Scam Collection Calls
Complaint
MCH
Country: United States
I again received a call from this number/company in my cell phone. They call 1-2x every week. so irritating.
I had long straightened out my credit card debts in 2002. Suddenly, since 2008, I started getting calls from this company. I do not know how they got my cell ph number. I read almost all the complaints ahainst this company and now am convinced they they are scammers.
Should we all band together and file a class action suit? Or, report this company to the authorities in ur respective cities/states?
I had long straightened out my credit card debts in 2002. Suddenly, since 2008, I started getting calls from this company. I do not know how they got my cell ph number. I read almost all the complaints ahainst this company and now am convinced they they are scammers.
Should we all band together and file a class action suit? Or, report this company to the authorities in ur respective cities/states?
Comments
As for their company website, there appeared to be two different companies with the same name. And they both had the BBB emblem. It doesn't take much for some people to set up a website to look professional enough to lure people in. Perhaps I'm too cynical, but I won't buy into this nonsense until they at least leave me a voice mail of how to reach them.
Please place your complaint!!!
https://help.consumerfinance.gov/app/tellyourstory
A woman told me I owed on a credit card I have never had or even heard of. Then she started referring to me in my maiden name. I have not used that name in 12 years.
When I told her I never had that credit card she got a little rude, and when she kept using my maiden name I told her if I had that card it would be well beyond the statute of limitations since I have not used that name in 12 years.
She told me I was wrong, well I had the pleasure of informing her of state and federal law and that she was violating both, told her to take my name off their list, and never call me again or I will file a lawsuit. That was that, she did not say anything more, and I hung up. She never had an opportunity to give me a dollar amount, I did not allow it.
I have not had a phone call since, and I have filed a complaint, 3 states have filed class action lawsuits against them.
Harassment. Debt collectors may not harass, oppress, or abuse you or any third parties they contact. For example, they may not:
use threats of violence or harm;
publish a list of names of people who refuse to pay their debts (but they can give this information to the credit reporting companies);
use obscene or profane language; or
repeatedly use the phone to annoy someone.
False statements. Debt collectors may not lie when they are trying to collect a debt. For example, they may not:
falsely claim that they are attorneys or government representatives;
falsely claim that you have committed a crime;
falsely represent that they operate or work for a credit reporting company;
misrepresent the amount you owe;
indicate that papers they send you are legal forms if they aren’t; or
indicate that papers they send to you aren’t legal forms if they are.
Debt collectors also are prohibited from saying that:
you will be arrested if you don’t pay your debt;
they’ll seize, garnish, attach, or sell your property or wages unless they are permitted by law to take the action and intend to do so; or
legal action will be taken against you, if doing so would be illegal or if they don’t intend to take the action.
Debt collectors may not:
give false credit information about you to anyone, including a credit reporting company;
send you anything that looks like an official document from a court or government agency if it isn’t; or
use a false company name.
Unfair practices. Debt collectors may not engage in unfair practices when they try to collect a debt. For example, they may not:
try to collect any interest, fee, or other charge on top of the amount you owe unless the contract that created your debt – or your state law – allows the charge;
deposit a post-dated check early;
take or threaten to take your property unless it can be done legally; or
contact you by postcard.
Creditor Must Abide By All Laws Below, Creditor Will IMMEDIATELY CEASE & DESIST Reporting Credit Background Of Said Name ___________________SS# Last Four Digits ________ DOB __________Effective Immediately ____________
Failure To Comply Will Result In Swift Legal Action!!!
5. B&P § 6077.5.
6. B&P § 6077.5(a). The California standards for debt collection attorneys require attorneys and their employees to comply with (a) all of the provisions of the California Fair Debt Collection Practices Act, and (b) some of the provisions ofthe federal statute (in particular, 15 USC §§ 1692c(a)(1), c(c), f(6), f(5), g, and h, which have been recodified at B&P §§ 6077.5(c), (d), (e), (f), (g), (h), and (i), respectively).
7. 15 USC §§ 1692-1692o, Pub. L. 95-109, Sept. 20, 1977, 91 Stat. 874, whose official title is the Fair Debt Collection Practices Act.
6. 15 USC § 1692a(6). 9. 15USC§1692a(5).
10. Fox v. Citicorp Credit Corp. Services, Inc. (9th Ci r. 1994) 15 F3d 1507, 1512; Heintz v. Jenkins, 514 U.S. 291, 115 S.Ct. 1489, 131 L.Ed.2d 395 (1995). An attorney’s name maynot appear on a dunning letter or similar communication unless the attorney has made a “considered, professional judgment’ that the named person is delinquent and hence a likely candidate for legal action. (Nielsen v. Dickerson (7th Cir. 2002) 307 F.3d 623.
11. On the scope of the federal and California statutes, see Part 3 of this Legal Guide. See also Pridgen, Consumer Credit and the Law (Clark Boardman Callaghan, 1990, (2000 Supp.), ch. 4; Fair Debt Collection, 4th ed (National Consumer Law Center 2000), § 5.7.16; Debt Collection Practice in California, 2d ed. (CEB 1999), ch. 2.
12. Civil Code § 1788.17 (Stats. 1999, ch. 310). This 1999 statute states that “every debt collector [subject to the California statute] shall comply with ... Sections 1692b to 1692j, inclusive, of, and shall be subject to the remedies in Section 1692k of, Title 15 of the United States Code ... as theyread January1, 2000.” However, creditors collecting their own debts are expressly exempted from 15 USC §§ 1692e(11) and 1692g (on purpose of contact and verification notice.
13. Civil Code § 1788.2(b)-(f); 15 USC § 1692a(3)-(6).
14. The general law of California includes several legal doctrines that can give rise to liability by a business or individual engaged in collecting or enforcing debts. One of these is tort law. A “tort” is a civil (as opposed to criminal) wrong, other than a breach of contract, for which there is a remedy in the form of a lawsuit for damages . Nagy v. Nagy (1989) 210 Cal.App.3d 1262, 1269 [258 Cal.Rptr. 787, 790]. While there is no single tort of “unfair debt collection,” a debt collector can incur liability under any of the following torts, depending on the situation: (a) infliction of emotional distress (done either negligently or intentionally); (b) invasion of privacy; (c) defamation; (d) interference with employment relation; (e) malicious prosecution; (f) abuse of process; and (g) a tort arising from statutory violation (“negligence per se”) See 5 Witkin, Sum. Cal. Law (9th ed. 1988) Torts §§ 402-417 (intentional causing of emotional distress); §§ 459-470 (abuse of process); Torts §§ 471-566 (defamation); §§ 577-603 (invasion of privacy); §§ 640-641 (interference with employment relation); §§ 674-728 (fraud and deceit). See Guide DC-3, “Debt Collector’s Wrongful Conduct: Some (Tort) Remedies for Debtors.”
