Brody & Cornwell 2025-03-31T11:59:42Z https://www.brodyandcornwell.com/feed/atom/ WordPress /wp-content/uploads/sites/1103466/2023/10/cropped-site-icon-32x32.jpg On Behalf of Brody & Cornwell https://www.brodyandcornwell.com/?p=47196 2023-10-20T07:52:58Z 2016-06-03T07:52:06Z

On Behalf of Brody & Cornwell https://www.brodyandcornwell.com/?p=47194 2023-10-20T07:51:40Z 2016-06-03T07:50:38Z

On Behalf of Brody & Cornwell https://www.brodyandcornwell.com/?p=47192 2023-10-20T07:50:15Z 2015-01-14T08:49:01Z

On Behalf of Brody & Cornwell https://www.brodyandcornwell.com/?p=47190 2023-10-20T07:48:13Z 2014-11-13T08:45:02Z

6 in light of letters sent by Mr. Clark to the collection agency directing them not to call Mrs. Clark. 460 F.3d 1162, 1168 (9th Cir.2006). The court found that although, in general, a party may waive “a benefit of a provision of a statute … enacted … for his protection,” not all rights are waivable and “waiver is not appropriate when it is inconsistent with the provision creating the right sought to be secured.” Id. at 1170 (internal quotation marks omitted). The court went on to find that “a debtor may waive the rights created by a cease communications directive.” Id. The waiver must, however, be knowing and voluntary, and the Ninth Circuit “will enforce a waiver of the cease communication directive only where the least sophisticated debtor would understand that he or she was waiving his or her rights under § 1692c(c).” Id. at 1170–71. The court concluded that “even the least sophisticated debtor would recognize that Mrs. Clark’s request for information constituted consent” for the return phone call “in order to provide the specific information she requested.” Id. at 1172. Id.  Under the Clark analysis, the court in Backlund concluded that the stipulation constituted prior consent given directly to the debt collector.  Id.  Thus, the debt collector’s communications were exempted by Section 1692c.  Id.]]> On Behalf of Brody & Cornwell https://www.brodyandcornwell.com/?p=47188 2023-10-20T07:44:25Z 2014-11-12T08:40:06Z

On Behalf of Brody & Cornwell https://www.brodyandcornwell.com/?p=47186 2023-10-20T07:39:42Z 2014-11-12T08:37:23Z

On Behalf of Brody & Cornwell https://www.brodyandcornwell.com/?p=47184 2023-11-21T01:59:35Z 2014-10-21T07:35:52Z

http://www.consumer.ftc.gov/articles/0149-debt-collection.  In addition, many state-level Attorneys General publish consumer-friendly resources.  For example, the Missouri Attorney General’s Office has http://ago.mo.gov/consumercomplaints/topten/index.htm available to consumers.  It is possible to file a short and simple complaint against a debt collector online at the Attorney General’s website. Consumers should know that if they consult with a debt collection attorney, they should not be required to pay anything up front to the attorney.  The FDCPA’s fee statute, 15 U.S.C. 1692k (you can see the full statute here: http://www.ftc.gov/enforcement/rules/rulemaking-regulatory-reform-proceedings/fair-debt-collection-practices-act-text) allows a consumer to collect a statutory penalty of up to $1,000 and the debt collector, not the consumer, is responsible for paying the consumer’s attorney.]]> On Behalf of Brody & Cornwell https://www.brodyandcornwell.com/?p=47182 2023-10-20T07:35:29Z 2014-10-21T07:34:10Z

http://law.justia.com/cases/federal/appellate-courts/ca11/13-12389/13-12389-2014-07-10.html]]> On Behalf of Brody & Cornwell https://www.brodyandcornwell.com/?p=47180 2023-10-20T07:33:44Z 2014-10-21T07:32:09Z

http://www.consumer.ftc.gov/articles/0149-debt-collection.  In addition, many state-level Attorneys General publish consumer-friendly resources.  For example, the Missouri Attorney General’s Office has http://ago.mo.gov/consumercomplaints/topten/index.htm available to consumers.  It is possible to file a short and simple complaint against a debt collector online at the Attorney General’s website. Consumers should know that if they consult with a debt collection attorney, they should not be required to pay anything up front to the attorney.  The FDCPA’s fee statute, 15 U.S.C. 1692k (you can see the full statute here: http://www.ftc.gov/enforcement/rules/rulemaking-regulatory-reform-proceedings/fair-debt-collection-practices-act-text) allows a consumer to collect a statutory penalty of up to $1,000 and the debt collector, not the consumer, is responsible for paying the consumer’s attorney.]]> On Behalf of Brody & Cornwell https://www.brodyandcornwell.com/?p=47175 2023-10-20T06:03:04Z 2014-10-21T05:56:38Z

http://www.ftc.gov/enforcement/rules/rulemaking-regulatory-reform-proceedings/fair-debt-collection-practices-act-text. Consumers should understand that before they prosecute a claim against a debt collector that the court will likely apply the “unsophisticated consumer” standard to adjudicate the claim.  A summary of that standard follows, complete with citations to case law. Congress created the Fair Debt Collection Practices Act (“FDCPA”) in order to stop the “use of abusive, deceptive, and unfair debt collection practices by many debt collectors.”  15 U.S.C. § 1692a (2006).  The FDCPA is interpreted broadly in accordance with its remedial purpose. Brown v. Card Serv. Ctr., 464 F.3d 450, 453 (3d Cir. 2006); Hamilton v. United Healthcare of La., 310 F.3d 385, 392 (5th Cir.2002); Picht v. Hawks, 77 F. Supp. 2d 1041, 1043 (D. Minn. 1999), aff’d, 236 F.3d 446 (8th Cir. 2001).  Because the FDCPA is a remedial statute, it is construed liberally in favor of the debtor.  Johnson v. Riddle, 305 F.3d 1107, 1117 (10th Cir. 2002). Under the FDCPA, the court must assess the deceptive, misleading or confusing nature of collection activity from the perspective of an “unsophisticated consumer.”  McCafferty v. Schwartzkopf Law Office, No. 4:10 CV 1401RWS, 2011 WL 4916382, *2 (E.D. Mo. Oct. 17, 2011); Freyermuth v. Credit Bureau Servs., Inc., 248 F.3d 767, 771 (8th Cir. 2001); Chuway v. Nat’l Action Fin. Servs., Inc., 362 F.3d 944, 948–49 (7th Cir. 2004).  This “unsophisticated consumer” is assumed to be “uninformed, naïve, or trusting,” and would be confused or misled if a “significant fraction” of people would be similarly misled.  Chuway, 362 F.3d at 949.  Under the “unsophisticated consumer” standard, a court may grant summary judgment when collection activity “on its face violates the [FDCPA]… even in the absence of extrinsic evidence.”  Bode v. Encore Receivables Mgmt., Inc., No. 05-CV-1013, 2007 WL 2493898, at *4 (E.D. Wis. Aug. 30, 2007). The choice of an attorney is an important decision that should not be based on advertisements.]]>