Indiana Consumer Sues American Financial Credit Services, Inc. and Bleecker, Brodey & Andrews

December 18, 2013

PRESS RELEASE

Indiana Consumer Law Group/The Law Office of Robert E. Duff announces the filing of a lawsuit against debt collector American Financial Credit Services, Inc. and the law firm of Bleecker, Brodey & Andrews. The lawsuit, which has been filed in the United States District Court for the Southern District of Indiana, alleges that American Financial Credit Services, Inc. attempted to collect a debt without providing validation of the debt as required by the Fair Debt Collection Practices Act ("FDCPA"). The lawsuit also alleges that Bleecker, Brodey & Andrews made material misrepresentations in a state court debt collection lawsuit against the consumer. The debt collection lawsuit remains pending at this time. The consumer/plaintiff in the FDCPA lawsuit is seeking an award of actual damages, statutory damages, costs and attorney fees.

Bookmark and Share

Indiana Consumer Sues Portfolio Recovery Associates and Morgan & Pottinger

December 5, 2013

PRESS RELEASE

Indiana Consumer Law Group/The Law Office of Robert E. Duff announces the filing of a lawsuit against debt collector Portfolio Recovery Associates, LLC and the law firm of Morgan & Pottinger, P.S.C. The lawsuit, which has been filed in the United States District Court for the Southern District of Indiana, alleges that the defendants misrepresented the origin of the debt they were attempting to collect and thereby violated the Fair Debt Collection Practices Act (FDCPA). The FDCPA lawsuit arises out of another lawsuit where Portfolio Recovery Associates and Morgan & Pottinger filed suit against the consumer plaintiff in Indiana state court alleging that she owed a credit card debt. That lawsuit remains pending at this time. The plaintiff in the FDCPA lawsuit is seeking an award of actual damages, statutory damages, costs and attorney fees.

Bookmark and Share

Seventh Circuit Rules Calling Son About Mother's Debt Not Unfair

October 5, 2013

The United States Court of Appeals for the Seventh Circuit recently affirmed the dismissal of a pro se plaintiff's complaint in the case of Todd v. Collecto, Inc., 2013 WL 5452071. Michael Todd alleged that Collecto had violated the FDCPA by calling him and discussing his mother's debt with him. Specifically, Mr. Todd first alleged that this violated Section 1692b of the FDCPA. Section 1692b generally prohibits a debt collector from communicating with anyone but the debtor about a debt, except to obtain contact information. (Note: This means a debt collector cannot legally call friends, relatives or co-workers and discuss the debt, and cannot call them at all if the debt collector knows how to contact the debtor.). The Court found that Mr. Todd's complaint did not state a claim under this section because, under the terms of the section, only the debtor (his mother) could sue to enforce it.

Mr. Todd also alleged that Collecto's conduct was unfair and unconscionable under Section 1692f. This section generally prohibits a debt collector from engaging in unfair and unconscionable conduct in the course of collecting a debt. The Court ruled that the allegations of the complaint did not state a claim under this section. Important to the Court's ruling was that there was only one conversation, there was no request for payment and no express or implied threat of repercussions for Mr. Todd or his mother.

The takeaway from this case is that drafting the complaint is very important in an FDCPA lawsuit, just as it is in any case. Reading between the lines, it appears to me that, while no explicit request for payment was made, one of the reasons the Collecto representative engaged in this conversation with Mr. Todd was to get him to pay the debt on his mother's behalf. An explicit request for payment need not be made for the call to be an attempt to collect a debt. Had Mr. Todd alleged that the phone call to him was an attempt to collect a debt from him, that would make him an alleged debtor under the FDCPA and would provide him with considerably more protections under the Act. If Mr. Todd could have truthfully make this allegation, I believe his claim would have survived the defendant's motion to dismiss.

Bookmark and Share

Indiana Consumers Sue Deca Financial Services, LLC

September 30, 2013

PRESS RELEASE

Indiana Consumer Law Group/The Law Office of Robert E. Duff announces the filing of a lawsuit against Deca Financial Services, LLC, a debt collector based in Fishers, Indiana. The lawsuit, which has been filed in the United States District Court in the Southern District of Indiana, alleges that Deca Financial lied about when and whether a lawsuit had been filed, sued the wrong person, misrepresented the amount of the debt that was owed, attempted to collect certain amounts that were not owed and filed and maintained a lawsuit despite knowing that the debt had been paid, all in violation of the Fair Debt Collection Practices Act. The lawsuit seeks an award of actual damages, statutory damages, costs and attorney fees.

Bookmark and Share

DSG Services Group Inc.

