Attorney's Fees Awarded Against Debt Collector

Section 57.105(7) of the Florida Statutes provides for the reciprocal recovery of attorney's fees. So, if the debt collector sues a debt on a "contract" such as a credit card application and the debt collector does not prevail, the consumer/debtor may recover her/his attorney's fees against the debt collector.

The reciprocal provisions of Section 57.105(7) came to life for the consumer in Bushnell v. Portfolio Recovery Associates, L.L.C., 2018 WL 4374251 (Fla. Dist. Ct. App. Sept. 14, 2018). In Bushnell, a debt buyer initially brought and then voluntarily dismissed a collection lawsuit that was based on an account stated cause of action-that alleging that the consumer had been sent a statement of the amount owing and the consumer had not objected to the statement. The credit agreement provided for attorney fees for a prevailing creditor and Florida provides for reciprocal attorney fees. The question before the court was whether the reciprocal attorney fee statute applies where the collector's cause of action is not based on a breach of contract, but on the debtor's failure to object to a statement of account.

Although the debt buyer's case was not based upon a breach contract, the appellate court found it was based on a claim with respect to the contract. An account stated cause of action requires there to have been an agreement between the parties. Based on this reasoning, the court found the account stated cause of action is inextricably intertwined with the contract, and ruled the consumer was entitled to fees. The court also noted that in Florida there is no dispute that a consumer prevails on a lawsuit if the collector voluntarily dismisses the claim.

How To Stop Debt Collectors from Calling.

Many consumers are behind in paying their bills?  And, many consumers are receiving calls from debt collectors.  Fortunately, the law says how and when they can do that.  For example, they can’t call before 8 a.m., after 9 p.m., or while you’re at work if the collector knows that your employer doesn’t approve of the calls.  Debt Collectors may not harass you or lie when they try to collect a debt.  And, if you ask them in writing to stop calling, they have to stop.

Debt Collectors must send you a written “validation notice” telling you how much money you owe within five days after they first contact you.  The notice must include the name of the creditor to whom you owe the money.

If you don’t want the collector to contact you again, ask for the collector’s mailing address and tell them – in writing – to stop contacting you.  Keep a copy of your letter for your files.  Send the original by certified mail, and pay for a “return receipt” so you’ll be able to document what the collector received.  Once the collector gets your letter, they are not allowed to contact you again.  Sending a letter to a debt collector you owe money to doesn’t get rid of the debt, but it should stop the contact.  The creditor or the debt collector still can sue you to collect the debt.

If this doesn’t work, contact me at 888-877-5103 or visit our website at www.ConsumerRightsOrlando.com.

Can a Debt Collector Insist That I Call Them Back?

Can a debt collector insist that I call them back?

Can a debt collector insist that they be called back that same day? Consumers are frequently confronted with this demand by debt collectors. “I must hear from you by 4:00 pm today?”

The Staff Commentary by the Federal Trade Commission ('FTC'), the agency charged with enforcement of the FDCPA, states that “[it] is a violation [of law to send any communication that conveys to the consumer a false sense of urgency.”


So, not only does that consumer not have to call back, they may have a case for violation of the Fair Debt Collection Practices Act. In such cases, the consumer can easily find an attorney who will represent them at no charge to them.

Collection Calls or Voicemails from Unifund CCR Partners

Unifund CCR Partners was founded in 1986 and was one of the first companies to purchase defaulted consumer receivables. Unifund's founder and chief executive officer, David G. Rosenberg, founded Unifund to purchase and collect returned checks. In 1989, Unifund began buying distressed loan portfolios on a national scale from small banks and retailers. One year later, the company began purchasing portfolios from large financial institutions. Unifund CCR is headquartered in Cincinnati, Ohio, and it is one of the largest buyers and operators of consumer debt in the nation. In Unifund CCR Partners vs. Youngman, the court reversed a lower court order granting Unifund CCR Partner's motion for summary judgment. Unifund CCR alleged that it was the assignee of Chase Bank, and sued the consumer for breach of contract and account stated, seeking to recover attorneys' fees and the balance owed on a credit card issued to the consumer. The lower court granted Unifund CCR's motion for summary judgment, but the appellate court held that the consumer's cross motion for summary judgment should have been granted instead. The Appellate Court concluded that, to establish standing, Unifund CCR was required to "submit evidence in admissible form establishing that Chase had assigned its interest in [the consumer's] debt to [Unifund CCR]," but it failed to do so. Unifund CCR submitted an affidavit of its agent, a "Legal Liaison" employed by Unifund CCR rather than Chase, as well as credit card statements and account balance documents. The Court found that Unifund CCR did not submit the "requisite business records to establish its standing." The "Legal Liaison" employed by Unifund CCR did not establish personal knowledge of Chase's business practices or procedures, and failed to establish "when, how, or by whom the credit card statements and account balance documents were made and kept." Because Unifund CCR did not establish a proper foundation for the admission of the credit card statements and account balance documents under the business record exception to the hearsay rule, the appellate court held that Unifund CCR did not establish its standing as assignee of Chase Bank. Thus, the consumer's motion for summary judgment against Unifund CCR was granted.