15. 15 USC § 1692e(11); Civil Code § 1788.17 (effective 1/1/2000). This requirement does not apply to a creditor collecting its own debt; however, it does apply to attorneys engaging in debt collection. (Civil Code § 1788.17, 15 USC §§ 1692a(6)(A),(B), 1692e(11).
16. 15 USC § 1692e(11) ; Civil Code § 1788.17 (effective 1/1/2 000). These rul es do not apply to a creditor collecting its own debt. (Civil Code § 1788.17, 15 USC §§ 1692a(6)(A),(B), 1692e(11).
17. CivilCode§1788.11(b);15USC§1692d(6). 18. CivilCode§1788.13(a).
-37 19. CivilCode§1788.11(b). TheCaliforniastatuterequiresthatthealiasberegisteredwithapresentlynon-existentstate agency; the underlying intent of this section would seem to require that the alias identify a particular person that the collector can name if necessary. See also Wright v. Credit Bureau of Georgia, Inc. (N.D. Ga. 1982) 548 F.Supp.591.
20. 15USC§1692e(14);CivilCode§1788.13(a); seeFairDebtCollection,4thed(NationalConsumerLawCenter2000),§ 5.5.
21. Civil Code § 1788.13(i) (c).
22. Civil Code § 1788.13(d). The FTC has construed § 5 the Federal Trade Commission Act, 15 USC § 45 (hereafter “FTC Act”) to prohibit misrepresenting a collector’s affiliation with the government. See Fair Debt Collection, 4th ed. (National Consumer Law Center 2000), § 8.3.10.
23. CivilCode§§1788.13(b),(c);seealsoCivilCode§1788.16(e). 24. CivilCode§1788.13(f)and(g). 25. Civil Code § 1788.13 (k).
26. Civil Code § 1788.13(h). The FTC has construed the FTC Act to prohibit misrepresenting that a claim has been or will be sent to an attorney or separate department of the collector. See Fair Debt Collection, 4th ed. (National Consumer Law Center 2000), § 8.3.9.
27. Business & Professions Code § 6077.5(b).
28. Civil Code § 1788.13(b); 15 USC § 1692e(3); see Masuda v. Thomas Richards & Co. (C.D. Cal. 1991) 759 F.Supp. 1456, 1460; see Clomon v. Jackson (2d Cir. 1993) 988 F.2d 1314, and Anthes v. Transworld Systems, Inc. (D. Del. 1991) 765 F.Supp. 162, 166-167.
29. 15 USC § 1692g(a); see Fair Debt Collection, 4th ed (National Consumer Law Center 2000), § 5.5. This requirement does not apply to a creditor collecting its own debt; however, it does apply to attorneys engaging in debt collection. Civil Code § 1788.17, 15 USC § 1692a(6)(A),(B), 1692g. (If this is the first communication to the debtor, it must also include (a) the collector’s identity (see Article 2.2, “Disclosure/ Misrepresentation of Identity”), and (b) a description of the purpose of the contact and a notice that any information that the collector receives from the debtor will be used for that purpose (see Article 2.1, Disclosure of Purpose of Communication.”)
30. 15USC§1692a;seePub.L.99-361,July9,1986,100Stat.768,deletingpriorexemptionofattorneys.
31. A notice of this kind will ordinarily obligate the debt collection agency to inform any credit reporting agency to which the collectorreportsadversecreditinformationthatthedebtisdisputed. (15USC§1692e(8).) Thedutytodothisalsoarises under the federal Fair Credit Reporting Act. (15 USC § 1681s-2(a)(3).) If the debtor has informed the debt collection agency about the basis for the dispute, this may also give rise to an obligation under one or both of the federal statutes to provide that informationtoanycreditreportingagencyand,inparticular,tocorrectanyinaccurateinformationalreadyprovided. (15USC §§ 1692e(8), 1681s-2; Brady v. Credit Recovery Co. (1st Cir. 1998) 160 F.3d 64; see also CC §§ 1785.25(f) and 1785.26(b),(c).) If the debtor sends a written inquiry by certified mail, the collector must give the debtor a “timely response” in writing under California Civil Code § 1720.. If a response is not mailed within 60 days of the debtor’s written inquiry, the collector is not entitled to interest, financing charges, services charges, or any similar charges on the disputed amount from and after the date of your written inquiry. (Civil Code § 1720.)
32. 15USC§1692g(c). 33. 15USC§1692g(a)(4).
34. In judging whether the content of a verification notice meets the statutory standards, courts interpret the federal statute from the perspective of, and based on its probable impact on, a hypothetical “least sophisticated debtor,” as distinguished from an “average” or “reasonable” debtor. (Jeter v. Credit Bureau, Inc. (11th Cir. 1985 ) 760 F.2d 1168, 1174 ; Swanson v. Southern Oregon Credit Service (9th Cir. 1988) 869 F.2d 1222, 1225.) The “least sophisticated debtor test” is used to evaluate the adequacy of compliance with numerous provisions of the Act, including the verification notice requirement and the standards that apply to the collector’s representations to the debtor. Whether a representation is false or deceptive, for instance, is judged by the message’s impact on a least sophisticated debtor. (See §§ 30.XX-30-XX.) In the Swanson case, the 9 th Ci rcuit Court of Appeal held that a debt collection agency’s verification notice violated 15 USC § 1692g because it failed to effectively inform the least sophisticated debtors to whom it was directed. (Swanson v. Southern Oregon Credit Service, supra, at 1225.) The
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court stated that “[t]he statute is not satisfied merely by inclusion of the required debt validation notice; the notice Congress required must be conveyed effectively to the debtor.” (Id at 1225.) The required notice "must be large enough to be easily read and sufficiently prominent to be noticed -- even by the least sophisticated debtor," and "to be effective, the notice must not be overshadowed or contradicted by other messages or notices appearing in the initial communication from the collection agency." (Id at 1225.) The court decided that the notice in issue in that case failed these tests because it was dwarfed and contradicted by the dunning message. In 1996 and 1997 decisions, the 9th Circuit Court of Appeal reaffirmed that compliance with the standards set by the federal statute is determined by assessing the collector’s impact on “a hypothetical ‘least sophisticated debtor.” (Wade v. Regional Credit Ass’n (9th Cir. 1996 ) 87 F.3d 10 98, 1100; Terran v. Kaplan (1997) 109 F.3d 142, 143; see also Baker v. Citibank (South Dakota) N.A. (S.D.Cal.1998) 13 F.Supp.2d 1037.) “[C]ourts have consistently found inadequate debt validation notices where the typefaces and layouts of the overall documents overshadowed the notices.” (Baker v. Citibank (South Dakota) N.A, supra, at 1441.) A 1980 federal district court held that positioning the notice on the back of a form demanding payment within five days was insufficient notice of the debtor’s rights because the message in the notice was contradicted by the collector’s demand for payment. The court found that the design of the collector’s notice reflected "a deliberate policy ... to evade the spirit of the notice statute and mislead the debtor into disregarding the notice." (Ost v. Collection Bureau, Inc. (D.N. D. 198 0) 493 F. Sup p. 70 1, 70 3; see also U.S. v. National Financial Services, Inc. (D.Md. l993) 820 F.Supp . 