on 3rd party, zombie, debt . . .
they bought it KNOWING it was uncollectable . . .
that's why they got it at such a discount . . .
and its a fraud in two directions: the investors AND the debtors
Zombie debt is going to to send some of the collection dudes to jail . . .
just sending a dunning letter on uncollectable debt violates the FDCPA
unless you told the alleged debtor its uncollectable . . .
and I've never seen such a dunning letter . . .
they bought it KNOWING it was uncollectable . . .
that's why they got it at such a discount . . .
and its a fraud in two directions: the investors AND the debtors
Zombie debt is going to to send some of the collection dudes to jail . . .
just sending a dunning letter on uncollectable debt violates the FDCPA
unless you told the alleged debtor its uncollectable . . .
and I've never seen such a dunning letter . . .
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Re: major shit to hit the collection bar
Thu, December 20, 2007 - 8:37 PMoh, and by the way, I didn't mention jawjah's Fair Buisness Practices Act . . .
5K for a pure negligent violation . . . x3 for an intentional violation . . .
10K if you try to defraud someone 60 yrs or older . . . x3 if intentional . . .
=46K if you send such a letter to one of my retired clients . . . -
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Re: major shit to hit the collection bar
Thu, December 20, 2007 - 8:39 PMand we now have an opinion from Georgia's Court of Appeals . . .
a violation of the FDCPA = a violation of Georgia's Fair Buisness Practices Act
ipso facto . . . -
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Re: major shit to hit the collection bar
Thu, December 20, 2007 - 8:40 PMdo it to someone aged 60 over over and you can add $10K to that . . . x3 for an intentional violation = $46K -
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Re: major shit to hit the collection bar
Thu, December 20, 2007 - 8:40 PM2008 will be a very good year . . . -
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Re: major shit to hit the collection bar
Thu, December 20, 2007 - 8:52 PMand I want "reasonable" attorneys fees on top of that . . .
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Re: major shit to hit the collection bar
Fri, December 21, 2007 - 10:49 AMIt's not a big deal.
There have always been people out there selling bad paper and out of statute debts.
Any one in the industry who engages in these things tends to have their memberships in the various collector's associations canceled and are ostracized.
The mere act of sending the letter is not what violates the FDCPA. Rather it is knowingly sending that letter on an out of statute, a party who has filed Bankruptcy, or otherwise improperly assigned debt. In the alternate if can be a violation of the collector has done nothing to ensure that they comply with the law. They gotta have protocols in place.
Mere accident is not the violation. In fact the FDCPA makes provision for exactly that.
Any collector worth their salt already knows they must have protocols in place to ensure compliance with the law . If those protocols weren't followed they may have a problem.
It's not one that will send you to jail though. The FDCPA isn't a criminal statute. Section 813 defines the potential penalties none of which are criminal in nature.
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Re: major shit to hit the collection bar
Sun, December 23, 2007 - 7:28 AMlast time I looked it was still a crime to use the wires or the US mail system to defraud someone by claiming they owed money they didn't owe.
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Re: major shit to hit the collection bar
Sun, December 23, 2007 - 7:29 AMif you buy the paper KNOWING it's uncollectable for good, legal reason, then you dun and sue on it, it's a knowing violation of the FDCPA and Georgia's Fair Business Practices Act and likely a violation of the mail and wire fraud laws -
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Re: major shit to hit the collection bar
Sun, December 23, 2007 - 8:28 AM************last time I looked it was still a crime to use the wires or the US mail system to defraud someone by claiming they owed money they didn't owe.****************
There is civil fraud and then there is statutory fraud. You are a lawyer yo know the difference. However, if you think that you have a witnessed species of criminal conduct you are obligated by your duty as an officer of the court to report it.
I think you hands are tied there.
**************if you buy the paper KNOWING it's uncollectable for good, legal reason, then you dun and sue on it, it's a knowing violation of the FDCPA and Georgia's Fair Business Practices Act ************
Yes it is.
