Topic: Collector personaly liable

[proveit]

  Anyone have information on the collector themself being personaly liable and or case law? Need for my case.

[proveit]

  How would I sue them personaly in a counter complaint?

[E. Normis Debtor]

Depends on the district you're in.  They seem to be split on the issue of whether or not you must pierce the corporate veil to attach personal liability for an FDCPA violation.

[TexasLawyer]

A natural person debt collector that violates the FDCPA is personally liable for such violations.  Unless you were sued by the natural person debt collector (unlikely), you will need to file a separate suit against him or her.  Are you being sued by a debt buyer?

[E. Normis Debtor]

A natural person debt collector that violates the FDCPA is personally liable for such violations.  Unless you were sued by the natural person debt collector (unlikely), you will need to file a separate suit against him or her.  Are you being sued by a debt buyer?

Such a broad statement may contravene and supplant state corporate law, and give rise to a claim of malicious abuse of process. Particularly in light of rulings in some districts, such as that of the 7th circuit court of appeals, that liability under the FDCPA cannot be attached to an individual employee without first piercing the corporate veil.

[Flyingifr]

A natural person debt collector that violates the FDCPA is personally liable for such violations.  Unless you were sued by the natural person debt collector (unlikely), you will need to file a separate suit against him or her.  Are you being sued by a debt buyer?

I believe this would only apply if you are interposing FDCPA violations as a counterclaim against a creditor's suit.

If you are suing the CA and the Collector as an original Action, you can sue them both in the same suit as co-defendants. The Caption of the suit would read something like:

Debtorboards member, Plaintiff

v

Wedontgiveadamnedaboutthelaw Collections, Inc, an Arizona Corporation
and
John Schmuckbucket, individually

(and if you REALLY want to cause John problems at home and he is in a Community Property State, add.

and

Jane Doe, a defendant to be named when her true identity can be ascertained, as spouse of Defendant John Schmuckbucket and co-owner of the Marital Community, under the Community Property Laws of the State of Arizona,

Defendants

I am sure John Schmuckbucket's spouse would just appreciate being sued. I can just imagine the pillow talk when the summons is served on her.

[TexasLawyer]

Suing a debt collector for his individual actions does not have anything to do with corporate law.  A natural person who commits a tort is always liable for his actions.  A corporation can also generally be sued for the actions of its employees committed in the course and scope of their employment duties.  However, you are likely referring to suing a corporation's shareholders for the actions of the corporation through its employees. Then, depending upon the facts of the case, you might need a theory to "pierce the corporate veil."

[Flyingifr]

Suing a debt collector for his individual actions does not have anything to do with corporate law.  A natural person who commits a tort is always liable for his actions.  A corporation can also generally be sued for the actions of its employees committed in the course and scope of their employment duties.  However, you are likely referring to suing a corporation's shareholders for the actions of the corporation through its employees. Then, depending upon the facts of the case, you might need a theory to "pierce the corporate veil."

I don't know where this came into the discussion. To my understanding we have all been discussing suing the debt collector personally for his/her civil tort violation of FDCPA, his/her employer and with my post above, his/her spouse as part of the Marital Community (under the legal theory that the violation was part of an attempt to earn community Income and therefore the act of one Community member inures both to the benefit and detriment of Both Community members).

Whether the employee is a shareholder in the Corporation or not is irrelevant in what's been discussed so far, but Texaslawyer is correct - to sue the shareholders for the misdeeds of the Corporation you would need to show some piercing of the Corporate veil.

That showing (a piercing of the Corporate Veil) is not needed when suing the Collector's spouse.

Now.... can anyone come up with a theory in law that would allow for the suing of the Corporate Officers (and THEIR spouses if in a Community Property state)?

[E. Normis Debtor]

However, you are likely referring to suing a corporation's shareholders for the actions of the corporation through its employees. Then, depending upon the facts of the case, you might need a theory to "pierce the corporate veil."

Actually I was referring to the courts dictum in Brumbelow v. Law Offices of Bennett and Deloney, P.C., 372 F.Supp.2d 615, D.Utah, May 23, 2005:

There is a split of authority over the effect this language has on individuals collecting debts within a corporate form. Some courts, most notably the Seventh Circuit Court of Appeals, have held that a shareholder, officer, or employee of a corporate debt collector may not be held personally liable without piercing the corporate veil.

In contrast, several district courts have held that where a shareholder, officer, or employee of a corporation is personally involved in the debt collection at issue, he may be held personally liable as a debt collector without piercing the corporate veil.

And from Petite v. Retrieval Masters

the Act does not contemplate personal liability for shareholders or employees of debt collection companies who act on behalf of those companies, except perhaps in limited instances where the corporate veil is pierced. Id.; Aubert v. American Gen. Fin., Inc., 137 F.3d 976, 979-80 (7th Cir. 1998)

[Flyingifr]

Norm -

While I appreciate the information you have provided, I am still not coinvinced that FDCPA protects Debt Collectors as individuals from personal liability.

First, let's look to the Act for the definotion of "Debt Collector":

FDCPA Section 803:

(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 808(6), 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.

Note that 803(A) is the Original Creditor exception, since "Creditor" is defined un FDCPA as

(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.

Since the term "debt collector" uses the terminology "any person", that term in law means both natural and artificial persons (corporations, etc).

Furthermore, since my theory under Community Property extends Vicarious Liability to the Debt Collector's spouse, and the spouse is not an employee of the Debt Collector's employer, in no place in FDCPA would the spouse escape liability under FDCPA that the Debt Collector (the natural person) incurs and transfers to the Spouse vicariously under Community property laws. Since FDCPA does not extend relief to the spouse under the doctrine of Vicarious Liability, the Vicarious Liability would extend under State Laws.

[E. Normis Debtor]

As indicated previously, it depends on the district.

[Flyingifr]

As indicated previously, it depends on the district.

And not all Districts have Community property states in them.

[Mischievous Smurfy]

If the debt collector were in a state that required each individual to be licensed, would that not affect this as well?

[Flyingifr]

No, but I would think that repeated violations of law would be grounds for revocation of the license, which adds another avenue of attack.

[proveit]

 To clarify more...these would be for counter claims.