228; Rabideau v. Management Adjustment Bureau (W.D.N.Y. 1992) 805 F .Supp. 10 86); Anthes v. Transworld Systems, Inc. (D.Del. 1991) 765 F.Supp. 162.) Similarly, a federal district court in Baker held that a collector’s demand that payment be made “now” violated the statute because it contradicted and diluted the effect of the statutory notice of the debtor’s 30-day right to dispute and obtain verification. In a 1991 case, the collector had included all of the required debt verification information in three paragraphs on the back of a collection letter, but the court nevertheless found a violation because other provisions of the letter contradicted and undercut the verification notice. (Miller v. Payco-General Am. Credits, Inc. (4th Cir. 1991) 943 F.2d 482, 483.) In that case, the front of the letter demanded immediate payment, with the single word "NOW" filling the bottom third of the document in white letters nearly two inches tall against a red background, thereby undercutting the statement on the back of the letter, printed in grey ink, that the debtor had 30 days in which to contest the validity of the debt and request verification. The court stated that “[a] demand for payment within les s than the thir ty-day timeframe necessarily requires the debtor to forego the statutory right to challenge the debt ... within thirty days ...” and therefore “conflicts with the protections for debtors set forth in [the statute].” (Terran v. Kaplan (1997) 109 F.3d 1432, 1434.) The content of the verification notice must include an accurate statement of all of the information required by the statute. Applying the “least sophisticated debtor test,” the 7th Circu it Cou rt of App eal h eld t hat t he not ice mus t incl ude an accura te st ateme nt of the amount actually owing, and not require the debtor to call an “800" number for the exact figure. (Miller v. McCalla, et al, 2000 WL 715001 (7th Cir. June 5, 2000).) See also Heintz v. Jacobs (1995) 514 U.S. 291, 115 S.Ct. 1489, 131 L.ED.2d 395, and Romine v. Diversified Collection Services, Inc. (9th Cir. 1998) 115 F.3d 1142; Pridgen, Consumer Credit and the Law (2001 looseleaf), § 13.04[3]; Fair Debt Collection, 4th ed. (National Consumer Law Center 2000), § 5.2.1. An attorney who represents a debt collection agency in debt collection efforts (whether or not a lawsuit is filed) is governed by the same rules that apply to debt collection agencies, and therefore must give the debtor a verification notice as required. (15 USC § 1692a; see Pub. L. 99-361, July 9, 1986, 100 Stat. 768, deleting prior exemption of attorneys.)
35. 15 USC § 1692g(b). The House Report indicates that compliance with the verification notice requirement would be achieved if the debt collection agency obtained from the creditor a statement including an itemization of the debt, the name of the consumer, a statement that the debt had not been paid, and a statement that the consumer had received a specified product or a properly rendered service. H.R. Rep. No. 131, 95th Cong., 1st Sess. 6 (1977); see Mahon v. Credi t Bureau of Placer (9th Cir. 1999) 171 F.3d 1197; Pridgen, Consumer Credit and the Law (Clark Boardman Callaghan, 1990, 2000 Supp.), § 13.04[4]. In Castro v. ARS National Services, Inc., 2000 U.S. Dist. LEXIS 2618 (S.D.N.Y. March 8, 2000), a federal district court in New York held that a debt collector violated the federal statute by including language in its verification notice that the least sophisticated consumer could read as imposing requirements beyond those set out in the statute. According to the court, all that was needed to dispute the validity of a debt was a letter by the consumer with the statement, “I dispute the debt.”
36. FTCAdvisoryOpinion,March31,2000,http://www.ftc.gov/os/2000/04/dcpaadvisoryopinion.htm;seeFairDebt Collection, 4th ed. (National Consumer Law Center 2000), § 5.7.2.3.
37. Staff Commentary on the FDCPA, 53 Fed.Reg. 50097, 50109 (FTC 1988); see Baker v. Citibank (South Dakota) N.A. et al (S.D. Cal.1998) 13 F.Supp.2d 1037, 1043.
38. 15 USC §§ 1681s-2; see Fair Credit Reporting Act, 4th ed. 1998 (National Consumer Law Center, 1998), § 9.9. 39. 15USC§1681s-2(a). 40. 15USC§1681s-2(a),(b).
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41. 15 USC § 1681i; see Fair Credit Reporting Act, 4th ed. 1998 (National Consumer Law Center, 1998), §§ 9.3-9.10. 42. 15USC§§1681s-2;seeFairCreditReportingAct,4th ed.1998(NationalConsumerLawCenter,1998),§9.9;Campbell
v. Baldwin (E.D. Tex ., 2000) 90 F.Supp. 2d 754; Dornheckler v. Ameritech Corp. (N.D. Ill., 2000) 99 F.Supp.2d 918. 43. 15 USC §§ 1681i(c), 1681s-2. 44. 15USC§1681i(c). 45. 15 USC §§ 1692c(c)(1)-(3), (d).
46. Staff Commentary on the FDCPA, 53 Fed.Reg. 50097, 50109 (FTC 1988); see Baker v. Citibank (South Dakota) N.A. et al (S.D. Cal.1998) 13 F.Supp.2d 1037, 1043.
47. 15USC§1692c(c)(1)-(3).
48. 15USC§§1692c(c)(1)-(3).
49. 15USC§§1692c(c)(1)-(3).
50. 15 USC § 1692e(8), Civil Code § 1785.26(b),(c); see also Civil Code § 1785.25(f) and Brady v. Credit Recovery Co. (1st Cir. 1998) 160 F.3d 64.
51. 15 USC § 1692c(a)(1); see Fair Debt Collection, 4th ed (National Consumer Law Center 2000), § 5.3. The federal statute defines “communication” as “the conveying of information regarding a debt directlyor indirectly to anyperson through any medium.” 15 USC § 1692a(2). The FTC has ruled that the term “communicate” is given its commonly accepted meaning, and that inconvenient contacts are prohibited when related to the collection of a debt whether or not the debt is specifically mentioned. FTC Staff Commentary, at p. 50,103; see also Pridgen, Consumer Credit and the Law (Clark Boardman Callaghan, 1990, (2000 Supp.), § 13.05[2].) See also discussion of harassment by telephone, at Article 2.9.
