Critical UPDATE ->

Re: Re: Re: Re: Re: Re: Critical UPDATE ->

See above, for the staff Opinion letter. FOIA is not necessary.

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Re: Re: Re: Re: Re: Re: Re: Critical UPDATE ->

If anyone needs it I'll fax it.

Better yet, send me a FOIA request and I'll fax it to you Sassy. It'll be much faster, I promise.

 

Re: Re: Re: Re: Re: Re: Re: Re: Critical UPDATE ->

Correct.

 

Re: Re: Critical UPDATE ->

Thanks Enigma;

• Butch, is this it?
  
  
  
  Document Links:
  Start of Document
  DISPOSITION:
  CORE TERMS:
  COUNSEL:
  JUDGES:
  OPINIONBY:
  OPINION:
  
  
  
  SHEPARD'S®
  
  1992 U.S. Dist. LEXIS 22793, *
  
  
  
  
  SYLVESTER DIAMOND, Plaintiff, v. MICHAEL J. CORCORAN, Defendant.
  
  File No. 5:92-CV-36
  
  UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN, SOUTHERN DIVISION
  
  1992 U.S. Dist. LEXIS 22793
  
  
  August 3, 1992, Decided
  August 3, 1992, Filed
  
  DISPOSITION: [*1] Judgment entered in favor of Plaintiff Sylvester Diamond and against Defendant Michael Corcoran.
  
  CORE TERMS: collection, collector, consumer, false representation, collect a debt, deceptive, information obtained, failure to disclose, reasonably adapted, actual damages, legal status, bona fide, sophisticated, credit union, legal proceedings, legal counsel, regretfully, complied, caption, pursued, notice
  
  COUNSEL: For SYLVESTER DIAMOND, plaintiff: Peggy L. Mac Dougall, UAW-GM Legal Services Plan, Lansing, MI.
  
  For MICHAEL J. CORCORAN, defendant: Patrick E. Heintz, Bishop & Heintz, P.C., Traverse City, MI.
  
  JUDGES: ROBERT HOLMES BELL, UNITED STATES DISTRICT JUDGE.
  
  OPINIONBY: ROBERT HOLMES BELL
  
  OPINION: This action arises under the Fair Debt Collection Practices Act (the "FDCPA"), 15 U.S.C. §§ 1692 -- 1692o. The matter is currently before the Court on the parties' cross-motions for summary judgment.
  
  On May 6, 1991, Defendant Corcoran, in his capacity as attorney for Lansing Automakers' Federal Credit Union ("LAFCU"), sent Plaintiff a collection letter regarding a debt owed to LAFCU. The letter is written on Defendant's law firm's letterhead and reads as follows:
  
  May 6, 1991
  Mr. Sylvester Diamond
  4034 Seaway Drive
  Lansing, Michigan 48911
  Re: Lansing Automakers' Federal Credit Union v. Sylvester Diamond
  Present Balance Due: $ 2,698.91
  Account No. 363500
  
  
  Dear Mr. Diamond:
  
  
  Regretfully, Lansing Automakers' Federal Credit Union has asked its legal counsel, the [*2] undersigned, to pursue your current delinquency with them. Your file will be pursued by every legal means until your account is brought current.
  
  Please contact John Bradley, of the Adjustments Department (517-321-6117), so that your credit union can avoid further legal expenses in this matter. If you have a problem with your account, let him know.
  
  Under the law, you have thirty (30) days to dispute the balance. If your written dispute of the debt is received by the credit union within 30 days, you will received written verification of the debt. If you do not dispute the validity of the debt in writing within 30 days of receiving this notice, we will assume that you agree to the validity of the debt. In any event, if you fail to make satisfactory arrangements on your account legal proceedings will commence.
  
  Sincerely,
  
  SMITH, JOHNSON, BRANDT & HEINTZ,
  
  ATTORNEYS, P.C.
  
