Hasson Turner, Slip Copy, 2010 WL 3211030 (M.D. Ala.). Specifically, these "in-writing" FDCPA cases are referring specifically to subsection (a)(3) of 1692g, not (a)(4), a subtle but crucial distinction. This can be very tricky because both of these subsections refer to disputing the debt and notifying the debt collector of the dispute, but, one refers to the ramifications of not disputing (but that notification/dispute can be oral), and the other refers to what the collector must/will [also] do.

The following is the text from the "Validation [or Verification] of Debts" section of the FDCPA. This can be a crucial tool for use by consumers when disputing (alleged) debts.

15 U.S.C. § 1692g - Validation of Debts 

(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 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 va-lidity 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; and

(5) a statement that, upon the consumer's written request within the thirty-day period, the debt collector will provide the consumer with the name and address of the original creditor, if different from the current creditor.

(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 ad-dress 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 re-ferred 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 over-shadow 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.

(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 commu-nication 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 ex-pressly required by the Internal Revenue Code of 1986, chapter 94 of this title [15 U.S.C.A. § 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 collection for purposes of this section.

If applicable, you understand and agree that neither I nor my firm perform, nor have or do we hold ourselves out as performing, "credit repair" services as such term is defined under the Credit Repair Organizations Act (15 U.S.C. § 1679 et seq.)[or any other related state or federal law or rule]. Thus, while the end result of certain of my legal services may result in the improvement of one's credit or credit score, to the extent I am engaged by a client to help him or her with any matter that involves the FCRA or other aspects of consumer credit, my services are limited to assisting with legitimate problems or disputes about erroneous or inaccurate information [i.e. reported with "less than maximum accuracy" as defined by the FCRA and caselaw] and, as with all other aspects of my practice, I do not and cannot promise a particular or favorable outcome. Furthermore, if and when I am retained to represent a client in conjunction with a disputed/inaccurate credit related matter [whether exclusively or along with other legal issues], the scope of my representation is not limited solely to or with a view towards "credit improvement". Rather, such matters comprise only a part of the overall scope of my representation. Please see my website above for additional information. 

 

In addition, neither I nor my office is a "mortgage loan originator" or lender as defined by either the GA Residential Mortgage Act [e.g. O.C.G.A. § 7-1-1000 et seq.] and or the Federal S.A.F.E. Act [Mortgage Licensing Act of 2008] and any mortgage or loan related services provided by me or my firm are or would be ancillary to the representation of the client and or otherwise exempt from the purview of same. 

 

Finally, neither I, my office nor the facsimile or telephone number(s) listed herein - or contained in any documents or links included or posted on this website - accept any commercial or advertising communications of any kind, which is strictly prohibited, and any provision or inclusion thereof is not intended as a waiver of any protections granted by the TCPA, JFPA, CAN-SPAM  Act(s) or any other applicable laws and shall not create or give rise to a "business relationship".