52. 15USC§1692c(a)(1).
53. 15 USC § 1692c(d); see Pridgen, Consumer Credit and the Law (Clark Boardman Callaghan, 1990, (2000 Supp.), § 13.05[3].)
54. 15 USC § 1692f(8). In Kleczy v. First Federal Credit Control, Inc. (1984) 21 Ohio App. 3d 56 [486 N.E.2d 204], the court held that a collection agency violated the federal statute when it mailed a collection letter to a consumer at his place of employment. The court found that because the words “FINAL DEMAND FOR PAYMENT” could be easily read through the envelope addressed to the consumer at his place of work, a third party was being notified of the debt, a violation of the statute. See Pridgen, Consumer Credit and the Law (Clark Boardman Callaghan, 1990, (2000 Supp.), § 13.05[3]; and Fair Debt Collection, 4th ed (National Consumer Law Center 2000), § 5.3.
55.
56.
57.
58.
59.
60.
61.
62.
63.
CivilCode§1788.12(d). 15USC§1692f(7). 15USC§1692c(a)(3). CivilCode§1788.14(c). 15USC§§1692b(6),1692c(a)(2). 15 USC § 1692d(3); see Fair Debt Collection, 4th ed (National Consumer Law Center 2000), § 5.4.4. CivilCode§1788.12(c).
15USC§1692d(4). CivilCode§1788.10(e). See 5 Witkin, Sum. of Cal. Law (9th ed. 198 8) Torts , § 471. On a debt or’s pr ivate r emedie s for an un lawful privacy
64. invasion or defamation, see the sources cited in endnote 11, above.
65. 15 USC § 1692f. See, generally, Pridgen, Consumer Credit and the Law (Clark Boardman Callaghan, 1990, (2000 Supp.), § 13.08, and Fair Debt Collection, 4th ed (National Consumer Law Center 2000), § 5.8.
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66. Civil Code § 1788.10(a); 15 USC § 1692d(1).
67. Civil Code § 1788.14(b); 15 USC § 1692f(1). Even though the demand for interest of $1.29, $1.84 and $ .65 on unpaid checks was “only slightly overstated,” the court held that this violated the federal statute’s plain language. Duffy v. Landberg, 2000 U.S. App. LEXIS 11614 (8th Cir. 2000).
68. See Newman v. Checkrite California, Inc. (E.D. Cal. 1995) 912 F.Supp. 1354, 1367-1369, 1376-1378. In a later case, a court held that a service charge can onlybe imposed on a check writer if (a) the check writer and the merchant have agreed that the charge might be imposed in the event a check given in payment is not paid, and (b) the payee or transferee actually proves the existence of such an agreement by evidence of a posted sign or other evidence of agreement. Ballard v. Equifax Check Services, Inc., 27 F.Supp.2d 1201 (E.D. Cal. 1998). The California statute that authorizes a service charge for returned checks (CC§ 19719)hasbeenrevisedtoprovidethataservicechargeisnowastatutorypenaltyrecoverableifcertainstatutory prerequisites are met. See Legal Guide K-5, “California’s Bad Check Law.”
69. 15 USC § 1692e(2)(A); see also Civil Code § 1788.14. The FTC has construed the FTC Act to prohibit misrepresenting that an obligation exists when it does not. See Fair Debt Collection, 4th ed. (National Consumer Law Center 2000), § 8.3.3.
70. In Kimber v. Federal Financial Corp. (M.D. Ala. 1987) 668 F.Supp. 1480, the court held that it is unfair under the federal statute to file a time-barred collection suit against a consumer, and that it is deceptive to even threaten to file such a suit.
71. Civil Code § 329(b). The rules on pre-judgment and post-judgment interest are summarized at 1 Consumer Law Sourcebook (Department of Consumer Affairs, 1996), § 13.21. Non-credit sales agreements often call for 1.5% per month for delayed payment. 1 Consumer Law Sourcebook (Department of Consumer Affairs, 1996), §§ 13.27-13.32. A demand for even a small amount in excess of a statutory ceiling constitutes a violation. See Duffy v. Landberg, 215 F.3d 871 (8th cir. 2000).
72. In situations in which a penalty is authorized by statute (e.g., for late payment on a home mortgage or credit card account, or for agreed “liquidated damages” for breach of contract), the same statute ordinarily defines the conditions that must be met before the penalty can be assessed. For instance, a court held that a check guarantee company’s demand for payment of a dishonored check fee violated the law on the basis that it misrepresented the character and legal status of the debt, where, under the facts, the dishonored check charge was not yet lawfully chargeable under state law. Ballard v. Equivax Check Servic es (E.D. Cal. 1998) 27 F.Supp.2d 1201. See also discussion in endnote 58 above.
73. See Duffy v. Landberg (8th Cir. 2000 ) 215 F.3d 871, 874. In that case, M innesota s tate law provided tha t the iss uer of a dishonoredcheckisliablefor“theamountofthecheckplusacivilpenaltyofupto$100....” Inholdingthatthecollector’s demand for a $100 civil penalty violated the federal statute, the court stated: “It is not certain that a Minnesota court would impose the entire $100 penalty in any given situation. In fact, it is probably unlikely in the case of a $10 bad check.”
74. A claim for “reasonable attorney’s fees” or “reasonable collection expenses” must meet the statutory prerequisite that the parties’ contract “expressly” authorize its imposition. Code of Civil Procedure § 1021; these are summarized in 1 Consumer Law Sourcebook (Department of Consumer Affairs, 1996), § 12.53. A claim for “reasonable attorney’s fees” is the kind of claim that ordinarily necessitates judicial action to liquidate it; an attorney’s fee claim is deemed to be a claim for “costs” whose amount is ordinarily assessed on noticed motion at which this determination is made. See Code of Civil Procedure §§ 1033.5(a)(10), 1033.5(c)(5). See, generally, 1 Consumer Law Sourcebook (Department of Consumer Affairs, 1996), §§ 13.82 83, and Fair Debt Collection, 4th ed (National Consumer Law Center 2000), § 15.2.
