Author Topic: Disabled person on SS asks, "What level of dispute letter should I send?"  (Read 3475 times)

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Bruno the JDB Killer

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 McCollough v. Johnson, Rodenburg & Lauinger 9 th Circuit


Debt collection law firm Johnson, Rodenburg & Lauinger
(“JRL” or “the law firm”) appeals from the entry of summary
judgment against it under the federal Fair Debt Collection
Practices Act (“FDCPA”), and from a subsequent jury verdict
awarding damages under the FDCPA, the Montana Unfair
Trade Practices and Consumer Protection Act (“MCPA”), and
state torts of malicious prosecution and abuse of process. We
have jurisdiction pursuant to 28 U.S.C. § 1291 and we affirm.


The court deemed that it was unreasonable for the law firm to rely solely on information from its client, and determined that the law firm had violated the FDCPA by failing to independently verify the information about the debt.
I am not an attorney. Any information I post is strictly my opinion and should be treated as such.

BellEbutton

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McCollough v. Johnson, Rodenburg & Lauinger 9 th Circuit


Debt collection law firm Johnson, Rodenburg & Lauinger
(“JRL” or “the law firm”) appeals from the entry of summary
judgment against it under the federal Fair Debt Collection
Practices Act (“FDCPA”), and from a subsequent jury verdict
awarding damages under the FDCPA, the Montana Unfair
Trade Practices and Consumer Protection Act (“MCPA”), and
state torts of malicious prosecution and abuse of process. We
have jurisdiction pursuant to 28 U.S.C. § 1291 and we affirm.


The court deemed that it was unreasonable for the law firm to rely solely on information from its client, and determined that the law firm had violated the FDCPA by failing to independently verify the information about the debt.

As usual, Bruno, you don't read.  In McCullough, the defendant was an attorney and the client was a debt collector (JDB).   The attorney relied on the JDB's information that was not supported by documentation.

I specifically said that it would depend on the verification.  A debt collector who provides a credit card statement showing the consumer's name and address is providing information from the OC, not another debt collector.

fisthardcheese

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The creditor's reasonable beliefs are very much relevant to a bona fide error defense.  Like it or not if they followed a clear reasonable policy designed to prevent the error in the first place the courts are not going to simply lower the hammer because NO practice works 100% of the time.

Well heres a hammer that was lowered on bona fide error.  Guess you are wrong as usual.

The FDCPA’s bona fide error defense does not shield a debt collector from liability when it relies on information from the creditor.  Owen v. LC. System, Inc., 629 F.3d 1263 (11th Cir. 2011). 
11 Arb Settlements (9 AAA, 2 JAMS)
3 JDB Suits Dismissed With Prejudice (2 pro-se, 1 consumer atty)
3 TCPA Settlements (2 pro-se, 1 consumer atty)
2 FCRA Settlements (consumer atty)
1 FDCPA Settlement (w consumer atty)
1 Small Claims Win (pro-se; Landlord/state consumer law violations)
1 State UDAP Settlement (ITS)
1 Federal PTC Settlement (before hearing; pro-se)

BellEbutton

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Well heres a hammer that was lowered on bona fide error.  Guess you are wrong as usual.

The FDCPA’s bona fide error defense does not shield a debt collector from liability when it relies on information from the creditor.  Owen v. LC. System, Inc., 629 F.3d 1263 (11th Cir. 2011).

It depends on the situation.  In Owen. the documentation provided by the OC showed errors that the debt collector should have recognized.  Note what I previously cited from that ruling ("the errors were discernible on the face of AAA's documents forwarded to ICS and therefore readily discoverable by ICS.")

Clydesmom66

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It depends on the situation.  In Owen. the documentation provided by the OC showed errors that the debt collector should have recognized.  Note what I previously cited from that ruling ("the errors were discernible on the face of AAA's documents forwarded to ICS and therefore readily discoverable by ICS.")

Oh BellE there you go with logic and rational thought again.  You should know by now that neither of those has any place in Cheese's delusional world.   :vbrofl:
Be VERY careful following advice from the internet! What worked for someone with thousands of posts on a message board may not work for YOU in your state.  Consult a lawyer when ever possible.

Bruno the JDB Killer

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Going back to your original question:


How is a debt collector supposed to know a debt is not owed unless validation shows it or he's informed by the dunned person?


It is his legal responsibility to know this information before he sues. The FDCPA places the burden on the debt collector, not the consumer. A debt collector does not receive debt validation, the consumer does. Your argument is backwards.