*****************and likely a violation of the mail and wire fraud laws******************
I rather suspect that it is not. But if you have a friend who is a prosecutor and wants to make a name for himself ~ ~ ~ ~ ~ He can try.
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Re: major shit to hit the collection bar
Fri, December 28, 2007 - 12:05 PM*** It's not a big deal. ***
It is a big deal . . . the Georgia court system is clogged with expired SoL debt suits and default judgments on it. I stopped counting the LVNV debt at a single metro court online docket at 25 pages with 30 cases each page . . .
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Unsu...
Re: major shit to hit the collection bar
Thu, December 27, 2007 - 7:32 PMAre you saying that suing a debtor on a stale debt is a per se violation of FDCPA, as a matter of law?
If the plaintiff/creditor never makes any representations (or misrepresentations) about any facts relating to the statute of limitations, and if the debtor/defendant never raises the statute of limitations as an affirmative defense, where is the violation?
A debt that is past limitations IS collectible, provided the defendant never raises the SOL as a defense. -
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Re: major shit to hit the collection bar
Fri, December 28, 2007 - 6:34 AM************re you saying that suing a debtor on a stale debt is a per se violation of FDCPA, as a matter of law?*********
Not stale but out of stature. If the state statutory limitations on actions has expired then you can't go after it and pursuant to the FDCPA it's a violation. Yet there are people selling out of statute paper. And of course idiots who'll buy it.
***********If the plaintiff/creditor never makes any representations (or misrepresentations) about any facts relating to the statute of limitations, and if the debtor/defendant never raises the statute of limitations as an affirmative defense, where is the violation?**********
The violation remains and the dead beat has a year to sue. However, if they don't then they don't.
Mind you it's not criminal it's civil.
************A debt that is past limitations IS collectible, provided the defendant never raises the SOL as a defense.************
Only in Commercial debt. As aggravating as this was to me when I learned it it's still true. The FDCPA was intended to be a shield but the plaintiff's bar has converted it into a sword.
A plaintiff's attorney need not win anything of any merit for his client. A one dollar nominal damages award is all the plaintiff's attorney needs. According to the statute that worthless win means he gets his attorney fees - all of 'em. It's the law of unintended consequences and bad legislation coupling with irresponsible lawyers who have almost no price to pay for bad filings.
However the one bright light on the horizon is Jesse Riddle. He takes nothing lying down.
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Unsu...
Re: major shit to hit the collection bar
Fri, December 28, 2007 - 8:04 AMThanks for answering, Cliff.
But I still don't see what you are talking about. And I am not arguing for argument's sake. I'd love to add FDCPA violations to these kinds of cases.
I looked at the statute and found nothing in the FDCPA that said it was a misleading or prohibited act to sue on a consumer debt that was past the statute of limitations.
As long as no misrepresentation is made regarding the SOL, how is it a violation?
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What I see a lot of around here is credit card companies selling old debts to debt collection companies like Credigy. Credigy then hires hack lawyers to file thousands of lawsuits in a given area. Of course, many of the defendants will either default or represent themselves pro se and lose on some procedural basis that was over their heads. This is what Credigy and the like are counting on.
In the relatively small percentage of cases where the consumer fights back with a lawyer, they just drop the case and move on to the next sucker-victim.
But I am now seeing debt collection cases fight back against defense lawyers, even when the case is clearly beyond limitations. I'd love to shove the FDCPA up their asses, if I can.
Please help. Do you have a cite to the specific provision of the FDCPA or case law that says it is a violation to sue on a debt that is past limitations? -
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Re: major shit to hit the collection bar
Fri, December 28, 2007 - 9:32 AMUnder 15 U.S.C. § 1692e Et Seq., various of the federal courts have held that filing a suit on a time-barred debt violates FDCPA because it deceives the deadbeat (this is an application of the dumbest stump in the woods standard) even though there is no affirmative misrepresentations. The courts say that the least sophisticated deadbeat would not challenge a time-barred lawsuit on limitations grounds – essentially because they are too fucking stupid.