75. Code of Civil Procedure § 1021.5. 76. CivilCode§1788.14(b).
77. In a case in which there was no genuine attempt by the parties to estimate a fair compensation for the failure to pay the debt, the court held that the charge was invalid as a “penalty” and also unlawful under the unfair trade practices law. Bondanza v. Peninsula Hospital and Medical Center (1979) 23 Cal.3d 260, 266-267 [152 Cal.Rptr. 446, 450], discussed in 1 Witkin, Sum. of Cal. Law (Contracts) § 533. See also Fair Debt Collection, 4th ed (National Consumer Law Center 2000), § 15.2.3,and1ConsumerLawSourcebook(DepartmentofConsumerAffairs,1996), §§12.53and13.82-83.) Onlyifaflat rate is judicially determined to be valid “liquidated damages” does it not constitute a penalty. See Beasley v. Wells Fargo Bank (1992) (235 Cal.App.3d 1383, 1389 [1 Cal.Rptr.2d 446, 418], and Hitz v. First Interstate Bank (1995) 38 Cal.App.4th 274 [44 Cal.Rptr.2d 890]. Even then, it might not be enforceable under Bondanza. In that case, the debt was paid shortly after assignment to the debt collection agency
5. B&P § 6077.5.
6. B&P § 6077.5(a). The California standards for debt collection attorneys require attorneys and their employees to comply with (a) all of the provisions of the California Fair Debt Collection Practices Act, and (b) some of the provisions ofthe federal statute (in particular, 15 USC §§ 1692c(a)(1), c(c), f(6), f(5), g, and h, which have been recodified at B&P §§ 6077.5(c), (d), (e), (f), (g), (h), and (i), respectively).
7. 15 USC §§ 1692-1692o, Pub. L. 95-109, Sept. 20, 1977, 91 Stat. 874, whose official title is the Fair Debt Collection Practices Act.
6. 15 USC § 1692a(6). 9. 15USC§1692a(5).
10. Fox v. Citicorp Credit Corp. Services, Inc. (9th Ci r. 1994) 15 F3d 1507, 1512; Heintz v. Jenkins, 514 U.S. 291, 115 S.Ct. 1489, 131 L.Ed.2d 395 (1995). An attorney’s name maynot appear on a dunning letter or similar communication unless the attorney has made a “considered, professional judgment’ that the named person is delinquent and hence a likely candidate for legal action. (Nielsen v. Dickerson (7th Cir. 2002) 307 F.3d 623.
11. On the scope of the federal and California statutes, see Part 3 of this Legal Guide. See also Pridgen, Consumer Credit and the Law (Clark Boardman Callaghan, 1990, (2000 Supp.), ch. 4; Fair Debt Collection, 4th ed (National Consumer Law Center 2000), § 5.7.16; Debt Collection Practice in California, 2d ed. (CEB 1999), ch. 2.
12. Civil Code § 1788.17 (Stats. 1999, ch. 310). This 1999 statute states that “every debt collector [subject to the California statute] shall comply with ... Sections 1692b to 1692j, inclusive, of, and shall be subject to the remedies in Section 1692k of, Title 15 of the United States Code ... as theyread January1, 2000.” However, creditors collecting their own debts are expressly exempted from 15 USC §§ 1692e(11) and 1692g (on purpose of contact and verification notice.
13. Civil Code § 1788.2(b)-(f); 15 USC § 1692a(3)-(6).
14. The general law of California includes several legal doctrines that can give rise to liability by a business or individual engaged in collecting or enforcing debts. One of these is tort law. A “tort” is a civil (as opposed to criminal) wrong, other than a breach of contract, for which there is a remedy in the form of a lawsuit for damages . Nagy v. Nagy (1989) 210 Cal.App.3d 1262, 1269 [258 Cal.Rptr. 787, 790]. While there is no single tort of “unfair debt collection,” a debt collector can incur liability under any of the following torts, depending on the situation: (a) infliction of emotional distress (done either negligently or intentionally); (b) invasion of privacy; (c) defamation; (d) interference with employment relation; (e) malicious prosecution; (f) abuse of process; and (g) a tort arising from statutory violation (“negligence per se”) See 5 Witkin, Sum. Cal. Law (9th ed. 1988) Torts §§ 402-417 (intentional causing of emotional distress); §§ 459-470 (abuse of process); Torts §§ 471-566 (defamation); §§ 577-603 (invasion of privacy); §§ 640-641 (interference with employment relation); §§ 674-728 (fraud and deceit). See Guide DC-3, “Debt Collector’s Wrongful Conduct: Some (Tort) Remedies for Debtors.”
15. 15 USC § 1692e(11); Civil Code § 1788.17 (effective 1/1/2000). This requirement does not apply to a creditor collecting its own debt; however, it does apply to attorneys engaging in debt collection. (Civil Code § 1788.17, 15 USC §§ 1692a(6)(A),(B), 1692e(11).
16. 15 USC § 1692e(11) ; Civil Code § 1788.17 (effective 1/1/2 000). These rul es do not apply to a creditor collecting its own debt. (Civil Code § 1788.17, 15 USC §§ 1692a(6)(A),(B), 1692e(11).
17. CivilCode§1788.11(b);15USC§1692d(6). 18. CivilCode§1788.13(a).
-37 19. CivilCode§1788.11(b). TheCaliforniastatuterequiresthatthealiasberegisteredwithapresentlynon-existentstate agency; the underlying intent of this section would seem to require that the alias identify a particular person that the collector can name if necessary. See also Wright v. Credit Bureau of Georgia, Inc. (N.D. Ga. 1982) 548 F.Supp.591.
20. 15USC§1692e(14);CivilCode§1788.13(a); seeFairDebtCollection,4thed(NationalConsumerLawCenter2000),§ 5.5.
21. Civil Code § 1788.13(i) (c).
22. Civil Code § 1788.13(d). The FTC has construed § 5 the Federal Trade Commission Act, 15 USC § 45 (hereafter “FTC Act”) to prohibit misrepresenting a collector’s affiliation with the government. See Fair Debt Collection, 4th ed. (National Consumer Law Center 2000), § 8.3.10.
23. CivilCode§§1788.13(b),(c);seealsoCivilCode§1788.16(e). 24. CivilCode§1788.13(f)and(g). 25. Civil Code § 1788.13 (k).
26. Civil Code § 1788.13(h). The FTC has construed the FTC Act to prohibit misrepresenting that a claim has been or will be sent to an attorney or separate department of the collector. See Fair Debt Collection, 4th ed. (National Consumer Law Center 2000), § 8.3.9.
27. Business & Professions Code § 6077.5(b).
28. Civil Code § 1788.13(b); 15 USC § 1692e(3); see Masuda v. Thomas Richards & Co. (C.D. Cal. 1991) 759 F.Supp. 1456, 1460; see Clomon v. Jackson (2d Cir. 1993) 988 F.2d 1314, and Anthes v. Transworld Systems, Inc. (D. Del. 1991) 765 F.Supp. 162, 166-167.
29. 15 USC § 1692g(a); see Fair Debt Collection, 4th ed (National Consumer Law Center 2000), § 5.5. This requirement does not apply to a creditor collecting its own debt; however, it does apply to attorneys engaging in debt collection. Civil Code § 1788.17, 15 USC § 1692a(6)(A),(B), 1692g. (If this is the first communication to the debtor, it must also include (a) the collector’s identity (see Article 2.2, “Disclosure/ Misrepresentation of Identity”), and (b) a description of the purpose of the contact and a notice that any information that the collector receives from the debtor will be used for that purpose (see Article 2.1, Disclosure of Purpose of Communication.”)
