Creditor Harassment and FDCPA

Published on: June 22, 2017

Revoking Consent to Call Your Cell Phone

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:

Continue reading →

Published on: June 9, 2017

Public Outcry High Over Ringless Voicemails!

By Christie D. Arkovich, P.A.

For anyone who reached out to file a comment with the FCC as we requested, we thank you. The FCC received over 10,000 comments filed by consumers opposing ringless voicemails, plus actions were filed against this change in the law by the Attorney Generals in NY, MA and Kentucky.

A change to the TCPA (Telephone Consumer Protection Act) to exclude ringless voicemails would give free rein to debt collectors and creditors to relentlessly invade every consumer’s privacy, and deluge their private voicemail with unlimited, harassing messages. Consumers could easily check their phone and have hundreds of voice messages at the end of a workday.

Fortunately, the news media has picked up on this story as well and is helping to get the word out for people to oppose this change to the TCPA.

Continue reading →

Published on: September 26, 2016

Telephone Consumer Protection Act (TCPA) – Auto-Dialer Uncertainty

By Christie D. Arkovich, P.A.

Were you aware that when you tell a bill collector (including a student loan collector) to stop calling your cell phone, they must do so immediately? Well usually. It depends upon the type of telephone system the collector is using. If they are manually dialing the phone, then they can continue to call you. The reason is simple: there is a human being on the other side making a conscious decision to call you at a certain time and date seeking payment.

But what if it is a machine calling you? The Telephone Consumer Protection Act (TCPA) states that calls using an auto dialer or an ATDS must stop if you ask them to stop. The reason is clear here as well: a machine is capable of calling hundreds of thousands of people incessantly following a pre-determined script or campaign. It often seems that nothing can stop it. So a law was enacted to help protect people from a barrage of calls and save valuable minutes on their cell phone plans. I had a client just last week tell us that when she spoke with someone asking the calls to stop, she was told she was on an autodialer and the calls couldn’t be stopped. Really. Well that statement certainly made it into a Complaint we prepared for filing.

In the last couple years, the industry has attempted to change its equipment to get around the TCPA. They say that this equipment is TCPA compliant. The equipment uses some parts human and some parts machinery. So how much human intervention is enough to allow for the calls to continue? The industry has taken to using entire systems that as a whole appear to be an ATDS, but each component standing on its own may not independently be an ATDS. What capacity must the equipment have in order to fall under the TCPA’s protections? The answer I’m afraid is less than certain.

Continue reading →

Published on: August 15, 2016

When Debt Collectors Break Bad (I so miss that show)

By Christie D. Arkovich, P.A.

Useful information can be obtained from the Consent Orders relating to improper debt collection activities obtained by the Consumer Financial Protection Bureau. Recent orders applicable to Fred Hanna, Encore Capital Group, Inc., Midland Funding, LLC, Midland Credit Management, Inc., Asset Acceptance Capital Corp., PRA, LLC, Porfolio Recovery Associates, Chase Bankcard Services, Santander Bank, N.A., Solomon & Solomon P.C., Westlake and Wilshire etc. can be found here on the CFPB site. (searchable filters).

Debt collectors are not permitted to provide false or deceptive information to you in their attempts to collect a debt. This may include the things they can do to you if you do not pay (such as take your home, sue you etc.). This may include who they are affiliated with. We are evaluating a case right now where the debt collector is private company. But they’ve told my client that they are the Department of Education. This is contrary to their website which we noted states no affiliation with the DOE. Basically, our marching orders are if what they say is not the whole truth and nothing but the truth, they run the risk of violating the law. This means if they try to explain your options, but leave perhaps the best one out – this would be a violation of the FDCPA, FCCPA and perhaps even unlicensed practice of law. All these consumer law violations give us excellent leverage to negotiate lower balances, better payment plans and sometimes even a write off of the entire debt.

This applies to all consumer debt. Auto finance, second mortgages, credit cards, signature loans and best of all student loan debt. When we are hired to settle any kind of debt we first take the time to educate our client on their consumer rights, what kinds of behavior can lead to violations and we have them document any phone calls they are receiving. Then we use all this to settle the debt.

Continue reading →

Published on: August 5, 2016

Florida Statute of Limitations on Credit Card Lawsuits

By Christie D. Arkovich, P.A.

If a creditor waits too long to sue, the creditor can be barred from ever bringing suit. The purpose of having a statute of limitations is so that lawsuits are brought when the matter is still fresh: before documents are destroyed and memories fade. If they can no longer bring a lawsuit, then there is no way to legally enforce the debt. Each state has their own laws as to how long the statute of limitations is and it varies tremendously by state and also by the type of action. In Florida, the statute lasts five years for a written contract and four years for a credit card account. While this seems simple, it is often amazingly difficult for a lay person to analyze because a contract may provide that a different state law applies, even a state that neither party has anything to do with. The answer may also vary depending upon whether it is a procedural or substantive question of law or how complete the writing was. The Florida Statute of Limitations on this is contained in Section 95.11:

Actions other than for recovery of real property shall be commenced as follows:

(2) Within five years.–

Continue reading →

Published on: February 12, 2016

Florida Federal Courts Uniformly Decline to Impose Stay Pending TCPA Rulings by the U.S. Supreme Court

By Christie D. Arkovich, P.A.