  /s/
  
  Michael J. Corcoran
  
  In this action plaintiff alleges that the letter violates sections 1692e(2)(A), 1692e(10), 1692e(11), 1692e(13), and 1692g(a)(3) of the FDCPA.
  
  I.
  
  The FDCPA was enacted to prevent "abusive, deceptive, and unfair debt collection practices." 15 U.S.C. § 1692. [*3] Language alleged to violate the act is judged under the "least sophisticated debtor" standard. Smith v. Transworld Systems, Inc., 953 F.2d 1025, 1028 (6th Cir. 1992). The Sixth Circuit does not require the exact wording of the statute as long as the letter "adequately informs" the reader of the required information. Id. at 1029.
  
  After reviewing the letter and the statute, the Court finds the letter violates the FDCPA in several respects.
  
  The caption of the letter states: "Re: Lansing Automakers Federal Credit Union v. Sylvester Diamond". Following the caption is a statement that the matter has regretfully been referred to legal counsel and will be pursued by every legal means. Plaintiff is urged to contact the creditor so that the creditor can avoid "further" legal expenses.
  
  Section 1692e of the FDCPA states that "[a] debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt." It then provides a nonexhaustive list of specific conduct which violates this general proposition, including the false representation of the legal status of any debt or the false representation or [*4] implication that documents are legal process. 15 U.S.C. §§ 1692e(2)(A) and (13).
  
  Keeping in mind that the letter must be evaluated under the least sophisticated debtor standard, the Court finds that the letter gives the false appearance that legal proceedings have already commenced. The letter thus contains a false representation of the legal status of the debt in violation of 15 U.S.C. § 1692e(2)(A) and (13).
  

Continued:

 

Re: Re: Critical UPDATE ->

Continued:

• .
  
  
  The Court also finds a violation of 15 U.S.C. § 1692e(11). Section 1692e(11) provides that the failure to disclose clearly in all communications made to collect a debt or to obtain information about a consumer, that the debt collector is attempting to collect a debt and that any information obtained will be used for that purpose is a violation of the Act. There is no question that the failure to include this language is a violation of the act. Frey v. Gangwish, 970 F.2d 1516, 1992 WL 167528 at *3 (6th Cir. 1992).
  
  In Emanuel v. American Credit Exchange, 870 F.2d 805, 808 (2nd Cir. 1989), the letter at issue disclosed clearly that it was a communication to collect [*5] a debt and requested no information from the debtor. Nevertheless, the failure to disclose that any information would be used for debt collection purposes was deemed a violation of the FDCPA. Id.
  
  In the current case, Defendant advised Plaintiff to contact the adjustment department, but failed to advise that any information obtained would be used for the purpose of collecting the debt. The failure to include this required disclosure is a clear violation of § 1692e(11) of the Act.
  
  Section 1692e(10) of the Act provides that the use of any false representation or deceptive means to collect or attempt to collect any debt or to obtain any information concerning a consumer is a violation of the Act.
  
  The letter contains the following statement: "Under the law, you have thirty (30) days to dispute the balance." This statement gives the false impression that failure to respond within 30 days operates as a waiver of rights under the law and accordingly violates § 1692e(10).
  
  
  
  My Note: In other words, a "least sophisticated consumer" would be led to believe that if he has not disputed WITHIN this 30 days, he may not do so after. As we've stated since day ONE, this is NOT correct!
  
  
  Plaintiff also contends that the statement that the debt would be presumed to be valid if Plaintiff did not dispute the validity of the debt in writing violates § 1692g(a)(3) because the FDCPA does not require [*6] plaintiff to dispute the debt in writing. The Second Circuit held in Graziano v. Harrison, 950 F.2d 107, 112 (3rd Cir. 1991), that § 1692g(a)(3) contemplates that any dispute, to be effective, must be in writing, and therefore the letter's requirement that disputes be in writing did not render the statutory notice invalid.
  
  For the reasons stated the Court concludes that the letter violates sections 1692e(2)(A), 1692e(10), 1692e(11), and 16922(13) of the FDCPA. The Court finds no violation of section 1692g(a)(13).
  