30. 15USC§1692a;seePub.L.99-361,July9,1986,100Stat.768,deletingpriorexemptionofattorneys.
31. A notice of this kind will ordinarily obligate the debt collection agency to inform any credit reporting agency to which the collectorreportsadversecreditinformationthatthedebtisdisputed. (15USC§1692e(8).) Thedutytodothisalsoarises under the federal Fair Credit Reporting Act. (15 USC § 1681s-2(a)(3).) If the debtor has informed the debt collection agency about the basis for the dispute, this may also give rise to an obligation under one or both of the federal statutes to provide that informationtoanycreditreportingagencyand,inparticular,tocorrectanyinaccurateinformationalreadyprovided. (15USC §§ 1692e(8), 1681s-2; Brady v. Credit Recovery Co. (1st Cir. 1998) 160 F.3d 64; see also CC §§ 1785.25(f) and 1785.26(b),(c).) If the debtor sends a written inquiry by certified mail, the collector must give the debtor a “timely response” in writing under California Civil Code § 1720.. If a response is not mailed within 60 days of the debtor’s written inquiry, the collector is not entitled to interest, financing charges, services charges, or any similar charges on the disputed amount from and after the date of your written inquiry. (Civil Code § 1720.)
32. 15USC§1692g(c). 33. 15USC§1692g(a)(4).
34. In judging whether the content of a verification notice meets the statutory standards, courts interpret the federal statute from the perspective of, and based on its probable impact on, a hypothetical “least sophisticated debtor,” as distinguished from an “average” or “reasonable” debtor. (Jeter v. Credit Bureau, Inc. (11th Cir. 1985 ) 760 F.2d 1168, 1174 ; Swanson v. Southern Oregon Credit Service (9th Cir. 1988) 869 F.2d 1222, 1225.) The “least sophisticated debtor test” is used to evaluate the adequacy of compliance with numerous provisions of the Act, including the verification notice requirement and the standards that apply to the collector’s representations to the debtor. Whether a representation is false or deceptive, for instance, is judged by the message’s impact on a least sophisticated debtor. (See §§ 30.XX-30-XX.) In the Swanson case, the 9 th Ci rcuit Court of Appeal held that a debt collection agency’s verification notice violated 15 USC § 1692g because it failed to effectively inform the least sophisticated debtors to whom it was directed. (Swanson v. Southern Oregon Credit Service, supra, at 1225.) The
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court stated that “[t]he statute is not satisfied merely by inclusion of the required debt validation notice; the notice Congress required must be conveyed effectively to the debtor.” (Id at 1225.) The required notice "must be large enough to be easily read and sufficiently prominent to be noticed -- even by the least sophisticated debtor," and "to be effective, the notice must not be overshadowed or contradicted by other messages or notices appearing in the initial communication from the collection agency." (Id at 1225.) The court decided that the notice in issue in that case failed these tests because it was dwarfed and contradicted by the dunning message. In 1996 and 1997 decisions, the 9th Circuit Court of Appeal reaffirmed that compliance with the standards set by the federal statute is determined by assessing the collector’s impact on “a hypothetical ‘least sophisticated debtor.” (Wade v. Regional Credit Ass’n (9th Cir. 1996 ) 87 F.3d 10 98, 1100; Terran v. Kaplan (1997) 109 F.3d 142, 143; see also Baker v. Citibank (South Dakota) N.A. (S.D.Cal.1998) 13 F.Supp.2d 1037.) “[C]ourts have consistently found inadequate debt validation notices where the typefaces and layouts of the overall documents overshadowed the notices.” (Baker v. Citibank (South Dakota) N.A, supra, at 1441.) A 1980 federal district court held that positioning the notice on the back of a form demanding payment within five days was insufficient notice of the debtor’s rights because the message in the notice was contradicted by the collector’s demand for payment. The court found that the design of the collector’s notice reflected "a deliberate policy ... to evade the spirit of the notice statute and mislead the debtor into disregarding the notice." (Ost v. Collection Bureau, Inc. (D.N. D. 198 0) 493 F. Sup p. 70 1, 70 3; see also U.S. v. National Financial Services, Inc. (D.Md. l993) 820 F.Supp . 228; Rabideau v. Management Adjustment Bureau (W.D.N.Y. 1992) 805 F .Supp. 10 86); Anthes v. Transworld Systems, Inc. (D.Del. 1991) 765 F.Supp. 162.) Similarly, a federal district court in Baker held that a collector’s demand that payment be made “now” violated the statute because it contradicted and diluted the effect of the statutory notice of the debtor’s 30-day right to dispute and obtain verification. In a 1991 case, the collector had included all of the required debt verification information in three paragraphs on the back of a collection letter, but the court nevertheless found a violation because other provisions of the letter contradicted and undercut the verification notice. (Miller v. Payco-General Am. Credits, Inc. (4th Cir. 1991) 943 F.2d 482, 483.) In that case, the front of the letter demanded immediate payment, with the single word "NOW" filling the bottom third of the document in white letters nearly two inches tall against a red background, thereby undercutting the statement on the back of the letter, printed in grey ink, that the debtor had 30 days in which to contest the validity of the debt and request verification. The court stated that “[a] demand for payment within les s than the thir ty-day timeframe necessarily requires the debtor to forego the statutory right to challenge the debt ... within thirty days ...” and therefore “conflicts with the protections for debtors set forth in [the statute].” (Terran v. Kaplan (1997) 109 F.3d 1432, 1434.) The content of the verification notice must include an accurate statement of all of the information required by the statute. Applying the “least sophisticated debtor test,” the 7th Circu it Cou rt of App eal h eld t hat t he not ice mus t incl ude an accura te st ateme nt of the amount actually owing, and not require the debtor to call an “800" number for the exact figure. (Miller v. McCalla, et al, 2000 WL 715001 (7th Cir. June 5, 2000).) See also Heintz v. Jacobs (1995) 514 U.S. 291, 115 S.Ct. 1489, 131 L.ED.2d 395, and Romine v. Diversified Collection Services, Inc. (9th Cir. 1998) 115 F.3d 1142; Pridgen, Consumer Credit and the Law (2001 looseleaf), § 13.04[3]; Fair Debt Collection, 4th ed. (National Consumer Law Center 2000), § 5.2.1. An attorney who represents a debt collection agency in debt collection efforts (whether or not a lawsuit is filed) is governed by the same rules that apply to debt collection agencies, and therefore must give the debtor a verification notice as required. (15 USC § 1692a; see Pub. L. 99-361, July 9, 1986, 100 Stat. 768, deleting prior exemption of attorneys.)