Our Tampa Bay area clients are still in good shape under the recent court and FCC rulings under the Telephone Consumer Protection Act (TCPA). Oral revocation is alive and well in Florida (although it’s always good to follow up in writing that you’ve asked a debt collector to stop calling your cell phone). Many other favorable rulings have come out in the past couple years some of which are now being appealed to the U.S. Supreme Court by various debt collectors and creditors.

A number of federal district courts have recently stayed TCPA cases pending the outcome of Supreme Court proceedings in Robins v. Spokeo, Inc. and Campbell-Ewald Co. v. Gomez, and the outcome of petitions seeking review of the FCC’s July 10, 2015 Declaratory Ruling and Order (“FCC Order”) that are currently pending before the United States Court of Appeals for the District of Columbia Circuit. See ACA Int’l, et al. v. F.C.C., No. 15-1211 (D.C. Cir. 2015).

On April 27, 2015 the Supreme Court granted certiorari in Robins v. Spokeo, Inc. to address whether “a plaintiff who suffers no concrete harm, and who therefore could not otherwise invoke the jurisdiction of a federal court” can bring a private right of action based solely on a technical violation of a federal statute. 742 F.3d 409 (9th Cir. 2014) cert granted, 135 S. Ct. 1892 (2015).

Continue reading →

Published on: February 5, 2016

Still Receiving Calls and Mortgage Statements Even Though You Have an Attorney?

By Christie D. Arkovich, P.A.

Communications with a homeowner when a debt collector is aware that the homeowner is represented by counsel is a violation of the FDCPA. 15 U.S.C. 1692c(a)(2). This includes any mortgage servicer who has acquired a defaulted mortgage loan. It is also a violation of our Florida Consumer Collection Practices Act (“FCCPA”).

Furthermore, if the mortgage servicer is calling you constantly, take a moment and take one of their calls: tell them to stop calling your cell phone. This invokes protection under the TCPA (Telephone Consumer Protection Act). This protection from continued cell phone harassment can result in significant statutory damages of $500-$1500 per call.

Our Tampa, Florida law office, Arkovich Law, pursues violations of the FDCPA, FCCPA and TCPA for our clients who are delinquent in their mortgage or who have debt that is no longer enforceable such as when the statute of limitations has expired or a bankruptcy is filed.

Published on: February 1, 2016

Supreme Court Applies TCPA to Text Messages for Consumer Protection

By Christie D. Arkovich, P.A.

Last week on January 20, 2016, in Campbell-Ewald Co. v. Gomez, ___ U.S. ___, 2016 WL 22835 (Jan. 20, 2016), the Supreme Court issued several important rulings in a TCPA class action. These rulings will help consumers in cases where they are receiving unwanted text messages; being contacted by various parties seeking to collect a debt and debt collection by federal contractors.

“A text message to a cellular telephone … qualifies as a “call” within the compass of” the TCPA’s prohibition against autodialed or prerecorded calls to cell phones without the consumer’s prior express consent.
A defendant can be liable for another’s TCPA violations based on common law principles of agency.

Continue reading →

Published on: January 18, 2016

Under What Circumstances Can a Creditor Continue to Report a Debt Following a Bankruptcy?

By Christie D. Arkovich, P.A.

The FTC guidelines state that credit reports can include debts discharged in bankruptcy so long as they’re reported as discharged with a zero balance. 16 C.F.R. 600 app. § 607(b)(6). See also Schueller 559 Fed.Appx. at 737; Horsch, 2015 U.S. Dist. LEXIS 37476, 2015 WL 1344836, at *10. The only guidance on this at all close comes from the Federal Trade Commission regulation. It states, “A consumer report may include an account that was discharged in bankruptcy (as well as the bankruptcy itself), as long as it reports a zero balance due to reflect the fact that the consumer is no longer liable for the discharged debt.” 16 C.F.R. 600 app. 607(b)(6)(2010).

For more information about how a bankruptcy filing will affect you, please contact us at Arkovich Law

Published on: October 16, 2015

TCPA – Importance of logging calls – New South Florida case.

By Christie D. Arkovich, P.A.

The Southern District of Florida just ruled on a Motion to Dismiss on October 13, 2015 in a TCPA case that more is necessary to properly allege a TCPA case. The Court stated: the Plaintiff cannot plead, in blanket terms, that she is entitled to statutory damages for each and every violation”, yet not plead the number of calls, when the calls occurred, and/or the content of the calls received. The Court ruled that blanket non-specific allegations do not place the Defendant on notice as to the claims that are being brought against it. Case dismissed unless the consumer has more information and can amend their complaint to state some specifics.

Don’t count on relying upon getting records at some later date from your cell phone provider. Cell phone records from a cell phone provider are sometimes only retained for a few months, often do not record unanswered calls, and lastly are not available unless you can subpoena them (but you first have to survive a motion to dismiss by having specifics of some calls). So keep a handwritten log. Take screen shots. Save voice messages.

While we do not need the date and time of every call, it is clear that we need to allege some dates, some times and the content of the calls whenever possible. We ask our clients to log date and time of as many calls as possible and make a written record or note of any calls where the request to stop calling the cell phone are made. We ask our clients to revoke consent multiple times and multiple ways (phone, fax, U.S. mail).

Continue reading →