[suijuris]

USC Title 15. Sec. 1692 - Congressional findings and declaration of purpose



(a) Abusive practices

There is abundant evidence of the use of abusive, deceptive, and unfair debt collection practices by many debt collectors. Abusive debt collection practices contribute to the number of personal bankruptcies, to marital instability, to the loss of jobs, and to invasions of individual privacy.



(b) Inadequacy of laws

Existing laws and procedures for redressing these injuries are inadequate to protect consumers.



(c) Available non-abusive collection methods

Means other than misrepresentation or other abusive debt collection practices are available for the effective collection of debts.



(d) Interstate commerce

Abusive debt collection practices are carried on to a substantial extent in interstate commerce and through means and instrumentalities of such commerce. Even where abusive debt collection practices are purely intrastate in character, they nevertheless directly affect interstate commerce.



(e) Purposes

It is the purpose of this subchapter to eliminate abusive debt collection practices by debt collectors, to insure that those debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged, and to promote consistent State action to protect consumers against debt collection abuses.



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NOTES OF DECISIONS



Generally 1

Application of act 2

Checks 4a

Debt collector 5

Notice 6

Prior law 3

Purpose 4



1. Generally



Threshold requirement for application of Fair Debt Collection Practices Act (FDCPA) is that prohibited practices are used in attempt to collect debt. Mabe v. G.C. Services Ltd. Partnership, C.A.4 (Va.) 1994, 32 F.3d 86.



2. Application of act



Post-judgment letter from creditor's attorney could not constitute a "communication" with putative debtor, within meaning of the Fair Debt Collection Practices Act (FDCPA), where, although letter was mailed to putative debtor's house, it was addressed solely to putative debtor's daughter, the credit card holder, and not to putative debtor, the "supplemental cardholder." Kropelnicki v. Siegel, C.A.2 (Conn.) 2002, 290 F.3d 118.



Action under Fair Debt Collection Practices Act was not contingent upon validity of underlying debt. McCartney v. First City Bank, C.A.5 (Tex.) 1992, 970 F.2d 45.



Fair Debt Collection Practice Act did not apply to transaction involving a loan for agricultural purposes of $118,000 as debt was not incurred for personal, family or household purposes, and lenders were not attempting to collect another's debt under statute. Munk v. Federal Land Bank of Wichita, C.A.10 (Kan.) 1986, 791 F.2d 130.



Fair Debt Collection Practices Act (FDCPA) did not apply to facts of lender's action against borrower; lender's claim concerned enforcement of the parties' settlement agreement, which did not entail giving proceeds to borrower to be used primarily for personal and household purposes, and it was not a generic debt collection action. Fleet Nat. Bank v. Baker, D.Mass.2003, 263 F.Supp.2d 150.



If no debt exists within the meaning of the Fair Debt Collection Practices Act (FDCPA) and no other federal claims are brought by plaintiff asserting the FDCPA claim, there is no federal question and the action should be dismissed for lack of subject matter jurisdiction. Cook v. Hamrick, D.Colo.2003, 278 F.Supp.2d 1202.



Fair Debt Collection Practices Act (FDCPA) is strict liability statute, and consumer need only show one violation of its provisions to establish FDCPA claim. O'Connor v. Check Rite, Ltd., D.Colo.1997, 973 F.Supp. 1010.



Repossession companies are ordinarily beyond scope of Fair Debt Collection Practices Act (FDCPA). Clark v. Auto Recovery Bureau Conn., Inc., D.Conn.1994, 889 F.Supp. 543.



Debts which were the subject of earlier settlement between borrower and lender that had provided floor plan financing for borrower's motor vehicle dealership, being in nature of business debts, were not subject to provisions of the Fair Debt Collection Practices Act (FDCPA), so that, when lender erroneously sold these debts to another lender as active accounts, and other lender attempted to collect thereon, its collection activity could not expose it to any liability under the FDCPA. In re Creditrust Corp., Bkrtcy.D.Md.2002, 283 B.R. 826.



Direct collection actions by creditors on their own debt do not fall within scope of the federal Fair Debt Collection Practices Act (FDCPA). In re Cooper, Bkrtcy.N.D.Fla.2000, 253 B.R. 286.



Collection efforts by holders of federally insured student loans or their servicing company's are not kind of activity that Congress intended to regulate in enacting Federal Fair Debt Collection Practices Act (FDCPA). Fischer v. UNIPAC Service Corp., Iowa 1994, 519 N.W.2d 793.



Fair Debt Collection Practices Act did not apply to mortgagor's claims against employee of mortgage service. Barber v. National Bank of Alaska, Alaska 1991, 815 P.2d 857.



