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Fair Debt Collection Practices Act

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August 27, 2018
Author: Glen H. Chulsky
Organization: Law Office of Glen H. Chulsky


I. Fair Debt Collection Practices Act (FDCPA) (15 U.S.C. § 1692 et seq.)
A. Background and Legal Standards
The Fair Debt Collection Practices Act (FDCPA) was adopted by Congress in 1977. The purpose of the FDCPA is “to eliminate abusive debt collection practices by debt collectors, to insure that those debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged, and to promote consistent State action to protect consumers against debt collection abuses.” 15 U.S.C. § 1692(e). The Act is

based on Congress’ findings that debt collection
abuses are serious and widespread and a finding
by the National Commission on Consumer Finance,
 referred to in the legislative history, which showed
that the “vast majority of consumers who obtain
credit fully intend to pay their debts.” S.Rep. No. 95-382,
95th Cong., 1st Sess. 3 (1977), reprinted in 1977
U.S.C.C.A.N., 1695, 1697 (Legis.History).

Russell v. Equifax A.R.S., 74 F.3d 30, 33 (2d Cir. 1996). It is designed to protect consumers from collectors, whether or not there is a valid debt. Baker v. G.C. Services, 677 F.2d 775, 777 (9th Cir. 1982); McCartney v. First City Bank, 970 F.2d 45 (5th Cir. 1992).

The FDCPA establishes general standards of proscribed conduct, defines and restricts abusive collection acts, and provides specific rights for consumers. General standards of proscribed conduct protect a consumer from invasion of privacy, harassment, abuse, false or deceptive representations, and unfair or unconscionable collection methods. The FDCPA enables an individual consumer/debtor to act as a private attorney general. Graziano v. Harrison, 950 F.2d 107 (3d Cir. 1991).

The FDCPA is an extraordinarily broad statute. Frey v. Gangwish, 970 F.2d 1516, 1521 (6th Cir. 1992); Clomon v. Jackson, 988 F.2d 1314, 1320 (2d Cir. 1993). The Act is to be enforced as Congress has written it, Frey v. Gangwish, supra, 970 F.2d at 1521, and it is the plain language of the Act that must be given effect. Heintz v. Jenkins, 514 U.S. 291, 297, 115 S.Ct. 1489, 1492, 131 L.Ed.2d 395 (1995). The Act is to be liberally construed in favor of the consumer in order to effectuate its purposes. Cirkot v. Diversified Financial Systems, Inc., 839 F.Supp. 941, 944 (D.Conn. 1993); Johnson v. Riddle, 305 F.3d 1107, 1117 (10th Cir. 2002). Accordingly, statutory damages are recoverable for violations, whether or not the consumer proves actual damages.

Courts require strict adherence to the Act’s explicit terms to accomplish the remedial and preventative goals of Congress. Frey v. Gangwish, 970 F.2d 1516 (6th Cir. 1992). The New Jersey Supreme Court reiterated this duty with respect to the FDCPA in Hodges v. Sasil Corporation, 189 N.J. 210, 223 (2007), when it stated: “This Court’s duty is clear: ‘construe and apply the statute as enacted.’” The language of the FDCPA is the clearest expression of congressional will and “effect must be given to the plain meaning of the statute.” Heintz v. Jenkins, 514 U.S. 291, 115 S.Ct. 1489 (1995).

The Act imposes strict liability, so a consumer need not show intentional conduct by the debt collector in order to be entitled to damages. Russell v. Equifax A.R.S., supra, 74 F.3d at 33. See also Taylor v. Perrin Landry, deLaunay & Durand, 103 F.3d 1232, 1236 (5th Cir. 1997); Bently v. Great Lakes Collection Bureau, 6 F.3d 60, 62 (2d Cir. 1993); Clomon v. Jackson, 988 F.2d 1314, 1318 (2d Cir. 1993). A single violation is sufficient to establish civil liability under the FDCPA and to support summary judgment for the plaintiff. Bentley v. Great Lakes Collection Bureau, 6 F.3d 60, 62 (2d Cir. 1993); Cacace v. Lucas, 775 F.Supp. 502, 505

(D.Conn. 1990). See also Stojanovski v. Strobl & Manoogian, P.C., 783 F.Supp. 319, 323 (E.D.Mich. 1992); Riveria v. MAB Collections, 682 F.Supp 174, 178-9 (W.D.N.Y. 1988). Courts use the “unsophisticated debtor or consumer” or “least sophisticated consumer” standard when reviewing letters or notices for compliance with the FDCPA. Veach v. Sheeks, 316 F.3d 690, 692 (7th Cir. 2003)(unsophisticated debtor); Brown v. Card Service Center, 464 F.3d 450, 453 (3rd Cir. 2006)(least sophisticated consumer). “This assumes that the debtor is uninformed, naïve or trusting and that statements are not confusing or misleading unless a significant fraction of the population would be similarly misled.” Veach v. Sheeks, 316 F.3d 690, 692-693 (7th Cir. 2003). “This lower standard comports with a basic purpose of the FDCPA: as previously stated, to protect all consumers, the gullible as well as the shrewd, the trusting as well as the suspicious from abusive debt collection practices.” Brown at 454. This standard “prevents liability for bizarre or idiosyncratic interpretations of collection notices by preserving a quotient of reasonableness and presuming a basic level of understanding and willingness to read with care.” Lesher v. Law Offices of Mitchell N. Kay, 2011 U.S. App. Lexis 12463 (3rd Cir. 2011) quoting Wilson v. Quadramed Corp., 225 F.3d 350, 354-55 (3rd Cir. 2000) (internal quotation marks and citation omitted). “Even the least sophisticated debtor is bound to read collection notices in their entirety.” Lesher quoting Campuzano-Burgos v. Midland Credit Mgmt., 550 F.3d. 294, 299 (3rd Cir. 2008). “A debt collection letter is deceptive where it can be reasonably read to have two or more different meanings, one of which is inaccurate.” Brown v. Card Service Center, 464 F.3d 450, 455 (3rd Cir. 2006) citing to Wilson v Quadramed Corp., 225 F.3d 350, 354 (3rd Cir. 2000).

B. Statutory Coverage and Definitions
1. What is a “Debt” under the FDCPA?
“Debt” is defined as \"any obligation or alleged obligation of a consumer to pay money arising out of a transaction in which the money, property, insurance or services which are the subject of the transaction are primarily for personal, family, or household purposes, whether or not such obligation has been reduced to judgment.\" 15 U.S.C. § 1692a(5). The FDCPA does not apply to debts assigned before default pursuant to 15 U.S.C. § 1692a(6)(F)(iii). Prince v. NCO Financial Servs., Inc., 346 F.Supp.2d 744 (E.D.Pa. 2004).

i. Covered Debts Include:
1. Credit cards used primarily for personal, family, or household purposes.
2. Medical services.
3. Dishonored checks can be covered by the Act. Gary, et al. vs. Goldman & Company, 180 F. Supp. 2d 668 (E.D.Pa. 2002); Ryan v. Wexler & Wexler, 113 F.3d 400 (7th Cir. 1997).
4. Condominium and homeowners’ association assessments are covered debts under the FDCPA. Loigman v. Kings Landing Condominium Ass'n, Inc., 324 N.J. Super. 97 (Law Div. 1999).
5. Rent for a residential apartment generally is a “debt” covered by the FDCPA. Romea v. Heiberger & Associates, 163 F.3d 111 (2d Cir. 1998); Hodges v. Sasil Corporation, 189 N.J. 210 (2007).

ii. Not Covered Debts
1. Business and agricultural loans are not \"debts\" covered by the FDCPA. Bloom v.
I.C. System, Inc., 972 F.2d 1067 (9th Cir. 1992) (business loan); Munk v. Federal Land Bank, 791 F.2d 130 (10th Cir. 1986) (agricultural loan).
2. A personal guaranty of a business loan is also not covered. Ranck v. Fulton Bank, 1994 U.S. Dist. LEXIS 1402, 1994 WL 37744 (E.D. Pa. 1994).
3. Illegal reception of television signals are also not within the definition of \"debt\". Zimmerman v. H.B.O. Affiliate Group, 834 F.2d 1163 (3d Cir. 1987).
4. Tort claims by a third party with which the consumer has no contractual relationship are not covered. Hawthorne v. MAC Adjustment, Inc., 140 F.3d 1367 (11th Cir. 1998). But see Brown v. Budget Rent-A-Car Systems, Inc., 119 F.3d 922 (11th Cir. 1997), in which the Eleventh Circuit held that a claim by a car rental company against a consumer renter for property damage to the rented vehicle was covered by the FDCPA.
5. FDCPA does not apply to claims for statutory damages for shoplifting. Shorts v. Palmer, 155 F.R.D. 172 (S.D.Ohio 1994).
6. Liabilities for child support obligations are not considered \"debts\" within the FDCPA. Mabe v. GC Services, L.P., 32 F.3d 86 (4th Cir. 1994); Battye v. Child Support Servs., 873 F. Supp. 103 (N.D.Ill. 1994); Brown v. Child Support Advocates, 878 F. Supp. 1451 (D.Utah. 1994).
7. Liabilities for taxes are not considered \"debts\" within the FDCPA. Staub v. Harris, 626 F.2d 275 (3d Cir. 1980); Coretti v. Lefkowitz, 965 F. Supp. 3 (D. Conn. 1997). However charges for water and sewer service originally owed to a municipality and purchased by a buyer of bad debts were \"debts\" subject to the FDCPA, although property tax obligations are not. Pollice v. National Tax Funding, LP, 225 F.3d 379 (3rd Cir. 2000).

