Okay, thanks to Cliff's cititations, I've done some research and discovered that several of my clients have potential fair debt collection cases.
Are these worth taking? The statutory damages are only $1,000, but the consumer can recover attorney's fees.
My clients have already incurred my attorney's fees in defending against credit card lawsuits that were filed past the statute of limitations. I have no trouble winning these cases, i.e., getting them dismissed, but it is difficult to get any attorney's fees out of them under Texas law. All the debt collectors have to do is non-suit before my summary judgment gets heard, and there goes my attorney's fee claim under Texas common law. I need an indepedent counter-claim, like the fair debt collection statute, to withstand their non-suit.
So, is it worth it to file a federal lawsuit based on the violation? It is the only way I will be able to recover my client's attorney's fees. Anyone have any experience with these?
Are these worth taking? The statutory damages are only $1,000, but the consumer can recover attorney's fees.
My clients have already incurred my attorney's fees in defending against credit card lawsuits that were filed past the statute of limitations. I have no trouble winning these cases, i.e., getting them dismissed, but it is difficult to get any attorney's fees out of them under Texas law. All the debt collectors have to do is non-suit before my summary judgment gets heard, and there goes my attorney's fee claim under Texas common law. I need an indepedent counter-claim, like the fair debt collection statute, to withstand their non-suit.
So, is it worth it to file a federal lawsuit based on the violation? It is the only way I will be able to recover my client's attorney's fees. Anyone have any experience with these?
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Re: Fair Debt Collection Practices case
Mon, December 31, 2007 - 1:30 PMFirst thing I'd do is examine whether you think they are trivial or substantive.
There is nothing wrong in pursuing them in federal.
The reasonable fees are always at the unsound indiscretion of the court.
Did that sound bitter~?? Well there is a reason I will not represent a client who refused to let me put a fixed dollar amount per hour in all his agreements after I told him why it was necessary. But then I don't seek clients so it's no skin off my nose.
As to your non suit issues. I think it's moot. They can non suit all day every day but they still took the action up knowing it was time barred. That, I think, standing alone violates the FDCPA as the courts have interpreted it. It's like sending out a third party communication and they taking it back. You can't un-fuck the virgin.
I am one who thinks this interpretation of the FDCPA is a foolish paternalistic abuse of the Court's power by making law instead of enforcing that law that the legislature made.
The affirmative defense is available and the mere fact that a dumbest stump in the woods deadbeat might not know of it is meaningless. The same deadbeat wouldn't know much at all about the process of defending a law suit so what's the difference~?
These Courts that have read the law this way have shifted the burden of the defendant by placing the burden of defending on the Plaintiff.
Next they'll require the plaintiff pre-pay the deadbeat's legal costs before filing suit.
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Re: Fair Debt Collection Practices case
Mon, December 31, 2007 - 3:37 PMI understand where you are coming from, but on the whole, I find federal courts interpret statutes very much against the little guy, and most federal statutes are totally one-sided in favor of business and against the little guy. This is one of the few areas I see where the little guy gets some payback.
My clients are retired and one of them is dying of an illness. They are not dead beats, just judgment proof. They never should have been sued. They went broke because of medical bills. It was very stupid to file a time barred lawsuit against them.
They did pay me a retainer and signed an hourly fee agreement. I've gone beyond the retainer, though I have not sent my clients a bill for the overage.
The lawsuit, on the face of the petition, was clearly time barred. The alleged date of the breach of contract appears in the petition, and that date was more than four years before the file stamp showing the date the case was filed. Texas is a 4 year SOL on credit card debt. It should not be too hard to show an intentional violation of the statute.
I filed an answer asserting the SOL, served discovery, got deemed admissions, which admitted my prevailing party's attorney's fee claim, and I filed a motion for summary judgment. Then I had to bug them and ask them what the hell they thought they were doing. Sure had me wondering. It took all of this effort before these lawyers saw fit to even acknowledge that they had a problem. They responded by filing a non-suit before my summary judgment could be heard.
But I did not assert the fair debt collection claim in this case. I would not have wanted to, given the rink dink, out of town court I was in. But now I can file this federal case in my own backyard. It's a permissive counterclaim, so the nonsuit does not bar it.
I've got some fees in this, above and beyond what I have been paid.
I'd like to recover for my clients the fees my client paid me, the additional fees I have incurred for my own pocket, court costs, and of course, my two clients' statutory damages of $1,000 each.
It's small potatoes, but hey, small cases add up, if they pay.
This case ought to pay. -
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Re: Fair Debt Collection Practices case
Tue, January 1, 2008 - 6:42 AMThen go for it. Most people who do this are in it because their fees are guaranteed no matter how trivial the actual win is.
I call 'em all dead beats no matter how sympathetic their condition when I find 'em because they entered into a written agreement and freely took someone else's money and they promised in that agreement to pay it back on terms.
Then when those promises are not met the money is not repaid and the debtor fails even to reach out and arrive at some other terms with their creditor they force their creditor to resort to the courts in order to be made right.