  II.
  
  Defendant claims that despite the violations he may not be held liable under the FDCPA because he believed in good faith that the letter complied with the spirit of the FDCPA. The FDCPA includes a general defense provision:
  A debt collector may not be held liable in any action brought under this subchapter if the debt collector shows by a preponderance of evidence that the violation was not intentional and resulted from a bona fide error notwithstanding the maintenance of procedures reasonably adapted to avoid any such error.
  
  
  15 U.S.C. § 1692k(c).
  
  Defendant's claim that he believed in good faith that the letter [*7] complied with the spirit of the FDCPA does not meet the requirements of this provision. He has not shown that the violations were the result of a bona fide error or that he or his firm maintained procedures reasonably adapted to avoid any such error.
  
  This case differs materially from Smith, 953 F.2d at 1031, where a second collection letter was mailed inadvertently as a result of a clerical error. In that case the debt collector came forward with evidence that it maintained a detailed instruction manual describing the correct procedure.
  
  In this case Defendant claims he reviewed the law on a regular basis, but there is no evidence of any steps taken to conform the firm's collection letter to the requirements of the law.
  
  A finding of liability under the FDCPA may seem unduly harsh in the absence of harm to the debtor. The Sixth Circuit has acknowledged that the FDCPA is an "extraordinarily broad statute", but nevertheless requires that it be enforced as Congress has written it. Frey v. Gangwish, 970 F.2d 1516, 1521, 1992 WL 167528 at *5.
  
  III.
  
  The FDCPA provides that any debt collector who fails to comply with the Act is liable for actual damages, additional damages [*8] as the court may allow, but not exceeding $ 1000, and the costs of the action, together with a reasonable attorney's fee. 15 U.S.C. § 1692k.
  
  In this action Plaintiff alleges no actual damages. Plaintiff merely seeks statutory damages and attorney fees.
  
  Although Defendant sent out a nearly identical letter to another consumer after Plaintiff's attorney put him on notice of the alleged FDCPA violations, the Court does not find that Defendant intended to deceive or harass consumers or that the violations were frequent or persistent. Accordingly, because the liability stems from technical violations of the Act and not from any intentional abuse, the Court does not believe there is any basis for an award of statutory damages.
  
  The FDCPA does, however, mandate an award of costs and a reasonable attorney's fee to a successful consumer except in unusual circumstances. Graziano, 950 F.2d at 113. An award of an attorney's fee fulfills Congress's intent that the Act be enforced by debtors acting as private attorneys general. De Jesus v. Banco Popular de Puerto Rico, 918 F.2d 232, 235 (1st Cir. 1990). Attorney's fees have been awarded [*9] even where violations were so minimal that statutory damages were not warranted. Pipiles v. Credit Bureau of Lockport, Inc., 886 F.2d 22, 28 (2nd Cir. 1989); Emanuel, 870 F.2d at 809.
  
  Accordingly, the Court will enter judgment for Plaintiff and order Defendant to pay Plaintiff's costs and a reasonable attorney's fee.
  
  An order and judgment consistent with this opinion will be entered.
  
  Date: August 3, 1992
  
  ROBERT HOLMES BELL
  
  UNITED STATES DISTRICT JUDGE
  
  ORDER AND JUDGMENT
  
  In accordance with the opinion entered this date,
  
  IT IS HEREBY ORDERED that JUDGMENT is entered in favor of Plaintiff Sylvester Diamond and against Defendant Michael Corcoran.
  
  IT IS FURTHER ORDERED that Defendant shall pay to Plaintiff Plaintiff's costs and a reasonable attorney's fee.
  
  Date: August 3, 1992
  
  ROBERT HOLMES BELL
  
  UNITED STATES DISTRICT JUDGE
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Re: Re: Re: Re: Re: Re: Re: Re: Re: Critical UPDATE ->

Sorry Fun, didn't see your question.

It isn't.

 

ooops sorry.