2. Who is a Debt Collector under the FDCPA?
Generally, the FDCPA only applies to the activities of a “debt collector.” A debt collector is any person [1] who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts, or [2] who regularly collect or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another. 15 U.S.C. § 1692a(6). A creditor is generally exempt from the Act. Specific exclusions as to who is considered to be a debt collector under the Act are found at 15 U.S.C. § 1692a(6)(A through F). Potential “Debt Collectors”:

Lawyers: Lawyers were originally excluded from the definition of \"debt collector.\" In 1986, Congress removed the attorney exemption. Now, the “FDCPA does apply to a lawyer . . . with a general practice including a minor but regular practice in debt collection.” Crossley v. Lieberman, 90 B.R. 682, 694 (E.D.Pa. 1988), aff'd, 868 F.2d 566 (3d Cir. 1989). The legislative history of the amendment states that collection attorneys were not being effectively policed by the legal profession and courts, and that the removal of the exemption was necessary to \"put a stop to the abusive and harassing tactics of attorney debt collectors.\" 1986 USCCAN 1756-57. In Heintz v. Jenkins, 514 U.S. 291 (1995), the United States Supreme Court held that litigation conduct of attorneys in collecting consumer debts is not exempt from the FDCPA.

The amount of collection activity necessary to make a lawyer a “debt collector” – one who “regularly” collects consumer debts -- is fairly minimal. A law firm's debt collection work which amounted to less than 4% of its total business brought it within the definition. “While the ratio of debt collection to other efforts may be small, the actual volume is sufficient to bring defendant under the Act's definition of debt collector.” Stojanovski v. Strobl & Manoogian, P.C., 783 F.Supp. 319, 322 (E.D.Mich. 1992). An attorney who collected less than 20 consumer debts in a 10-year period was not a debt collector in Mertes v. Devitt, 734 F.Supp. 872 (W.D.Wis. 1990), while an attorney that accepted at least 10 debt collection matters every year was a debt collector. See Silva v. Mid-Atlantic Management Corp., 277 F. Supp. 2d 460 (E.D.Pa. 2003). One court has held that: \"It is the volume of the attorney's debt collection efforts that is dispositive, not the percentage such efforts amount to in the attorney's practice.\" Stojanovski v. Strobl & Manoogian, P.C., 783 F.Supp. 319, 322 (E.D.Mich. 1992), citing Cacace v. Lucas, 775 F.Supp. 502, 504 (D.Conn. 1990); But see Hartl v. Presbrey & Assoc., 95 C 4728, 1996 WL 529339, 1996 U.S. Dist. LEXIS 13419 (N.D.Ill., Sep. 16, 1996); Nance v. Petty, Livingston, Dawson & Devening, 881 F.Supp. 223 (W.D.Va. 1994). The Fifth Circuit has held that a law firm that sent out 600 demand letters was a debt collector notwithstanding the fact that only a small fraction of its time was spent in that activity. Garrett v. Derbes, 110 F.3d 317 (5th Cir. 1997).

Creditors: Creditors may become \"debt collectors\" by using names in collecting their debts which falsely suggest the involvement of third party debt collectors or attorneys. \"[T]he scope of creditor liability under §1692a(6) goes beyond the creditor's use of aliases or pseudonyms to instances where the creditor merely implies that a third party is collecting a debt when in fact it is the creditor that is attempting to do so.\" Larson v. Evanston Northwestern Healthcare Corp., 98 C 5, 1999 WL 518901, 1999 U.S. Dist. LEXIS 11380 (N.D. Ill. July 20, 1999).

Bad debt buyers (including creditors acquiring debt after default): It has become common for banks, credit card companies and other creditors to sell their delinquent debts to other banks, credit card companies or to companies which specialize in the purchase and liquidation of bad debts.

A financial institution which purchases delinquent debts is a \"debt collector\" within the meaning of the FDCPA with respect to the delinquent debts. Schlosser v. Fairbanks Capital Corp., 323 F.3d 534 (7th Cir. 2003); Kimber v. Federal Financial Corp., 668 F.Supp. 1480 (M.D.Ala. 1987); Cirkot v. Diversified Systems, 839 F.Supp. 941 (D.Conn. 1993); Holmes v. Telecredit Service Corp., 736 F.Supp. 1289, 1292 (D.Del. 1990).

Repossessors: Repossession agencies are not debt collectors within the FDCPA unless they perform common collection services, such as sending dunning letters, making telephone calls, etc. Jordan v. Kent Recovery Servs., 731 F.Supp. 652 (D.Del. 1990); Larranaga v. Mile High Collection and Recovery Bureau, Inc., 807 F.Supp. 111 (D.N.M. 1992.

Some examples of the exclusions under 15 U.S.C. § 1692a(6) include: State and Federal Officials, 15 U.S.C. § 1692a(6)(C) Debts Assigned Before Default, 15 U.S.C. § 1692a(6)(F)(iii)
Original Creditor Collecting Its Own Debt, 15 U.S.C. § 1692a(6) C. Specific Violations

i. Acquisition of Location Information, 15 U.S.C. § 1692b
The debt collector may not communicate with someone other than the consumer except to obtain location information. 15 U.S.C. §1692b. In doing so, the debt collector must identify himself but not discuss the debt.

ii. Communication in Connection with Debt Collection, 15 U.S.C. § 1692c
This section of the FDCPA proscribes limits on a debt collector’s communications with the consumer. A debt collector is prohibited from calling a consumer before 8AM and after 9PM. See 15 U.S.C. §1692c(a)(1). If a debt collector knows or can readily ascertain that a consumer is represented by an attorney with respect to the debt, then the collector is generally not allowed to communicate further with the consumer. See 15 U.S.C. §1692c(a)(2). The FDCPA also places limits on communications at the consumer’s place of employment and with third parties. See 15 U.S.C. §1692c(a)(3) and 15 U.S.C. §1692c(b). Lastly the FDCPA allows the consumer to invoke his or her right to cease further communication with the debt collector. See 15 U.S.C. §1692c(c).

Communicating with Represented Consumer, 15 U.S.C. § 1692c(a)(2)
Communications at Workplace, 15 U.S.C. § 1692c(a)(3)
Communications with Third Parties, 15 U.S.C. § 1692c(b)
West v. Nationwide Credit, Inc., 998 F. Supp. 642 (W.D.N.C. 1998). 15 U.S.C. § 1692c(b) should be interpreted broadly to prohibit a debt collector, in connection with the collection of a debt, from conveying any information relating to a debt to a third party. The consumer’s complaint alleging that the debt collector telephoned plaintiff’s neighbor leaving collector’s name and telephone number and asking the neighbor to have the consumer return the call, stated a claim for violation of 15 U.S.C. § 1692c(b). The court notes that the legislative history of the FDCPA supports this interpretation of section 1692c(b). Senate Report No. 95-382 states that: [o]ther than to obtain location information, a debt collector may not contact third persons such as a consumer's friends, neighbors, relatives, or employer. Such contacts are not legitimate collection practices and result in serious invasions of privacy, as well as the loss of jobs. S. Rep. No. 95-382, reprinted at 1977 U.S.Code & Admin. News 1695, 1699 (emphasis added).

The consumer’s complaint alleging that the debt collector telephoned plaintiff’s neighbor leaving collector’s name and telephone number and asking the neighbor to have the consumer return the call, stated a claim for violation of 15 U.S.C. § 1692c(b).

Ceasing Communication, 15 U.S.C. § 1692c(c) Heintz v. Jenkins, 514 U.S. 291 (1995). Section 1692c(c) does not stop a collector from invoking legal process against a non-consenting consumer.

iii. Harassment or Abuse, 15 U.S.C. § 1692d
Abusive Language, 15 U.S.C. § 1692d(2)
Repeated or Continuous Telephone Calls, 15 U.S.C. § 1692d(5)
Bingham v. Collection Bureau, Inc., 505 F. Supp. 864 (D.N.D. 1981) Court held that where the debt collector immediately calls back after the recipient hung up on the debt collector constitutes harassment under 15 U.S.C.A. § 1692d.

Meaningful Disclosure of Debt Collector’s Identity During Telephone Calls, 15 U.S.C. § 1692d(6)

Joseph v. J.J. Mac Intyre Companies, LLC, 281 F.Supp.2d 1156 (N.D.Cal. 2003)
One of the claims was that the debt collector did not make a meaningful disclosure of its identity in connection with a message left. The message stated:
Hi. This is Julie Green and I have an important message for you. To
reference your message, please call 1-800-777-9929. Again, my name is
Julie Green. Please call me to retrieve your message at 1-800-777-9929.
The Court stated that 1692d(6) applied equally to automated calls and live calls. The Court
denied the Debt Collector’s motion for summary judgment on the claim.