35. 15 USC § 1692g(b). The House Report indicates that compliance with the verification notice requirement would be achieved if the debt collection agency obtained from the creditor a statement including an itemization of the debt, the name of the consumer, a statement that the debt had not been paid, and a statement that the consumer had received a specified product or a properly rendered service. H.R. Rep. No. 131, 95th Cong., 1st Sess. 6 (1977); see Mahon v. Credi t Bureau of Placer (9th Cir. 1999) 171 F.3d 1197; Pridgen, Consumer Credit and the Law (Clark Boardman Callaghan, 1990, 2000 Supp.), § 13.04[4]. In Castro v. ARS National Services, Inc., 2000 U.S. Dist. LEXIS 2618 (S.D.N.Y. March 8, 2000), a federal district court in New York held that a debt collector violated the federal statute by including language in its verification notice that the least sophisticated consumer could read as imposing requirements beyond those set out in the statute. According to the court, all that was needed to dispute the validity of a debt was a letter by the consumer with the statement, “I dispute the debt.”
36. FTCAdvisoryOpinion,March31,2000,http://www.ftc.gov/os/2000/04/dcpaadvisoryopinion.htm;seeFairDebt Collection, 4th ed. (National Consumer Law Center 2000), § 5.7.2.3.
37. Staff Commentary on the FDCPA, 53 Fed.Reg. 50097, 50109 (FTC 1988); see Baker v. Citibank (South Dakota) N.A. et al (S.D. Cal.1998) 13 F.Supp.2d 1037, 1043.
38. 15 USC §§ 1681s-2; see Fair Credit Reporting Act, 4th ed. 1998 (National Consumer Law Center, 1998), § 9.9. 39. 15USC§1681s-2(a). 40. 15USC§1681s-2(a),(b).
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41. 15 USC § 1681i; see Fair Credit Reporting Act, 4th ed. 1998 (National Consumer Law Center, 1998), §§ 9.3-9.10. 42. 15USC§§1681s-2;seeFairCreditReportingAct,4th ed.1998(NationalConsumerLawCenter,1998),§9.9;Campbell
v. Baldwin (E.D. Tex ., 2000) 90 F.Supp. 2d 754; Dornheckler v. Ameritech Corp. (N.D. Ill., 2000) 99 F.Supp.2d 918. 43. 15 USC §§ 1681i(c), 1681s-2. 44. 15USC§1681i(c). 45. 15 USC §§ 1692c(c)(1)-(3), (d).
46. Staff Commentary on the FDCPA, 53 Fed.Reg. 50097, 50109 (FTC 1988); see Baker v. Citibank (South Dakota) N.A. et al (S.D. Cal.1998) 13 F.Supp.2d 1037, 1043.
47. 15USC§1692c(c)(1)-(3).
48. 15USC§§1692c(c)(1)-(3).
49. 15USC§§1692c(c)(1)-(3).
50. 15 USC § 1692e(8), Civil Code § 1785.26(b),(c); see also Civil Code § 1785.25(f) and Brady v. Credit Recovery Co. (1st Cir. 1998) 160 F.3d 64.
51. 15 USC § 1692c(a)(1); see Fair Debt Collection, 4th ed (National Consumer Law Center 2000), § 5.3. The federal statute defines “communication” as “the conveying of information regarding a debt directlyor indirectly to anyperson through any medium.” 15 USC § 1692a(2). The FTC has ruled that the term “communicate” is given its commonly accepted meaning, and that inconvenient contacts are prohibited when related to the collection of a debt whether or not the debt is specifically mentioned. FTC Staff Commentary, at p. 50,103; see also Pridgen, Consumer Credit and the Law (Clark Boardman Callaghan, 1990, (2000 Supp.), § 13.05[2].) See also discussion of harassment by telephone, at Article 2.9.
52. 15USC§1692c(a)(1).
53. 15 USC § 1692c(d); see Pridgen, Consumer Credit and the Law (Clark Boardman Callaghan, 1990, (2000 Supp.), § 13.05[3].)
54. 15 USC § 1692f(8). In Kleczy v. First Federal Credit Control, Inc. (1984) 21 Ohio App. 3d 56 [486 N.E.2d 204], the court held that a collection agency violated the federal statute when it mailed a collection letter to a consumer at his place of employment. The court found that because the words “FINAL DEMAND FOR PAYMENT” could be easily read through the envelope addressed to the consumer at his place of work, a third party was being notified of the debt, a violation of the statute. See Pridgen, Consumer Credit and the Law (Clark Boardman Callaghan, 1990, (2000 Supp.), § 13.05[3]; and Fair Debt Collection, 4th ed (National Consumer Law Center 2000), § 5.3.
55.
56.
57.
58.
59.
60.
61.
62.
63.
CivilCode§1788.12(d). 15USC§1692f(7). 15USC§1692c(a)(3). CivilCode§1788.14(c). 15USC§§1692b(6),1692c(a)(2). 15 USC § 1692d(3); see Fair Debt Collection, 4th ed (National Consumer Law Center 2000), § 5.4.4. CivilCode§1788.12(c).
15USC§1692d(4). CivilCode§1788.10(e). See 5 Witkin, Sum. of Cal. Law (9th ed. 198 8) Torts , § 471. On a debt or’s pr ivate r emedie s for an un lawful privacy
64. invasion or defamation, see the sources cited in endnote 11, above.
65. 15 USC § 1692f. See, generally, Pridgen, Consumer Credit and the Law (Clark Boardman Callaghan, 1990, (2000 Supp.), § 13.08, and Fair Debt Collection, 4th ed (National Consumer Law Center 2000), § 5.8.
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66. Civil Code § 1788.10(a); 15 USC § 1692d(1).
67. Civil Code § 1788.14(b); 15 USC § 1692f(1). Even though the demand for interest of $1.29, $1.84 and $ .65 on unpaid checks was “only slightly overstated,” the court held that this violated the federal statute’s plain language. Duffy v. Landberg, 2000 U.S. App. LEXIS 11614 (8th Cir. 2000).
68. See Newman v. Checkrite California, Inc. (E.D. Cal. 1995) 912 F.Supp. 1354, 1367-1369, 1376-1378. In a later case, a court held that a service charge can onlybe imposed on a check writer if (a) the check writer and the merchant have agreed that the charge might be imposed in the event a check given in payment is not paid, and (b) the payee or transferee actually proves the existence of such an agreement by evidence of a posted sign or other evidence of agreement. Ballard v. Equifax Check Services, Inc., 27 F.Supp.2d 1201 (E.D. Cal. 1998). The California statute that authorizes a service charge for returned checks (CC§ 19719)hasbeenrevisedtoprovidethataservicechargeisnowastatutorypenaltyrecoverableifcertainstatutory prerequisites are met. See Legal Guide K-5, “California’s Bad Check Law.”
