The Consumer Financial Protection Bureau (CFPB) recently released its complaint statistics for the month of December 2015.  Debt collection issues far and away dominated Indiana consumers’ complaints by almost a two-to-one margin over the next highest categories of mortgages and credit reporting.  Debt collection complaints are consistently the top complaint received by the CFPB in the State of Indiana as well as all other states.  Interestingly, the CFPB’s statistics do not break down the complaints as to whether they originate from an original creditor or a debt collector.  Debt Collectors are covered by the Fair Debt Collection Practices Act, while creditors generally are not.  I suspect that, even so, a majority of the debt collection complaints are caused by debt collectors since debt collectors’ income is usually much more directly linked to the amount of money they collect.  This means the financial incentive for debt collectors  to push the limits of fair debt collection is often too great for them to resist.

If you have a debt collection issue, contact us here.  We may be able to help.

PRESS RELEASE

Indiana Consumer Law Group/The Law Office of Robert E. Duff announces the filing of a lawsuit against North Carolina-based American Lending Solutions Corp. and Indianapolis-based Last Chance Wrecker & Sales, Inc. concerning the wrongful repossession of a motor vehicle.  ALS is a self-described “Skip Tracing/Repossession Management Firm” that works as a middleman between lienholders and towing companies.   Last Chance is a towing company.  The lawsuit, which has been filed in the United States District Court for the Southern District of Indiana, alleges that the defendants violated the Fair Debt Collection Practices Act (“FDCPA”) when they repossessed an Indiana consumer’s truck even though the finance company they were working for did not have a valid lien on it.

The FDCPA provides that repossession companies violate the law when they repossess a vehicle they have no right to repossess.  In this case, the reason they did not have a right to repossess was because the finance company they were working for did not have a valid lien on the truck.  However, a repossession company violates that FDCPA any time it repossesses a car it shouldn’t have. This could be because the repossessor chose the wrong vehicle, the consumer was not in default under the terms of the finance agreement or because the towing company breached the peace at the time the repossession occurred.

The most common reason for a wrongful repossession the Indiana Consumer Law Group/The Law Office of Robert E. Duff sees is a breach of the peace.  Repossession is an extra-judicial (outside the courts) self-help remedy that is by its very nature fraught with the potential for conflict, violence and injury.  Therefore, the law says that a repossession is only permitted when it can be accomplished without a “breach of the peace.”  A breach of the peace essentially occurs when the repossessor meets any kind of resistance to the repossession. The resistance might be that the car is in a closed garage or behind a closed fence (a repossessor may come onto private property to repossess if they have not been previously advised to stay out and the vehicle is not secured in a building, garage or behind a fence).  Or the resistance may be the vehicle owner or someone on her behalf simply telling the repo agent that he cannot take the vehicle.  Peaceful verbal resistance is enough to take away the right to repossess the vehicle at that time.  As you can imagine, however, repo agents (who are generally paid only if they recover the vehicle and therefore have a strong financial incentive to make a recovery) often refuse to stand down and proceed to repossess illegally.

Here at the Indiana Consumer Law Group/The Law Office of Robert E. Duff, we protect consumers who have been the subject of a wrongful repossession by suing all kinds of companies involved in the wrongful repossession – from towing companies and middlemen to finance companies.  If you believe you have been subjected to a wrongful repossession, click here to contact us for a no-cost evaluation.

PRESS RELEASE

Indiana Consumer Law Group/The Law Office of Robert E. Duff announces the filing of a lawsuit against Greenwood-based medical debt collector Med-1 Solutions, LLC and collection attorney Shannon Melton.  The lawsuit, which has been filed in the United States District Court for the Southern District of Indiana, alleges that Med-1 Solutions and attorney Melton violated the Fair Debt Collection Practices Act (“FDCPA”) when they filed a collection lawsuit on behalf of St. Vincent Hospital and Health Care Center against an Indiana consumer in the wrong county.  The FDCPA provides that a debt collector (including collection attorneys) may only file a debt collection lawsuit on consumer debt in the county where the consumer is residing or where s/he signed the contract sued upon.  In this case, the consumer/plaintiff alleges that he lived in Boone County, received medical services and signed the patient consent form in Hamilton County, but was sued by Med-1 and Melton in Marion County Small Claims Court.  The consumer/plaintiff is seeking an award of actual damages, statutory damages, costs and attorney fees.

This lawsuit highlights another important provision of the FDCPA.  A debt collector violates the FDCPA if it sues you in a county OTHER than were you currently live or where you signed the contract sued upon.  The purpose of this provision is to prevent debt collectors from suing consumers in locations where it is very inconvenient or difficult for them to get to court to defend themselves.  It is a powerful part of the FDCPA.

Here at the Indiana Consumer Law Group/The Law Office of Robert E. Duff, we defend consumers who have been sued by debt collectors.  We prefer, however, to sue debt collectors (in federal court) for violating the FDCPA because in that situation the debt collector pays our fees instead of the consumer.  Sometimes a debt defense case leads to the discovery of an FDCPA violation.  A lawsuit against the debt collector then often results in the resolution of both cases in a way that is favorable to our clients.  If you have been sued and don’t know where to turn, click here to contact us for a no-cost evaluation.