Hosseinzadeh v. M.R.S. Associates, Inc., 387 F.Supp.2d 1104 (W.D.Cal. 2005)
The debt collector left a series of similar messages on the Plaintiff’s answering machine. An
example of one is:
Hello, this is Thomas Hunt calling. Please have an adult contact me
regarding some rather important information. This is not a sales call,
however, regulations prevent me from leaving more details. You will want
to contact me at 1-877-647-5945 as soon as possible. This is a toll free
number. Once again this is Thomas Hunt calling and my number is 1-877-
647-5945. Thank you.

The Debt Collector filed a summary judgment motion. The Court sua sponte treated the matter as a motion for summary judgment by the Plaintiff and found that the Debt Collector violated 1692d(6) for not making a meaningful disclosure of the Defendant’s identity and violated 1692e(11).

iv. False or Misleading Representations, 15 U.S.C. §1692e
15 U.S.C. §1692e prohibits the use of false, deceptive or misleading representation or means in connection with the collection of any debt. Specific examples include:

False Representation of the Character, Amount or Legal Status of any Debt, 15 U.S.C. § 1692e(2)  Deceptive Threat of Legal Action (threatening suit when not intended or threatening suit or instituting suit after the statute of limitations has expired), 15 U.S.C. § 1692e(2) and e(5) Kimber v. Federal Financial Corp., 668 F.Supp. 1480, 1488-1490 (M.D.Ala. 1987) The court found an FDCPA violation where attorney threatened to sue on a time-barred claim.

Deceptive Implication of Attorney Involvement, 15 U.S.C. § 1692e(3) (in flux)
Greco v. Trauner, Cohen & Thomas, P., 412 F.3d 360, 363, 364 (2d Cir. 2005). A dunning letter on a collection law firm letterhead was not deceptive where it stated: “At this time, no attorney with this firm has personally reviewed the particular circumstances of your account. However, if you fail to contact this office, our client may consider additional remedies to recover the balance due.” “Put another way, our prior precedents demonstrate that an attorney can, in fact, send a debt collection letter without being meaningfully involved as an attorney within the collection process, so long as that letter includes disclaimers that should make clear even to the ‘least sophisticated consumer’ that the law firm or attorney sending the letter is not, at the time of the letter's transmission, acting as an attorney.”

Smith v. Harrison, 2008 U.S. Dist. LEXIS 51685 (D.NJ 2008) Consumer stated a cause of action to survive motion to dismiss where debt collector’s letter contained a “disclaimer” of attorney involvement: IN ACCORDANCE WITH THE FAIR DEBT COLLECTION PRACTICES ACT YOU ARE HEREBY ADVISED THAT THIS COMMUNICATION IS NOT INTENDED TO IMPLY THAT AN ATTORNEY HAS REVIEWED THE DETAILS OF YOUR ACCOUNT PRIOR TO THE SENDING OF THIS NOTICE. THIS OFFICE IS RELYING UPON THE REPRESENTATION OF THE CREDITOR THAT YOU OWE THE AMOUNT CLAIMED.

The court stated that the answer to whether an attorney did in fact review the consumer’s account is no or yes at some level. Leaving that question open, thus could confuse the least sophisticated consumer.

Boyd v. Wexler, 275 F.3d 642 (7th Cir. 2001). Entry of summary judgment for the defendant collection attorney was reversed when, although the attorney’s affidavit stated that he reviewed every file before a dun was sent, the mere volume of that undertaking (tens of thousands in some weeks, hundreds of thousands of duns a year) was sufficient to permit a reasonable jury to conclude that ‘‘the defendant violated the Fair Debt Collection Practices Act by rubber stamping his clients’ demands for payment, thus misrepresenting to the recipients of his dunning letters that a lawyer had made a minimally responsible determination that there was probable cause to believe that the recipient actually owed the amount claimed by the creditor.’’

Reade-Alvarez v. Eltman, Eltman & Cooper, P.C., 369 F.Supp.2d 353 (E.D.N.Y. 2005). Allegation that the attorney collector’s unsigned duns were computer generated without any attorney involvement stated a claim for relief for misrepresenting their source as from the attorney.

Goins v. Brandon, 367 F.Supp.2d 240 (D.Conn. 2005). The court granted summary judgment on liability against the attorney collector who signed the dun but who had no personal involvement whatsoever in handling the consumer‘s debt, since the attorney’s defense that another attorney in the office had performed the necessary personal review was insufficient as a matter of law to excuse the defendant attorney’s violation of § 1692e(3).

Avila v. Rubin, 84 F.3d 222 (7th Cir. 1996). Court found that an attorney signing dunning letters violated the FDCPA by having insufficient involvement because he did not review debtor files, did not decide which letters to send, and did not see particular letters before they were sent. Clomon v. Jackson, 988 F.2d 1314 (2d Cir. 1993). Mass-produced collection letter bearing name of debt collector’s general counsel in the letterhead and facsimile of his signature at its conclusion contained false or misleading communications in violation of §§ 1692c, 1692e(3) and 1692c(10) where the attorney did not review debtor’s file or the particular collection letter before the letter was sent. See generally Lesher v. Law Offices of Mitchell N. Kay, 2011 U.S. App. Lexis 12463 (3rd Cir. 2011)

Reporting Debt to Credit Bureau, 15 U.S.C. § 1692e(8) Providing 15 U.S.C. § 1692e(11) Notices

The failure to disclose in the initial written communication with the consumer and, in addition, if the initial communication with the consumer is oral, in that initial oral communication, that the debt collector is attempting to collect a debt and that any information obtained will be used for that purpose, and the failure to disclose in subsequent communications that the communication is from a debt collector, except that this paragraph shall not apply to a formal pleading made in connection with a legal action.

Foti, et al. v. NCO Financial Systems, Inc., 424 F.Supp.2d 643 (S.D.N.Y. 2006) NCO left the following message for the Plaintiff:
Good day, we are calling from NCO Financial Systems regarding a personal
business matter that requires your immediate attention. Please call back 1-
866-701-1275 once again please call back, toll-free, 1-866-701-1275, this is
not a solicitation.

The Court stated that the FDCPA defines communication very broadly as the conveying of information regarding a debt directly or indirectly to any person through any medium. The Court found that the message left by NCO was a communication covered under the FDCPA and declined to dismiss the 1692e(11) claim as to NCO’s message.

Hosseinzadeh v. M.R.S. Associates, Inc., 387 F.Supp.2d 1104 (W.D.Cal. 2005) The debt collector left a series of similar messages on the Plaintiff’s answering machine. An example of one is:
Hello, this is Thomas Hunt calling. Please have an adult contact me
regarding some rather important information. This is not a sales call,
however, regulations prevent me from leaving more details. You will want
to contact me at 1-877-647-5945 as soon as possible. This is a toll free
number. Once again this is Thomas Hunt calling and my number is 1-877-
647-5945. Thank you.

The Debt Collector filed a summary judgment motion. The Court sua sponte treated the matter as a motion for summary judgment by the Plaintiff and found that the Debt Collector violated 1692d(6) for not making a meaningful disclosure of the Defendant’s identity and violated 1692e(11).

v. Unfair Practices, 15 U.S.C. §1692f
The FDCPA prohibits the use of unfair or unconscionable means to collect or attempt to collect any debt. See 15 U.S.C. §1692f. This section includes provisions that deal with the collection of any amount (including any interest, fee, charge, or expense incidental to the principal obligation) unless such amount is expressly authorized by the agreement creating the debt or permitted by law and the solicitation and depositing or postdated checks.

Collection of Unauthorized Fees, 15 U.S.C. §1692f(1)
Shula v. Lawent, 359 F.3d 489 (7th Cir. 2004). Where no judgment for costs had been entered against the consumer, the collecting attorney’s letter demanding payment of such costs violated 15 U.S.C. §1692e and was an attempt to collect an amount not authorized by contract or law in violation of 15 U.S.C. §1692f(1).

Acceptance of Postdated Checks or Other Instruments, 15 U.S.C. §1692f(2)
The acceptance by a debt collector from any person of a check or other payment instrument postdated by more than five days unless such person is notified in writing of the debt collector’s intent to deposit such check or instrument not more than ten nor less than three business days prior to such deposit.

15 U.S.C. §1692f(3) The solicitation by a debt collector of any postdated check or other postdated payment instrument for the purpose of threatening or instituting criminal prosecution.

15 U.S.C. §1692f(4) Depositing or threatening to deposit any postdated check or other postdated payment instrument prior to the date on such check or instrument.

15 U.S.C. §1692f(5) Causing charges to be made to any person for communications by concealment of the true purpose of the communication. Such charges include, but are not limited to, collect telephone calls and telegram fees.

15 U.S.C. §1692f(6) Taking or threatening to take any nonjudicial action to effect dispossession or disablement of property if—
(A) there is no present right to possession of the property claimed as collateral through an enforceable security interest;
(B) there is no present intention to take possession of the property; or
(C) the property is exempt by law from such dispossession or disablement.

