Episodi
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In the latest episode of the Debt Collection Drill podcast series, Moss & Barnett attorneys Aylix Jensen, Michael Etmund and John Rossman provide specific guidance on the circumstances in which a collection agency may legally delete all information previously furnished to a credit reporting agency, also known as a tradeline deletion.
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Regulation F contemplates debt collectors communicating with consumers using a scripted “limited content” voicemail message which contains the business name of the debt collector, but “does not indicate that the debt collector is in the debt collection business.” While consumer advocates agree that this limited content message will be extremely beneficial to consumers, debt collectors must proceed cautiously with implementation to ensure full compliance with all requirements of the limited content message contained within Regulation F.
In this episode of the Debt Collection Drill podcast, Moss & Barnett attorneys John Rossman, Sarah Doerr and Brad Armstrong provide practical guidance for implementation of the Regulation F limited content message and the attorneys also examine the legal restrictions regarding the use of certain words in a collection agency name.
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Episodi mancanti?
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A debt collector must verify the identity of a communication
recipient to ensure a right-party contact while also avoiding a disclosure
about the existence of the debt to a third-party. Thus, a debt collector
must, when asked, provide meaningful information about the purpose of
a telephone call to a third-party – even when the third-party refuses to
identify herself – without disclosing that the call is an attempt to collect
a debt.
In the latest episode of the Debt Collection Drill podcast, Moss &
Barnett attorneys John Rossman and Mike Poncin are joined by attorney
Aylix Jensen who elaborates on her recent, complete victory in Federal
Court establishing that a debt collector did not violate the FDCPA by
stating it was a “financial services company” calling regarding a
“personal business matter” to an unidentified individual – the Plaintiff –
who the Court identified as the correct “customer for the account.” -
In this episode of the Debt Collection Drill podcast, Moss & Barnett attorneys discuss the recent, historic changes to the laws restricting debt collection and how agencies can comply.
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The CFPB’s proposed debt collection rules envision a much-needed update and modernization to many provisions in the Fair Debt Collection Practices Act. However, the CFPB’s proposed rules include a limit of the number of debt collection calls that may be made per week without regard to the REJECTION of call frequency limits by Congress. Because our Congress considered and dismissed call frequency limits for debt collectors, the CFPB cannot implement such limits through rulemaking.
In this episode of the Debt Collection Drill podcast, attorneys Mike Poncin and John Rossman re-enact (from official Congressional transcripts) portions of the April 4, 1977 debates in the United States House of Representatives regarding the FDCPA and specifically a then-proposed weekly limit on debt collection calls. Members of Congress raised specific and detailed objections on the record about the Constitutionality of the call frequency limit proposal at that time and also concerns about false claims.
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Debt collectors defending against hyper-technical FDCPA lawsuits by consumer attorneys commonly ask the same question: “How could the consumer possibly have been harmed by this supposed violation of the FDCPA?” The question is especially poignant when the purported FDCPA violation arises from a collection letter the consumer never read or from the language in the collection letter upon which the consumer never intended to rely. Does the concept of “no harm, no foul” apply to the FDCPA?
In this episode of the Debt Collection Drill podcast, Moss & Barnett attorneys John Rossman and Mike Poncin discuss the recent ruling by the Seventh Circuit Court of Appeals in the Casillas matter dismissing an alleged hyper-technical FDCPA letter violation. They also discuss the recent ruling by the Second Circuit Court of Appeal regarding interest and share thoughts on the CFPB’s proposed debt collection rules.
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As most debt collectors know, sending any collection notice into Delaware, New Jersey or Pennsylvania (the States with Federal Courts in the Third Circuit) will likely result in an FDCPA class action lawsuit against the debt collector. Typically these lawsuits assert that the validation language used in the collection letter does not require the consumer to communicate disputes in writing only allegedly in violation of the FDCPA. While several appeals on this issue are pending and consolidated before the Third Circuit Court of Appeals, a decision from the Third Circuit in 2017 may provide guidance on how it will rule in favor of the debt collectors.
In the most recent episode of the Debt Collection Drill podcast, Moss & Barnett attorneys John Rossman and Mike Poncin are joined by their colleague, attorney Aylix Jensen, to discuss the Third Circuit validation issues, including the Jewsevskyj case, compliance with the new California privacy law (the CCPA) and credit reporting accounts in bankruptcy (see recent article on this issue http://www.insidearm.com/news/00044941-credit-reporting-debts-bankruptcy-deluge-/)
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Debt collectors face an historic onslaught of FDCPA cases in Pennsylvania (and to a lesser extent New Jersey), all of which allege that statutory language in collection letters which tracks the FDCPA somehow violates the law. The Courts in these cases take the position that a consumer must be apprised that a dispute must be in writing to be effective, even though this position is contrary to the plain language of the FDCPA and rulings by the Second, Fourth and Ninth Circuit Courts of Appeal. This issue has been addressed extensively in InsideARM:
http://www.insidearm.com/news/00044725-22m-settlement-proposed-fcra-case-pulling/
http://www.insidearm.com/news/00044669-open-letter-cfpb-1692g-issues-within-thir/
In this episode of the Debt Collection Drill podcast, attorneys John Rossman and Mike Poncin directly address whether debt collectors should change notices sent into Pennsylvania and also discuss the impact of the settlement in the Crunch v. Marks decision along with the recent California out-of-statute disclosure.