69. 15 USC § 1692e(2)(A); see also Civil Code § 1788.14. The FTC has construed the FTC Act to prohibit misrepresenting that an obligation exists when it does not. See Fair Debt Collection, 4th ed. (National Consumer Law Center 2000), § 8.3.3.
70. In Kimber v. Federal Financial Corp. (M.D. Ala. 1987) 668 F.Supp. 1480, the court held that it is unfair under the federal statute to file a time-barred collection suit against a consumer, and that it is deceptive to even threaten to file such a suit.
71. Civil Code § 329(b). The rules on pre-judgment and post-judgment interest are summarized at 1 Consumer Law Sourcebook (Department of Consumer Affairs, 1996), § 13.21. Non-credit sales agreements often call for 1.5% per month for delayed payment. 1 Consumer Law Sourcebook (Department of Consumer Affairs, 1996), §§ 13.27-13.32. A demand for even a small amount in excess of a statutory ceiling constitutes a violation. See Duffy v. Landberg, 215 F.3d 871 (8th cir. 2000).
72. In situations in which a penalty is authorized by statute (e.g., for late payment on a home mortgage or credit card account, or for agreed “liquidated damages” for breach of contract), the same statute ordinarily defines the conditions that must be met before the penalty can be assessed. For instance, a court held that a check guarantee company’s demand for payment of a dishonored check fee violated the law on the basis that it misrepresented the character and legal status of the debt, where, under the facts, the dishonored check charge was not yet lawfully chargeable under state law. Ballard v. Equivax Check Servic es (E.D. Cal. 1998) 27 F.Supp.2d 1201. See also discussion in endnote 58 above.
73. See Duffy v. Landberg (8th Cir. 2000 ) 215 F.3d 871, 874. In that case, M innesota s tate law provided tha t the iss uer of a dishonoredcheckisliablefor“theamountofthecheckplusacivilpenaltyofupto$100....” Inholdingthatthecollector’s demand for a $100 civil penalty violated the federal statute, the court stated: “It is not certain that a Minnesota court would impose the entire $100 penalty in any given situation. In fact, it is probably unlikely in the case of a $10 bad check.”
74. A claim for “reasonable attorney’s fees” or “reasonable collection expenses” must meet the statutory prerequisite that the parties’ contract “expressly” authorize its imposition. Code of Civil Procedure § 1021; these are summarized in 1 Consumer Law Sourcebook (Department of Consumer Affairs, 1996), § 12.53. A claim for “reasonable attorney’s fees” is the kind of claim that ordinarily necessitates judicial action to liquidate it; an attorney’s fee claim is deemed to be a claim for “costs” whose amount is ordinarily assessed on noticed motion at which this determination is made. See Code of Civil Procedure §§ 1033.5(a)(10), 1033.5(c)(5). See, generally, 1 Consumer Law Sourcebook (Department of Consumer Affairs, 1996), §§ 13.82 83, and Fair Debt Collection, 4th ed (National Consumer Law Center 2000), § 15.2.
75. Code of Civil Procedure § 1021.5. 76. CivilCode§1788.14(b).
77. In a case in which there was no genuine attempt by the parties to estimate a fair compensation for the failure to pay the debt, the court held that the charge was invalid as a “penalty” and also unlawful under the unfair trade practices law. Bondanza v. Peninsula Hospital and Medical Center (1979) 23 Cal.3d 260, 266-267 [152 Cal.Rptr. 446, 450], discussed in 1 Witkin, Sum. of Cal. Law (Contracts) § 533. See also Fair Debt Collection, 4th ed (National Consumer Law Center 2000), § 15.2.3,and1ConsumerLawSourcebook(DepartmentofConsumerAffairs,1996), §§12.53and13.82-83.) Onlyifaflat rate is judicially determined to be valid “liquidated damages” does it not constitute a penalty. See Beasley v. Wells Fargo Bank (1992) (235 Cal.App.3d 1383, 1389 [1 Cal.Rptr.2d 446, 418], and Hitz v. First Interstate Bank (1995) 38 Cal.App.4th 274 [44 Cal.Rptr.2d 890]. Even then, it might not be enforceable under Bondanza. In that case, the debt was paid shortly after assignment to the debt collection agency
Misrepresenting consumers owes a debt by failing to substantiate its representations and failing to disclose that debts are too old to be legally enforceable under the law is not a legal protected debt collection practice. Warning here, any partial payment you give offer at any point could extend the time a debt could be legally enforceable if you know you owe an old debt. They cannot provide information to credit reporting agencies, while knowing or having reasonable cause to believe that the information they purchased was inaccurate. Failing to notify consumers in writing that it provided negative information to a credit-reporting agency is also very illegal. Any collection agency failing to conduct a reasonable investigation when it receives a notice of dispute from a credit-reporting agency or consumer and repeatedly calling third parties who do not owe a debt; informing third parties about a debt is open to a class action lawsuit by all consumers involved or those injured under tort law.
It is my opinion this company is no doubt using illegal debt-collection practices, including misrepresenting the character, amount, and/or legal status of an alleged debt in hopes of reenacting limitations long since past. In some cases there may be previous bankruptcies involved (discharged debt) in which they have after many years purchased and are now trying to collect on. Simply providing inaccurate information to credit reporting agency; and making false representations to collect a debt; and/or failing to provide verification of the debt and continuing to attempt to collect a debt when it is disputed by the consumer is all prohibited by the FDCPA and the FTC. There may also be violations of many common state statutes as well at the state level. Discharged or old debts in court that are greater than 5-6 years in most states are considered "Time-barred". Simply what that means is there is no legal precedent in which one may attempt to engage in legal collection practices or those provided a creditor under the law. Habitually that is what companies such as this deal with in the hopes of tricking a consumer into getting the debt into a repayment status by engaging in deceptive practices (trickery) since most people know nothing about how debt law works and what their rights are. Certainly this agency tired this with me and lost and is about to lose bigger in the future as a result. Since I am a lawyer myself, I had quite the chore collecting information about them so I could accurately report them to the FTC. The FTC has advised me to communicate to all interested parties that you must first file a FTC complaint before any government agency including the FTC can take appropriate action. Right now, from what I have been told the FTC is perusing complaints involving these types of debt scams and is very serious about shutting all operations down which are violating FDCPA laws or trying collect on or create false debt.
If you have been contacted by this company and feel you have been subject to any of the above practices, please contact the FTC and file a complaint.
FTC Gov Complaints:
https://www.ftccomplaintassistant.gov/