The 8th Cir. in Freyermuth v. Credit Bureau Services, Inc., 248 F.3d 767, 771 (8th Cir.2001), held that a collector violates the FDCPA when it threatens or pursues litigation “to collect on a potentially time-barred debt that is otherwise valid.” They call is false or misleading.
Others have also held suing to collect an out of statute debt is deceptive to the unsophisticated consumer.
Goins v. JBC & Assoc., 352 F.Supp.2d 262 (D.Conn.2005)(calling it misleading representation – Goins held that Rule 11 sanctions “would be appropriate if an attorney knowingly filed suit on an undisputedly time-barred claim”)
Shorty v. Capital One Bank, 90 F.Supp.2d 1330 (D.N.M.2000)) (“Common sense dictates that whether a debt is time-barred is directly related to the legal status of that debt ... [because] a debt cannot be pursued in court ... [if] it is time-barred ....”)
Kimber v. Federal Financial Corp., 668 F.Supp. 1480 (M.D.Ala.,1987) said that even letters from the lay person who is the collector that threaten to sue on a time-barred claim are “fraudulent” because a debt collector cannot “legally prevail in such a lawsuit.”
This is scary shit because it makes the consumer/debtor out to be a helpless moron who desperately needs the protection of the state to shield them from repaying the money they willingly borrowed.
Why it is that repayment of debt one enters into willingly is anathema is beyond me.
Debt collection attorneys are enforcers of freedom of contract. They are not “hacks.” People make obligations and when they won’t abide by them the law and the courts lie to make the creditor right. This is proper and good. -
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Unsu...
Re: major shit to hit the collection bar
Fri, December 28, 2007 - 10:19 AMThanks.
That gives me a place to start. I'll have to see if the 5th Circuit follows. If there is any court that is anti-consumer and anti-little guy and pro-business, it is the 5th Circuit.
I didn't mean to disparage the collection bar with my "hack" reference. The credit card collection attorneys I have been dealing with, however, richly deserve to be called hacks in every sense of the word. I've watched them stand up in front of a judge and just lie their asses off. Then I kicked their asses! Pathetic.
I assume these are the bottom feeders of the collection bar that I have been dealing with. They seem to be so used to beating up on pro se defendants that they have forgotten how to be lawyers.
I do my fair share of commercial collections on the plaintiff's side. But on credit card debt, I'm always representing the debtor. -
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Re: major shit to hit the collection bar
Fri, December 28, 2007 - 10:55 AMMany Texas courts are notoriously anti business when it comes to bankruptcy and consumer debt.
A TX fed judge a while back wrote an extensive opinion wherein he blasted the new bankruptcy laws as being part of a government conspiracy to enslave the people. I thought he was off the wall and stupidly wrong on the law but it was a fed TX court. I don't have the opinion.
I own a small debt purchasing LLC and it sends me all it's debt. So I don't need clients any more.
I have been in courts with Attorneys from one of NJs largest law firms ( name of an ex Supreme Court Judge on the letterhead) They are a collections firm exclusively. Their lawyers get paid terribly. I think less than $30-Gees a year. I can't imagine why they take the jobs.
Well, they have been terrible. I mean terrible.
I prefer to do things strictly by the book. With consumers there is no reason to play tough with them. The judges will see you being an asshole (and they'll be right). So it's always better to be prepared and be willing to negotiate and reach terms when you get a debtor who wants to parlay in good faith.