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Collectors frequently point to contradictory language among the FDCPA and other statutes as proof that standardized debt collection rules are needed in this industry. However, even in an industry where consumer attorneys frequently make "creative" arguments, it is rare to see a claim that the FDCPA itself contains contradictory language. In a number of recent cases, consumer attorneys are arguing that the validation language from the statute – the same language collectors have been using since the FDCPA was enacted in 1977 -- is now somehow unclear and confusing. Specifically, consumer attorneys argue that the first sentence of the validation notice (relating to disputes), which does not contain an "in writing" requirement, contradicts the second sentence of the notice, which does require a written request from the consumer to receive verification. Unfortunately, two Courts in New Jersey within the past year sided with the consumers in denying debt collectors' motions to dismiss on this issue. Two more cases on the issue – on which the debt collectors prevailed – are pending before the Third Circuit Court of Appeals.
In this episode of the Debt Collection Drill podcast, Moss & Barnett attorneys John Rossman and Mike Poncin examine the recent cases alleging that the standard validation language violates the FDCPA and provide guidance for debt collectors seeking to avoid liability on this issue.
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Debt collectors were given clarity regarding two thorny FDCPA issues recently by decisions issued from the Seventh Circuit Court of Appeals. In the case of Portalatin v. Blatt, the Court held that a consumer was entitled to a single recovery of an FDCPA statutory penalty rather than multiple recoveries for the same alleged violation from each Defendant. This issue of Plaintiffs seeking to “stack” recoveries for the same alleged violations from multiple Defendant is now finally resolved in favor of the debt industry. The Seventh Circuit also held in Dunbar v. Kohn that that sentence “This settlement may have tax consequences.” did not violate the FDCPA, thus joining the numerous other Court that held this language complies with the law.
In the latest episode of the Debt Collection Drill podcast, Moss & Barnett attorneys John Rossman and Mike Poncin discuss the Portalatin and Dunbar decisions in addition to strategies for debt collectors to avoid FDCPA on debt collection communications regarding interest and out-of-statute disclosures. Links to the Seventh Circuit Court of Appeals rulings in Portalatin and Dunbar can be found below.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D08-13/C:16-1578:J:Manion:aut:T:fnOp:N:2201521:S:0
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D07-19/C:17-2134:J:Sykes:aut:T:fnOp:N:2189247:S:0
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Consumers using scripts to bait debt collectors into FDCPA violations is certainly nothing new. InsideARM has been publishing articles about this issue for years:
https://www.insidearm.com/news/00006606-five-signs-that-a-debtor-is-trying-to-ent/
While the practice of consumers baiting collectors into FDCPA violations is well-established, the specific techniques and scripts used continue to change and evolve. A new script and technique for baiting collectors into FDCPA violations is sweeping across the country about which all debt collectors should be aware.
In the latest episode of the Debt Collection Drill podcast, Moss & Barnett attorneys John Rossman http://www.lawmoss.com/john-rossman/ and Mike Poncin http://www.lawmoss.com/michael-s-poncin/ discuss this latest call baiting strategy and provide specific steps debt collectors can take to avoid an FDCPA violation when faced with a consumer using this script. Attorneys Rossman and Poncin also discuss the “new frontier” of debt collectors using text messages and how to potentially overcome the regulatory and legal hurdles with use of this technology.
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Just a few years ago, many in the collection industry were wringing their hands in frustration: the Douglass decision on innocuous information appearing in the windows of envelopes spawned hundreds of class action lawsuits; claims regarding the tax implications of settlements, voicemail message content and call frequency were on the rise; and, lawsuits with collection calls “scripted” by consumer attorneys were being filed nearly every day. Today, all of these issues are (mostly) in the past as debt collectors focus even more heavily on compliance and a number of positive Court decisions put to rest questionable legal theories upon which these FDCPA cases relied. However, it is only a matter of time before new theories arise.
In the latest episode of the Debt Collection Drill, Moss & Barnett attorneys John Rossman http://www.lawmoss.com/john-rossman/ and Mike Poncin http://www.lawmoss.com/michael-s-poncin/ explore how the FDCPA landscape shifted and identify ways in which collectors can avoid being caught in the inevitable next wave of FDCPA lawsuits.
