Civil Liability Under Federal FDCPA (Fair Debt Collection Practices Act) (15 U.S.C. § 1692k): Statutory Language for the Class Action Defense Lawyer

The Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. § 1692 et seq., enacted by Congress in 1978, establishes certain that ethical guidelines for the collection of consumer debts, and provides debtors with a means for challenging payoff demands and determining the validity and accuracy of asserted debts. As class action defense attorneys know, the FDCPA has generated numerous class actions. The FDCPA expressly provides private rights of action and for the recovery statutory damages as well as actual damages.

FDCPA Class Actions Statutes & Rules Uncategorized

Summary of Judicial Consideration of Federal FDCPA Claims Based on Debt Collection Letters: Defense of Class Action Issues

To Defeat Federal Fair Debt Collection Practices Act Class Actions, Defense Lawyer Must Satisfy “Least Sophisticated Debtor” or “Unsophisticated Debtor” Standard

Class action lawsuits alleging violations of the Fair Debt Collection Practices Act (FDCPA) are commonplace. The class action defense lawyer frequently must defend against claims that the initial letter from the debt collector to the consumer failed to give the information required by 15 U.S.C. § 1692g. We discuss here the two main approaches taken by federal courts in determining whether such a violation occurred: the “least sophisticated debtor” standard, and the “unsophisticated debtor” standard.

We begin with the “least sophisticated debtor” approach because it is the most widely accepted. At least 6 courts have adopted this objective standard. See Greco v. Trauner, Cohen & Thomas, L.L.P., 412 F.3d 360, 365-66 (2d Cir. 2005); Wilson v. Quadramed Corp., 225 F.3d 350, 354-55 (3d Cir. 2000); United States v. National Fin. Serv., Inc., 98 F.3d 131, 136 (4th Cir. 1996); Smith v. Computer Credit, Inc., 167 F.3d 1052, 1054 (6th Cir. 1999); Terran v. Kaplan, 109 F.3d 1428, 1431-32 (9th Cir. 1997); Jeter v. Credit Bureau, Inc., 760 F.2d 1168, 1174-75 (11th Cir.1985). The least sophisticated debtor testis “lower than simply examining whether particular language would deceive or mislead a reasonable debtor.” Swanson v. Southern Oregon Credit Serv., Inc., 869 F.3d 1222, 1227 (9th Cir. 1998). Put another way, “The basic purpose of the least-sophisticated-consumer standard is to ensure that the FDCPA protects all consumers, the gullible as well as the shrewd.” Clomon v. Jackson, 988 F.2d 1314, 1318 (2d Cir. 1993). But while this standard “protects naïve consumers,” Wilson, at 354, it also “prevents liability for bizarre or idiosyncratic interpretations of collection notices by preserving a quotient of reasonableness and presuming a basic level of understanding and willingness to read with care.” National Financial Services, at 136 (citation omitted).

FDCPA Class Actions Uncategorized

Prediction Of A Class Action Defense Lawyer: Class Action Test Cases Alleging “Unlawful” Exposure To Secondhand Cigarette Smoke On The Horizon In California

On June 27, 2006, U.S. Surgeon General Richard H. Carmona released a mammoth report on secondhand cigarette smoke that is likely to benefit the class action plaintiff lawyers far more than the children the report seeks to protect. The report – entitled, “The Health Consequences of Involuntary Exposure to Tobacco Smoke” – spans more than 700 hundreds pages with exhibits, and provides a comprehensive analysis of the health risks associated with “passive” smoking, or in the words of the report, “involuntary smoking.

Class Actions In The News Topics of Interest Uncategorized

Employment Law Class Action Filings Again Lead Cases Confronted By California Federal And State Defense Attorneys

For the California federal and state defense lawyer, we again provide an unofficial summary of recent class action filings in California, in the hope that it will assist California class action defense attorneys anticipate claims against which they may have to defend. The following is a summary of legal categories for class actions filed in California state and federal courts from June 30 – July 6, 2006, in the Los Angeles, San Francisco, San Jose, Sacramento, San Diego, San Mateo, Oakland/Alameda and Orange County areas.

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Furnishing Deceptive Forms (15 U.S.C. § 1692j): Statutory Language for the Defense Lawyer of Class Action Lawsuits Under Federal FDCPA (Fair Debt Collection Practices Act)

The federal Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. § 1692 et seq., has spawned numerous class action lawsuits, presenting defense attorneys with a wide array of claims. As a resource to the class action defense lawyer, we quote below the statutory provision of the FDCPA concerning deceptive forms: § 1692j. Furnishing certain deceptive forms (a) It is unlawful to design, compile, and furnish any form knowing that such form would be used to create the false belief in a consumer that a person other than the creditor of such consumer is participating in the collection of or in an attempt to collect a debt such consumer allegedly owes such creditor, when in fact such person is not so participating.