15 U.S.C. §1692f(7) Communicating with a consumer regarding a debt by post card.

15 U.S.C. §1692f(8) Using any language or symbol, other than the debt collector’s address, on any envelope when communicating with a consumer by use of the mails or by telegram, except that a debt collector may use his business name if such name does not indicate that he is in the debt collection business.

vi. Validation of Debts, 15 U.S.C. §1692g
One of the most important rights conferred by the FDCPA is the debtor's right to \"validation\" or \"verification\" of a debt under § 1692g. \"This provision will eliminate the recurring problem of debt collectors dunning the wrong person or attempting to collect debts which the consumer has already paid.\" Sen.R. No. 95-382, 95th Cong., 1st. Sess., p. 4, reprinted in 1977 USCCAN 1695, 1698. 15 U.S.C. §1692g provides that:
(a) Within five days after the initial communication with a consumer in connection with the collection of any debt, a debt collector shall, unless the following information is contained in the initial communication or the consumer has paid the debt, send the consumer a written notice containing –
(1) the amount of the debt;
(2) the name of the creditor to whom the debt is owed;
(3) a statement that unless the consumer, within thirty days after receipt of notice, disputes the validity of the debt, or any portion thereof, the debt will be assumed to be valid by the debt collector;
(4) a statement that if the consumer notifies the debt collector in writing within the thirty-day period that the debt, or any portion thereof, is disputed, the debt collector will obtain verification of the debt or a copy of a judgment against the consumer and a copy of such verification or judgment will be mailed to the consumer by the debt collector; and
(5) a statement that, upon the consumer's written request within the thirty-day period, the debt collector will provide the consumer with the name and address of the original creditor, if different from the current creditor. 15 U.S.C. §1692g(a).
(b) Disputed debts

If the consumer notifies the debt collector in writing within the thirty-day period described in subsection (a) of this section that the debt, or any portion thereof, is disputed, or that the consumer requests the name and address of the original creditor, the debt collector shall cease collection of the debt, or any disputed portion thereof, until the debt collector obtains verification of the debt or a copy of a judgment, or the name and address of the original creditor, and a copy  of such verification or judgment, or name and address of the original creditor, is mailed to the consumer by the debt collector. Collection activities and communications that do not otherwise violate this subchapter may continue during the 30-day period referred to in subsection (a) of this section unless the consumer has notified the debt collector in writing that the debt, or any portion of the debt, is disputed or that the consumer requests the name and address of the original creditor. Any collection activities and communication during the 30-day period may not overshadow or be inconsistent with the disclosure of the consumer's right to dispute the debt or request the name and address of the original creditor.
(c) Admission of liability
The failure of a consumer to dispute the validity of a debt under this section may not be construed by any court as an admission of liability by the consumer.
(d) Legal pleadings
A communication in the form of a formal pleading in a civil action shall not be treated as an initial communication for purposes of subsection (a) of this section.
(e) Notice provisions
The sending or delivery of any form or notice which does not relate to the collection of a debt and is expressly required by the Internal Revenue Code of 1986, chapter 94 of this title [15 U.S.C.A. § 6801 et seq.], or any provision of Federal or State law relating to notice of data security breach or privacy, or any regulation prescribed under any such provision of law, shall not be treated as an initial communication in connection with debt collection for purposes of this section.

The debt collector is not precluded from collecting the debt within the validation period. Section 1692g(b) then provides that if the consumer disputes the debt in writing, the collector must cease further collection efforts until the validation procedure is complied with. Although § 1692g literally requires the debt collector to provide validation information, courts have held that the debt collector does not violate the statute if it ceases all further collection activities without providing the information. Jang v. A. M. Miller & Assoc., Inc., 1996 U.S.Dist. LEXIS 10883 (N.D.Ill., July 30, 1996), aff'd, 122 F.3d 480 (7th Cir. 1997) (\"When a collection agency cannot verify a debt, the statute allows the debt collector to cease all collection activities at that point without incurring any liability for the mistake\"); Sambor v. Omnia Credit Services, Inc., 183 F.Supp.2d 1234, 1242 (D.Haw. 2002); Smith v. Transworld Systems, Inc., 953 F.2d 1025, 1031- 32 (6th Cir. 1992).

The Fourth Circuit has held that \"verification of a debt involves nothing more than the debt collector confirming in writing that the amount being demanded is what the creditor is claiming is owed; the debt collector is not required to keep detailed files of the alleged debt.\" Chaudhry v. Gallerizzo, 174 F.3d 394 (4th Cir. 1999).

Amount of the Debt under 1692g(a)(1)
Section 1692g(a)(1) requires the “amount of the debt” to be stated in the initial letter. This requires the entire amount owed at the time a collection demand is set to be stated. Miller, v. McCalla, Raymer, Padrick, Cobb, Nichols, and Clark, L.L.C., 214 F.3d 872 (7th Cir. 2000) (not sufficient to state that unpaid principal balance of residential mortgage loan was $178,844.65, and that this did not include unspecified accrued but unpaid interest, unpaid late charges, escrow advances, and other charges authorized by loan agreement). See also, Veach v. Sheeks, 316 F.3d 690 (7th Cir. 2003).

Smith v. Lyons, Doughty & Veldhuius, P.C., 2008 U.S. Dist. LEXIS 56725 (D.N.J. July 22, 2008). Court denied Defendant’s motion to dismiss because the letter stated a claim under 1692a(1) as it failed to indicate the date as of which the stated interest had been calculated, and also failed to disclose that interest would continue to accrue on unpaid principal.

The Unsophisticated or Least Sophisticated Standard
Whether or not the §1692g disclosures were made in a non-confusing manner is to be determined by analyzing it from the perspective of the \"least sophisticated debtor.\" See above and Clomon v. Jackson, 988 F.2d 1314 (2d Cir. 1993); Taylor v. Perrin, Landry, de Launay & Durand, 103 F.3d 1232 (5th Cir. 1997); Graziano v. Harrison, 950 F.2d 107, 111 (3d Cir. 1991); Smith v. Transworld Systems, Inc., 953 F.2d 1025, 1028-29 (6th Cir. 1992); Swanson v. Southern Oregon Credit Service, Inc., 869 F.2d 1222, 1225-26 (9th Cir. 1988); Brown v. Card Service Center, 464 F.3d 450, 453 (3rd Cir. 2006).

It is not necessary to show that the plaintiff was actually misled by a collection notice. Avila v. Rubin, 84 F.3d at 227 (7th Cir. 1996); Bartlett v. Heibl, 128 F.3d 497 (7th Cir. 1997).

Overshadowing
Under §1692g, is not enough for a debt collector to merely include the notice somewhere on the collection letter. Bartlett v. Heibl, 128 F.3d 497 (7th Cir. 1997); Riveria v. MAB Collections, Inc., 682 F.Supp. 174 (W.D.N.Y. 1988). The notice must be large and prominent enough to be noticed and easily read. Riveria v. MAB Collections, Inc., 682 F.Supp. 174, 177 (W.D.N.Y. 1988); Rabideau v. Management Adjustment Bureau, 805 F.Supp. 1086, 1093 (W.D.N.Y. 1992). The validation notice may not be either \"overshadowed\" or contradicted by other language or material in the original or subsequent collection letters sent within 30 days after receipt of the first one. Swanson v. Southern Oregon Credit Service, Inc., 869 F.2d 1222 (9th Cir. 1988).\" A notice is overshadowing or contradictory if it would make the least sophisticated consumer uncertain as to her rights.\" Russell v. Equifax A.R.S., 74 F.3d 30 (2d Cir. 1996).

A collection letter from an attorney demanding payment within ten days upon the threat of suit was held to have contradicted the 30 day validation notice. Graziano v. Harrison, 950 F.2d 107 (3d Cir. 1991) (threat to sue if payment was not received within ten days rendered the validation notice ineffective).

Wilson v. Quadramed Corp., 225 F.3d 350 (3d Cir. 2000). Offer to accept immediate payment was found to not contradict or overshadow the debt validation notice that followed on the same side of the letter in the same font. Although acknowledging it was a close question, the court held that the option to pay immediately and the option to request debt validation were not presented in an apparent contradictory manner.

vii. Multiple Debts, 15 U.S.C. §1692h
If any consumer owes multiple debts and makes any single payment to any debt collector with respect to such debts, such debt collector may not apply such payment to any debt which is disputed by the consumer and, where applicable, shall apply such payment in accordance with the consumer’s directions.

viii. Legal Actions by Debt Collectors, 15 U.S.C. §1692i
A debt collector is limited as to where it may bring a legal action on a debt against the consumer. If the action is to enforce an interest in real property securing the consumer’s obligation, then the action can only be brought in the district (county) where the real property is located. See 15 U.S.C. §1692i(a)(1). In any other action, the legal action can only be brought in the district (county) where the consumer signed the contract or where the consumer resides at the commencement of the action. See 15 U.S.C. §1692i(a)(2).

Congress adopted 15 U.S.C. 1692i to prevent “forum abuse,” “an unfair practice in which debt collectors file suit against consumers in courts which are so distant or inconvenient that consumers are unable to appear” S.Rep. No. 382, 95th Cong., 1st Sess. reprinted in 1977 U.S. Code Cong. & Admin. News 1695, 1699.

When collection suits are filed in state court, state court geographical boundaries, rather than federal districts, are determinative of appropriate venue. See Martinez v. Albuquerque Collection Services, 867 F. Supp. 1495, 1501 (1994); Dutton v. Wolhar, 809 F. Supp. 1130, 1139 (D. Del. 1992); and see Brown, FTC Informal Staff Letter (February 14, 1989) (when suit is filed in a state or local court, the geographical limits of the venue required by 15 U.S.C. 1692i are determined by state law, not the federal legal definition of the federal district in which the local  court is contained). “Both the FTC history and the legislative history, therefore support the view that the phrase ‘judicial district or similar legal entity’ means at a minimum, that the suit should be filed in the state county in which either the debtor resides or where the contract in dispute was signed.” Blakemore v. Pekay, 895 F.Supp. 972, 980 (N.D. Ill. 1995).