That's when they convert themselves t from debtor to deadbeat.. Some might say that the needs of the person were so great that ~ ~ ~ ~
My response is that sort of rationale is (1) that these persons undertook to borrow under false pretenses knowing the money would never be repaid. ERGO: they are thieves and frauds; or (2) Their later changed conditions to sympathetic characters may be genuine and may render them unable to pay but, that is why there are bankruptcy courts. The lay still lies to make then right even if the honest people who lent money will take a beating.
Either way the deadbeat resorts to dishonest and extra lawful ( often unlawful) means to avoid the debt. That is in my opinoipn the harm in these cases. Breach of contract is never proper, and that's what they did.
The result is that I am unsympathetic to rationales that seek to elevate sympathy over the law. -
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Unsu...
Re: Fair Debt Collection Practices case
Tue, January 1, 2008 - 12:02 PMWell, the statute of limitations is also part of the law. It is every much as part of the law as is contract law and its remedies.
The statute of limitations is pretty generous in most states on contractual debt. If a credit card company writes off a debt and chooses not to pursue its judicial remedies within the SOL, that's a business decision. If it sells the debt to a debt collector for pennies on the dollar, I have no sympathy for the debt collector if he can't recover. He knew what he was getting into.
Now, I am not overly fond of debtors. I always get a fee upfront, trust me on that, bro.
I don't have any moral investment in either side of this area of law. They are just cases and clients. I've represented consumer debtors because that is who is hiring me. If the debt collectors wanted to hire me and it was a good fit, I'd consider doing that work, too. However, the consumer debt collection firms all seem to be assembly line, high volume shops, as a matter of economic necssity, I'm sure, but that's not something I am into.
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Re: Fair Debt Collection Practices case
Tue, January 1, 2008 - 12:07 PMI agree completely with what Cliff wrote immediately above this post, except zombie debt doesn't involve "deadbeats." Debtors essentially have three legal choices: (1) pay (2) compromise & settle or (3) bankruptcy protection.
The Zombie debt issue, however, isn't any longer about a breach of contract: that issue is dead and under the law there is no cognizable dispute because the statute has run for suing on the breach, or the debtor had another good legal defense, including, but not limited to: the creditor already sued and lost; the debt doesn't belong to the defendant; the defendant settled and paid under a compromise agreement; there was never a debt to begin with (yes, I have one case where an assignee of a dentist is suing on an ESTIMATE he gave to my client who then decided not to enter the contract because they couldn't afford his offered services at that price), etc., etc., etc., so when we're talking Zombie debt we aren't talking about "deadbeats" -- by definition.
These assignees who buy legally worthless paper KNOWING its legally worthless, else they wouldn't have bought it at such a discount, abuse the court system and our economy when they nevertheless bring suit on it; abuse the credit system when they report it as a NEW debt on the putative debtor's report, insuring they cannot borrow for years to come at favorable rates . . . these assignees . . . most of them aren't even registered to do business in the state they're suing in, are using other people's (taxpayer's) money for their fraudulent scheme in the courts to deprive people who do not owe a dime of their money to the putative assignee . . . They defraud the investors in these companies by suggesting they can legally still collect on such debt; then they defraud the putative debtor when they dun him or her; and then they defraud the courts when they sue on the worthless paper. The size of the problem is large and getting larger. It will eventually wind up in the halls of the legislatures and Congress once the scope of the problem becomes apparent, if the state court systems themselves do not address the problem. -
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Re: Fair Debt Collection Practices case
Tue, January 1, 2008 - 7:35 PM"The size of the problem is large and getting larger. It will eventually wind up in the halls of the legislatures and Congress once the scope of the problem becomes apparent, if the state court systems themselves do not address the problem. "
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Until then, I'll make a few bucks here and there representing those defendants who can scrape together a retainer, and we'll see if I can get some FDCPA money out of the zombie debt firms.
But my bread and butter is representing small businesses, not consumer debtors. -
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Re: Fair Debt Collection Practices case
Sat, January 5, 2008 - 2:44 PMI get a salary to represent consumers . . .
when I retire some years hence, I'll likely still represent consumers . . .
but then I can go against GM, Ford, and Chrysler, if they still exist . . . -
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Unsu...
Re: Fair Debt Collection Practices case
Mon, January 7, 2008 - 4:16 PMAutomotive products liability, eh?
Hope you got a war chest. It takes some money to do that right.
You will need to secure the vehicles in question, store them. The big boys all have their own warehouses for vehicle inspections.
You will need to retain an accident reconstructionist, defect expert(s), biomechanical (injury causation) expert, and possibly some damages experts, like a life care planner, economist, psychologist.
You will need expert reports from each of your retained experts.
You will need to depose all of the defense experts, eye witnesses, investigating officer(s), doctors, etc.
You will need to depose some corporate reps (in Detroit - ever check out the price of airfare to Detroit?)
You will have to defend against Daubert motions, motions for summary judgment.
You will have to do a bunch of discovery and answer a bunch of discovery.
If you win, you will have to be able to continue to finance the case on appeal.
Good luck.
And then there is tort reform. Doh!
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