 

PRESS RELEASE

Indiana Consumer Law Group/The Law Office of Robert E. Duff announces the filing of a lawsuit against Midland Funding LLC, a California based debt collector, and Bowman, Heintz, Boscia & Vician, P.C., an Indiana based debt collection law firm.  The lawsuit, which has been filed in the United States District Court for the Southern District of Indiana, alleges that Midland Funding and Bowman, Heintz, Boscia & Vician violated the Fair Debt Collection Practices Act (“FDCPA”) when they filed a collection lawsuit against an Indiana consumer on a debt that had been paid in full five years earlier.  The consumer/plaintiff is seeking an award of actual damages, statutory damages, costs and attorney fees.

This lawsuit highlights an important provision of the FDCPA.  It prohibits a debt collector from collecting or attempting to collect any amount, even only a dollar of principle, interest or fees, that is not owed.  This of course includes a debt that was never owed, was discharged in bankruptcy, was settled for the less than the full amount or was paid in full.  Plus, the FDCPA has a fee-shifting provision that means that if the consumer prevails the debt collector has to pay the consumer’s attorney fees.  That means that here at the Indiana Consumer Law Group/The Law Office of Robert E. Duff, we don’t charge you any attorney fees out of pocket to bring an FDCPA lawsuit.  If a debt collector is attempting to collect a debt from you that you don’t owe, go here to submit your potential case for a free evaluation.

 

PRESS RELEASE

Indiana Consumer Law Group/The Law Office of Robert E. Duff announces the filing of a lawsuit against LVNV Funding LLC, a Nevada based debt collector, and Stenger & Stenger, P.C., a Michigan based debt collection law firm.  The lawsuit, which has been filed in the United States District Court for the Southern District of Indiana, alleges that LVNV violated the Fair Debt Collection Practices Act (“FDCPA”) when, during a telephone call, LVNV threatened the plaintiff with imminent garnishment of her wages when that was not possible because LVNV did not have a judgment against her.  The plaintiff also alleges that LVNV failed to advise her of certain rights she has under the FDCPA.  The lawsuit further alleges that Stenger & Stenger violated the FDCPA by falsely stating in a pleading filed with the state court (in a lawsuit Stenger & Stenger filed on behalf of LVNV against the consumer) that the consumer had received billings for the amount due.  The consumer/plaintiff is seeking an award of actual damages, statutory damages, costs and attorney fees.

The FDCPA is a powerful consumer protection statute.  Debt collectors are prohibited from making a false or misleading statement of material fact in attempting to collect a debt.  If a debt collector has made a false or misleading statement of material fact in attempting to collect a debt from you, the debt collector has probably violated the FDCPA.  Contact us if you believe we may be of assistance.

PRESS RELEASE

Indiana Consumer Law Group/The Law Office of Robert E. Duff announces the filing of a lawsuit against Reliant Capital Solutions, LLC of Ohio. The lawsuit, which has been filed in the United States District Court for the Southern District of Indiana, alleges that Reliant Capital Solutions contacted the plaintiff’s relatives – for reasons other than obtaining contact information – while attempting to collect a debt from her.  The Complaint alleges that this was a violation of the Fair Debt Collection Practices Act (“FDCPA”) because the general rule is that a debt collector is not permitted to communicate with any person other than the debtor in connection with the collection of a debt.  The consumer/plaintiff is seeking an award of actual damages, statutory damages, costs and attorney fees.

The consumer’s lawsuit highlights one of the many ways debt collectors violate the FDCPA in attempting to collect a debt.  The FDCPA only allows a debt collector to contact someone other than the debtor in collecting a debt in one very limited situation:  to obtain contact information for the debtor.  That’s it.  And even then, there are important limits on the communication with a third party.  In any communication with a third party, the debt collector must:

1)  identify him or herself, state that (s)he is confirming or correcting contact information for the consumer, and state the name of his or her employer ONLY IF ASKED;

2)  not state that the consumer owes a debt; and

3)  only communicate with the person one time.

The failure to follow these strict limitations is an FDCPA violation.  If a debt collector has current contact information for the consumer, the debt collector obviously cannot have a legitimate basis to contact any third party for any reason.

Note also that it will never be permissible, as Plaintiff has alleged in this case, for a debt collector to call a third party and ask to speak with the consumer (unless the number is a legitimate contact number for the consumer) or ask the third party to have the consumer call them.

It is not difficult to understand why debt collectors have a difficult time obeying the FDCPA in this area.  Debt collectors know that if they call a friend or relative they can sometimes embarrass the consumer indirectly.  They don’t have to tell the friend or relative that the consumer owes a debt.  They know that by simply contacting them the issue will likely come up in communications between the two.  For example:

Grandparent:  Someone called here yesterday asking for you.

Consumer:  Oh yeah, did they say who it was?

Grandparent:  They said their name was John Smith with Reliable Services and they asked that you call them.

Consumer:  Ok.

Grandparent:  Do you know what it was about?

Consumer:  Well… yeah… I think it might be a debt collector.

