ladynred

[wayne-o]

What is the name of your state?tn
ladynred, you seem very knowledgeable in your answers, I was wondering if you can help me with a couple of questions. We live in same town, so I thought you would be familiar with local as well as federal laws.

I owed some money to my homeowners assoc, there was a charge on my account that seemed out of place. I wrote the management company a letter disputing this amount and they did not respond. They filed a lien, I received a letter from the attorney stating the lien had been filed I wrote another letter to the management company requesting clarification on the response. Once again they did not respond, but filed suit.

My questions concern the FDCPA. At this point the lawsuit is sort of a moot point as I settled it before court as to avoid paying more attorneys fees as outlined in the bylaws of my homeowners association. I am now trying to backtrack with the management company requesting a refund of those fees with the argument that had they responded, I would have never had lien/lawsuit.

1) Can the management company be considered a debt collector under the FDCPA. My understanding in the definitions section is that anyone who collects debt on a regular basis can be considered. The management companies website lists as one of their services "collection of monthly fees and special assesments" In addition it was a member of the management company who signed (not the attorney) both the lien and the lawsuit.

2) Did I mess up my rights by sending letter to management company instead of attorney. If so, should I have at the very least expected management company to forward letters to the attorney. I have records where they did forward some (not all) payments to the attorney.

3) The attorney sent me a letter outlining my rights under the FDCPA in regards to validation etc. etc. In this letter under the dispute validation sections, he said that the creditor need not wait 30 days to file suit. On the FTC website, the section he is quoting does not have this line, and in fact right after says, if the amount is disputed they are supposed to stop collection efforts until they provide me with the validation information. The FDCPA also says that debt collectors are not supposed to alter or create any forms that create a false impression. Did the attorney violate act by adding this extra line. I did send the attorney an email asking why the version he sent was different than the actual FDCPA on the FTC website, I got a response (which I still have) that says "I do not give free legal advice". I spoke with an FTC operator that verified the line is not in the act. I of course could file a complaint with the FTC, however, I know they do not respond to individual consumer complaints. I thought if this is indeed incorrect or unethical, I could file a complaint with the Tennessee Board of Professional Responsibility.

I know this was kind of long, however I would appreciate your expertise. Thanking you in advance

 

[wayne-o]

can anyone help me here?

 

[Ladynred]

1)Pretty thin line, I suppose its possible. The FDCPA says:

(6) The term "debt collector" means any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another. Notwithstanding the exclusion provided by clause (F) of the last sentence of this paragraph, the term includes any creditor who, in the process of collecting his own debts, uses any name other than his own which would indicate that a third person is collecting or attempting to collect such debts.

The question then becomes, is the management company collecting debts owed to 'another'. If the HOA itself doesn't collect on its own but hires the management company to do so, then they may be bound by the FDCPA. The lawyer clearly is.


2) I doubt it. If the mgmt company had retained counsel, ALL correspondence from you SHOULD have been passed on to the lawyer, although it MAY have helped to at least CC the lawyer on everything.

he said that the creditor need not wait 30 days to file suit

3) I'm not sure the lawyer is violating anything by 'adding', the 30 days to dispute verbage doesn't have to be verbatim as long as it contains the required information. They CAN sue you before they provide validation, however, they MUST provide that validation before the lawsuit can go forward. You should read this FTC Staff Opinion letter on this very subject:

http://www.ftc.gov/os/2000/04/fdcpaadvisoryopinion.htm

Federal circuit courts that have addressed this issue recently have arrived at the same conclusion. In a 1997 opinion, the Seventh Circuit stated that "[t]he debt collector is perfectly free to sue within the thirty days; he just must cease his efforts at collection during the interval between being asked for verification of the debt and mailing the verification to the debtor." Bartlett v. Heibl, 128 F.3d 497, 501 (7th Cir. 1997) (Posner, J.). In the most recent federal appellate court pronouncement on the subject, the Sixth Circuit stated, "A debt collector does not have to stop its collection efforts [during the thirty-day period] to comply with the Act. Instead, it must ensure that its efforts do not threaten a consumer's right to dispute the validity of his debt." Smith v. Computer Credit, Inc., 167 F.3d 1052, 1054 (6th Cir. 1999).

You can find the Smith v. Computer Credit case here:
http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=search&case=/data2/circs/6th/990055p.html

 

[wayne-o]

Thanks for your response ladynred, the links that you provided were very helpful. I based my thoughts on the attorney adding the extra line on the letter. The letter said "notice of debtor rights under the fair debt collection practices act" Based on that, I was thinking that any reasonable consumer would take that to mean he was quoting the act. I will admit, I never looked at it until this happened.
15 usc 1692e #9 states "the use or distribution of any written communication which simulates or is falsely represented to be a document authorized, issued, or approved by any court, official, or agency of the United States or any State, or which creates a false impression as to it source, authorization, or approval."

In my communication with the attorney, he stated that all he was required to do under the FDCPA was notify me that this was an attempt to collect a debt and any information would be used etc. etc. However he chose to add the extra line, which is true that he can sue within the 30 days, but he presented to be part of the act. They did not sue within the 30 days, however sued after the certified letter was received (I kept my receipts). They did not respond to validation.

Thanks again