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Published Articles by David Balovich

Published in: Creditworhty News
Date: 4/2/98

Mike Stankowski writes to ask about laws pertaining to collection agencies that are not defined by the Fair Debt Collection Practices Act, FDCPA.

Well Mike, the last ten years have proved that the debtor is not only becoming more educated but is also more aggressive in dealing with the mistakes being made by creditors debt collectors in the collection of debt.

Although very little has changed in the statutes concerning debt collection there have been some very enlightening decisions rendered through court proceedings, commonly referred to as case law.

In Stojanovski v. Strobl & Manoogian, P.C., 783 F.Supp.319 (1992); Garrett v. Derbes, 110 F.3d 317 (5th Cir. 1997) the court ruled that an attorney may be subject to the same requirements of debt collection agencies even though collections are a small fraction of his/her practice.

This also includes attempting to recover on a bounced check given to a client to pay for goods and services. Bass v. Stolper, Koritzinsky, Brewster & Neidler,S.C., 111 F.3d 1322 (7th Cir. 1997) and Ryan v. Wexler & Wexler, 113 F.3d 91 (7th Cir. 1997).

The following statutory language, called the "Miranda warning" by debt collectors, must be included in all communications with the debtor: We are attempting to collect a debt and any information obtained will be used for that purpose. Dutton v. Wolpoff & Abramson, 5F.3d 649 (3rd Cir. 1993).

Such language is even required in a post-judgment communication made several years after the judgment was entered. Frey v. Gangwish, 970 F.2d 1516 (6th Cir. 1992), Carroll v. Wolpoff & Abramson, 961 F.2d 459 (4th Cir. 1992).

Once the debt collector knows that the debtor is being represented by an attorney, all further communication must be through the attorney. Threatening to convey information to the debtor's employer violates law. Swanson v. Southern Oregon Credit Services, Inc., 869 F.2d 1222 (9th Cir. 1988).

If a debtor notifies a debt collector in writing that he/she refuses to pay a debt or wishes the debt collector to cease further communication with him/her, the debt collector must comply.

It has been held that informing the debtor that immediate payment will avoid any further contact is illegal is representation as this leads the debtor to believe that immediate payment is the only way to avoid further contact with the debt collector. Rabideau v. Management Adjustment Bureau, 805 F.Supp, 1086 1992).

Referring in the collection letter to the remedy of enforcing a judgment may be a violation of law. In Dutton v. Wolhar, 809 F.Supp. 1130 (1993) the court held that the collection letter was illegal because it stated once judgment is obtained. The court said the letter falsely represented that a judgment was inevitable.

In a similar situation, a statement in a letter offering to release all liens was found to be deceptive because it implied the existence of liens upon the debtor's property when none existed. Dutton v. Wolpoff & Abramson, 5F.3d 649 (3rd Cir. 1993).

Misrepresentations also apply to attorneys.

A lawyer or law firm may not lend a letterhead or a reproduction of a lawyer's signature to a client for the client to use when sending out demand letters to collect their own debts. Taylor v. Perrin, Landry, DeLaunay & Durand, 103 F.3d 1232 (5th Cir. 1997).

In the case of Avila v. Rubin, 84 F.3d 222 (7th Cir. 1996) and Clomon v. Jackson, 988 F.2d 1314 (2d Cir. 1993) the courts ruled that mass produced demand letters with the image of an attorney's signature is illegal when no attorney looked at the accounts prior to the letter being sent.

These are just a sampling of cases that reflect the debtors rights in dealing with third party collectors. Try to collect from a debtor in the wrong manner and you may be the one who ends up paying.

These and other cases can be reviewed in the Electric Law Library found in the providers section of Creditworthy.Com. As always, any specific questions pertaining to the legal approach that may/should be utilized should be addressed to learned legal counsel.

We are looking for topics for future columns. Please e-mail your suggestions/questions to daveat3jm@aol.com

I wish you well.

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