Rutgers – The State University v. Fogel v. Hayt, Hayt & Landau, LLC, 403 N.J. Super. 389 (App. Div. 2008). Judicial district or similar legal entity means that the suit should be filed in the state county in which either the debtor resides or where the contract in dispute was signed.

ix. Furnishing Deceptive Forms, 15 U.S.C. §1692j
x. DAMAGES - Civil Liability, 15 U.S.C. §1692k
Federal and state courts have concurrent jurisdiction of FDCPA suits. 15 U.S.C. §1692k(d). A single violation is sufficient to support judgment for the consumer. Cacace v. Lucas, 775 F.Supp. 502 (D.Conn. 1990); Supan v. Medical Bureau of Economics, Inc., 785 F.Supp. 304 (D.Conn. 1991). A successful consumer is entitled to an award of actual damages, statutory damages up to $1,000, costs and attorney's fees. 15 U.S.C. §1692k(a). Class action relief is also available. 15 U.S.C. §1692k(a)(2)(B).

ACTUAL DAMAGES
A debt collector who has violated any provision of the FDCPA is liable for actual damages. 15 U.S.C. §1692k(a)(1). Actual damages include emotional distress. The debt collector may be held \"liable for any mental and emotional stress, embarrassment, and humiliation caused\" by improper debt collection activities. Venes v. Professional Service Bureau, Inc., 353 N.W.2d 671 (Minn. Ct. App. 1984); Carrigan v. Central Adjustment Bureau, 502 F.Supp. 468 (N.D. Ga. 1980); Rawlings v. Dovenmuehle Mtge, Inc., 64 F.Supp.2d 1156 (M.D.Ala. 1999). State law requirements regarding the proof of intentional or negligent infliction of emotional distress are not applicable to actual damages under the FDCPA. Smith v. Law Offices of Mitchell N. Kay, 124 B.R. 182, 185 (D.Del. 1991); Crossley v. Lieberman, 90 B.R. 682 (E.D.Pa. 1988), aff'd, 868 F.2d 566 (3d Cir. 1989); Teng v. Metropolitan Retail Recovery, 851 F.Supp. 61 (E.D.N.Y. 1994); Donahue v. NFS, Inc., 781 F.Supp. 188 (W.D.N.Y. 1991).

The court can award actual damages for:
- Emotional distress;
- Loss of weight; vomiting;
- Loss of sleep;
- Headaches;
- Embarrassment, humiliation;
- Anxiety;
- Loss of concentration;
- Medication expenses;
- Telephone toll charges;
- Postage, etc.

STATUTORY DAMAGES
In addition to actual damages, if any, the consumer may be awarded \"such additional damages as the court may allow, but not exceeding $1,000.\" 15 U.S.C. §1692k(a)(2). These damages are commonly referred to as “statutory damages.” The consumer need not show any actual damages in order to recover statutory damages. Baker v. G.C. Services Corp., 677 F.2d 775, 780-81 (9th Cir. 1982); Harvey v. United Adjusters, 509 F.Supp. 1218 (D.Or. 1981); Woolfolk v. Van Ru Credit Corp., 783 F.Supp. 724, 725 (D.Conn. 1990). In determining the amount of statutory damages in an individual action the court is to consider \"the frequency and persistence of non-compliance by the debt collector, the nature of such non-compliance, and the extent to which the non-compliance was intentional\". 15 U.S.C. §1692k(b)(1).

The Act provides factors to be considered by the court in fixing the amount of statutory damages:
(b) In determining the amount of liability in any action under subsection (a), the court shall consider, among other relevant factors--
(1) in any individual action under subsection (a)(2)(A), the frequency and persistence of noncompliance by the debt collector, the nature of such noncompliance, and the extent to which such noncompliance was intentional. 15 U.S.C. § 1692k(b)(1). The egregiousness of the violation is a factor to be considered in awarding statutory damages. Rutya v. Collection Accounts Terminal, Inc. 478 F. Supp. 980 (N.D. Ill. 1979). In upholding the civil penalty set by the district court in U.S. v. National Financial Services, the Fourth Circuit stated: “Without a real sting, the defendants would be unlikely to be deterred from violating the Act, in light of the substantial profit to be made using aggressive and improper collection practices.” U.S. v. National Financial Services, 98 F.3d 131, at 141 (4th Cir. 1996).

See also Creighton v. Emporia Credit Service, Inc., 981 F. Supp. 411, 417 (E.D. Va. 1997), citing Miller v. Payco-General American Credits, Inc., 943 F.2d 482 (4th Cir. 1991). One purpose of statutory damages is to provide an incentive for debt collectors to obey the law. Strange v. Wexler, 796 F. Supp. 1117, 1120 (N.D. Ill. 1992).

One court has held that continued use of an unlawful letter after being placed on notice of its illegality warrants the maximum. Cacace v. Lucas, 775 F. Supp. 502, 507 (D. Conn. 1990).

ATTORNEY’S FEES AND COSTS
The successful consumer is entitled to an award of costs and reasonable attorney's fees. 15 U.S.C. §1692k(a)(3). “[T]he Act mandates an award of attorney's fees as a means of fulfilling Congress's intent that the Act should be enforced by debtors acting as private attorneys general.” Graziano v. Harrison, 950 F.2d 107, 113 (3d Cir. 1991). The Act is primarily selfenforcing, through private causes of action. West v. Costen, 558 F.Supp. 564, 569 (W.D. Va. 1983). Congress included the award of attorney’s fees in consumer statutes to encourage private enforcement of these statutes. The proper rate at which an attorney bringing an FDCPA case is to be compensated is the rate which his or her services command in the marketplace, as established by billings or awards in other cases, and it is not proper to have a special reduced rate in FDCPA cases because of the nature of the case or the $1,000 limitation on actual damages.

Tolentino v. Friedman, 46 F.3d 645 (7th Cir. 1995).
The Third Circuit has adopted the \"lodestar\" method for calculation of attorney’s fees in fee-shifting cases. Under this analysis, the court must determine the hours reasonably expended and a reasonable hourly rate. Lindy Bros. Building, Inc. v. American Radiator & Standard Sanitary Care, 487 F.2d 161 (3d Cir. 1973), appeal following remand, 540 F.2d 102 (3d Cir. 1976). The lodestar amount is presumed to be reasonable. See Rode v. Dellarciprete, 892 F.2d 1177, 1183 (3d Cir. 1990). Prevailing parties may also collect reasonable attorney’s fees for the time spent preparing the fee petition. See Institutionalized Juveniles v. Secretary of Pub. Welfare, 758 F.2d 897, 924-25 (3d. Cir. 1985).

BONA FIDE ERROR DEFENSE
The FDCPA does provide an affirmative defense to debt collectors: A debt collector may not be held liable in any action brought under this title if the debt collector shows by a preponderance of the 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. 15 U.S.C. §1692k(c). The provision is somewhat similar, but not identical, to one found in the Truth in Lending Act. 15 U.S.C. §1640.

There was a split of authority on whether the Defense was limited to clerical errors or whether it extended to include mistakes of law. Many courts had held that the defense was limited to clerical errors. See Picht v. Jon R. Hawks, Ltd., 236 F.3d 446, 451 (8th Cir.2001); Hulshizer v. Global Credit Servs., Inc., 728 F.2d 1037, 1038 (8th Cir.1984) (per curiam); Pipiles v. Credit Bureau of Lockport, Inc., 886 F.2d 22, 27 (2d Cir.1989) (same); Baker v. G.C. Servs. Corp., 677 F.2d 775, 779 (9th Cir.1982); Hartman v. Meridian Fin. Servs., Inc., 191 F.Supp.2d 1031, 1045-46 (W.D.Wis. 2002); Edwards v. McCormick, 136 F.Supp.2d 795, 800 (S.D. Ohio 2001); Spencer v. Hendersen- Webb, Inc., 81 F.Supp.2d 582, 591 (D.Md.1999); Booth v. Collection Experts, Inc., 969 F.Supp. 1161, 1165 (E.D.Wis.1997).

Other courts had allowed mistakes of law to be included in the BFE defense. Johnson v. Riddle, 305 F.3d 1107 (10th Cir. 2002); Nielsen v. Dickerson, 307 F.3d 623 (7th Cir. 2002); Jenkins v. Heintz, 124 F.3d 824 (7th Cir.1997); Nance v. Ulferts, 282 F.Supp.2d 912, 920 (N.D.Ind. 2003); Frye v. Bowman, Heintz, Boscia & Vician, 193 F.Supp.2d 1070, 1085-86 (S.D.Ind.2002); Taylor v. Luper, Sheriff & Niedenthal Co., 74 F.Supp.2d 761, 765 (S.D.Ohio 1999); Watkins v. Peterson Enters., Inc., 57 F.Supp.2d 1102 (E.D.Wash.1999).

This split was somewhat resolved recently in Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich LPA, et al., 130 S.Ct. 1605 (2010). The Court held that bona fide errors under 1692k(c) do not include mistaken interpretations of the FDCPA. The open question still left is whether a mistaken interpretation of another law can support a bona fide error defense. Furthermore, the maintenance of precautions designed to avoid errors is mandatory.