December 29, 2012

DSG Services Group Inc. is a debt collector operating out of Chicago, Illinois. The Indiana Consumer Law Group/The Law Office of Robert E. Duff is preparing to file a Fair Debt Collection Practices Act (FDCPA) lawsuit against DSG Services Group Inc. for sending our client a letter which we believe violates the FDCPA. The FDCPA requires that, within five days of a debt collector's initial communication with a consumer in connection with the collection of a debt, the debt collector send the consumer a written notice containing certain information, including the amount of the debt and the name of the creditor to whom the debt is owed. The letter from DSG Services Group Inc. does not state the name of the creditor to whom the debt is owed. Click here to view a redacted copy of the letter sent to our client.

If you have received a letter from DSG Services Group Inc. like this one, or a similar one from DSG Services Group Inc. that does not reveal the name of the creditor to whom the debt is owed, please consider contacting us. We may be able to help you, regardless of where you live in the United States. Please note that only the initial written communication from DSG Services Group, Inc. need contain the name of the creditor to whom the debt is owed. There is no requirement under the FDCPA that every follow-up letter from DSG Services Group Inc. attempting to collect a debt contain this information.

Feel free to call our office at 800-817-0461 or complete this short form if you believe we might be of service to you.

Bookmark and Share

Debt Collector Put An Account On Your Credit Report That Is Not Yours?

December 1, 2012

Indiana Consumer Law Group/The Law Office of Robert E. Duff occasionally is contacted by a consumer who has just found a debt collection account on their credit report that is not theirs. We can help.

There are many ways these situations can be handled, but in my experience the best way to handle them, as long as you are sure the debt is not yours, is to file an FDCPA lawsuit against the debt collector. It is a violation of the FDCPA for a debt collector to attempt to collect a debt that is not owed. Putting a collection account on your credit report is collection activity, i.e., an attempt to collect a debt, and if the debt is not owed the debt collector has violated the FDCPA.

We represent the consumer in filing an FDCPA lawsuit against the collection agency. Typically (of course we cannot guarantee a particular result in any particular case, all cases are different), these cases are settled within a month or two when the collection agency agrees to delete the collection account, pay our client $1,000 statutory damages, refund our client's $350 filing fee and pay our client's attorney fees. In exchange, typically, the collection agency requires our client to sign a settlement agreement/release and dismiss the FDCPA lawsuit with prejudice (permanently). Because our client's objective was just to get this erroneous account off their credit report, the client is pleased with the result.

If you have found a debt collection account on your credit report that you don't owe, please submit this form and we will contact you.

Bookmark and Share

NCO Financial Systems, Inc.

November 26, 2012

The biggest debt collector in the U.S., measured by income, is NCO Financial Systems, Inc. In 2010, their parent company, NCO Group, Inc., reported total revenues of $1.6 billion. They don't have a very good reputation either, having been ranked as one of America's Worst Collection Agencies by budhibbs.com. Personally, I have not found them to be one of the worst I have seen, but the Indiana Consumer Law Group/The Law Office of Robert E. Duff has sued them multiple times for FDCPA violations. I took a look at the electronic docket for the United States District Court for the Southern District of Indiana and found that they have been sued several times a year over the last ten years.

If you have been contacted by NCO Financial Systems, Inc. and believe that they have violated the Fair Debt Collection Practices Act (read about the most common violations here), you can contact our office by submitting this form.

Bookmark and Share

Sallie Mae Allegedly Violates Telephone Consumer Protection Act

November 22, 2012

Indiana Consumer Law Group/The Law Office of Robert E. Duff has recently filed a lawsuit against Sallie Mae, Inc. in the United States District Court for the Southern District of Indiana alleging that Sallie Mae violated the Telephone Consumer Protection Act ("TCPA"). Our client has alleged that he was a borrower/co-borrower and was obligated on student loan debt to Sallie Mae. Our client alleges in the Complaint that he did not provide Sallie Mae with his cellphone number at any time during the transaction that gave rise to debt or at any other time. Nevertheless, he alleges, Sallie Mae began calling his cellphone numerous times with an autodialer in an attempt to collect the debt, in violation of the TCPA (for more about what constitutes a TCPA violation, click here).

The TCPA provides for an award of damages of up to $500 per call and up to $1500 per call if the violation was knowing or willful. We believe we will be able to show that the calls in this case were knowing and willful because, among other reasons, our client expressly requested that Sallie Mae stop calling his cellphone yet the calls continued.

