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PRESS RELEASE

Indiana Consumer Law Group/The Law Office of Robert E. Duff announces the filing of a lawsuit against Midland Funding LLC, a California based debt collector, and Bowman, Heintz, Boscia & Vician, P.C., an Indiana based debt collection law firm.  The lawsuit, which has been filed in the United States District Court for the Southern District of Indiana, alleges that Midland Funding and Bowman, Heintz, Boscia & Vician violated the Fair Debt Collection Practices Act (“FDCPA”) when they filed a collection lawsuit against an Indiana consumer on a debt that had been paid in full five years earlier.  The consumer/plaintiff is seeking an award of actual damages, statutory damages, costs and attorney fees.

This lawsuit highlights an important provision of the FDCPA.  It prohibits a debt collector from collecting or attempting to collect any amount, even only a dollar of principle, interest or fees, that is not owed.  This of course includes a debt that was never owed, was discharged in bankruptcy, was settled for the less than the full amount or was paid in full.  Plus, the FDCPA has a fee-shifting provision that means that if the consumer prevails the debt collector has to pay the consumer’s attorney fees.  That means that here at the Indiana Consumer Law Group/The Law Office of Robert E. Duff, we don’t charge you any attorney fees out of pocket to bring an FDCPA lawsuit.  If a debt collector is attempting to collect a debt from you that you don’t owe, go here to submit your potential case for a free evaluation.

 

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PRESS RELEASE

Indiana Consumer Law Group/The Law Office of Robert E. Duff announces the filing of a lawsuit against LVNV Funding LLC, a Nevada based debt collector, and Stenger & Stenger, P.C., a Michigan based debt collection law firm.  The lawsuit, which has been filed in the United States District Court for the Southern District of Indiana, alleges that LVNV violated the Fair Debt Collection Practices Act (“FDCPA”) when, during a telephone call, LVNV threatened the plaintiff with imminent garnishment of her wages when that was not possible because LVNV did not have a judgment against her.  The plaintiff also alleges that LVNV failed to advise her of certain rights she has under the FDCPA.  The lawsuit further alleges that Stenger & Stenger violated the FDCPA by falsely stating in a pleading filed with the state court (in a lawsuit Stenger & Stenger filed on behalf of LVNV against the consumer) that the consumer had received billings for the amount due.  The consumer/plaintiff is seeking an award of actual damages, statutory damages, costs and attorney fees.

The FDCPA is a powerful consumer protection statute.  Debt collectors are prohibited from making a false or misleading statement of material fact in attempting to collect a debt.  If a debt collector has made a false or misleading statement of material fact in attempting to collect a debt from you, the debt collector has probably violated the FDCPA.  Contact us if you believe we may be of assistance.

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PRESS RELEASE

Indiana Consumer Law Group/The Law Office of Robert E. Duff announces the filing of a lawsuit against Reliant Capital Solutions, LLC of Ohio. The lawsuit, which has been filed in the United States District Court for the Southern District of Indiana, alleges that Reliant Capital Solutions contacted the plaintiff’s relatives – for reasons other than obtaining contact information – while attempting to collect a debt from her.  The Complaint alleges that this was a violation of the Fair Debt Collection Practices Act (“FDCPA”) because the general rule is that a debt collector is not permitted to communicate with any person other than the debtor in connection with the collection of a debt.  The consumer/plaintiff is seeking an award of actual damages, statutory damages, costs and attorney fees.

The consumer’s lawsuit highlights one of the many ways debt collectors violate the FDCPA in attempting to collect a debt.  The FDCPA only allows a debt collector to contact someone other than the debtor in collecting a debt in one very limited situation:  to obtain contact information for the debtor.  That’s it.  And even then, there are important limits on the communication with a third party.  In any communication with a third party, the debt collector must:

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Are you receiving collection calls to a cell phone for a debt that belongs to someone else?  If the calls are being made by an autodialer, you may have a claim under the Telephone Consumer Protection Act (“TCPA”).

