Topic: Collector personaly liable

[TexasLawyer]

Be careful suing the spouse of a debt collector for the debt collector's actions.  There might be state statutory provisions that prohibit such a claim.  My recollection is that in Texas, for example, the Family Code specifies when a spouse can be held liable for certain types of debts (tort v. contract) of the other spouse.

[Flyingifr]

Thanks for bringing that out. I have links top the various State Statutes in another part of DB.

Looking at Arizona's statute, I would take that the exact opposite is true here - that the misdeeds of either spouse inure to the Community. See especially subparagraph D.

25-215. Liability of community property and separate property for community and separate debts

A. The separate property of a spouse shall not be liable for the separate debts or obligations of the other spouse, absent agreement of the property owner to the contrary.

B. The community property is liable for the premarital separate debts or other liabilities of a spouse, incurred after September 1, 1973 but only to the extent of the value of that spouse's contribution to the community property which would have been such spouse's separate property if single.

C. The community property is liable for a spouse's debts incurred outside of this state during the marriage which would have been community debts if incurred in this state.

D. Except as prohibited in section 25-214, either spouse may contract debts and otherwise act for the benefit of the community. In an action on such a debt or obligation the spouses shall be sued jointly and the debt or obligation shall be satisfied: first, from the community property, and second, from the separate property of the spouse contracting the debt or obligation.

ARS 25-214 is no escape valve:

25-214. Management and control

A. Each spouse has the sole management, control and disposition rights of each spouse's separate property.

B. The spouses have equal management, control and disposition rights over their community property and have equal power to bind the community.

C. Either spouse separately may acquire, manage, control or dispose of community property or bind the community, except that joinder of both spouses is required in any of the following cases:

1. Any transaction for the acquisition, disposition or encumbrance of an interest in real property other than an unpatented mining claim or a lease of less than one year.

2. Any transaction of guaranty, indemnity or suretyship.

3. To bind the community, irrespective of any person's intent with respect to that binder, after service of a petition for dissolution of marriage, legal separation or annulment if the petition results in a decree of dissolution of marriage, legal separation or annulment.

[Newryman]

FTC STAFF COMMENTARY ON SECTION 813:

Section 813  (A) imposes civil liability in the form of (1) actual damages, (2) discretionary penalties, and (3) costs and attorney's fees; (B) discusses relevant factors a court should consider in assessing damages; (C) exculpates a collector who maintains reasonable procedures from liability for an unintentional error; (D) permits actions to be brought in federal or state courts within one year from the violation; and (E) shields a defendant who relies on an advisory opinion of the Commission.

1. Employee liability. Since the employees of a debt collection agency are "debt collectors," they are liable for violations to the same extent as the agency.

2. Damages. The courts have awarded "actual damages" for FDCPA violations that were not just out-of-pocket expenses, but included damages for personal humiliation, embarrassment, mental anguish, or emotional distress.

3. Application of statute of limitation period. The section's one-year statute of limitations applies only to private lawsuits, not to actions brought by a government agency.

4. Advisory opinions. A party may act in reliance on a formal advisory opinion of the Commission pursuant to 16 CFR 1.1-1.4, without risk of civil liability. This protection does not extend to reliance on this Commentary or other informal staff interpretations.

[creditidol]

I included it in my lawsuit that i will be filing next week!!

[PROSAY]

When I receive a letter from a CA or Jdb, it is usually not signed by anyone in particular...I reply in this manner..( my theory only...but I have used it successfully in a "preemptive manner"....meaning,  it has stopped collection efforts on several fronts.

"In as much as your company is Incorporated in the State of (name state), and since all Corporations are" LEGAL FICTIONS", existing only on paper and only by name, we contend that no LEGAL FICTION can act or commit any act without being first directed by a NATURAL, LIVE INDIVIDUAL who has legal authority to act on behalf of the Corporation. Therefore we request that you reply and explain why none of your letters have been signed by the individual who has acted on behalf of your corporation. FUTURE LETTERS from your firm are to be signed in ink, as  We intend to hold all individuals involved in this matter PERSONALLY LIABLE for any and all violations of the FDCPA as well as US CODE TITLE 18 CHAPTER 63 COLLECTIONS ( MAIL FRAUD AND SWINDLES)


I expect your reply WITHIN 30 DAYS...signed IN INK by your respondent.

Sincerely,

One Madda Hillbilly

I repeat... THIS IS MY "THEORY" ONLY...and not written in stone!

[CleaningUp]

Your problem with your legal theory is in making it stick in a court of law.

Note in another thread where the fanciful theory regarding credit card securitization got ignominiously shot down.

Try it and see if it works in court! 
 
My advice is not to indulge in legal arguments where one has less-than-marginal bases for argument and the lack of  the legal skills to argue those limited bases effectively. 

Credibility in a court room is a terrible thing to lose.

Whether or not one wishes to jump off a cliff is up to him.  It seems a little selfish, though, to encourage others to join in the jumping.

[PROSAY]

Not sure if it would work in court or not...but so far I haven't been forced to try.

As long as this gets their attention...

[NotBonJovi]

Getting a CA's attention isn't always the best idea.

Encourages them to either leave someone alone, or crush them like a bug.

[PROSAY]

So far they have left me alone or notified me they were closing the matter in question...that was my goal.

[HarryC]

Hmmm...  so I wonder...

Say I'm suing the law firm of Abbott & Costello, P.C. and the corporation is really only run by Costello because Abbott retired some years back.

The reason I'm suing the firm is because Abbott violated the FDCPA, albeit in the name of the firm.

Would it be feasible to sue the firm, as well as Costello personally since he was the one that violated me?  Might be a way to double up statutory damages.

Inquiring minds want to know...   

[Mischievous Smurfy]

I would sue all 3 ... they are all three liable ... by indirectly collecting debts.

the retired partner is probably a stretch.