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Judge Grants Mixed Ruling in Yet Another Example of FDCPA Ambiguity

If you have dealt with a debt collector and have concerns about the collection process, rights you were not even aware of may have been violated. For example, you may not have been apprised of your rights to dispute the debt within 30 days of being contacted by a debt collector or debt buyer. Another example would be that illegal fees and interest may have been added to your debt. It does not matter that you owe the debt. You still may be entitled to actual or statutory damages under the Fair Debt Collection Practice Act (FDCPA) or under the Telephone Consumer Practice Act (TCPA).

Even if you have dealt with relatively “polite” collector, don’t simply assume that you “must be in the wrong” and that you owe the debt.

Rex Anderson PC can analyze your case and determine whether your rights have been violated and whether you have a legal remedy. A recent Federal Court case from the Eastern District of Missouri shows how debt collectors are subject to technical rules and that the debtor needs professional advice.

In Schuller v AllianceOne-Receivables-Management-Inc., (ED Mo, Case No. 4:15 CV 298 CDP, 2/4/2016), the debt collector sent the debtor a letter demanding payment. This prompted three telephone calls. In a recent ruling in the Schuller case, the Court granted summary judgment to the debt collector on some issues and to the debtor on others. The court ruled that the debt collector did not have to remind the debtor, in the telephone calls, when his rights to dispute the debt expired. The collector already sent this information in the letter. On the telephone, the debt collector had misrepresented the date the letter was mailed by one day, and while the debtor claimed that this misled him as to when his right to dispute the debt would expire, the court ruled that this was a minor matter and not a violation. The debt collector therefore won on these issues under the Fair Debt Collection Practices Act (FDCPA), 15 USC § 1692d-f. The court even noted that in the telephone calls the collector was relatively polite.

However, the court also ruled that the collector violated the debtor’s FDCPA §1692g rights when, in response to debtor’s questions, the debtor was told that the debt was due immediately. This may have misled the debtor and confused him about his rights to contest the debt. The debt was in fact due immediately and the debt collector had a right to try to collect it—however, the debtor still had more time to dispute the debt and, in the context of the calls, could have been confused into believing that he could no longer contest the debt. Thus, the court ruled in debtor’s favor on this issue, ruling that the collection efforts in the calls may have “overshadowed” debtor’s rights to contest the debt.

After the calls, the debtor had sought legal advice and representation. A violation was found. A trial is set for April and the only issue is the size of the damage award to the debtor for the violation.

The lesson is that the rules governing debt collection are technical, and that a debtor needs competent legal advice and representation in collection cases.

 

Ruling in Schuller v AllianceOne-Receivables-Management-Inc.:

http://www.insidearm.com/wp-content/uploads/Schuller-v.-AllianceOne-Receivables-Management-Inc.-Memorandum-and-Order.pdf?0e9d3e

Article: Judge Grants Mixed Ruling in Yet Another Example of FDCPA Ambiguity:

http://www.insidearm.com/daily/debt-collection-news/accounts-receivables-management/judge-grants-mixed-ruling-in-yet-another-example-of-fdcpa-ambiguity/

 

Author: Rex C. Anderson

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