The federal Fair Debt Collection Practices Act notice requirements had no bearing in proceeding to confirm foreclosure sale of real property, as that proceeding did not establish liability and only insured the fairness of the sale. Peterson v. First Nat. Bank of Atlanta, Ga.App.1991, 412 S.E.2d 579, 201 Ga.App. 762.



3. Prior law



"Judicial district or similar legal entity," within meaning of Fair Debt Collection Practices Act (FDCPA) venue provision, meant state judicial circuits, not counties; thus, venue in debt collection suit seeking to recover for medical services was proper, under FDCPA, in county where medical clinic and debt collector's offices were located, where county where medical clinic was located was within same state judicial circuit where contract sued upon was signed by patient. Crawford v. Credit Collection Services, D.S.D.1995, 898 F.Supp. 699.



"Debt," under Fair Debt Collection Practices Act, did not exist against mother for services rendered to daughter, where mother had paid medical clinic for daughter's office visit. Crawford v. Credit Collection Services, D.S.D.1995, 898 F.Supp. 699.



Although consumer suing debt collector for violations of Fair Debt Collection Practices Act (FDCPA) venue provision did not introduce evidence of actual damages, consumer was entitled to award of $500 in additional damages under FDCPA as well as award of attorney fees and costs. Crawford v. Credit Collection Services, D.S.D.1995, 898 F.Supp. 699.



Enactment of this subchapter, which specifically prohibited all false, deceptive, misleading, unfair or harassing collection practices, was not evidence that such practices had not been prohibited by prior federal law; this subchapter merely supplemented the old law. State v. O'Neill Investigations, Inc., Alaska 1980, 609 P.2d 520.



4. Purpose



This subchapter is designed to protect consumers who have been victimized by unscrupulous debt collectors, regardless of whether valid debt actually exists. Baker v. G. C. Services Corp., C.A.9 (Or.) 1982, 677 F.2d 775.



Purpose of the Fair Debt Collection Practices Act was not to shield consumers from embarrassment and inconvenience which are natural consequences of debt collection. Dalton v. FMA Enterprises, Inc., M.D.Fla.1997, 953 F.Supp. 1525.



Broad remedial purpose of Fair Debt Collection Practices Act (FDCPA) is not concerned with intent of debt collector; its concern is with likely affect of various collection practices on mind of least sophisticated consumer. Wiener v. Bloomfield, S.D.N.Y.1995, 901 F.Supp. 771. Consumer Protection 3;



Purpose of the Fair Debt Collection Practices Act is to protect consumers from unfair, deceptive, and harassing collection practices, while leaving collectors free to employ efficient, reasonable, and ethical practices in pursuit of their profession. Graziano v. Harrison, D.N.J.1991, 763 F.Supp. 1269, reversed in part, vacated in part 950 F.2d 107.



This subchapter was designed to safeguard consumers in their dealings with business. Blackwell v. Professional Business Services of Georgia, Inc., N.D.Ga.1981, 526 F.Supp. 535.



This subchapter was enacted by Congress to eliminate abusive, deceptive, and unfair debt collection practices. Rutyna v. Collection Accounts Terminal, Inc., N.D.Ill.1979, 478 F.Supp. 980.



This subchapter was enacted to eliminate false, deceptive, misleading, unfair, or harassing debt collection practices. Peasley v. Telecheck of Kansas, Inc., Kan.App.1981, 637 P.2d 437, 6 Kan.App.2d 990.



4A. Checks



Replacement checks, which were sought in order to replace lost or stolen checks tendered in payment of medical services, were "debts" under Fair Debt Collection Practices Act (FDCPA); extension of credit was not required in order for the makers' obligations to qualify as "debts." Kvassay v. Hasty, D.Kan.2002, 236 F.Supp.2d 1240.



Dishonored checks were "debts" within meaning of Fair Debt Collection Practices Act (FDCPA). Johnson v. CRA Sec. Systems, N.D.Cal.1997, 963 F.Supp. 859.



5. Debt collector



An acquirer of a debt that continues to service it is acting much like the original creditor that created the debt, so that the Fair Debt Collection Practices Act (FDCPA) does not apply; on the other hand, if it simply acquires the debt for collection, it is acting more like a debt collector and the FDCPA does apply. Schlosser v. Fairbanks Capital Corp., C.A.7 (Ill.) 2003, 323 F.3d 534, rehearing and rehearing en banc denied.



When debtor defaults on original note, which is then superseded by renegotiated forbearance payment plan, person who has obtained or purchased both original note and new agreement and seeks to collect on original note, which technically remains in default, is "debt collector" under Fair Debt Collection Practices Act; however, if that person seeks to collect payments currently due under new superseding agreement, then that person is not "debt collector." Bailey v. Security Nat. Servicing Corp., C.A.7 (Ill.) 1998, 154 F.3d 384, rehearing and suggestion for rehearing en banc denied.