On February 2, 2010, a class action lawsuit was filed against Sallie Mae alleging that Sallie Mae violated the TCPA by placing collection calls to cellular telephones through the use of an automated dialing system and/or artificial or prerecorded voice without the prior express consent of the class members. That case is captioned Arthur, et al. v. Sallie Mae, Inc., Case No. C10-0198JLR, and was filed in federal court in Washington State. The class, i.e., the people that Sallie Mae allegedly did this to, numbers over 8,000,000. The case was settled on terms that appear to be pretty outrageous (bad for consumers). Despite the fact that a single call can be worth up to $1500, each class member who makes a claim is anticipated to receive $20.00 to $40.00 in cash or credit toward their indebtedness no matter how many calls they actually received. Meanwhile, the attorneys for the class have received an award of $4,830,000.00. Outcomes like this are what give attorneys a bad name.

The settlement was approved by the District Court, but has been appealed. Despite settling the case for over $24,000,000, Sallie Mae has denied that it did anything wrong. Sure.

Bookmark and Share

Advanced Debt Collection, Inc./CSL Community Association, Inc.

November 20, 2012

Indiana Consumer Law Group/The Law Office of Robert E. Duff has recently filed an FDCPA lawsuit against Advanced Debt Collection, Inc. Advanced Debt Collection, Inc. was collecting a debt that was allegedly originally incurred to CSL Community Association, Inc., a homeowner's association. Advanced Debt Collection, Inc. sent our client a letter a collection letter. To see a copy of the letter click here.

The letter does not identify to whom the debt is allegedly presently owed. The letter states that Advanced Debt Collection, Inc. has been hired by CSL Community Association, Inc. to collect an unpaid balance. If true, this means the debt is owed to CSL Community Association, Inc. However, the letter also states that Advanced Debt Collection, Inc. is now the creditor. These statements cannot both be true.

The FDCPA requires that the initial collection letter to a consumer state "the name of the creditor to whom the debt is owed." The FDCPA also states that a debt collector cannot use a false or misleading representation in connection with the collection of any debt. We believe, and have alleged in the above-referenced lawsuit, that this letter therefore violates the FDCPA.

If you have received an identical or similar letter, please contact the Indiana Consumer Law Group/The Law Office of Robert E. Duff. You may have an FDCPA claim against Advanced Debt Collection, Inc.

Bookmark and Share

Default Judgments in Indiana

November 19, 2012

The vast majority of judgments obtained by debt collectors are by default. That means the alleged debtor didn't show up to court to contest the case. Unfortunately, I believe that debtors often don't show up to contest a case because they feel that there is no use since the debt was once a legitimate debt. This is a mistake and results, no doubt, in many judgments (and for amounts) that never should have been. But that's an issue for another day.

Sometimes a default judgment is obtained because the alleged debtor never actually became aware of the lawsuit. The Indiana Rules of Trial Procedure outline how an individual defendant is to be served with the Summons and Complaint. Rule 4.1 states that service may be made on a person by:
1. certified mail to their residence, place of business or employment;
2. handing it to them in person;
3. leaving a copy at their house or where they live (followed up by a copy mailed to the same address); or
4. serving their agent as provided by rule, statute or valid agreement.
These are the only ways, almost, that a person can be served with a lawsuit that has been filed in state court in Indiana. I say almost because a 2008 unpublished Indiana Court of Appeals decision says that an individual can also be served by sending certified mail to their post office box.

If service of the summons and complain is accomplished in one of these ways, service is valid even if the defendant never received actual notice of the lawsuit. That may sound unfair, but it is the law.

The good news is that service to an old residence, or a place where the defendant does not live at the time, IS NOT GOOD SERVICE. In fact, the judgment is void and can be set aside. If you just found out that a default judgment was granted against you that you had no idea about, go to the court and check the court file to find out where you were supposedly served. If it was at an old address, which is quite common, we can help you get the judgment set aside.

Bookmark and Share

Telephone Consumer Protection Act

November 17, 2012

The Telephone Consumer Protection Act, or TCPA for short, is a great consumer protection statute for Indiana consumers. Its application is pretty specific, however. The primary goal of the TCPA is to prevent unauthorized telephone calls to your cell phone made by an autodialer. So, to prevail in a TCPA lawsuit, the consumer must show:

(1) phone calls to a cell phone;
(2) by means of an autodialer;
(3) without the consumer's prior express consent.

Let's briefly discuss these requirements. First, the cell phone requirement is easy. The calls must be placed to a cell phone. The second requirement, that the call be made by an autodialer, isn't that complicated either. Generally, you will know that an autodialer is being used if, when you answer, there is a slight delay between the time you answer and a real person responds to you. This delay is time it takes for the autodialer to notify the operator that a person has answered and for the operator to pick up the phone and begin talking. You can also know that an autodialer is being used if you hear a computerized voice or prerecorded message or a voicemail is left by a computerized voice or prerecorded message.