CLASS ACTIONS
The FDCPA contains special damage provisions for class actions. 15 U.S.C. §1692k. Recovery of statutory damages for the class is limited to 1% of the debt collector's net worth or $500,000, whichever is less. See McCall v. Drive Financial Services, L.P., 440 F.Supp.2d 388, 391 (E.D. Pa. 2006) holding that § 1692k(a) does not limit the share of the class award that any class member, including the named Plaintiff(s), may receive. The damage limitation does not apply to actual damages.

STATUTE OF LIMITATIONS
The FDCPA provides for a one-year statute of limitations. 15 U.S.C. §1692d. The oneyear statute of limitations begins to run when a collection letter is mailed or an improper legal action is filed. Naas v. Stolman, 130 F.3d 892 (9th Cir. 1997); Maloy v. Phillips, 64 F.3d 607, 608 (11th Cir. 1995); Blakemore v. Pekay, 895 F.Supp. 972, 982-83 (N.D. Ill. 1995). The Eighth Circuit has held that the one year statutory limitation expires the day before that anniversary date, Mattson v. U.S. West Communications, Inc., 967 F.2d 259 (8th Cir. 1992).

DEBT COLLECTOR’S CLAIM FOR ATTORNEY’S FEES AND COSTS, 15 U.S.C. §1692k(A)(3)

The FDCPA allows a court to award attorney’s fees and costs to a debt collector upon a finding by the court that an action was brought in bad faith and for the purpose of harassment. 15 U.S.C. §1692k(A)(3).

Chaudhry v. Gallerizzo, 174 F.3d 394 (4th Cir. 1999) The Circuit Court affirmed the District Court finding that “the case was brought in bad faith and for the purposes of harassment of the Defendants,” and ordering Plaintiffs to pay Defendants $5000.00 and Plaintiffs' counsel to pay Defendants $10,000.00.

FAIR DEBT COLLECTION PRACTICES ACT – 15 U.S.C. § 1692
§ 1692. Congressional findings and declaration of purpose
(a) Abusive practices
There is abundant evidence of the use of abusive, deceptive, and unfair debt collection practices by many debt collectors. Abusive debt collection practices contribute to the number of personal bankruptcies, to marital instability, to the loss of jobs, and to invasions of individual privacy.

(b) Inadequacy of laws
Existing laws and procedures for redressing these injuries are inadequate to protect consumers.

(c) Available non-abusive collection methods
Means other than misrepresentation or other abusive debt collection practices are available for the effective collection of debts.

(d) Interstate commerce
Abusive debt collection practices are carried on to a substantial extent in interstate commerce and through means and instrumentalities of such commerce. Even where abusive debt collection practices are purely intrastate in character, they nevertheless directly affect interstate commerce.

(e) Purposes
It is the purpose of this subchapter to eliminate abusive debt collection practices by debt collectors, to insure that those debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged, and to promote consistent State action to protect consumers against debt collection abuses.

§ 1692a. Definitions
As used in this subchapter--
(1) The term \"Commission\" means the Federal Trade Commission.
(2) The term \"communication\" means the conveying of information regarding a debt directly or indirectly to any person through any medium.
(3) The term \"consumer\" means any natural person obligated or allegedly obligated to pay any debt.
(4) The term \"creditor\" means any person who offers or extends credit creating a debt or to whom a debt is owed, but such term does not include any person to the extent that he receives an assignment or transfer of a debt in default solely for the purpose of facilitating collection of such debt for another.
(5) The term \"debt\" means any obligation or alleged obligation of a consumer to pay money arising out of a transaction in which the money, property, insurance, or services which are the subject of the transaction are primarily for personal, family, or household purposes, whether or not such obligation has been reduced to judgment.
(6) The term \"debt collector\" means any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another. Notwithstanding the exclusion provided by clause (F) of the last sentence of this paragraph, the term includes any creditor who, in the process of collecting his own debts, uses any name other than his own which would indicate that a third person is collecting or attempting to collect such debts. For the purpose of section 1692f(6) of this title, such term also includes any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the enforcement of security interests. The term does not include—
(A) any officer or employee of a creditor while, in the name of the creditor, collecting debts for such creditor;
(B) any person while acting as a debt collector for another person, both of whom are related by common ownership or affiliated by corporate control, if the person acting as a debt collector does so only for persons to whom it is so related or affiliated and if the principal business of such person is not the collection of debts;
(C) any officer or employee of the United States or any State to the extent that collecting or attempting to collect any debt is in the performance of his official duties;
(D) any person while serving or attempting to serve legal process on any other person in connection with the judicial enforcement of any debt;
(E) any nonprofit organization which, at the request of consumers, performs bona fide consumer credit counseling and assists consumers in the liquidation of their debts by receiving payments from such consumers and distributing such amounts to creditors; and
(F) any person collecting or attempting to collect any debt owed or due or asserted to be owed or due another to the extent such activity (i) is incidental to a bona fide fiduciary obligation or a bona fide escrow arrangement; (ii) concerns a debt which was originated by such person; (iii) concerns a debt which was not in default at the time it was obtained by such person; or (iv) concerns a debt obtained by such person as a secured party in a commercial credit transaction involving the creditor.
(7) The term \"location information\" means a consumer's place of abode and his telephone number at such place, or his place of employment.
(8) The term \"State\" means any State, territory, or possession of the United States, the District of
Columbia, the Commonwealth of Puerto Rico, or any political subdivision of any of the foregoing.

§ 1692b. Acquisition of location information
Any debt collector communicating with any person other than the consumer for the purpose of acquiring location information about the consumer shall--
(1) identify himself, state that he is confirming or correcting location information concerning the consumer, and, only if expressly requested, identify his employer;
(2) not state that such consumer owes any debt;
(3) not communicate with any such person more than once unless requested to do so by such person or unless the debt collector reasonably believes that the earlier response of such person is erroneous or incomplete and that such person now has correct or complete location information;
(4) not communicate by post card;
(5) not use any language or symbol on any envelope or in the contents of any communication effected by the mails or telegram that indicates that the debt collector is in the debt collection business or that the communication relates to the collection of a debt; and
(6) after the debt collector knows the consumer is represented by an attorney with regard to the subject debt and has knowledge of, or can readily ascertain, such attorney's name and address, not communicate with any person other than that attorney, unless the attorney fails to respond within a reasonable period of time to communication from the debt collector.

§ 1692c. Communication in connection with debt collection
(a) Communication with the consumer generally
Without the prior consent of the consumer given directly to the debt collector or the express permission of a court of competent jurisdiction, a debt collector may not communicate with a consumer in connection with the collection of any debt--

(1) at any unusual time or place or a time or place known or which should be known to be inconvenient to the consumer. In the absence of knowledge of circumstances to the contrary, a debt collector shall assume that the convenient time for communicating with a consumer is after 8 o'clock antemeridian and before 9 o'clock postmeridian, local time at the consumer's location;
(2) if the debt collector knows the consumer is represented by an attorney with respect to such debt and has knowledge of, or can readily ascertain, such attorney's name and address, unless the attorney fails to respond within a reasonable period of time to a communication from the debt collector or unless the attorney consents to direct communication with the consumer; or
(3) at the consumer's place of employment if the debt collector knows or has reason to know that the consumer's employer prohibits the consumer from receiving such communication.
(b) Communication with third parties
Except as provided in section 1692b of this title, without the prior consent of the consumer given directly to the debt collector, or the express permission of a court of competent jurisdiction, or as reasonably necessary to effectuate a postjudgment judicial remedy, a debt collector may not communicate, in connection with the collection of any debt, with any person other than the consumer, his attorney, a consumer reporting agency if otherwise permitted by law, the creditor, the attorney of the creditor, or the attorney of the debt collector.
(c) Ceasing communication
If a consumer notifies a debt collector in writing that the consumer refuses to pay a debt or that the consumer wishes the debt collector to cease further communication with the consumer, the debt collector shall not communicate further with the consumer with respect to such debt, except--
(1) to advise the consumer that the debt collector's further efforts are being terminated;
(2) to notify the consumer that the debt collector or creditor may invoke specified remedies which are ordinarily invoked by such debt collector or creditor; or
(3) where applicable, to notify the consumer that the debt collector or creditor intends to invoke a specified remedy.
If such notice from the consumer is made by mail, notification shall be complete upon receipt.
(d) \"Consumer\" defined
For the purpose of this section, the term \"consumer\" includes the consumer's spouse, parent (if the consumer is a minor), guardian, executor, or administrator.