Law firm regularly engaged in debt collection practices, and thus it qualified as a "debt collector" pursuant to the Fair Debt Collection Practices Act (FDCPA), even though debt collection activity made up about one percent of volume of firm's cases and revenue, where firm consistently accepted at least 10 debt collection matters each year for several consecutive years. Silva v. Mid Atlantic Management Corp., E.D.Pa.2003, 277 F.Supp.2d 460.



Creditor could not be vicariously liable under the Fair Debt Collection Practices Act (FDCPA), where debtor's FDCPA claim against debt collector had been dismissed. Bleich v. Revenue Maximization Group, Inc., E.D.N.Y.2002, 239 F.Supp.2d 262.



Law firm engaged by armored car business to assist in the claims process and defend its client on clinic's claim to recover lost deposit bag containing checks tendered in payment of medical services fell within Fair Debt Collection Practices Act's (FDCPA) exception to the definition of a "debt collector;" although firm obtained an interest in the makers' obligations by pursuing the collection of the makers' alleged obligations in order to mitigate its client's damages, the debts were not in default at the time they were obtained by the firm since, under Kansas law, once the checks were tendered, the makers' obligations were suspended. Kvassay v. Hasty, D.Kan.2002, 236 F.Supp.2d 1240.



Insurers and insurance brokers involved in underwriting losses arising from lost deposit bag containing checks tendered in payment of medical services were not "debt collectors" within meaning of Fair Debt Collection Practices Act (FDCPA) with respect to attempts to have makers replace the lost or stolen checks. Stark v. Hasty, D.Kan.2002, 236 F.Supp.2d 1214.



Neither incorporated mortgage lender's servicing division nor division employee were "debt collectors," and thus were not subject to strictures of Fair Debt Collection Practices Act (FDCPA); division collected debts only for lender and debt collection was not its principal business. Beck v. Alliance Funding Co., D.Conn.2000, 113 F.Supp.2d 274.



Fact that operator of resort had acquired rights of original operator to remaining installment payments owed by resort investor at time that investor was in default, did not make operator a "debt collector" within meaning of Fair Debt Collections Practices Act (FDCPA). Griffin v. Bailey & Associates, Inc., E.D.Mo.1994, 855 F.Supp. 1047.



A service which guaranteed payment of tenant's security deposit did not constitute a debt collector under this section in the absence of anything showing that service sought to collect damages incurred by landlords which were in excess of payment. Alexander v. Moore & Associates, Inc., D.C.Hawai'i 1982, 553 F.Supp. 948.



"Debt collectors," for purposes of Fair Debt Collection Practices Act, includes attorneys whose practices are limited to purely legal matters. Shapiro and Meinhold v. Zartman, Colo.1992, 823 P.2d 120.



6. Notice



Validation notice, which informed debtor that he had 30 days to dispute debt and which followed with statement that if "above does not apply" debtor had ten days to pay up or civil suit could be initiated against debtor, was entirely inconsistent and failure to comply with Fair Debt Collection Practices Act (FDCPA), even though there was no evidence of actual consumer confusion. Avila v. Rubin, C.A.7 (Ill.) 1996, 84 F.3d 222.



A debt collector falsely represented the amount of a debt, in violation of the Fair Debt Collection Practices Act (FDCPA), as written notice sent by debt collector could confuse least sophisticated consumer, even though notice included exact amount of principal balance, where the stated balance in the notice included an indeterminate amount of interest, and the notice advised that debtor was responsible for attorney fees, without explaining that attorney fees were not part of debt owed. McDowall v. Leschack & Grodensky, P.C., S.D.N.Y.2003, 279 F.Supp.2d 197.



Fair Debt Collection Practices Act (FDCPA) requires all debt collection letters to include a validation notice, which includes amount of debt, name of creditor, statement that debt's validity will be assumed unless disputed by consumer within 30 days, and offer to verify debt and provide name and address of original creditor, if consumer so requests. Lerner v. Forster, E.D.N.Y.2003, 240 F.Supp.2d 233.



It could be inferred that debt owed by patient to hospital was in default when patient received letter from debt collection agency, so that letter was subject to the Fair Debt Collection Practices Act (FDCPA), though letter requested information pursuant to a Medicaid claim, where letter also unambiguously stated, "this is an attempt to collect a debt and any information will be used for that purpose," and contained the validation notice required under the FDCPA. Healy v. Jzanus Ltd., E.D.N.Y.2002, 2002 WL 31654571, Unreported.