“Wrong Number” Calls or Voicemails from Debt Collectors

Have you ever received calls from debt collectors for a person completely unknown to you? These “wrong number” calls are usually the result of collection calls being made to the person who owned the telephone number immediately prior to you. What do you do about these wrong number calls? My advice is to tell the debt collector that you are not the person that she/he is trying to contact and ask them to stop calling. However, this common sense approach often does not work because the debt collector does not believe the person that she/he spoke with. The collecting caller may believe that the person called is actually the true debtor and is trying to avoid the call by saying that it was a “wrong number.” If the debt collector keeps calling after being told that they have the wrong number, in this author’s opinion, the continued calls constitute harassment under the Fair Debt Collection Practices Act.

In addition, the “wrong number” calls could be in violation of the Telephone Consumer Protection Act (TCPA). The TCPA prohibits calls using a pre-recorded or artificial voice to deliver a message to a consumer unless there is a previous business relationship or consent for the call by the consumer. With most calls made by the debt industry to a consumer, the previous business relationship between the creditor and the consumer is sufficient to allow the debt collector to utilize a pre-recorded message. However, with wrong number collection calls, such a previous business relationship is lacking. Bringing suit under the TCPA premised on wrong number debt collection calls can result in substantial claimed damages. The TCPA provides for a statutory penalty of $500.00 per call and that amount increases to $1500.00 per intentional violation.

For more information, visit us at Stop Debtor Harassment or Consumer Rights Orlando.

What is “false, misleading and deceptive under the Fair Collection Practices Act?

The Fair Debt Collection Practice Act (FDCPA) was enacted to “eliminate abusive debt collection practices.”   Among the abusive tactics that the FDCPA sought to eliminate was the proscription of “false, misleading and deceptive” communications from debt collectors to consumers.

Consumer, Paula Maple, took out a loan from Midland Funding, LLC successor in interest to Bank of America, N.A., for personal, family, or household services.  Sometime thereafter the debt was transferred to the law firm of Sprechman & Associates, P.A. for collection.

On March 6, 2012, Sprechman & Associates, P.A. sent a letter to Paula Maple which stated in part:

“If your client fails to make payment or fails to make appropriate arrangements they will leave us with no choice but to subject all of their assets to actions to collect this Judgment.”

Paula Maple filed a lawsuit in United States District Court, Middle District of Florida, against Sprechman & Associates, P.A. alleging, among other things, that the statement in the letter were false given the numerous exemptions to executions on judgments.

Paula Maple also alleged in her lawsuit that the letter sent to her by Sprechman & Associates, P.A. violated the Fair Debt Collections Practices Act and the Florida Unfair and Deceptive Practices Act.

Whether a collection letter or other communication is false, deceptive, or misleading under the FDCPA is determined from the perspective of the objective least sophisticated consumer.  Under this standard, collection notices can be deceptive if they are open to more than one reasonable interpretation, at least one of which is inaccurate.   Debt collectors that violate the FDCPA are strictly liable, meaning that a consumer need not show intentional conduct by the debt collector to be entitled to damages.

For more information about debt collection harassment, or Sprechman & Associates, P.A., visit us at http://www.ConsumerRightsOrlando.com.http://www.ConsumerRightsOrlando.com

Plaintiff accused by Court of deliberately defaulting on debts to create FDCPA claims

The Fair Debt Collection Practice Act (FDCPA), enacted in 1977, aimed to "eliminate abusive debt collection practices.” Among many other reforms, the FDCPA prohibits harassing or oppressive conduct on the part of debt collectors, and it requires debt collectors to provide notice to debtors of their right to require verification of a debt. Both the text of the FDCPA and its legislative history emphasize the intent of Congress to address the previously common and severe problem of abusive debt collection practices and to protect unsophisticated consumers from unscrupulous debt collection tactics. The Act, as a U.S. District court recently stated, was not intended to enable plaintiffs to bring serial lawsuits against different debt collector defendants alleging various and often insignificant deviations from the Act’s provisions.