§ 1692d. Harassment or abuse
A debt collector may not engage in any conduct the natural consequence of which is to harass, oppress, or abuse any person in connection with the collection of a debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section:
(1) The use or threat of use of violence or other criminal means to harm the physical person, reputation, or property of any person.
(2) The use of obscene or profane language or language the natural consequence of which is to abuse the hearer or reader.
(3) The publication of a list of consumers who allegedly refuse to pay debts, except to a consumer reporting agency or to persons meeting the requirements of section 1681a(f) or 1681b(3) of this title.
(4) The advertisement for sale of any debt to coerce payment of the debt.
(5) Causing a telephone to ring or engaging any person in telephone conversation repeatedly or continuously with intent to annoy, abuse, or harass any person at the called number.
(6) Except as provided in section 1692b of this title, the placement of telephone calls without meaningful disclosure of the caller's identity.
§ 1692e. False or misleading representations
A debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section:
(1) The false representation or implication that the debt collector is vouched for, bonded by, or affiliated with the United States or any State, including the use of any badge, uniform, or facsimile thereof.
(2) The false representation of--
(A) the character, amount, or legal status of any debt; or
(B) any services rendered or compensation which may be lawfully received by any debt collector for the collection of a debt.
(3) The false representation or implication that any individual is an attorney or that any communication is from an attorney.
(4) The representation or implication that nonpayment of any debt will result in the arrest or imprisonment of any person or the seizure, garnishment, attachment, or sale of any property or wages of any person unless such action is lawful and the debt collector or creditor intends to take such action.
(5) The threat to take any action that cannot legally be taken or that is not intended to be taken.
(6) The false representation or implication that a sale, referral, or other transfer of any interest in a debt shall cause the consumer to--
(A) lose any claim or defense to payment of the debt; or
(B) become subject to any practice prohibited by this subchapter.
(7) The false representation or implication that the consumer committed any crime or other conduct in order to disgrace the consumer.
(8) Communicating or threatening to communicate to any person credit information which is known or which should be known to be false, including the failure to communicate that a disputed debt is disputed.
(9) The use or distribution of any written communication which simulates or is falsely represented to be a document authorized, issued, or approved by any court, official, or agency of the United States or any State, or which creates a false impression as to its source, authorization, or approval.
(10) The use of any false representation or deceptive means to collect or attempt to collect any debt or to obtain information concerning a consumer.
(11) The failure to disclose in the initial written communication with the consumer and, in addition, if the initial communication with the consumer is oral, in that initial oral communication, that the debt collector is attempting to collect a debt and that any information obtained will be used for that purpose, and the failure to disclose in subsequent communications that the communication is from a debt collector, except that this paragraph shall not apply to a formal pleading made in connection with a legal action.
(12) The false representation or implication that accounts have been turned over to innocent purchasers for value.
(13) The false representation or implication that documents are legal process.
(14) The use of any business, company, or organization name other than the true name of the debt collector's business, company, or organization.
(15) The false representation or implication that documents are not legal process forms or do not require action by the consumer.
(16) The false representation or implication that a debt collector operates or is employed by a consumer reporting agency as defined by section 1681a(f) of this title.

§ 1692f. Unfair practices
A debt collector may not use unfair or unconscionable means to collect or attempt to collect any debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section:
(1) The collection of any amount (including any interest, fee, charge, or expense incidental to the principal obligation) unless such amount is expressly authorized by the agreement creating the debt or permitted by law.
(2) The acceptance by a debt collector from any person of a check or other payment instrument postdated by more than five days unless such person is notified in writing of the debt collector's intent to deposit such check or instrument not more than ten nor less than three business days prior to such deposit.
(3) The solicitation by a debt collector of any postdated check or other postdated payment instrument for the purpose of threatening or instituting criminal prosecution.
(4) Depositing or threatening to deposit any postdated check or other postdated payment instrument prior to the date on such check or instrument.
(5) Causing charges to be made to any person for communications by concealment of the true purpose of the communication. Such charges include, but are not limited to, collect telephone calls and telegram fees.
(6) Taking or threatening to take any nonjudicial action to effect dispossession or disablement of property if--
(A) there is no present right to possession of the property claimed as collateral through an enforceable security interest;
(B) there is no present intention to take possession of the property; or
(C) the property is exempt by law from such dispossession or disablement.
(7) Communicating with a consumer regarding a debt by post card.
(8) Using any language or symbol, other than the debt collector's address, on any envelope when communicating with a consumer by use of the mails or by telegram, except that a debt collector may use his business name if such name does not indicate that he is in the debt collection business.

§ 1692g. Validation of debts
(a) Notice of debt; contents
Within five days after the initial communication with a consumer in connection with the collection of any debt, a debt collector shall, unless the following information is contained in the initial communication or the consumer has paid the debt, send the consumer a written notice containing--
(1) the amount of the debt;
(2) the name of the creditor to whom the debt is owed;
(3) a statement that unless the consumer, within thirty days after receipt of the notice, disputes the validity of the debt, or any portion thereof, the debt will be assumed to be valid by the debt collector;
(4) a statement that if the consumer notifies the debt collector in writing within the thirtyday period that the debt, or any portion thereof, is disputed, the debt collector will obtain verification of the debt or a copy of a judgment against the consumer and a copy of such verification or judgment will be mailed to the consumer by the debt collector; and
(5) a statement that, upon the consumer's written request within the thirty-day period, the debt collector will provide the consumer with the name and address of the original creditor, if different from the current creditor.
(b) Disputed debts
If the consumer notifies the debt collector in writing within the thirty-day period described in subsection (a) of this section that the debt, or any portion thereof, is disputed, or that the consumer requests the name and address of the original creditor, the debt collector shall cease collection of the debt, or any disputed portion thereof, until the debt collector obtains verification of the debt or a copy of a judgment, or the name and address of the original creditor, and a copy of such verification or judgment, or name and address of the original creditor, is mailed to the consumer by the debt collector. Collection activities and communications that do not otherwise violate this subchapter may continue during the 30-day period referred to in subsection (a) of this section unless the consumer has notified the debt collector in writing that the debt, or any portion of the debt, is disputed or that the consumer requests the name and address of the original creditor. Any collection activities and communication during the 30-day period may not overshadow or be inconsistent with the disclosure of the consumer's right to dispute the debt or request the name and address of the original creditor.
(c) Admission of liability
The failure of a consumer to dispute the validity of a debt under this section may not be construed by any court as an admission of liability by the consumer.
(d) Legal pleadings
A communication in the form of a formal pleading in a civil action shall not be treated as an initial communication for purposes of subsection (a) of this section.
(e) Notice provisions
The sending or delivery of any form or notice which does not relate to the collection of a debt and is expressly required by the Internal Revenue Code of 1986, chapter 94 of this title [15 U.S.C.A. § 6801 et seq.], or any provision of Federal or State law relating to notice of data security breach or privacy, or any regulation prescribed under any such provision of law, shall not be treated as an initial communication in connection with debt collection for purposes of this section.
§ 1692h. Multiple debts
If any consumer owes multiple debts and makes any single payment to any debt collector with respect to such debts, such debt collector may not apply such payment to any debt which is disputed by the consumer and, where applicable, shall apply such payment in accordance with the consumer's directions.
§ 1692i. Legal actions by debt collectors
(a) Venue
Any debt collector who brings any legal action on a debt against any consumer shall--
(1) in the case of an action to enforce an interest in real property securing the consumer's obligation, bring such action only in a judicial district or similar legal entity in which such real property is located; or
(2) in the case of an action not described in paragraph (1), bring such action only in the judicial district or similar legal entity--
(A) in which such consumer signed the contract sued upon; or
(B) in which such consumer resides at the commencement of the action.
(b) Authorization of actions
Nothing in this subchapter shall be construed to authorize the bringing of legal actions by debt collectors.

§ 1692j. Furnishing certain deceptive forms
(a) It is unlawful to design, compile, and furnish any form knowing that such form would be used to create the false belief in a consumer that a person other than the creditor of such consumer is participating in the collection of or in an attempt to collect a debt such consumer allegedly owes such creditor, when in fact such person is not so participating.
(b) Any person who violates this section shall be liable to the same extent and in the same manner as a debt collector is liable under section 1692k of this title for failure to comply with a provision of this subchapter.

§ 1692k. Civil liability
(a) Amount of damages
Except as otherwise provided by this section, any debt collector who fails to comply with any provision of this subchapter with respect to any person is liable to such person in an amount equal to the sum of--
(1) any actual damage sustained by such person as a result of such failure;
(2) (A) in the case of any action by an individual, such additional damages as the court may allow, but not exceeding $1,000; or
(B) in the case of a class action, (i) such amount for each named plaintiff as could be recovered under subparagraph (A), and (ii) such amount as the court may allow for all other class members, without regard to a minimum individual recovery, not to exceed the lesser of $500,000 or 1 per centum of the net worth of the debt collector; and
(3) in the case of any successful action to enforce the foregoing liability, the costs of the action, together with a reasonable attorney's fee as determined by the court. On a finding by the court that an action under this section was brought in bad faith and for the purpose of harassment, the court may award to the defendant attorney's fees reasonable in relation to the work expended and costs.
(b) Factors considered by court
In determining the amount of liability in any action under subsection (a) of this section, the court shall consider, among other relevant factors--
(1) in any individual action under subsection (a)(2)(A) of this section, the frequency and persistence of noncompliance by the debt collector, the nature of such noncompliance, and the extent to which such noncompliance was intentional; or
(2) in any class action under subsection (a)(2)(B) of this section, the frequency and persistence of noncompliance by the debt collector, the nature of such noncompliance, the resources of the debt collector, the number of persons adversely affected, and the extent to which the debt collector's noncompliance was intentional.
(c) Intent
A debt collector may not be held liable in any action brought under this subchapter if the debt collector 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.
(d) Jurisdiction
An action to enforce any liability created by this subchapter may be brought in any appropriate United States district court without regard to the amount in controversy, or in any other court of competent jurisdiction, within one year from the date on which the violation occurs.
(e) Advisory opinions of Commission
No provision of this section imposing any liability shall apply to any act done or omitted in good faith in conformity with any advisory opinion of the Commission, notwithstanding that after such act or omission has occurred, such opinion is amended, rescinded, or determined by judicial or other authority to be invalid for any reason.

