Plaintiff awarded $1.26 million in New Mexico FDCPA case
August 1, 2011 by Todd Murray · Leave a Comment
Last week, a New Mexico jury awarded a consumer $1.26 million in a FDCPA suit in New Mexico. The jury awarded $161,000 in actual damages and whopping $1.1 million in punitive damages.
The case involved repeated attempts–including two wage garnishments–to collect a debt from a person that did not owe it. Although the plaintiff in the case had the same name as the actual debtor, she persistently told the debt collector that the debt did not belong to her. Even her employer got involved: when the debt collector served the garnishment papers, the employer told the debt collector that they were attempting to garnish the wrong person. And it turns out that they were. During the proceedings, it was revealed that the original creditor had provided the debt collector with the contact information for the correct debtor, but that the debt collector manually changed the contact information to that of the similarly-named non-debtor. And although the debt collector asserted that the mistake was a result of a bona fide error–which is a defense to a FDCPA claim–apparently, the jury did not buy their argument. And probably for a good reason. In my opinion, it’s difficult to argue bona fide error when you originally had the correct contact information, altered it to pursue the wrong person, and ignored that person’s (and her employer’s) repeated warnings that the collector had the wrong person.
Jury Awards Plaintiff $1.26 million in FDCPA Violation Lawsuit | InsideARM | July 31, 2011
If you’re dealing with debt collectors, make sure to download and use my free debt collection call log so that you can document all of the debt collectors’ communications. And if a debt collector does anything that you think was unfair; untrue; or harassing or abusive, please contact me to discuss the situation further. I offer a free case review for all FDCPA cases and if I agree to handle your case, you won’t have to pay me any money up front. My fees come from the money I recover from you if you win your case or accept a negotiated settlement.
A simple test for figuring out whether a debt collector violated the FDCPA
July 20, 2011 by Todd Murray · Leave a Comment
I’ve written a great deal (for example: see this post, this post, and this post) about what specific debt collector conduct violates the Fair Debt Collection Practices Act. But the easiest way, perhaps, to figure out whether a debt collector has run afoul of the FDCPA is to think about the Act more broadly.
Without getting into specifics, the FDPCA prohibits debt collectors from doing anything that is (1) unfair; (2) untrue; or (3) harassing or abusive. Obviously, the Act lists a number of specific debt collection tactics that fall into these three categories. But the FDCPA also makes it very clear that any debt collection conduct–whether specifically listed in the Act or not–that is unfair, untrue, or harassing and abusive is a FDCPA violation.
So rather than poring over the text of the FDCPA or reading dozens of articles on the internet, just ask yourself this question: did the collector do something that was unfair; untrue; or harassing or abusive? If your answer to this simple question is yes, there’s a good chance that the debt collector violated the FDCPA and your next move should be to contact a consumer rights lawyer.
If you’re dealing with debt collectors, make sure to download and use my free debt collection call log so that you can document all of the debt collectors’ communications. And if a debt collector does anything that you think was unfair; untrue; or harassing or abusive, please contact me to discuss the situation further. I offer a free case review for all FDCPA cases and if I agree to handle your case, you won’t have to pay me any money up front. My fees come from the money I recover from you if you win your case or accept a negotiated settlement.
Photo: http://www.flickr.com/photos/typicalgenius/2395906902/
Delaware courts order debt buyers to submit detailed proof with every collection lawsuit
July 7, 2011 by Todd Murray · Leave a Comment
The Chief Judge of the Court of Common Pleas in Delaware has issued an administrative directive that requires debt buyers to submit detailed proof with each collection lawsuit. The order mandates that debt buyers include the name of the original creditor, the last four digits of the account number, the name of the debt buyer purporting to currently own the debt, a complete list of every prior owner of the debt, and an itemized breakdown of the balance sought. Debt buyers are also required to attach a copy of the original contract and the complete chain of assignments from the original creditor to the current debt buyer. If a debt buyer fails to include the required information and documents, the directive gives the court the power–on its own initiative–to dismiss the debt buyer’s lawsuit.
These requirements may seem like common sense, but debt buyers often obtain judgments without submitting any proof that: (a) the consumer owes the debt; and (b) that the debt buyer is the rightful owner of the debt. This usually happens when the consumer fails to properly respond to the lawsuit, which happens in the majority of debt buyer lawsuits.
The Minnesota legislature has flirted with bills that require debt buyers to submit similar proof with their lawsuits, but as far as I know, Delaware is the first state where the judiciary has taken this matter into their own hands.
ADMINISTRATIVE DIRECTIVE NO. 2011-1 OF THE CHIEF JUDGE OF THE COURT OF COMMON PLEAS FOR THE STATE OF DELAWARE | March 16, 2011 (PDF)
Chase dismisses thousands of consumer collection lawsuits
July 5, 2011 by Todd Murray · Leave a Comment
According to Consumerist and the Wall Street Journal, Chase has dismissed a bunch of debt collection lawsuits against consumers nationwide. Several of my consumer colleagues have speculated that this move is spurred by the recent robo-signing scandal. I’ve even heard (unsubstantiated) rumors that there has been some housecleaning in upper management of Chase’s credit card litigation department. In any event, this is good news for consumers.
Chase Drops Thousands Of Debt Collection Cases Against Borrowers | Consumerist | July 1, 2011
Lender Drops Pursuit of Debt | The Wall Street Journal | June 24, 2011 (subscriber content)
In Minnesota, be careful about hiding your vehicle to prevent a lawful repossession
May 26, 2011 by Todd Murray · Leave a Comment
I often get calls from people whose vehicles are about to be repossessed. The callers sometimes tell me that the repossession agent threatened to have them arrested if they don’t tell him where the vehicle is located and want to know whether they are guilty of a crime by refusing to tell the repo agent where the vehicle is.
Under Minnesota law, it’s a crime if:
(1) You are (a) legally obligated for an auto loan; (b) you know where the vehicle that is secured by the auto loan is located; and (c) with intent to defraud, you refuse to disclose the vehicle’s location to a creditor or repossession agent that is legally entitled to repossess the vehicle.
(2) You–whether you are the borrower or not–conceal the vehicle if you know that the creditor is legally entitled to repossess the vehicle.
The potential penalty, provided by Minnesota Statute section 609.62, is imprisonment for up to three years or a fine of up to $6,000.
So under Minnesota law, it may be a crime to refuse to disclose the location of, or otherwise conceal, a vehicle that your lender is legally entitled to repossess. The key phrase here, though, is “legally entitled to repossess.” You may have defenses to the repossession, which would alleviate the potential criminal penalties because the lender isn’t legally entitled to repossess your vehicle. It’s probably best to be proactive and discuss the situation with an attorney before the repo man is knocking on your door. You should also check out this post for some suggestions that may allow you to keep your vehicle. Again–and I can’t emphasize this enough–don’t wait until the repo man is at your house to consider your options and talk to an attorney.
It’s definitely worth noting that I’ve never been involved in a case where a repossession agent or lender filed criminal charges against someone for refusing to tell them where the vehicle was or for concealing the vehicle. In my experience, repo agents use the threat of arrest to intimidate consumers into turning over the vehicle and rarely, if ever, act on them. But there’s a first time for everything and consumers should tread carefully because of the potential for criminal penalties.
If you’re facing repossession and want to discuss your legal rights with an attorney experienced in vehicle repossession cases, feel free to contact me. I offer 30 minute consultations for $175 and can help you figure out the best course of action for your situation.
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