The embarrassment involved then causes the consumer to pay the debt for fear that other friends/relatives/coworkers will be informed that they may owe a debt.  That kind of pressure to pay is illegal under the FDCPA, but debt collectors use it because it works.

 

Are you receiving collection calls to a cell phone for a debt that belongs to someone else?  If the calls are being made by an autodialer, you may have a claim under the Telephone Consumer Protection Act (“TCPA”).

For there to be liability under the TCPA, collection calls to a cellphone must be made by autodialer without your “prior express consent.”  One of the easiest ways to know there was no prior express consent is when the collection calls are for a debt that was never yours to begin with and belongs to someone else.  So let’s say we’ve determined that a company is calling your cell phone attempting to collect a debt that belongs to someone else.  How do you know if the company is using an autodialer?

Creditors and debt collectors often use autodialers to collect debt because of increased economic efficiency.  Simply put, autodialers can make more calls that people can.  Autodialers can even make people more efficient at debt collection by predictive dialing.  Predictive dialing is the process of calling certain numbers and connecting a call to a real call center person only when the call is answered by an actual consumer.  A predictive dialer predicts when the real call center person will be available to take the next call and makes automatic calls in an attempt to get a real consumer on the line at just the right time.  So when  you answer a call and the real call center person does not immediately respond, this is a usually a sure sign that an autodialer is being used.  The delay between you answering and the real call center person coming on the line is the time it takes the autodialer to tell the call center person that it has made a connection with an actual consumer and then for the real call center person to get on the line.  An immediate hangup will sometimes happen when the autodialer predicted incorrectly that a real call center person would be available but they were not.  If you hear a recording in response to answer the call, that is also a sure sign that an autodialer is being used. Continue reading

Indiana consumers beware. The Consumer Financial Protection Bureau (“CFPB”) recently released its list of the top debt collectors generating complaints for the period of February through April, 2015. Since its inception, the CFPB has received an average of over 7,000 collection-related consumer complaints a month. In fact, debt collection is the number one category of complaints to the CFPB. And now, the CFPB is naming names. Here is the most recent list of the top complaint-receiving debt collectors nationwide (from most to least): Enhanced Recovery Company, LLC, Encore Capital Group, Portfolio Recovery Associates, Inc., Transworld Systems Inc., Convergent Resources, Inc., Allied Interstate LLC, EOS Holdings, Inc., Resurgent Capital Services L.P., Afni, Inc. and Diversified Consultants, Inc.

If you believe one of these companies or any other debt collector has violated the FDCPA, and you want help protecting your rights, submit your potential claim here.

I often receive inquiries from Indiana consumers about statutes of limitation on debt collection. A statute of limitation establishes an affirmative defense for a defendant when a lawsuit has not been filed in a timely manner. That means that a defendant can have a lawsuit dismissed when the lawsuit was filed past the statute of limitation.

For the most part, statutes of limitation range from one year to ten years depending on the claim. The most common statute of limitation in Indiana is two years. Personal injury claims in Indiana are generally barred (subject to dismissal) if they are not filed two years from the date of the injury. But debt collection statutes of limitation based on contracts are longer. Here are some examples:

Medical Debt – 10 years if written contract and 6 years if no written contract Credit Card Debt and other revolving credit – 6 years Contract for Sale of Goods (like the purchase of a car) – 4 years
Generally, the statute of limitation begins to run at the date of first delinquency or last payment made (whichever is later). It is important to note that making a payment to a debt collector can restart the statute of limitation – even if it is about to expire. Debt collectors will sometimes attempt to coax a small payment out of a consumer for just this reason.

It is also important to note that debt collectors are prohibited by the Fair Debt Collection Practices Act from filing lawsuits that are barred by the statute of limitation, threatening to file such a lawsuit or even giving the impression in a letter or telephone call that the debt is legally enforceable! If a debt collector has sued you, threatened to sue you or communicated with you concerning a debt barred by the statute of limitations without advising you the debt cannot be sued upon, or if you have a question about the application of a statute of limitation, you may submit your claim or question here.

Debt collectors and creditors often use what is called an autodialer to make calls to consumers. One of the ways you can tell an autodialer is being used is that when you answer the call you will experience a slight delay before a live person actually comes on the phone. There are several reasons creditors and debt collectors use autodialers, but one of them is that it allows them to pepper a consumer with calls when the consumer isn’t answering. This can be harassing, but you can make them stop.

A debt collector needs what is called “prior express consent” to legally use an autodialer to call your cell phone. Typically, this prior express consent is obtained when you list your cell phone number on the paperwork when you arrange a business or credit transaction. But your consent can easily be revoked or retracted simply by informing the business calling you that you no longer wish to receive phone calls from them. It can be done either orally or in writing. This won’t necessarily stop autodialed calls to a landline, but it SHOULD stop autodialed calls to a cell phone. If it doesn’t, each call thereafter may be a violation of the Telephone Consumer Protection Act (“TCPA”) and could be worth at least $500 PER CALL.

For more information about the TCPA or to submit your potential TCPA claim for review, please visit my website at www.indianaconsumerlawgroup.com.