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Least Sophisticated Debtor Test and Strict Liability Under the FDCPA

arkovich_law-narrowConsumer complaints in Florida have a few things going for them that can make them easy to prove.

One of the things that benefits Florida consumers is our use of the “least sophisticated” debtor test.

What does this actually mean?

A person’s individual capacity to understand a collections letter is irrelevant.  What’s relevant is whether the least sophisticated debtor would be misled into believing he or she legally owes a debt.  It’s an objective test.

The FDCPA is also a strict liability statute.  This means it holds collectors liable for “violations that are not knowing or intentional”.  This is important because it would be extremely difficult to state with any kind of specificity what a particular debt collector’s employee was thinking at the time he or she made a call, or sent a letter.  Basically, the creditor’s knowledge is irrelevant.

As a practical matter, these two things mean that a defendant creditor cannot argue that it did not intend to collect an uncollectible debt and reasonably relied on the representations of the creditor who assigned the debt.  This prevents one creditor from blaming another creditor.  Selling bad debt is big business.  A person does not have to prove that an error is “intentional”.  Doing so, would open the field up to all kinds of blame games by the creditor.

The FDCPA, FCCPA and FCRA are consumer statutes that we regularly use in the defense of consumer matters  – raising claims under these statutes will often help a consumer’s position in settlement of the debt, get money in our client’s pocket and often escalate the matter to someone higher up the food chain for settlement purposes.  They are no small thing.

Please take a look at our website for more information as to what violations exist and how to keep track of them.  If we can help, please let us know.

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