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Consumer attorneys subjected debt collectors to a barrage of FDCPA lawsuits, especially in New York and New Jersey, on collection letters in 2017. This trend will continue, and likely accelerate, in 2018. Debt collectors hoping for relief from the Courts on the latest consumer attorney claims regarding collection letters may get some clarity in the near future. The Second Circuit Court of Appeals recently considered oral arguments on the issue of whether a debt collector must disclose when interest is not accruing on an account in the Taylor case. A decision is expected in the Taylor case within the next year. Also, a recent decision from New Jersey held that validation language in a collection letter that tracks verbatim the wording of the FDCPA somehow violates the FDCPA. An appeal to the Third Circuit Court of Appeals in that case is expected. In addition, the Third Circuit Court of Appeals recently issued an opinion on whether use of the word "settlement" in a collection letter violates the FDCPA.
In the latest episode of the Debt Collection Drill podcast, Moss & Barnett attorneys John Rossman http://www.lawmoss.com/john-rossman/ and Mike Poncin http://www.lawmoss.com/michael-s-poncin/ discuss these recent cases affecting debt collection letters and specific strategies that agencies can implement today.
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Debt collectors that accept recurring payments over the phone know that Federal laws – specifically Regulation E, the Electronic Funds Transfer Act and the E-Sign Act – provide guidelines for consent and disclosures. insideARM first featured an article on those issues in January 2013:
https://www.insidearm.com/news/00003889-legal-headaches-of-check-by-phone-payment/
Since that time, the CFPB issued guidance on these issues in November 2015, stating:
Regulation E may be satisfied if a consumer authorizes preauthorized EFTs by entering a code into their telephone keypad, or, Supervision concluded, the company records and retains the consumer’s oral authorization, provided in both cases the consumer intends to sign the record as required by the E-Sign Act.
http://files.consumerfinance.gov/f/201511_cfpb_compliance-bulletin-2015-06-requirements-for-consumer-authorizations-for-preauthorized-electronic-fund-transfers.pdf
The CFPB guidance follows common sense and tracks consumer expectations: if a consumer consents verbally to recurring payments, and the debt collector records and maintains that consent, the law is satisfied. Despite the clear CFPB directive allowing verbal consent for recurring payments, consumer attorneys continue to bring lawsuits against debt collectors asserting that verbal consent violates the law. In the absence of guidance from a Court of Appeals on the issue, the lawsuits against debt collectors – with uncertain outcomes in the Courts -- will continue. Further, these lawsuits undermine the ability of both consumers and debt collectors to rely upon interpretations of the law from the CFPB.
In this episode of the Debt Collection Drill podcast, Moss & Barnett attorneys John Rossman http://www.lawmoss.com/john-rossman/ and Mike Poncin http://www.lawmoss.com/michael-s-poncin/ are joined by special guest Mike Etmund http://www.lawmoss.com/michael-t-etmund/ to discuss a recent case addressing whether verbal authorization for recurring payments is sufficient. Also discussed in this episode are newer cases on the Spokeo requirement that a Plaintiff must suffer a “concrete injury in fact” to maintain an FDCPA case and the status of the CFPB arbitration rule.
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Collection letters are the bane of our industry. Letters are expensive to send and - despite what a certain television pundit claims - studies prove that few consumers actually read collection letters. The CFPB, the FCC and other regulators pay little more than lip service to the urgent requests from consumer advocates to allow collectors communicate with consumers electronically, with States such as New York enacting Byzantine and unworkable rules to "allow" collectors to communicate with consumers via email. It is anticipated that the CFPB, in its upcoming notice of proposed debt collection communication rules, will adopt standards for electronic communications similar to the convoluted rules found in New York. Ultimately it is consumers that are harmed by these rules that disregard modern electronic communications in favor of antiquated collection letters. Further, consumer attorneys scrutinize collection letters, measuring the font size of disclosures and injecting tortured interpretations of plain language to find possible lawsuits (and potential paydays) against collection agencies diligently seeking to comply with the law.
In the latest episode of the Debt Collection Drill podcast, Moss & Barnett attorneys John Rossman http://www.lawmoss.com/john-rossman/ and Mike Poncin http://www.lawmoss.com/michael-s-poncin/ discuss a new wave of lawsuits against debt collectors in California, which focus on the font size of certain disclosures, and New York, which centers on a misreading of Second Circuit case law.
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First party and early-out servicing provides an enhanced customer service experience and greater responsiveness for consumers. These qualities make first party and early-out servicing beneficial for creditors as well as consumers. However, as the prevalence of this type of servicing increases, consumer attorneys and regulators seek to find ways to apply traditional debt collection laws and statutes to first party and early-out servicing.
