Creditor Harassment and FDCPA

Published on: September 25, 2018

Robocalling Cases Coming Out at a Furious Pace

Robocalling case law has been rapidly evolving over the past few months. The latest case out of Tampa’s Middle District, is the case of MELANIE GLASSER, individually & on behalf of all others similarly situated Plaintiff, v. HILTON GRAND VACATIONS COMPANY, LLC. Defendant., No. 8:16-CV-952-JDW-AAS, 2018 WL 4565751, at *5 (M.D. Fla. Sept. 24, 2018) (Judge Whittemore) (holding at summary judgment that defendant’s dialer is not an ATDS and discussing a dialer that automatically enters the number but requires a clicker agents to push the “make call button” to control the pace of the calls doesn’t alter that the clicker agent’s actions were “integral to initiating outbound calls” … “accordingly, it matters not that the computer actually dials the number forwarded to it by the clicking agent. Rather, the focus is on the agent’s human intervention in initiating the calling process.”).

Despite this case initially looking bad for consumers, there was some good language in the case – its just that the evidence wasn’t presented in this case for the telephone system to fall under the definition of an autodialer.

“Relevant here, ACA Int’l left intact earlier FCC rulings that “the ‘basic function’ of an autodialer is to dial numbers without human intervention:” For instance, the ruling states that the “basic function” of an autodialer is the ability to “dial numbers without human intervention.” 2015 Declaratory Ruling, 30 FCC Rcd. at 7973 ¶ 14; id. at 7975 ¶ 17. Prior orders had said the same. 2003 Order, 18 FCC Rcd. at 14,092 ¶ 132; 2008 Declaratory Ruling, 23 FCC Rcd. at 566 ¶ 13.”

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Published on: September 20, 2018

Arbitration Clauses in Consumer Contracts – How to Avoid Being Thrown out of Court

By Christie D. Arkovich, P.A.

Many consumers aren’t aware that when they sign up for a service, or buy a product, that they are agreeing that in the event of a dispute that the parties will be referred to arbitration. These clauses often waive the consumer’s right to go to court, present their case before a jury or file a class action. Most consumers have no idea that this is part of the contract. To add insult to injury, often the creditor retained the right to file its own collection case in small claims or county court. How is this legal you may ask?

Well that topic is for another day, most courts will uphold an arbitration clause. However, there are ways around an arbitration clause by arguing that the clause doesn’t apply. This would be in the event that the plaintiff bringing a lawsuit is not actually a signatory to the lease or contract.

Arbitration is party specific.

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Published on: July 17, 2018

TCPA Consumer Lawyer – Adapting to New Collections Tactics by Debt Collectors and New Laws

By Christie D. Arkovich, P.A.

From time to time, our consumer law practice here in Tampa, Fl has had to shift gears to better use our state and federal laws that protect consumers faced with debt – and the inevitable robocalls and erroneous credit reports that come with that.

The current state of robocalls is very similar to the days of emails before spam filters. With the advent of the internet, businesses don’t need expensive hardware. Anyone can start a mini call center with software that auto dials and spoofs caller IDs. Many of the calls appear local and they avoid detection as a debt collector. Small and large companies both still use predictive dialers capable of making hundreds of thousands of calls daily despite a consumer withdrawing consent to call their cell phone.

Thankfully, over the next year or two, the FCC and phone companies will implement a call certification protocol where the phone carrier can verify the caller is legitimately using the number — and Caller IDs may once again mean something!

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Published on: June 9, 2018

When is a debt considered “consumer” debt for debt collection protections to kick in?

By Christie D. Arkovich, P.A.

Most of our debt collection laws in Florida apply only for consumer debt, not business debt. Sometimes the answer is not quite clear as to what type of debt is involved. What if for instance you operate a business and took out a loan, but signed a personal guarantee. Sometimes, that personal guarantee will have language referring to the debt being for personal, family or household use. That would likely make the guarantee a consumer debt.

By the way, that terminology comes from the Florida Consumer Collection Practices Act (“FCCPA”), Fla. Stat. Section 559.55-559.77 which defines a consumer debt as a debt incurred for “personal, family or household use.”

What happens if you buy a house, live in it for years, but then ultimately end up moving and renting it out? Or you rent out a room while you are living there? Commericial or consumer debt?

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Published on: May 17, 2018

How Do You Know Whether a Debt Collector’s Calls are Harassment?

By Christie D. Arkovich, P.A.

How much is too much? Unfortunately, the Fair Debt Collection Practices Act and its Florida counterpart do not specify a particular number of calls per day that a creditor can make when trying to collect a debt.

An older Florida case is somewhat illustrative in finding the answer. In Story v. J.M. Fields, Inc., 343 So. 2d 675, 677 (Fla. 1st DCA 1977), the Court looked at what conduct was considered harassing, such as: a) the frequency of the creditor’s calls; b) the number of calls; c) the time of day when calls were received (whether during normal business hours); and d) whether the purpose of the calls was appropriate, such as calling to i) remind the debtor of the debt; ii) determine the reasons for non-payment; iii) discuss a plan for making payments.

My rule of thumb that I like to use is if a creditor calls in the morning and talks with you, and then calls again the same day, that only works if you said something like I may get paid at lunchtime and might have some money for you. Otherwise, I doubt that anything changed that day and there was no reasonable reason for a second call the same day other than to harass you.

