FTC Bans Debt Collector from Debt Collection Business

On June 16, the FTC announced that it obtained a court order against a debt collector and one of its officers for allegedly deceiving consumers with text messages, emails, and phone calls that falsely threatened arrest or lawsuits if they failed to make debt collection payments. In May 2015, the District Court for the Northern District of Georgia issued an ex parte Temporary Restraining Order that “froze a number of Defendants’ assets, provided the FTC with immediate access to Defendants’ business premises, and granted expedited discovery to determine the existence and location of assets and documents pertinent to the allegations of the Complaint.” The recently issued final order prohibits the defendants from, among other things: (i) engaging in debt collection activities; (ii) misrepresenting material facts regarding financial-related products or services; and (iii) disclosing, using, or benefiting from consumers’ personal information, and failing to properly destroy such information when appropriate. Finally, the final order imposes a $980,000 judgment to be used as equitable monetary relief, including, but not limited to, consumer redress.

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FTC Submits Comment to the FCC on Proposal Relating to Debt Collection Robocalls

On June 6, the FTC submitted a comment to the FCC on its Notice of Proposed Rulemaking (NPR) regarding the implementation of recent changes to provisions of the Telephone Consumer Protection Act (TCPA) that permit robocalls “made solely to collect a debt owed or guaranteed by the United States.” Recommending that the FCC proceed cautiously with the expansion of permissible robocalling, the FTC instructed the FCC to establish standards for the collection of government debt that are consistent with the FDCPA, Section 5 of the FTC Act, and the Telemarketing Sales Rule (TSR). Specifically, the FTC’s comment advises the FCC to limit permitted robocalls to only (i) those relating to debts in default status; (ii) persons who actually owe the debts; (iii) those relating to the collection of the government debt; and (iv) collection purposes exclusively. In addition, the FTC’s comment on the NPR suggests that the FCC (i) maintain reasonable security practices over the data collected during covered robocalls; (ii) limit robocalls to the hours of 8:00 am to 9:00 pm; and (iii) require covered callers to “transmit caller ID information that includes a caller number that connects to a live agent representing the debt collector.”

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Ninth Circuit: Discovery Rule Applies in FDCPA Actions

On June 8, the Ninth Circuit reversed the district court’s dismissal of a plaintiff’s complaint alleging that the debt collector defendants’ collection action against her violated the Fair Debt Collection Practices Act (FDCPA), finding that the plaintiff’s complaint was filed within one year of the date on which she first learned of the collection action and was thus timely. Lyons v. Michael & Associates, No. 13-56657 (9th Cir. June 8, 2016). On December 7, 2011, the defendants filed a debt collection action against the plaintiff in Monterey, California, despite the fact that the plaintiff resided in San Diego at the time she incurred the debt. On January 3, 2013, the plaintiff initiated a separate action alleging that the defendants violated the FDCPA by bringing their collection action against her in the wrong judicial district. The district court dismissed the plaintiff’s complaint as time-barred, finding that it was filed more than one year after the defendants filed their collection action against plaintiff. The Ninth Circuit reversed, opining that the “discovery rule” applies in FDCPA actions and, therefore, the statute of limitations on the plaintiff’s FDCPA claim did not begin to run until the plaintiff “kn[ew] or ha[d] reason to know of the injury which is the basis of the action.” Because the plaintiff did not have knowledge of the defendants’ collection action until she was served with process—which was less than one year before she filed her action—her FDCPA complaint was timely.

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Supreme Court: Special Counsel Using State AG Letterhead Not in Violation of FDCPA

On May 16, the Supreme Court reversed the Sixth Circuit’s ruling that special counsel using Ohio AG letterhead to collect debts owed to the state is false or misleading in violation of the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. §1692. Sheriff v. Gillie, No. 15-338 (U.S. May 16, 2016). In a unanimous 8-0 opinion delivered by Justice Ginsburg, the Court opined that its “conclusion is bolstered by the character of the relationship between special counsel and the [AG].” Specifically, the Court determined that, because special counsel acts on behalf of the AG to provide legal services to state clients, a “debtor’s impression that a letter from special counsel is a letter from the [AG’s] Office is scarcely inaccurate.” The Court further opined that, being required by the AG’s office to send debt collection communications, special counsel “create no false impression in doing just what they have been instructed to do.” The Court rejects the Sixth Circuit’s argument that consumers may have concern regarding the letters’ authenticity: “[t]o the extent that consumers may be concerned that the letters are a ‘scam,’ the solution is for special counsel to say more, not less, about their role as agents of the [AG]. Special counsel’s use of the [AG’s] letterhead, furthermore, encourages consumers to use official channels to ensure the legitimacy of the letters, assuaging the very concern the Sixth Circuit identified.” The Court concludes by emphasizing the AG’s authority, as the top law enforcement official, to take punitive action against consumers who owe debts, commenting that §1692e of the FDCPA prohibits collectors from deceiving or misleading consumers, but “it does not protect consumers from fearing the actual consequences of their debts.” Read more…

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Fourth Circuit: Default Status of Debt Is Not Determining Factor of “Debt Collector” Under FDCPA

Recently, the U.S. Court of Appeals for the Fourth Circuit affirmed a district court’s decision that a consumer finance company collecting debts on its own behalf, which it purchased from the original creditor, is still a creditor and is not subject to the FDCPA. Henson v. Santander, No. 15-1187 (4th Cir. Mar. 23, 2016). The plaintiffs in the case each signed a retail installment sales contract with a financial services provider, and when “the plaintiffs were unable to make the payments required by the contracts and thereby defaulted, [the financial services provider] repossessed and sold their vehicles and subsequently informed each plaintiff that he or she owed a deficiency balance.” In 2011, the defendant bought the defaulted loans from the financial services provider and, thereafter, sought to collect on the debts the plaintiffs owed. In their complaint, plaintiffs argued that because the terms “debt collectors” and “creditors” as used in the FDCPA are “mutually exclusive,” any person that “receives an assignment or transfer of a debt in default solely for the purpose of facilitating collection of such debt for another” (which is excluded from the definition of creditor in 15 U.S.C. § 1692a(4)) must be a debt collector. However, the court emphasized that the material distinction between a debt collector and a creditor is “whether a person’s regular collection activity is only for itself (a creditor) or whether it regularly collects for others (a debt collector).” Read more…

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