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Arguing that fewer collection calls still warrants a violation of the FDCPA

Anyone with an unpaid debt and a phone is already aware – debt collectors call people. Further, everyone with a computer and internet connection knows – debt collectors are prohibited from calling “repeatedly or continuously”. According to Section 1692d(5) of The FDCPA, a violation occurs by “Causing a telephone to ring or engaging any person in telephone conversation repeatedly or continuously with intent to annoy, abuse, or harass any person at the called number”. The problem is that there is no bright line definition of what “repeatedly” or “continuously” actually is. The Courts are simply not aligned with what is or is not too many calls. The answer you would receive from a collection defense lawyer and that you would receive from a consumer rights attorney are going to be markedly different. Without researching any empirical data or performing any in depth review of any kind, it seems initiative that historically debt collectors have relied on the telephone because it is simply a cost effective way to reach large masses of people, fast. Indeed some of the largest collection companies such as NCO; Allied Interstate, Creditors Interchange, NES, etc., seem to focus the majority of their collection efforts via telephone. It makes sense that these companies, in attempting to comply with the FDCPA laws (aka debt collector harassment laws) would put forth procedures and measures to avoid calling individuals in amounts that exceed the laws. Of course, as stated earlier, as there is no bright line definition of what constitutes a violation so it is difficult to make that determination. However, courts appear to be trending towards reviewing the collection activity as a whole and in context with other activity and then determining if a violation occurred. This approach is very initiative and uses a common sense approach for determining violations. For example, if a debt collector called you thirty times total during thirty months it would be hard to argue that you were harassed. If however you were contacted thirty times in seven hours – your argument starts to look very legitimate. But what about the individual who is not experiencing a high volume of harassing and stressful collection calls but nonetheless fees that they have a case? I believe there might be an argument based on financial circumstances and putting the collector on notice of those circumstances. It seems that the majority of consumers are not trying to avoid paying a bill, they have simply run into hard times and need a little time to get on their feet. Usually this means some type of injury or layoff has affected their ability to pay pre existing debt obligations. But what happens when this is explained to a collection company? Well, as you probably guessed – the calls keep on coming. Clients repeatedly tell us that they constantly informed the collection representatives that they were disabled or unemployed, and then they called back the next morning seeking payment; or everyday; or twice a day. I would argue to any California collection defense lawyer, if my client tells you she can’t pay, and provides verifiable information indicating same, then it is a potential violation to continue to contact him/her on a daily basis. Even if he/she found a job, it is not likely that work would be performed, pay check would arrive, paycheck would be cashed, etc., and funds would be available within a week (or even a month for that matter). Thus I would argue that calling an individual once a week goes too far. Many debt collection companies are now using predictive dialers or automatic phone messages to contact debtors


in distress. If you thought exporting jobs overseas was an issue – what about importing them to robots? That nonsense aside, the point I am trying to make is that calling someone on a daily basis, who has demonstrated that they are permanently disabled or chronically unemployed, in a dead end employment market that does not seem to be improving for the vast majority of people out there is not going to get you any results. At best you are inviting a Federal lawsuit under the Fair Debt Collection Practices Act. Rather then sending a cease and desist letter I would document the discussions by providing proof of unemployment and/or inability to pay each and every time that the company called. After three or four phone conversations inside of a two week period concerning the same thing, and after having faxed or sent other proof via return receipt, I would think a decent argument exists that based on the circumstances the only plausible explanation is that the debt collector was attempting to “harass” “oppress” or “abuse”. This allows you to argue that a small number of calls over a few weeks time and is still a violation based on the circumstance. Besides, who needs to be reminded on a daily basis that they owe a debt and that they are still unemployed and have no ability to repay it? Call me once to find out I am unemployed and then check in once a month to see if I am back on my feet. Call me everyday to remind me that I am unemployed and it is abuse. Disclaimer: This information is not intended as legal advice. Please direct your specific questions to K&M attorneys and know more about your FDCPA rights. If you want to pursue your FDCPA claim, call @ 1-800-877-3666 toll free, to reach Krohn & Moss for your FREE CASE REVIEW Or submit your information online for your free case evaluation @ http://www.westopdebtcollectors.com


One More Violation of the FDCPA