In Ehrich v. Credit Prot. Ass’n, 2012 U.S. Dist. LEXIS 134142 (E.D.N.Y. Sept. 19, 2012), accused the plaintiff in that case of abusing the FDCPA by, among other things, filing a total of nine complaints, including the present case, over the past seven years. The court stated that the record suggests that the plaintiff may be deliberately defaulting on his debts in order to provoke collection letters which are then combed by his lawyer for technical violations of the FDCPA.

The facts of this unique case are that Ehrich filed a complaint against Credit Protection Association, L.P., alleging violations of the FDCPA. Ehrich alleged that CPA sent him a collection note seeking to recover a debt owed to Time Warner Cable Company. Ehrich did not dispute the validity of the debt CPA sought to collect, nor did he claim that the primary text of the letter violates the FDCPA. Rather, Ehrich based his claim on two Spanish sentences at the top and bottom of the letter.

Printed at the top of the letter is the phrase “aviso importante de cobro,” which Ehrich, relying on a Google translation, translated as “important collection notice.” At the bottom of the collection notice were three Spanish phrases: “Opciones de pago,” “Llame” followed by a phone number, and “Envíe MoneyGram,” which Ehrich translated as “Payment options,” “Call" and “Send MoneyGram.” Ehrich, who does not speak Spanish, claimed that the notice’s inclusion of these Spanish phrases without a Spanish translation of the FDCPA-mandated disclosures and notices provided in English could mislead Spanish-speaking consumers and cause them to inadvertently waive their rights under the FDCPA.

CPA moved for summary judgment which was granted by the court based on lack of standing. The basis for the Court’s ruling was that the collection notice contained all disclosures required by the FDCPA and that Ehrich fully understood it. Therefore, he suffered no injury sufficient to support standing.

Offer of Judgment Halts FDCPA Lawsuit

Federal Rule of Civil Procedure 68 provides that, at least fourteen days before trial, a defending party may serve a plaintiff with an offer to allow a judgment on specified terms. Several recent district court opinions have rules that an offer of judgment providing the plaintiff with the maximum allowable relief will moot the plaintiff’s FDCPA claim. Moten v. Broward Cnty., No. 10-62398-CIV, 2012 U.S. Dist. LEXIS 19332, 2012 WL 526790, at 2 (S.D. Fla. Feb. 16, 2012); see also Mackenzie v. Kindred Hosp. E., LLC, 276 F. Supp. 2d 1211, 1218-19 (M.D. Fla. 2003) (dismissing FLSA claim as moot after plaintiff rejected Rule 68 offer where offer exceeded amount plaintiff could have received at trial).

In Young v. AmeriFinancial Solutions, LLC, 2012 U.S. Dist. LEXIS 125661 (S.D. Fla. Sept. 5, 2012), plaintiff filed an action against defendant under the Fair Debt Collection Practices Act which provides that damages in an action brought by an individual shall not exceed $1,000.00. Defendant served an Offer of Judgment proposing to have judgment entered in the about of $1,001, plus attorney's fees incurred prior to the date of the offer. The Court granted the defendant’s motion to dismiss for lack of subject matter jurisdiction because the offer of judgment would provide plaintiff with the maximum allowable relief on her claims. Therefore, the court concluded, that the action was moot and the Court would no longer have subject matter jurisdiction over the suit.

For more information about the Fair Debt Collection Practices Act, ot, its state law counterpart, the Florida Consumer Collection Practices Act, visit us at:

• Stop Collection Harassment;
or
• Consumer Rights Orlando

Fair Debt Collection Practices Act

The Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. § 1692 et seq., imposes civil liability on “debt collector[s]” for certain prohibited debt collection practices. A debt collector who “fails to comply with any [FDCPA] provision . . . with respect to any person is liable to such person” for “actual damage[s],” costs, “a reasonable attorney's fee as determined by the court,” and statutory “additional damages.” § 1692k(a). In addition, violations of the FDCPA are deemed unfair or deceptive acts or practices under the Federal Trade Commission Act (FTC Act), § 41 et seq., which is enforced by the Federal Trade Commission (FTC). See § 1692l. A debt collector who acts with “actual knowledge or knowledge fairly implied on the basis of objective circumstances that such act is [prohibited under the FDCPA]” is subject to civil penalties enforced by the FTC. §§ 45(m)(1)(A), (C). A debt collector is not liable in any action brought under the FDCPA, however, if it “shows by a preponderance of evidence that the violation was not intentional and resulted from a bona fide error notwithstanding the maintenance of procedures reasonably adapted to avoid any such error.” § 1692k(c).