The cases we cited show clearly that courts reinforce this concept. Even Owen does. It doesn't matter who the plaintiff is or who the defendant is or what color his dog is, the legal concept remains the same. Show us any case where a debt collector sued the wrong consumer and a court ruled that it was okay to do so.
I am not an attorney. Any information I post is strictly my opinion and should be treated as such.

BellEbutton

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Going back to your original question:


How is a debt collector supposed to know a debt is not owed unless validation shows it or he's informed by the dunned person?


It is his legal responsibility to know this information before he sues. The FDCPA places the burden on the debt collector, not the consumer. A debt collector does not receive debt validation, the consumer does. Your argument is backwards.

The cases we cited show clearly that courts reinforce this concept. Even Owen does. It doesn't matter who the plaintiff is or who the defendant is or what color his dog is, the legal concept remains the same. Show us any case where a debt collector sued the wrong consumer and a court ruled that it was okay to do so.

Sued???  That hasn't even been mentioned.  We've been talking about validation and collection letters, not lawsuits. 

What is it that you don't get about Owen?   For the 3rd time (for those with comprehension problems), ERRORS WERE ON THE FACE OF THE DOCUMENTATION PROVIDED TO THE DEBT COLLECTOR. 

The 11th Circuit even agreed with the debt collector that it was not required to investigate the creditor's claims in order to prove bona fide error.

"Moreover, we agree with ICS that the FDCPA does not require debt collectors to independently investigate and verify the validity of a debt to qualify for the bona fide error defense."

The FDCPA does not require that an independent investigation of the validity of a debt referred for collection be conducted. Jenkins v. Heintz, 124 F.3d 824, 828 (7th Cir.1997).

"The Sixth Circuit has held that a debt collector may rely upon information provided by his client, and that § 1692k(c) will protect a debt collector who is not willfully blind to the inaccuracy of such information from liability directly attributable to the mistakes of the client." Smith v. Transworld, Sys., Inc., 953 F.2d 1025, 1032 (6th Cir. 1992).

Now, Bruno, you show me a court that requires a debt collector to investigate the claims/documentation of the OC when errors are NOT evident.


Bruno the JDB Killer

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"Moreover, we agree with ICS that the FDCPA does not require debt collectors to independently investigate and verify the validity of a debt to qualify for the bona fide error defense."


Mistakes of law are not covered under bona fide error. Suing the wrong person is a mistake of law, not a clerical error. Debt collectors don't sue, lawyers do.

"The U.S. Supreme Court in April 2010 reversed the Sixth Circuit. In a 7-2 decision, the Court held that mistakes of law cannot qualify for the bona fide error defense, relying in part on the old maxim that “ignorance of the law will not excuse any person, either civilly or criminally.”



The FDCPA does not require that an independent investigation of the validity of a debt referred for collection be conducted. Jenkins v. Heintz, 124 F.3d 824, 828 (7th Cir.1997).



I agree in part. The investigation must be conducted by the law firm who files suit. Interesting that Jenkins doesn't say who is not responsible for that investigation. I wonder, since Heintz was about debt collection attorneys being held as debt collectors.

Suing most certainly was mentioned, as the entire case revolves around a consumer interpreting that dunning letter as a threat to sue. If not, what did they allegedly threaten to do? Send him to bed with no dinner?


"The Sixth Circuit has held that a debt collector may rely upon information provided by his client, and that § 1692k(c) will protect a debt collector who is not willfully blind to the inaccuracy of such information from liability directly attributable to the mistakes of the client." Smith v. Transworld, Sys., Inc., 953 F.2d 1025, 1032 (6th Cir. 1992).


Again, we're talking about an alleged threat to sue. CAs don't sue. Lawyers fall under an entirely different standard.
I am not an attorney. Any information I post is strictly my opinion and should be treated as such.

BellEbutton

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"Moreover, we agree with ICS that the FDCPA does not require debt collectors to independently investigate and verify the validity of a debt to qualify for the bona fide error defense."


Mistakes of law are not covered under bona fide error. Suing the wrong person is a mistake of law, not a clerical error. Debt collectors don't sue, lawyers do.

"The U.S. Supreme Court in April 2010 reversed the Sixth Circuit. In a 7-2 decision, the Court held that mistakes of law cannot qualify for the bona fide error defense, relying in part on the old maxim that “ignorance of the law will not excuse any person, either civilly or criminally.”



The FDCPA does not require that an independent investigation of the validity of a debt referred for collection be conducted. Jenkins v. Heintz, 124 F.3d 824, 828 (7th Cir.1997).



I agree in part. The investigation must be conducted by the law firm who files suit. Interesting that Jenkins doesn't say who is not responsible for that investigation. I wonder, since Heintz was about debt collection attorneys being held as debt collectors.