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Published on: September 26, 2017

Help Us Help You! Get Rid of Mandatory Arbitration in Consumer Contracts

By Christie D. Arkovich, P.A.

It’s simple. If you are wronged, you should be able to pick the forum to go after the lender, bank, student loan company, credit card company, car rental company, credit bureau, you name it — and that forum should include the local courthouse and not just arbitration. The CFPB recently ruled that mandatory arbitration clauses in the fine print of your contract is wrong. Now Congress wants to repeal that rule.

Call Your Senators; Tell Them NOT to Take Away Your Day in Court Against Big Banks.

For too long, Wall Street lawyers and lobbyists have used a secret tactic, fine print contracts, to take away Americans’ constitutional right to go to court. After more than five years of studying and working on the problem, the Consumer Financial Protection Bureau issued a rule to restore our right to join together and hold big banks and lenders accountable in court for unlawful behavior that rips us off and puts the American economy at risk. When financial bad actors are not held responsible for their bad behavior, disasters like the Equifax data breach and Wells Fargo fake-account scandal occur.

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Published on: August 1, 2017

When is it Legal for your Student Loan Servicer to Contact your Relatives?

By Christie D. Arkovich, P.A.

There are limits as to when a student loan servicer can contact someone other than the borrower. They cannot call the borrower’s place of employment if the borrower asks them not to. They cannot robocall the borrower’s cell phone when the borrower asks them not to. They cannot discuss the debt with a third party. They cannot contact the debtor when the debtor has retained legal counsel. These are all very clear rules proscribed by the Fair Debt Collection Practices Act (“FDCPA”) and its Florida counterpart, the Florida Consumer Collection Practices Act (“FCCPA”) or the Telephone Consumer Protection Act (“TCPA”).

One quirk that I’d like to see how widespread it is, involves student loan servicer contacts with the debtor’s family members after the debtor has retained counsel. In this particular instance, the contact involves asking for contact info for the debtor as well as their employment info. At that time, the student loan servicer knows how to reach the debtor. They know all contact regarding the debt is to go through legal counsel. So why contact a reference or family member pretending they don’t know how to reach the debtor. And ask for employment information from this relative.

There are two sub-sections of the FCCPA in play on this question:

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Published on: June 22, 2017

Revoking Consent to Call Your Cell Phone

By Christie D. Arkovich, P.A.

Florida, Georgia and Alabama consumers need not worry about a recent case out of the Second Circuit, Reyes v. Lincoln Automotive Financial Services, (2nd Cir. June 22, 2017) that held today that if the contract allows for robocalls, you can never revoke consent to call under the Telephone Consumer Protection Act (“TCPA”). The 2nd Circuit recognizes that this may be an abuse, but determined that this was ultimately a problem for Congress to fix, not the Court. It distinguished a 2015 FCC revocation order by asserting that the FCC order just references common law principals of revocation, as opposed to contractual terms previously agreed upon by the parties.

Fortunately, our clients need not worry since in Florida, our Eleventh Circuit takes a more expansive view on revocation that protects consumers against harassing robocalls when they elect to revoke any prior consent.

The Third, Sixth and Eleventh all have favorable decisions on this issue:

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Published on: June 9, 2017

Public Outcry High Over Ringless Voicemails!

By Christie D. Arkovich, P.A.

For anyone who reached out to file a comment with the FCC as we requested, we thank you. The FCC received over 10,000 comments filed by consumers opposing ringless voicemails, plus actions were filed against this change in the law by the Attorney Generals in NY, MA and Kentucky.

A change to the TCPA (Telephone Consumer Protection Act) to exclude ringless voicemails would give free rein to debt collectors and creditors to relentlessly invade every consumer’s privacy, and deluge their private voicemail with unlimited, harassing messages. Consumers could easily check their phone and have hundreds of voice messages at the end of a workday.

Fortunately, the news media has picked up on this story as well and is helping to get the word out for people to oppose this change to the TCPA.

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Published on: September 26, 2016

Telephone Consumer Protection Act (TCPA) – Auto-Dialer Uncertainty

By Christie D. Arkovich, P.A.

Were you aware that when you tell a bill collector (including a student loan collector) to stop calling your cell phone, they must do so immediately? Well usually. It depends upon the type of telephone system the collector is using. If they are manually dialing the phone, then they can continue to call you. The reason is simple: there is a human being on the other side making a conscious decision to call you at a certain time and date seeking payment.

But what if it is a machine calling you? The Telephone Consumer Protection Act (TCPA) states that calls using an auto dialer or an ATDS must stop if you ask them to stop. The reason is clear here as well: a machine is capable of calling hundreds of thousands of people incessantly following a pre-determined script or campaign. It often seems that nothing can stop it. So a law was enacted to help protect people from a barrage of calls and save valuable minutes on their cell phone plans. I had a client just last week tell us that when she spoke with someone asking the calls to stop, she was told she was on an autodialer and the calls couldn’t be stopped. Really. Well that statement certainly made it into a Complaint we prepared for filing.

In the last couple years, the industry has attempted to change its equipment to get around the TCPA. They say that this equipment is TCPA compliant. The equipment uses some parts human and some parts machinery. So how much human intervention is enough to allow for the calls to continue? The industry has taken to using entire systems that as a whole appear to be an ATDS, but each component standing on its own may not independently be an ATDS. What capacity must the equipment have in order to fall under the TCPA’s protections? The answer I’m afraid is less than certain.

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