FDCPA violations AFTER settlement - Credit Repair Forum from Creditnet
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  1. #1
    sparq is offline Senior Member
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    FDCPA violations AFTER settlement

    I wish I had found this forum sooner. I had no idea what my rights were, which is a sad testament to the state of consumer protection against abusive CAs. But I digress ...

    In March of this year I was sued by Apothaker Associates regarding an old Cap One debt. This was their first contact; I had never heard from Apothaker before. This was a real lawsuit; I was served by the sheriff and I had a date in small claims. Ultimately, I settled with Apothaker, went to the hearing, and won the suit.

    Now, after doing my homework, I'm enraged. Apothaker didn't send any of the "first contact" FDCPA notifications at all. The act and FTC opinion make it clear that even if "first contact" is litigation, the FDCPA notice must still be sent. It's a clear-cut, black-and-white FDCPA violation.

    Since I already paid the settlement in full, and since the court date has long since come and gone, can I still file suit for FDCPA violations? If so, how do I prevent them from lying and saying "Oh sure, we mailed a notice weeks before the lawsuit"?

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  3. #2
    sparq is offline Senior Member
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    A followup: I now see that a "legal pleading" can not be considered "initial contact" for the purpose of triggering the notice requirement under the FDCPA. I assume that a pleading is the same thing as a summons or a complaint. So if I understand correctly, a debt collector can just file suit and skip out on the FDCPA disclosure requirements entirely?

  4. #3
    jjgross is offline Senior Member
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    Quote Originally Posted by sparq View Post
    A followup: I now see that a "legal pleading" can not be considered "initial contact" for the purpose of triggering the notice requirement under the FDCPA. I assume that a pleading is the same thing as a summons or a complaint. So if I understand correctly, a debt collector can just file suit and skip out on the FDCPA disclosure requirements entirely?
    The ftc was set up for our protection it cleary states about protecting people of lesser knowledge that's us!So on that basis they took advantage of you even though the case is closed.You could refile unless it was dismissed with prejudice.I the violations are there you can sue.
    jjgross* The answer my friend is written on the wind

  5. #4
    sparq is offline Senior Member
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    Quote Originally Posted by jjgross View Post
    The ftc was set up for our protection it cleary states about protecting people of lesser knowledge that's us!So on that basis they took advantage of you even though the case is closed.You could refile unless it was dismissed with prejudice.I the violations are there you can sue.
    That's what I thought; the "least sophisticated consumer" idea. But since the law (FDCPA) was changed in 2006 to explicitly exclude pleadings as initial contact, wouldn't the CA be able to simply file for summary dismissal by arguing that their actions complied with the law?

    I'd like to dig around for some post-amendment case law where a court upheld the opinion that a pleading DID trigger FDCPA notification rights, but I have no idea where to look.

  6. #5
    jjgross is offline Senior Member
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    Quote Originally Posted by sparq View Post
    That's what I thought; the "least sophisticated consumer" idea. But since the law (FDCPA) was changed in 2006 to explicitly exclude pleadings as initial contact, wouldn't the CA be able to simply file for summary dismissal by arguing that their actions complied with the law?

    I'd like to dig around for some post-amendment case law where a court upheld the opinion that a pleading DID trigger FDCPA notification rights, but I have no idea where to look.
    Start with your state consumer law's,state ag office.It is time consuming but they are more knowledgeable people on here then me.maybe dumbbob or hedwick could help you
    jjgross* The answer my friend is written on the wind

  7. #6
    ccbob is offline Senior Member
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    It's possible the FDCPA doesn't apply if the lawyer was representing the OC, as opposed to acting as a 3rd-party debt collector. I'm not sure where the line is drawn in that case, but the FDCPA doesn't apply to the original creditor.

    I'm thinkin' this might best be chalked up to experience and remember that going to court doesn't have to be a bad thing. At the same time, settling before going to court doesn't have to be a bad thing, either.

  8. #7
    apexcrsrv is offline Registered User
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    Sure, you can file against the firm for FDCPA violation as a Plaintiff if two years have not expired since the case.

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