§ 1692l. Administrative enforcement
(a) Federal Trade Commission
Compliance with this subchapter shall be enforced by the Commission, except to the extent that enforcement of the requirements imposed under this subchapter is specifically committed to another agency under subsection (b) of this section. For purpose of the exercise by the Commission of its functions and powers under the Federal Trade Commission Act [15 U.S.C.A. § 41 et seq.], a violation of this subchapter shall be deemed an unfair or deceptive act or practice in violation of that Act. All of the functions and powers of the Commission under the Federal Trade Commission Act are available to the Commission to enforce compliance by any person with this subchapter, irrespective of whether that person is engaged in commerce or meets any other jurisdictional tests in the Federal Trade Commission Act, including the power to enforce the provisions of this subchapter in the same manner as if the violation had been a violation of a

Federal Trade Commission trade regulation rule.
(b) Applicable provisions of law
Compliance with any requirements imposed under this subchapter shall be enforced under--
(1) section 8 of the Federal Deposit Insurance Act [12 U.S.C.A. § 1818], in the case of--
(A) national banks, and Federal branches and Federal agencies of foreign banks, by the Office of the Comptroller of the Currency;
(B) member banks of the Federal Reserve System (other than national banks), branches and agencies of foreign banks (other than Federal branches, Federal agencies, and insured State branches of foreign banks), commercial lending companies owned or controlled by foreign banks, and organizations operating under section 25 or 25(a) [FN1] of the Federal Reserve Act [ 12 U.S.C.A. §§ 601 et seq., 611 et seq.], by the Board of Governors of the Federal Reserve System; and
(C) banks insured by the Federal Deposit Insurance Corporation (other than members of the Federal Reserve System) and insured State branches of foreign banks, by the Board of Directors of the Federal Deposit Insurance Corporation;
(2) section 8 of the Federal Deposit Insurance Act [12 U.S.C.A. § 1818], by the Director of the Office of Thrift Supervision, in the case of a savings association the deposits of which are insured by the Federal Deposit Insurance Corporation;
(3) the Federal Credit Union Act [12 U.S.C.A. § 1751 et seq.], by the National Credit Union Administration Board with respect to any Federal credit union;
(4) subtitle IV of Title 49, by the Secretary of Transportation, with respect to all carriers subject to the jurisdiction of the Surface Transportation Board;
(5) part A of subtitle VII of Title 49, by the Secretary of Transportation with respect to any air carrier or any foreign air carrier subject to that part; and
(6) the Packers and Stockyards Act, 1921 [7 U.S.C.A. § 181 et seq.] (except as provided in section 406 of that Act [7 U.S.C.A. §§ 226, 227]), by the Secretary of Agriculture with respect to any activities subject to that Act.

The terms used in paragraph (1) that are not defined in this subchapter or otherwise defined in section 3(s) of the Federal Deposit Insurance Act (12 U.S.C. 1813(s)) shall have the meaning given to them in section 1(b) of the International Banking Act of 1978 (12 U.S.C. 3101).

(c) Agency powers
For the purpose of the exercise by any agency referred to in subsection (b) of this section of its powers under any Act referred to in that subsection, a violation of any requirement imposed under this subchapter shall be deemed to be a violation of a requirement imposed under that Act. In addition to its powers under any provision of law specifically referred to in subsection (b) of this section, each of the agencies referred to in that subsection may exercise, for the purpose of enforcing compliance with any requirement imposed under this subchapter any other authority conferred on it by law, except as provided in subsection (d) of this section.

(d) Rules and regulations
Neither the Commission nor any other agency referred to in subsection (b) of this section may promulgate trade regulation rules or other regulations with respect to the collection of debts by debt collectors as defined in this subchapter.

§ 1692m. Reports to Congress by the Commission; views of other Federal agencies
(a) Not later than one year after the effective date of this subchapter and at one-year intervals thereafter, the Commission shall make reports to the Congress concerning the administration of its functions under this subchapter, including such recommendations as the Commission deems necessary or appropriate. In addition, each report of the Commission shall include its assessment of the extent to which compliance with this subchapter is being achieved and a summary of the enforcement actions taken by the Commission under section 1692l of this title.
(b) In the exercise of its functions under this subchapter, the Commission may obtain upon request the views of any other Federal agency which exercises enforcement functions under section 1692l of this title.

§ 1692n. Relation to State laws
This subchapter does not annul, alter, or affect, or exempt any person subject to the provisions of this subchapter from complying with the laws of any State with respect to debt collection practices, except to the extent that those laws are inconsistent with any provision of this subchapter, and then only to the extent of the inconsistency. For purposes of this section, a State  law is not inconsistent with this subchapter if the protection such law affords any consumer is greater than the protection provided by this subchapter.

§ 1692o. Exemption for State regulation
The Commission shall by regulation exempt from the requirements of this subchapter any class of debt collection practices within any State if the Commission determines that under the law of that State that class of debt collection practices is subject to requirements substantially similar to those imposed by this subchapter, and that there is adequate provision for enforcement.

§ 1692p. Exception for certain bad check enforcement programs operated by private entities
(a) In general
(1) Treatment of certain private entities
Subject to paragraph (2), a private entity shall be excluded from the definition of a debt collector, pursuant to the exception provided in section 1692a(6) of this title, with respect to the operation by the entity of a program described in paragraph (2)(A) under a contract described in paragraph (2)(B).
(2) Conditions of applicability Paragraph (1) shall apply if--
(A) a State or district attorney establishes, within the jurisdiction of such State or district attorney and with respect to alleged bad check violations that do not involve a check described in subsection (b) of this section, a pretrial diversion program for alleged bad check offenders who agree to participate voluntarily in such program to avoid criminal prosecution;
(B) a private entity, that is subject to an administrative support services contract with a State or district attorney and operates under the direction, supervision, and control of such State or district attorney, operates the pretrial diversion program described in subparagraph (A); and
(C) in the course of performing duties delegated to it by a State or district attorney under the contract, the private entity referred to in subparagraph (B)--
(i) complies with the penal laws of the State;
(ii) conforms with the terms of the contract and directives of the State or district attorney;
(iii) does not exercise independent prosecutorial discretion;
(iv) contacts any alleged offender referred to in subparagraph (A) for purposes of participating in a program referred to in such paragraph--
(I) only as a result of any determination by the State or district attorney that probable cause of a bad check violation under State penal law exists, and that contact with the alleged offender for purposes of participation in the program is appropriate; and
(II) the alleged offender has failed to pay the bad check after demand for payment, pursuant to State law, is made for payment of the check amount;
(v) includes as part of an initial written communication with an alleged offender a clear and conspicuous statement that--
(I) the alleged offender may dispute the validity of any alleged bad check violation;
(II) where the alleged offender knows, or has reasonable cause to believe, that the alleged bad check violation is the result of theft or forgery of the check, identity theft, or other fraud that is not the result of the conduct of the alleged offender, the alleged offender may file a crime report with the appropriate law enforcement agency; and
(III) if the alleged offender notifies the private entity or the district attorney in writing, not later than 30 days after being contacted for the first time pursuant to clause (iv), that there is a dispute pursuant to this subsection, before further restitution efforts are pursued, the district attorney or an employee of the district attorney authorized to make such a determination makes a determination that there is probable cause to believe that a crime has been committed; and
(vi) charges only fees in connection with services under the contract that have been authorized by the contract with the State or district attorney.
(b) Certain checks excluded A check is described in this subsection if the check involves, or is subsequently found to involve-
(1) a postdated check presented in connection with a payday loan, or other similar transaction, where the payee of the check knew that the issuer had insufficient funds at the time the check was made, drawn, or delivered;
(2) a stop payment order where the issuer acted in good faith and with reasonable cause in stopping payment on the check;
(3) a check dishonored because of an adjustment to the issuer's account by the financial institution holding such account without providing notice to the person at the time the check was made, drawn, or delivered;
(4) a check for partial payment of a debt where the payee had previously accepted partial payment for such debt;
(5) a check issued by a person who was not competent, or was not of legal age, to enter into a legal contractual obligation at the time the check was made, drawn, or delivered; or
(6) a check issued to pay an obligation arising from a transaction that was illegal in the jurisdiction of the State or district attorney at the time the check was made, drawn, or delivered.
(c) Definitions
For purposes of this section, the following definitions shall apply:
(1) State or district attorney
The term \"State or district attorney\" means the chief elected or appointed prosecuting attorney in a district, county (as defined in section 2 of title 1, United States Code), municipality, or comparable jurisdiction, including State attorneys general who act as chief elected or appointed prosecuting attorneys in a district, county (as so defined), municipality or comparable jurisdiction, who may be referred to by a variety of titles such as district attorneys, prosecuting attorneys, commonwealth's attorneys, solicitors, county attorneys, and state's attorneys, and who are responsible for the prosecution of State crimes and violations of jurisdiction-specific local ordinances.
(2) Check
The term \"check\" has the same meaning as in section 5002(6) of Title 12
(3) Bad check violation
The term \"bad check violation\" means a violation of the applicable State criminal law relating to the writing of dishonored checks.


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