Suing most certainly was mentioned, as the entire case revolves around a consumer interpreting that dunning letter as a threat to sue. If not, what did they allegedly threaten to do? Send him to bed with no dinner?


"The Sixth Circuit has held that a debt collector may rely upon information provided by his client, and that § 1692k(c) will protect a debt collector who is not willfully blind to the inaccuracy of such information from liability directly attributable to the mistakes of the client." Smith v. Transworld, Sys., Inc., 953 F.2d 1025, 1032 (6th Cir. 1992).


Again, we're talking about an alleged threat to sue. CAs don't sue. Lawyers fall under an entirely different standard.

Why are you referring to a lawsuit?   So far, there's no lawsuit and no attorney.

coinpurse

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Thanks for the replies. Sorry I didn't get back to the thread in a timely manner. I've had a relapse of the flu (or caught a different strain).  :vbdoh:

To clarify, when I said that I didn't "recognize" the debt, it's because I haven't had a credit card since 2008. I had one from my current credit union and the small balance on it was paid off when I became disabled then. I did apply for a couple of cards over the years since, but was was turned down. I only have one sig loan since that time as well (from my credit union, taken out last year to replace a HVAC unit and do other repairs on my home). It is current and nowhere near this amount.

They also used my old last name (prior to adopting my now late husband's last name) so it's pretty old if it even is mine. When I "signed" the reply letter (text only, no wet ink sig) I used the name they had. (I'm not going to do their work for them. The CU loan is in my current last name and that is how it is reported to the CRAs, so they didn't do their homework.)

I didn't ask them to verify. I just stated "I dispute this debt. All calls are inconvenient." I received the CMRRR post card already, so they got it.

And now I wait.

Bruno the JDB Killer

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What state? Rhode Island and a couple others have a 10 year SOL.
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11181986

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Suing the wrong person is a mistake of law

No it's not, it's a mistake of fact.

Bruno the JDB Killer

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See Shapiro v. Law Offices of Cohen & Slamowitz. They tried the bona fide error defense for suing the wrong person and lost.
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11181986

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That does not mean they alleged a mistake of law though.

I went back and read the decision, just in case there was the slightest of possibility you actually read case law correctly, and was able to confirm you are wrong.
« Last Edit: March 10, 2017 03:53:05 PM by 11181986 »

Bruno the JDB Killer

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Take it up with Langel Law, they had an identical case. You haven't confirmed anything other than wishful thinking.


"With remarkable factual similarity to our I.B. (name protected for confidentiality) action against Pressler & Pressler, the same Southern District Court (New York) let collection firm Cohen & Slamowitz flush out its bona fide error defense before declaring it liable for seeking payment from the wrong person and while that person was represented by an attorney."

Need more? Try Yazzie in New Mexico.


"During the legal process, it was discovered that Target Bank had indeed supplied Farrell & Sandlin with the correct name, address and Social Security number of the true debtor, not the Lucinda Yazzie named in their garnishment actions. But a former employee of the law firm shortly after receiving the account changed the SSN in the company’s system to that of the Yazzie named in the suit. The firm claimed that this went against company policy and entered a bona fide error defense, which was rejected".


 Dunaway v. JBC & Assoc,
Inc., No. 03-73597, 2005 U.S. Dist. LEXIS 37885, 2005 WL 1529574, at *6 (E.D. Mich. Dec.19, 2005) (finding that the "the bona fide error defense applies only to clerical errors"


Edwards v. McCormick, 136 F. Supp. 2d 795, 800 (S.D. Ohio 2001) (explaining that "were the mistake an error in legal judgment, it could not be erased by [the bona fide error defense]" and reasoning that, under Smith v. Transworld Sys., Inc., 953 F.2d 1025 (6th Cir. 1992), the defense applies only to clerical errors)



the Eighth, Second, and Ninth Circuit held that the bona fide error defense does not apply to legal errors. Id. at 474 (citing Picht v. Jon R. Hawks, Ltd., 236 F.3d 446, 451 (8th Cir. 2001) (citing Hulshizer v. Global Credit Servs., Inc., 728 F.2d 1037, 1038 (8th Cir. 1984)); Pipiles v. Credit Bureau of Lockport, Inc., 886 F.2d 22, 27 (2d Cir. 1989); Baker v. G.C. Servs. Corp., 677 F.2d 775, 779 (9th Cir. 1982).

« Last Edit: March 10, 2017 06:07:33 PM by Bruno the JDB Killer »
I am not an attorney. Any information I post is strictly my opinion and should be treated as such.