FDCPA Class Actions Statutes & Rules Uncategorized

Engle v. Liggett Group: Defense Persuades Florida Supreme Court To Decertify Class Action Against Tobacco Company And Set Aside $145 Billion Punitive Damage Award As Excessive

Successful Appellate Defense of Class Action Case Still Permits Individual Lawsuits to be Filed, and Florida Supreme Court Holds that Several Jury Findings Against the Tobacco Companies Still Stand

In a tremendous victory for the tobacco industry defense, the Florida Supreme Court decertified a class action and set aside a $145 billion punitive damage award as excessive. Engle v. Liggett Group, ___ So.2d ___, Case No. SC03-1856 (July 6, 2006). A nationwide class action had been certified almost a dozen years ago – on October 31, 1994 – on behalf of smokers and their survivors seeking compensatory and punitive damages for injuries allegedly caused by smoking. survivors, who have suffered, presently suffer or who have died from diseases and medical conditions caused by their addiction to cigarettes that contain nicotine.” Slip Opn., at 7. Following an interlocutory appeal filed by the defense, the Florida Court of Appeal affirmed class certification but reduced the scope of the class action to “Florida citizens and residents.” _See R.J. Reynolds Tobacco Co. v. Engle_, 672 So.2d 39, 42 (Fla.App. 1996). The ensuing trial resulted in a jury verdict awarding the named plaintiffs a total of $12.7 million dollars in compensatory damages, and the entire class $145 billion in punitive damages. Slip Opn., at 9.

With respect to the punitive damage award, the Supreme Court held that the trial court’s procedure was fatally flawed. The trial proceeded as follows: Phase I – consisting of the trial on the class action claims for liability and entitlement to punitive damages; Phase II-A – consisting of the trial on the individual class representative’s claims for compensatory damages; and Phase II-B – consisting of a jury trial on the total award of punitive damages payable to the class as a whole. Slip Opn., at 8-9. Phase III (not yet held) would involve the selection a new juries “to decide the individual liability and compensatory damages claims for each class member,” following which “the trial court would divide the punitive damages previously determined equally among any successful class members.” Id., at 10. The Supreme Court rejected this procedure, as well as the size of the award, explaining at page 19:

Certification of Class Actions Class Action Court Decisions Class Actions In The News Uncategorized

Legal Actions By Debt Collectors (15 U.S.C. § 1692i): Statutory Language for the Defense Lawyer of Federal Class Action Lawsuits Under the FDCPA (Fair Debt Collection Practices Act)

Class action defense attorneys know that the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. § 1692 et seq., is used frequently by a plaintiff’s lawyer to bring a class action against a debt collector for violating the FDCPA’s terms. The FDCPA, however, also includes provisions for lawsuits brought by debt collectors. Specifically, § 1692i addresses the venue for such lawsuits. It provides: § 1692i. Legal actions by debt collectors

FDCPA Class Actions Statutes & Rules Uncategorized

Hapin v. Arrow Financial: Defense Motion to Dismiss FDCPA Class Action Granted Because Debt Collector Letter Not Misleading California Court Holds

California Federal Court Finds Letter Referring to Debtor as “Customer” and to Debt Collector as “Account Representative,” and Offering to “Help” Resolve Debt, Not Misleading Under Fair Debt Collection Practices Act, But Allegation That Debt Collector Sought to Recover Excess Interest Sufficient to Survive Motion to Dismiss

In January 2006, a putative class action was filed in California federal court against Arrow Financial Services alleging violations of the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692 et seq. (FDCPA), and its California equivalent, California Civil Code, §§1788 et seq. Hapin v. Arrow Fin. Serv., 428 F.Supp.2d 1057, 1059 (N.D. Cal. 2006). Plaintiff’s lawyer asserted that the debt collector letter from Arrow was “false, deceptive, and misleading” in that it (1) described plaintiff as a “customer,” (2) characterized the debt collector as an “account representative,” and (3) offered to “‘help Plaintiff regain his financial future . . . [and] by the false . . . characterization of debt as helping “regain his financial future.”’” Id. The complaint also alleged that Arrow sought to collect excessive interest, id. Defense attorneys filed a motion to dismiss the class action complaint, which the California federal court granted in part and denied in part.

Class Action Court Decisions Class Actions In The News FDCPA Class Actions Uncategorized

Multiple Debts (15 U.S.C. § 1692h): Federal Statutory Language for the Defense Lawyer of Class Action Lawsuits Under the FDCPA (Fair Debt Collection Practices Act)

Class action defense attorneys know that many provisions of the federal Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. § 1692 et seq., form the basis of class actions, other provisions do not appear to be controversial. For example, even if a plaintiff’s lawyer has argued a violation of § 1692h, concerning multiple debts, it appears that it has not yet generated any appellate decisions. The statutory language of the FDCPA concerning multiple debts is as follows:

FDCPA Class Actions Statutes & Rules Uncategorized

Validation of Debts (15 U.S.C. § 1692g): Statutory Language for the Defense Lawyer of Class Action Lawsuits Under the Federal FDCPA (Fair Debt Collection Practices Act)

Federal class action defense attorneys know that the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. § 1692 et seq., provides debtors with a means for challenging payoff demands and determining the validity and accuracy of asserted debts. The specific statutory language of the FDCPA concerning the validation of debts is quoted below: § 1692g. Validation of debts (a) Notice of debt; contents Within five days after the initial communication with a consumer in connection with the collection of any debt, a debt collector shall, unless the following information is contained in the initial communication or the consumer has paid the debt, send the consumer a written notice containing–

FDCPA Class Actions Statutes & Rules Uncategorized