Never Presume You Have No Rights When it Comes to Debt Collection
02/18/2011 by Andrew M. Milz
Often, consumers feel helpless when they are contacted by debt collectors. An initial instinct is that you are powerless when faced with threatening or deceptive calls and letters. But it is important to remember that as a consumer, you have many rights, and the debt collectors must play by the rules or be subject to penalty.
Debt collectors must be clear and remove potential uncertainty in debt collection notices. A consumer is not expected to know all of the rights the FDCPA entitles them, but never assume you are without any rights.
When it comes to collection notices, form and clarity count. A recent order in Dutterer v. Thomas Kalperis International, Inc., (Feb. 4, 2011), held just that in ruling for the plaintiff. The defendant’s notice in Dutterer asked the debtor to provide “substantive proof of payment” to dispute the alleged debt, while also failing to indicate that the debtor may challenge any portion of the claimed debt. This notice was found to give the possible impression that the debtor would need to do more than merely notify the debt collector of the dispute (all that is required under the FDCPA), and failed to inform the debtor of his right to dispute only a portion of the debt should he so choose.
In a similar situation, the Consumers Law team recently won judgment for a consumer who had received improper notice from a debt collector in violation of the FDCPA. In Harlan v. NRA Group, LLC, (Feb. 9, 2011), the debt collector substituted the word “assumed” with “presumed” in the notice stating that failure to dispute the debt within 30 days of receiving the notice, the “debt will be presumed to be valid.” “Presumed” can mean a legal presumption that a debt is owed when that is not the case. The court held that the notice created uncertainty and confusion, and was deceptive in violation of the Act. The FDCPA requires a collection notice to be clear and direct from the perspective of the least sophisticated debtor.
The court entered a $1000.00 judgment for Harlan for this violation. Along with the award, the debt collector is responsible for paying Harlan’s attorney fees and costs. The FDCPA allows for the award of attorney fees and costs to enable consumers such as Harlan to bring a claim when it would otherwise be impractical.
The Flitter Milz team is here to help you when debt collectors fail to uphold their responsibilities. If you are the victim of improper debt collection practices, contact us, we may be able to help.