Author Topic: Henson v Santander Slip Opinion Available [FDCPA does not apply to debt buyers]  (Read 1028 times)

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Bruno the JDB Killer

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Ohio has a statute that provides a tort cause of action for any crime, even a misdemeanor crime, and the opportunity to recover actual damages, emotional damages, and punitive damages, etc.


Telecommunications fraud is its own separate offense and ranges from a 4th degree to a 1st degree felony depending on the money involved.


Also the pattern of gang activity requires only one offense be at least a 3rd degree felony. Arguably if they commit one third degree felony against Joe [successfully defraud him out of the requisite amount of money] and then commit four 5th degree felonies against Jane, involving unlawful telemarketing, they have arguably engaged in the pattern. Or if they defraud Joe after 8 calls and get the requisite amount of money for it to be a 3rd degree felony, the 8 calls without having been registered are 5th degree felonies and a pattern of criminal activity exists.

It is not open and shut like the catch-all statute that provides a tort cause of action for any/all crimes, it requires some groundwork/foundational work, but many telemarketers can be properly alleged to be criminal gangs if the circumstances warrant it.


If a debt collector calls you, how were you defrauded? You are getting into RICO type laws that were primarily designed to battle organized crime families, not telemarketers or debt collectors. I think you're trying to make the statute fit the crime, not the other way around.

I also think you have no basis for a suit until the DA prosecutes and convicts the guilty party. I can't see a DA going after debt collectors  under this statute based on a few phone calls. Legislatures pass far-reaching laws all the time for something to do. The District Attorneys who enforce them will plead this out as a misdemeanor 99% of the time.

Also, there are a lot of exemptions to that law you cited. Companies like Santander may be off the hook.

The following are exempt......

A supervised financial institution or its subsidiary. As used in division (B)(9) of this section, "supervised financial institution" means a bank, trust company, savings and loan association, savings bank, credit union, industrial loan company, consumer finance lender, commercial finance lender, or institution described in section 2(c)(2)(F) of the "Bank Holding Company Act of 1956," 12 U.S.C.A. 1841(c)(2)(F), as amended, supervised by an official or agency of the United States, this state, or any other state of the United States; or a licensee or registrant under sections 1321.01 to 1321.19, 1321.51 to 1321.60, or 1321.71 to 1321.83 of the Revised Code.
I am not an attorney. Any information I post is strictly my opinion and should be treated as such.

BellEbutton

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Ohio has a statute that provides a tort cause of action for any crime, even a misdemeanor crime, and the opportunity to recover actual damages, emotional damages, and punitive damages, etc.


Telecommunications fraud is its own separate offense and ranges from a 4th degree to a 1st degree felony depending on the money involved.


Also the pattern of gang activity requires only one offense be at least a 3rd degree felony. Arguably if they commit one third degree felony against Joe [successfully defraud him out of the requisite amount of money] and then commit four 5th degree felonies against Jane, involving unlawful telemarketing, they have arguably engaged in the pattern. Or if they defraud Joe after 8 calls and get the requisite amount of money for it to be a 3rd degree felony, the 8 calls without having been registered are 5th degree felonies and a pattern of criminal activity exists.

It is not open and shut like the catch-all statute that provides a tort cause of action for any/all crimes, it requires some groundwork/foundational work, but many telemarketers can be properly alleged to be criminal gangs if the circumstances warrant it.

Your first problem is that JDBs don't fit this:

2923.41 Criminal gang definitions.

As used in sections 2923.41 to 2923.44 of the Revised Code:

(A) "Criminal gang" means an ongoing formal or informal organization, association, or group of three or more persons to which all of the following apply:

(1) It has as one of its primary activities the commission of one or more of the offenses listed in division (B) of this section.

(2) It has a common name or one or more common, identifying signs, symbols, or colors.

(3) The persons in the organization, association, or group individually or collectively engage in or have engaged in a pattern of criminal gang activity.

(B)

(1) "Pattern of criminal gang activity" means, subject to division (B)(2) of this section, that persons in the criminal gang have committed, attempted to commit, conspired to commit, been complicitors in the commission of, or solicited, coerced, or intimidated another to commit, attempt to commit, conspire to commit, or be in complicity in the commission of two or more of any of the following offenses:

(a) A felony or an act committed by a juvenile that would be a felony if committed by an adult;

(b) An offense of violence or an act committed by a juvenile that would be an offense of violence if committed by an adult;

(c) A violation of section 2907.04, 2909.06, 2911.211, 2917.04, 2919.23, or 2919.24 of the Revised Code, section 2921.04 or 2923.16 of the Revised Code, section 2925.03 of the Revised Code if the offense is trafficking in marihuana, or section 2927.12 of the Revised Code.


You should read the sections listed in (c).


LightBearer1307

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Again, for the two posts just made, I said that the law generally does not fit debt collectors, but can easily fit telemarketers [because they are frequently getting money from people via selling that doesn't exist and they seldom register with the state to engage in telephone solicitation]...

I specifically said it is generally not something to be used against debt collectors. There are very narrow instances where it could be used. I recall an incident where a woman made a $30,000 payment to pay off her entire student loan balance, they took her money, didn't apply it to the loan, she got a few payment notices in the mail, figured it was an obvious clerical mistake [since she did just pay, her bank account was lighter], and then a few months later she was put into default of the "loan" that they claimed she still owed, they hit her credit report, and they began debt collection activity. It is possible that some criminal misconduct was involved and it was not a mere mistake.


As to the routine debt collector, and not the exotic situation.

There is a catch-all law that any crime = a statutory tort cause of action, which would include telecommunications harassment, aggravated menacing, etc... This would mean a debt collector who calls you on the phone at 11:00 pm and threatens to burn down your house [not as weird as you might think] is on the hook via that statute.

A man in New Mexico received a phone call from a debt collector calling on behalf of Verizon and they said they would blow up his house.   http://hinterlandgazette.com/2010/05/verizon-wireless-sued-after-debt.html


 2307.60 Civil action for damages for criminal act.

(A)

(1) Anyone injured in person or property by a criminal act has, and may recover full damages in, a civil action unless specifically excepted by law, may recover the costs of maintaining the civil action and attorney's fees if authorized by any provision of the Rules of Civil Procedure or another section of the Revised Code or under the common law of this state, and may recover punitive or exemplary damages if authorized by section 2315.21 or another section of the Revised Code.

CleaningUp

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Here's your problem...as always...

Prove it.

Evidence is required, and the days of the self-serving memo to file may well be coming to a somewhat deserved end because of the abuse that has been taking place with them.

You do know what he legal definition of "evidence" is.

Give me your self-serving memo, and you will open SO many doors that you may just wish you had never written it.



Bruno the JDB Killer

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Anyone calling you to collect a debt is not a telemarketer by law. If they call to sell you something, you need to read that statute again. It has a LOT of exemptions for telemarketers as well. Making a phone call to sell Aunt Tillie a new walker is not a crime, and no D.A. is going to treat it as one. The guys who bomb your phone with threats at all hours of the day and night are usually impossible to trace, impossible to sue, and have no assets.
I am not an attorney. Any information I post is strictly my opinion and should be treated as such.

CleaningUp

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But, hey, Bruno, he talks a good game.

 

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