The third requirement can be a little more tricky. The courts have concluded that if you provided your cell phone number to the original creditor in connection with the debt, that constitutes prior express consent. So the easiest way to know that there is no prior express consent is to know that you did not provide your cell phone number to the original creditor, or anyone else trying to collect the debt if it is not the original creditor calling you. Revocation of that prior express consent may be possible, with written revocation being preferable to oral revocation, but one court has recently held, in a poorly reasoned decision, that the TCPA does not permit such revocation. See Gager v. Dell Financial Services, LLC, 2012 WL 1942079 (M.D.Pa. May 29, 2012) (Robert D. Mariani, District Judge).

The TCPA has some real teeth. A consumer can recover up to $500 per phone call that violates the TCPA, and up to $1500 per phone call if the consumer can show that the TCPA was violated knowingly or willfully. Often when an autodialer is being used, there are a lot of calls. A harrassing number of calls. So you can imagine the total liability can get quite high.

If a creditor or debt collector has called your cell phone with an autodialer without your consent, please contact the Indiana Consumer Law Group/The Law Office of Robert E. Duff at 800-817-0461.

Bookmark and Share

Fair Debt Collection Practices Act

November 13, 2012

The Fair Debt Collection Practices Act, or FDCPA for short, provides very broad protections for consumers. It is a great statute, and today I want to go over some of the most common violations.

1. ATTEMPTING TO COLLECT A DEBT, OR AN AMOUNT, THAT YOU DO NOT OWE
If a debt collector attempts to collect a debt from you that you don't owe, the debt collector has violated the FDCPA. Even if the debt collector attempts to collect the wrong amount from you, like charging you a fee that you don't owe or too high an interest rate, it is a violation of the FDCPA.

2. HARASSMENT
A debt collector may not harass or abuse a person in connection with the collection of a debt. This can include threats of violence, yelling, cursing and repeated or continuous phone calls to a particular number. It can also include making phone calls without disclosing the caller's identity.

3. CONTACTING YOU AFTER BEING ASKED, IN WRITING, TO STOP
If you write to a debt collector and advise them that you refuse to pay the debt or request that they cease contacting you, the debt collector cannot thereafter contact you in an attempt to collect the debt.

4. CALLING YOU AT WORK AFTER YOU HAVE ASKED THEM TO STOP
The FDCPA prohibits a debt collector from calling a consumer at their place of employment if the debt collector knows or has reason to know that the consumer's employer prohibits the consumer from receiving such phone calls at work. If a debt collector calls you at work after you have advised them that you are not allowed to receive personal calls at work, the debt collector has violated the FDCPA.

5. COMMUNICATING WITH YOU AFTER THE DEBT COLLECTOR KNOWS YOU ARE REPRESENTED BY AN ATTORNEY
If the debt collector knows you are represented by an attorney and knows or can readily ascertain the attorney's name and address, the debt collector can no longer have any direct communications with the consumer, either by phone or mail.

6. CALLING YOUR RELATIVES, FRIENDS OR REFERENCES
A debt collector may only contact other persons about your debt in order to obtain contact information for you. In making contact with these people, the debt collector is not permitted to state the reason they are calling and is not permitted to reveal the name of the company that is calling unless this information is specifically requested.

7. MAKING THREATS THAT THEY CANNOT LEGALLY ACCOMPLISH
I see this quite a bit. Debt collectors get a little too aggressive and say things like: "we will garnish your wages next week if you don't pay." Wage garnishment cannot happen until there is a judgment, so if the debt collector has not yet sued you and obtained a judgment then they are not going to be able to garnish your wages next week. Other debt collectors will say things like "you will be arrested if you don't pay this debt." That simply isn't true and saying that to a consumer (who may not know better) is a violation of the FDCPA.

8. CONTINUING COLLECTION ACTIVITY BEFORE PROVIDING VERIFICATION OF THE DEBT
Within five days of a debt collector's initial communication with a consumer, the debt collector must advise the consumer in writing of the consumer's opportunity to request validation of the debt. If the consumer requests validation within thirty days of receiving this notice, the debt collector must cease all collection activity until the debt collector has mailed the consumer documentation verifying the debt. Unfortunately, since the courts have not required this so-called verification to be much beyond a letter saying how much the debt is and who the original creditor is, debt collectors typically respond pretty quickly to these validation requests with a letter that contains very little information. Even so, sometimes debt collectors forget to respond to validation requests but continue to attempt to collect the debt. This is a violation of the FDCPA.

Bookmark and Share