Absolutely yes. But admittedly, the bar is pretty low for the creditor pre-litigation to satisfy their obligation.
The Fair Debt Collection Practices Act (“FDCPA”) provides that a debt collector’s initial written communication to the consumer MUST effectively convey the following information:
While there are often legal disputes about what kind of phone system a caller is using, if you are receiving pre-recorded calls, they are usually always a violation of the Telephone Consumer Protection Act (“TCPA”). As 2018 nears an end, there is no sign that these cases are slowing down. The National Law Review published their case review on December 6, 2018 as to the recent case law developments. Lots of new court opinions on what constitutes an ATDS – automatic telephone dialing system – of course.
For more information, please view our short video prepared by Arkovich Law for tips about how you can stop these calls or obtain damages for $500 – $1,500 per call for those calls after you ask them to stop calling your cell phone.
Robocalling case law has been rapidly evolving over the past few months. The latest case out of Tampa’s Middle District, is the case of MELANIE GLASSER, individually & on behalf of all others similarly situated Plaintiff, v. HILTON GRAND VACATIONS COMPANY, LLC. Defendant., No. 8:16-CV-952-JDW-AAS, 2018 WL 4565751, at *5 (M.D. Fla. Sept. 24, 2018) (Judge Whittemore) (holding at summary judgment that defendant’s dialer is not an ATDS and discussing a dialer that automatically enters the number but requires a clicker agents to push the “make call button” to control the pace of the calls doesn’t alter that the clicker agent’s actions were “integral to initiating outbound calls” … “accordingly, it matters not that the computer actually dials the number forwarded to it by the clicking agent. Rather, the focus is on the agent’s human intervention in initiating the calling process.”).
Despite this case initially looking bad for consumers, there was some good language in the case – its just that the evidence wasn’t presented in this case for the telephone system to fall under the definition of an autodialer.
“Relevant here, ACA Int’l left intact earlier FCC rulings that “the ‘basic function’ of an autodialer is to dial numbers without human intervention:” For instance, the ruling states that the “basic function” of an autodialer is the ability to “dial numbers without human intervention.” 2015 Declaratory Ruling, 30 FCC Rcd. at 7973 ¶ 14; id. at 7975 ¶ 17. Prior orders had said the same. 2003 Order, 18 FCC Rcd. at 14,092 ¶ 132; 2008 Declaratory Ruling, 23 FCC Rcd. at 566 ¶ 13.”
Many consumers aren’t aware that when they sign up for a service, or buy a product, that they are agreeing that in the event of a dispute that the parties will be referred to arbitration. These clauses often waive the consumer’s right to go to court, present their case before a jury or file a class action. Most consumers have no idea that this is part of the contract. To add insult to injury, often the creditor retained the right to file its own collection case in small claims or county court. How is this legal you may ask?
Well that topic is for another day, most courts will uphold an arbitration clause. However, there are ways around an arbitration clause by arguing that the clause doesn’t apply. This would be in the event that the plaintiff bringing a lawsuit is not actually a signatory to the lease or contract.
From time to time, our consumer law practice here in Tampa, Fl has had to shift gears to better use our state and federal laws that protect consumers faced with debt – and the inevitable robocalls and erroneous credit reports that come with that.
The current state of robocalls is very similar to the days of emails before spam filters. With the advent of the internet, businesses don’t need expensive hardware. Anyone can start a mini call center with software that auto dials and spoofs caller IDs. Many of the calls appear local and they avoid detection as a debt collector. Small and large companies both still use predictive dialers capable of making hundreds of thousands of calls daily despite a consumer withdrawing consent to call their cell phone.
Thankfully, over the next year or two, the FCC and phone companies will implement a call certification protocol where the phone carrier can verify the caller is legitimately using the number — and Caller IDs may once again mean something!
Most of our debt collection laws in Florida apply only for consumer debt, not business debt. Sometimes the answer is not quite clear as to what type of debt is involved. What if for instance you operate a business and took out a loan, but signed a personal guarantee. Sometimes, that personal guarantee will have language referring to the debt being for personal, family or household use. That would likely make the guarantee a consumer debt.