In the latest episode of the Debt Collection Drill, Moss & Barnett attorneys John Rossman http://www.lawmoss.com/john-rossman/, Mike Poncin http://www.lawmoss.com/michael-s-poncin/ and Dave Cherner http://www.lawmoss.com/david-d-cherner/ discuss risks for first party and early out servicing arising from the FTC DeMayo Opinion, discuss specific State licensing and disclosure requirements (24 States and jurisdictions may require early-out servicers to obtain a collection agency license) and also address possible CFPB rulemaking to modify the definition of default, as determined by meetings that Mr. Rossman and Mr. Cherner have attended with the CFPB through the Consumer Relations Consortium http://www.crconsortium.org/
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The use of “scripts” by consumers to bait telephone debt collectors into alleged FDCPA violations is a calculated strategy dating back more than 10 years. Typically a consumer obtains such a script from a consumer attorney or from a website. The consumer will then make an inbound call to a debt collector and read certain questions off of the script, seeking to maneuver the debt collector to make a statement that facially violates the FDCPA. These scripts usually include vague, leading questions about interest or credit reporting. If the debt collector takes the bait; and makes an unintended mistake, a consumer attorney will sue or send a demand letter to the collection agency shortly after the call. Most collection agencies have in place specific training for collectors to identify and avoid such baiting, focusing on the common scripts and the certain States or geographic areas where such baiting most often occurs.
In the latest episode of The Debt Collection Drill, Attorneys John Rossman (http://www.lawmoss.com/john-rossman) and Mike Poncin (http://www.lawmoss.com/michael-s-poncin) discuss a new baiting strategy by consumers that is resulting in a substantial number of claims and specific strategies for avoiding liability.
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The issue of debt collectors assessing interest on accounts was contentious and extensively litigated over the past decade. Courts, regulators and consumer advocates are uniformly opposed to debt collectors assessing interest except in specific circumstances. The Second Circuit Court of Appeals decision in Avila in 2016 further placed a requirement on debt collectors to disclose in a validation notice when interest is accruing on an account, similar to the requirements in the Seventh Circuit. Avila was not, however, the end of the discussion on disclosing that interest is accruing on an account; rather, it was the beginning a new line of cases. Consumer attorneys are now filing and threatening dozens cases (mostly in New York) asserting that if interest is not accruing on an account, the debt collector must disclose that interest is not accruing. Presently there are two reported decisions holding that a debt collector is not required to disclose when interest is not accruing and more decisions are pending.
In the latest episode of the Debt Collection Drill podcast, Attorneys John Rossman (http://www.lawmoss.com/john-rossman/) and Mike Poncin (http://www.lawmoss.com/michael-s-poncin/) are joined by Attorney Dave Cherner (http://www.lawmoss.com/david-d-cherner/) to discuss this recent spate of lawsuits and strategies for avoiding liability. The attorneys also discuss the recent addition of Mr. Cherner to the Moss & Barnett team and options for agencies to outsource their chief compliance officer needs.
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Debt collection is clearly one of the most heavily regulated industries in the United States. Federal, State and local regulators place onerous, duplicative and often confusing requirements on companies seeking to collect debts. Further, when collection agencies comply with the myriad of laws, many face lawsuits from consumer attorneys claiming that the attempts at compliance somehow violate the law.
In the this episode of the Debt Collection Drill, Attorney John Rossman and Mike Poncin discuss two recent, reported decisions where one collection agency – Financial Recovery Services, Inc. -- successfully defeated claims that its plain compliance with State and Federal regulations somehow violated the FDCPA.
Brian Bowers, the President of Financial Recovery Services, Inc., commented on one of these recent FDCPA victories by his company:
Financial Recovery Services was delighted to obtain the successful decision on the motion to dismiss in the Everett case in the Southern District of Indiana. Over the years, we have grown weary of the frivolous nature of such cases and we decided to take a stand several years ago and fight more of these ridiculous cases that are brought against our industry. Too often these cases are driven by the aggressive pursuit of consumer plaintiff attorney’s fees and not by what is fair, reasonable, and just for society in general. In the past several years, we have successfully disposed of over 23% of cases filed against us by either winning them with motions to dismiss or motions for summary judgment. We are proud to have taken a stand for everyone in the industry and we hope that we see more organizations take a stand against the frivolous nature of some of these types of cases.
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“Will the CFPB be shut down? Will the FDCPA be repealed? Can I start using my dialer again? Is the Foti decision going to get overturned? While the political pundits sort through last night’s election results, the question for our industry is how President-Elect Trump will work with the Senate and House to change the debt collection industry. Attorneys John Rossman and Mike Poncin discuss possible changes that the new President will bring on the latest episode of the Debt Collection Drill.”
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