Would like to explore thoughts on whether a lump sum demand on either a dunning letter, or a summons constitutes an FDCPA violation as a false/MISLEADING statement about the amount/status/etc of a debt. I'd especially like to see Butch unleash on this and bring in congressional intent, as the caselaw is lite on the issue. Some thoughts and case discussion: ************* Plaintiff first argues that defendants falsely represented the amount of the debt plaintiff owed in the February 17, 2003 letter, in violation of 15 U.S.C. § 1692e(2)(A) (prohibiting "[t]he false representation of--(A) the character, amount, or legal status of any debt"); and 15 U.S.C. § 1692f(1) (prohibiting "[t]he 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 * Plaintiffs summons claims an amount representing not only the actual debt owed, but the maximum obtainable statutory damages that could be awarded against plaintiff in a civil action. This is impermissible, because "the â??amount of debtâ?? provision is designed to inform the debtor . . . of what the obligation is, not what the final, worst-case scenario could be." Veach v. Sheeks, 316 F.3d 690, 693 (7th Cir. 2003) (emphasis in original). * Cite: United States Court of Appeals Seventh Circuit No. 03-4108 JODI FIELDS,Appellant,v.WILBER LAW FIRM, P.C., Even if fees/etc are authorized by contract, as alleged in this case, and even if the fees are reasonable, debt collectors must still clearly and fairly communicate information about the amount of the debt to debtors. This includes how the total amount due was determined if the demand for payment includes add-on fee's, interest, expenses like attorneysâ?? fees or collection costs. â??A debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt.â? 15 U.S.C. § 1692e. As an example of such conduct, § 1692e(2)(A) states that it is a violation to falsely represent â??the character, amount, or legal status of any debt[.]â? Section 1692f states that â??a debt collector may not use unfair or unconscionable means to collect or attempt to collect any debt.â? An unsophisticated consumer could reasonably wonder why the bill was now $1696, even assuming DEF had saved the original contract that specified DEF could be charged for fees,interest, etc. It would be difficult for such a consumer to understand how a relatively modest balance had doubled in size. Cf. Johnson v. Revenue Mgmt. Corp., 169 F.3d 1057, 1060 (7th Cir. 1999) (â??Unsophisticated readers may require more explanation than do federal judges; what seems pellucid to a judge, a legally sophisticated reader, may be opaque to someone whose formal education didn't extend as far.â?). Or, an unsophisticated consumer may have lost the bill and forgotten the amount of the debt completely. In this circumstance, the debtor (or someone else paying bills for the debtor) might logically assume that DEF simply incurred nearly $1700 in charges. By leaving the door open for this assumption to be made, Pâ??s summons was misleading because it gave a false impression of the character of the debt. It is unfair to consumers under the FDCPA to hide the true character of the debt, thereby impairing their ability to knowledgeably assess the validity of the debt. One simple way to comply with § 1692e and § 1692f in this regard would be to itemize the various charges that comprise the total amount of the debt. *******
Where is the great and all powerful BUTCH? I would really like to here your wisdom on this subject. It comes up almost constatnly in this collections game, can we use it as a weapon in the fight?
Sorry xY, Been swamped. Personally I believe an argument can be made that your CA almost ALWAYS misrepresents the amount of the debt. (What better way for them to make extra money after all). Wether or not a Dunning notice, or any communication violates is a delicate issue. There's a case floating around somewhere where the following scenario occurred: Consumer gets a dunning letter offering a 20% discount but ONLY if consumer responds within 10 days. On day 11 consumer contacts CA and agrees to the offer. But then SUES CA for false and misleading representation. The letter said the offer was ONLY good for 10 days but accepted the offer on day 11. Consumer WON! LOL
Heh.... that cracks me up!!!! A well placed chuckle is as good as a doctors apple! I hope to gawd I dont get BANNED here, like I did on AoC. Still no explanation, guess I rubbed the wrong people the wrong way.... thought I was being helpful. Sheesh.