For there to be liability under the TCPA, collection calls to a cellphone must be made by autodialer without your “prior express consent.”  One of the easiest ways to know there was no prior express consent is when the collection calls are for a debt that was never yours to begin with and belongs to someone else.  So let’s say we’ve determined that a company is calling your cell phone attempting to collect a debt that belongs to someone else.  How do you know if the company is using an autodialer?

Creditors and debt collectors often use autodialers to collect debt because of increased economic efficiency.  Simply put, autodialers can make more calls that people can.  Autodialers can even make people more efficient at debt collection by predictive dialing.  Predictive dialing is the process of calling certain numbers and connecting a call to a real call center person only when the call is answered by an actual consumer.  A predictive dialer predicts when the real call center person will be available to take the next call and makes automatic calls in an attempt to get a real consumer on the line at just the right time.  So when  you answer a call and the real call center person does not immediately respond, this is a usually a sure sign that an autodialer is being used.  The delay between you answering and the real call center person coming on the line is the time it takes the autodialer to tell the call center person that it has made a connection with an actual consumer and then for the real call center person to get on the line.  An immediate hangup will sometimes happen when the autodialer predicted incorrectly that a real call center person would be available but they were not.  If you hear a recording in response to answer the call, that is also a sure sign that an autodialer is being used. Continue reading

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Indiana consumers beware. The Consumer Financial Protection Bureau (“CFPB”) recently released its list of the top debt collectors generating complaints for the period of February through April, 2015. Since its inception, the CFPB has received an average of over 7,000 collection-related consumer complaints a month. In fact, debt collection is the number one category of complaints to the CFPB. And now, the CFPB is naming names. Here is the most recent list of the top complaint-receiving debt collectors nationwide (from most to least): Enhanced Recovery Company, LLC, Encore Capital Group, Portfolio Recovery Associates, Inc., Transworld Systems Inc., Convergent Resources, Inc., Allied Interstate LLC, EOS Holdings, Inc., Resurgent Capital Services L.P., Afni, Inc. and Diversified Consultants, Inc.

If you believe one of these companies or any other debt collector has violated the FDCPA, and you want help protecting your rights, submit your potential claim here.

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I often receive inquiries from Indiana consumers about statutes of limitation on debt collection. A statute of limitation establishes an affirmative defense for a defendant when a lawsuit has not been filed in a timely manner. That means that a defendant can have a lawsuit dismissed when the lawsuit was filed past the statute of limitation.

For the most part, statutes of limitation range from one year to ten years depending on the claim. The most common statute of limitation in Indiana is two years. Personal injury claims in Indiana are generally barred (subject to dismissal) if they are not filed two years from the date of the injury. But debt collection statutes of limitation based on contracts are longer. Here are some examples:

Medical Debt – 10 years if written contract and 6 years if no written contract Credit Card Debt and other revolving credit – 6 years Contract for Sale of Goods (like the purchase of a car) – 4 years

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Debt collectors and creditors often use what is called an autodialer to make calls to consumers. One of the ways you can tell an autodialer is being used is that when you answer the call you will experience a slight delay before a live person actually comes on the phone. There are several reasons creditors and debt collectors use autodialers, but one of them is that it allows them to pepper a consumer with calls when the consumer isn’t answering. This can be harassing, but you can make them stop.

A debt collector needs what is called “prior express consent” to legally use an autodialer to call your cell phone. Typically, this prior express consent is obtained when you list your cell phone number on the paperwork when you arrange a business or credit transaction. But your consent can easily be revoked or retracted simply by informing the business calling you that you no longer wish to receive phone calls from them. It can be done either orally or in writing. This won’t necessarily stop autodialed calls to a landline, but it SHOULD stop autodialed calls to a cell phone. If it doesn’t, each call thereafter may be a violation of the Telephone Consumer Protection Act (“TCPA”) and could be worth at least $500 PER CALL.

For more information about the TCPA or to submit your potential TCPA claim for review, please visit my website at www.indianaconsumerlawgroup.com.

