FDCPA VIOLATIONS IN COLLECTION LAWSUITS
The Fair Debt Collection Practices Act [“FDCPA”] was enacted to curb abusive and overreaching practices in the consumer debt collection industry. In 1995, the U.S. Supreme Court extended the protections of the FDCPA to cover litigation activity by collection law firms. See Heintz v. Jenkins, 514 U.S. 291 (1995). Since that ruling, there has been division among the various federal judicial circuits regarding the extent to which communications made in legal pleadings should be subject to the FDCPA. Certain circuits hold that only communications found in the initial filing, or “complaint,” are actionable. Certain circuits hold that the FDCPA covers later communications as well, but, judges the statements under a higher standard in determining whether they were misleading, deceptive or otherwise in violation of the FDCPA.
In March, 2016, the Eleventh Circuit U.S. Court of Appeals, finally weighed in on the issue; thereby providing a more definitive standard for cases filed in the state of Georgia. See Bishop v. Ross, Earle & Bonan, P.A., Docket No. 2:15-cv-14051-KAM (March 25th, 2016). The Eleventh Circuit adopted one of the most expansive interpretations of the FDCPA; holding that all communications in the legal pleadings were potentially actionable, and judging them by the “least sophisticated consumer standard.”
The Bishop opinion provided much needed guidance, and some heavy ammunition to consumer protection attorneys practicing within the Eleventh Circuit and the State of Georgia. Using state enacted discovery provisions, debt collectors can now be forced to choose between admitting fatal weaknesses in their case or committing additional violations of the FDCPA in order to prosecute those claims. While many of the false, misleading and deceptive statements made by debt collectors are found in legal pleadings, violations are often subtle or inconspicuous to consumers, opposing attorneys and judges. In fact, this firm has alleged violations in many cases that may appear as “nitpicking” or trivial, without a better understanding of how debt collectors operate.
COMMON FDCPA VIOLATION IN PLEADINGS
As an example, debt collectors in GA often categorize the entire debt they are owed as being “principal.” Principal is the actual money that was extended as credit to someone. The cost of borrowing the money is referred to as “interest” or “finance charges.” There may also be other fees or penalties for late or missed payments, etc. that are authorized by contract. This can cause a big problem for companies that file lawsuits on debt purchased from credit card banks and other creditors.
Debt buyers and collection law firms almost never receive documentation showing how the amount of the debt was calculated. But, if all you are asking for is the amount of money you gave someone, or “principal,” that can be proved by testimony or by a single document containing that dollar figure in many cases. However, if you also want interest, you have to prove there was a contract that allowed you to collect interest, the rate(s) of interest allowed, any fees authorized by the contract, and a breakdown of those amounts.
The debt collectors do not have the documents or the time to investigate these matters in the thousands of accounts they purchase. Yet, it many cases, the interest and fees may exceed the principal balance. Does a debt collector spend time and effort breaking down the balance into principal, interest and fees; only to learn it has no way to prove those portions of the balance? That response produces higher costs and lower revenue. The Answer? Just call the entire debt “principal” and let the chips fall where they may.
This is simply one example of how debt collectors abuse of the judicial system. Violations will continue to occur because the judicial system was created, in theory, to be an impartial body designed to resolve legal disputes, and not to facilitate debt collection. Debt collectors are well aware of the risks, and realities, of litigation. They will continue to run afoul of the FDCPA because the constitutional and legal protections afforded to civil litigants leaves them no choice, if they want to be profitable.Posted by