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Re: major shit to hit the collection bar
Fri, December 28, 2007 - 11:56 AM*** A debt that is past limitations IS collectible, provided the defendant never raises the SOL as a defense. ***
The SoL is procedural AND jurisdictional: a court can raise the issue sua sponte; a lawyer has an obligation under federal law apprise the judge about it; states should likewise impose such a requirement on lawyers, IF states care about the esteem in which the public holds their court system. If the states don't give a damn about their court system's honesty and integrity or the cynicism about it that abounds since began the "war on drugs," they'll ignore the collection bar's practices at their peril. There will be a public "blow back" arising from the hacks that sue on expired SoL debts. If there's an obligation to disclose "the character" of the debt, then a collection hack MUST disclose that it's expired under the applicable SoL. I've never yet seen a dunning letter that discloses this legal fact. Nor have I ever seen a suit that discloses that the SoL has expired, but I've seen a growing number of suit that rely on the notion that a defendant MUST allege the SoL as an affirmative defense. It ISN'T a mandatory affirmative defense. It can be raised by the appellate court sua sponte. The hacks that sue on SoL debt don't deserve their law license and they're clogging our courts with garbage that will harm our profession if it isn't stopped. Buying the SoL debt knowing it's expired, then suing on it, is a fraud on the court system, the defendant, and our legal profession. There will be collection hacks losing their licenses and going to jail over it. The only question is when. -
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Unsu...
Re: major shit to hit the collection bar
Fri, December 28, 2007 - 12:18 PMIn Texas, an affirmative defense MUST be raised by the defendant or it is waived. The court can not raise an affirmative defense, such as the SOL, sua sponte.
Nor is the SOL considered to be a procedural or jurisdictional issue in Texas. It's just an affirmative defense, which must be plead by the defendant.
If the defendant does not timely raise the SOL as a defense in its trial pleadings, the defense is waived. It cannot be raised later on appeal.
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Re: major shit to hit the collection bar
Fri, December 28, 2007 - 12:37 PMlook for cases making it a jurisdictional issue . . .
how can a court have jurisdiction over a time barred dispute? -
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Unsu...
Re: major shit to hit the collection bar
Fri, December 28, 2007 - 8:12 PMIn Texas, there is subject matter jurisdiction and personal jurisdiction. These are separate matters from affirmative defenses or the merits of a case.
Assuming the dollar amount falls within the jurisdictional limits of the court, there is subject matter jurisdiction in any civil court in Texas. While a time barred claim may be defeated by the affirmative defense of the statute of limitations, the court nevertheless has subject matter jurisidiction to decide the case.
As for personal jurisdiciton, if the defendant lives in Texas, the court has personal jurisdiction over the defendant. -
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Re: major shit to hit the collection bar
Sat, December 29, 2007 - 8:07 AMit has subject matter jurisdiction to conclude that the subject matter is beyond the scope of its jurisdiction to decide because the debt was extinguished by the SoL
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Re: major shit to hit the collection bar
Sat, December 29, 2007 - 9:11 AM**************There will be collection hacks losing their licenses and going to jail over it. The only question is when.*********
I can't guess how you get there. Loss of license is the most extreme censure and prison isn't part of the FDCPA or Rule 11.
I have not run into any rule that requires the attorney inform the court of the defendant's affirmative defenses.
People who litigate consumer debt out of statute are violatingthe law and deserve to lose some money.
I think the hugely moralistic sounding position you have should be abandoned and you really ought to go about getting your "reasonable" fees by suing them. The law says your clients have a right of action so why not? It doesn't need to be so melodramatic especially since it's lucrative.
The kinds of violations one sees today are N-O-T-H-I-N-G like they were when the FDCPA was first framed. I know a guy who used to do door to door collections on the bad old days. He'd have a couple of refrigerator sized thugs who accompanied him. You can imagine what they did. The telephone calls people would get threats hostility and the third party communications were out of control. The collector would tell you employer post notices at your church you name it if it didn't involve physical assault they did it.
Those sorts of excesses were what the law was designed to curtail. Now however there numerous attorneys who see the FDCPA as a way to generate money without actually doing any service for their clients. They send out hundreds of letters a day threatening suits just to extract the blackmail people will pay to get rid if them because defending is so costly.
It gives the plaintiffs bar a very bad name.
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