By the way, that terminology comes from the Florida Consumer Collection Practices Act (“FCCPA”), Fla. Stat. Section 559.55-559.77 which defines a consumer debt as a debt incurred for “personal, family or household use.”
What happens if you buy a house, live in it for years, but then ultimately end up moving and renting it out? Or you rent out a room while you are living there? Commericial or consumer debt?
How much is too much? Unfortunately, the Fair Debt Collection Practices Act and its Florida counterpart do not specify a particular number of calls per day that a creditor can make when trying to collect a debt.
An older Florida case is somewhat illustrative in finding the answer. In Story v. J.M. Fields, Inc., 343 So. 2d 675, 677 (Fla. 1st DCA 1977), the Court looked at what conduct was considered harassing, such as: a) the frequency of the creditor’s calls; b) the number of calls; c) the time of day when calls were received (whether during normal business hours); and d) whether the purpose of the calls was appropriate, such as calling to i) remind the debtor of the debt; ii) determine the reasons for non-payment; iii) discuss a plan for making payments.
My rule of thumb that I like to use is if a creditor calls in the morning and talks with you, and then calls again the same day, that only works if you said something like I may get paid at lunchtime and might have some money for you. Otherwise, I doubt that anything changed that day and there was no reasonable reason for a second call the same day other than to harass you.
It’s simple. If you are wronged, you should be able to pick the forum to go after the lender, bank, student loan company, credit card company, car rental company, credit bureau, you name it — and that forum should include the local courthouse and not just arbitration. The CFPB recently ruled that mandatory arbitration clauses in the fine print of your contract is wrong. Now Congress wants to repeal that rule.
Call Your Senators; Tell Them NOT to Take Away Your Day in Court Against Big Banks.
For too long, Wall Street lawyers and lobbyists have used a secret tactic, fine print contracts, to take away Americans’ constitutional right to go to court. After more than five years of studying and working on the problem, the Consumer Financial Protection Bureau issued a rule to restore our right to join together and hold big banks and lenders accountable in court for unlawful behavior that rips us off and puts the American economy at risk. When financial bad actors are not held responsible for their bad behavior, disasters like the Equifax data breach and Wells Fargo fake-account scandal occur.
There are limits as to when a student loan servicer can contact someone other than the borrower. They cannot call the borrower’s place of employment if the borrower asks them not to. They cannot robocall the borrower’s cell phone when the borrower asks them not to. They cannot discuss the debt with a third party. They cannot contact the debtor when the debtor has retained legal counsel. These are all very clear rules proscribed by the Fair Debt Collection Practices Act (“FDCPA”) and its Florida counterpart, the Florida Consumer Collection Practices Act (“FCCPA”) or the Telephone Consumer Protection Act (“TCPA”).
One quirk that I’d like to see how widespread it is, involves student loan servicer contacts with the debtor’s family members after the debtor has retained counsel. In this particular instance, the contact involves asking for contact info for the debtor as well as their employment info. At that time, the student loan servicer knows how to reach the debtor. They know all contact regarding the debt is to go through legal counsel. So why contact a reference or family member pretending they don’t know how to reach the debtor. And ask for employment information from this relative.
There are two sub-sections of the FCCPA in play on this question:
Florida, Georgia and Alabama consumers need not worry about a recent case out of the Second Circuit, Reyes v. Lincoln Automotive Financial Services, (2nd Cir. June 22, 2017) that held today that if the contract allows for robocalls, you can never revoke consent to call under the Telephone Consumer Protection Act (“TCPA”). The 2nd Circuit recognizes that this may be an abuse, but determined that this was ultimately a problem for Congress to fix, not the Court. It distinguished a 2015 FCC revocation order by asserting that the FCC order just references common law principals of revocation, as opposed to contractual terms previously agreed upon by the parties.
Fortunately, our clients need not worry since in Florida, our Eleventh Circuit takes a more expansive view on revocation that protects consumers against harassing robocalls when they elect to revoke any prior consent.
The Third, Sixth and Eleventh all have favorable decisions on this issue:
Reboot Your Life: Tampa Student Loan and Bankruptcy Attorney Blog