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PRESS RELEASE

Indiana Consumer Law Group/The Law Office of Robert E. Duff announces the filing of a lawsuit against Indiana law firm Thrasher, Buschmann & Voelkel, P.C. arising out of the collection of an assessment by the Huntwick Community Association. The lawsuit, which has been filed in the United States District Court for the Southern District of Indiana, alleges that Thrasher, Buschmann & Voelkel, P.C. sent a collection letter to a resident of the Huntwick subdivision in an attempt to collect dues owed to the Huntwick Community Association, Inc. The letter is alleged to attempt to collect attorney fees that were not owed. The Complaint alleges that this was a violation of the Fair Debt Collection Practices Act (“FDCPA”) because it is a violation of the FDCPA to attempt to collect any amount that is not owed. The consumer/plaintiff in the FDCPA lawsuit is seeking an award of actual damages, statutory damages, costs and attorney fees.

The consumer’s lawsuit highlights one of the most important parts of the FDCPA. In this case, the attorney fees that were added to the debt ($125) were nearly as much as the original debt itself ($144). But the FDCPA prohibits a debt collector from collecting or attempting to collect ANY amount that is not owed. That means that a debt collector violates the FDCPA both by attempting to collect a debt that you don’t owe (because you already paid it, for instance) or by attempting to collect interest in the amount of $1.50 that you don’t owe. Attempting to collect any amount not owed is a violation.

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On Thursday, September 18, I attended a field hearing the CFPB held in Indianapolis on auto finance. I also was invited to a private community roundtable meeting with Director Cordray prior to the hearing. I must say that I was extremely encouraged. I believe Director Cordray and the CFPB staff are doing their best to look out for and protect the interests of consumers. There is no doubt they face significant hurdles and opposition. And I’m sure there will be times where we, as consumer advocates, will be disappointed with the actions or inaction of the CFPB. But I left the meeting with Director Cordray and his staff with the belief that the CFPB truly is attempting to do what its name says: protect consumers’ financial interests from unfair business practices. What a breath of fresh air!

The other thing I learned of note is that the CFPB actively works to resolve consumer complaints and THEY WANT CONSUMERS TO FILE COMPLAINTS WITH THEM. That was news to me. In Indiana, the consumers I speak with often file complaints with the Better Business Bureau and the Attorney General’s Office. These entities will take the complaint and then solicit a response from the business, but if the business maintains they did nothing wrong the consumer will generally get a letter saying “we’ve done all we can, to pursue this further you may need to consult an attorney.” But my understanding is that the CFPB will, when it believes the consumer has been treated unfairly, push the business to correct the situation. I haven’t gone through the process personally, nor have I spoken with any consumer who has (as of the time of this writing), but I am anxious to see if it really works like that. If so, this will be a tremendous resource for consumers in Indiana and throughout the United States.

Complaints can be submitted at http://www.consumerfinance.gov/complaint/ or by calling 855-411-2372. They are even set up to take complaints over the telephone in over 175 different languages!

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I just read an article called “Paper Boys – Inside the Dark, Labryinthine, and Extremely Lucrative World of Consumer Debt Collection” by Jake Halpern in the New York Times Magazine. If you have half an hour and are interested in learning about the debt buying/debt collection industry, it is a great read. You can find the article here: http://www.nytimes.com/interactive/2014/08/15/magazine/bad-paper-debt-collector.html?_r=0

The takeaway for me as an Indiana consumer law attorney is that debt collectors, or collection agencies if you prefer to call them that, cannot be trusted. Mistakes are common when debt is transferred because there is no incentive for the original creditor, debt broker, debt buyer or debt collector who is selling the debt to make sure the information provided is accurate. Most debt sales are “as-is” and the sales contract makes clear to the purchaser that the seller is making no warranty, guarantee or representation that the information being sold is in any way accurate. So the seller has no motivation to make sure it is accurate.

Not only are mistakes made when debt is sold, but sellers have reason to falsify the information provided simply to make money. An example the article touches on is the date of last payment information. If a debt is “re-aged,” in other words the date of (supposed) last payment or first delinquency is made more recent, the debt can become significantly more valuable on the open market because generally more recent debts are easier to collect. The problem is, the date of last payment or first delinquency is the event that starts running of the statute of limitations. So providing a consumer, or even a court, false information about this date could have negative consequences for the consumer.

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