|Received:||5/24/2007 10:40:38 AM|
|Agency:||Federal Trade Commission|
|Rule:||Debt Collection Workshop|
|Attachments:||529233-00007.pdf Download Adobe Reader|
Comments:As a consumer, I would like to comment on several of the issues mentioned in the press release. Many consumers, myself included, who are now being contacted by debt collectors are being contacted about debts that are well beyond the statute of limitations for legal action. Many times these debts have been sold, sometimes several times. Due to that fact, very few debt collectors who are seeking to collect time-barred debts that have been sold several times have any kind of actual proof that the consumer targeted is the consumer that owes the debt. Instead, supposedly because of the opinion in the case of Chaudhry v. Gallerizzo, debt collectors working for the debt purchasers will obtain an affidavit from the debt purchaser claiming that the debt is owed -- and say that is full validation under the FDCPA. This in no way helps the consumer to know if this debt was actually theirs or not, or if the amount in question is correct. Additionally, since many times the debt buyers have charged interest or fees, this does not validate whether those fees or interest charges were authorized by the agreement creating the debt. Indeed, a more recent judicial opinion is available in the case of Spears v. Brennan, where it was determined that a simple copy of the original agreement does not validate a debt, since it does not validate that the amount being claimed is accurate. These "Chaudhry Affidavits" give even less information than what was considered insufficient in Spears v. Brennan. An example of such an affidavit is attached. Another issue comes from the fact that debt purchasers will often claim that they are not subject to the FDCPA since they are not trying to collect a debt that is "owed to another" -- they own the debt, and they are collecting for themselves. Despite the FTC opinion letters to the contrary, the "to another" is used as the main argument in these cases, and this theory has been successfully argued in many cases. If debt purchasers who purchase debts after default are given free reign without the limitations imposed by the FDCPA, they can and do call consumers at work or at all hours of the night, make threats to sue consumers on obviously time-barred debts, and even actually sue on many time-barred debts. One company, LVNV Funding, has upwards of 40 pending lawsuits in one district in Texas -- most of which are on debts that are beyond statute, and One other issue with technology is when a debt collector calls a cellular telephone number. A cellular telephone, by design, will reach a consumer no matter where they are - driving, in a meeting, at work, at a doctor's office, at a friend's house, etc. In effect, it should be known to a debt collector that if they are calling a cellular phone they will likely call at a time and place that is inconvenient to the consumer. I am aware that phone calls generally mean that the debt is paid faster, but the purpose of the FDCPA is to ensure fair debt collection practices occur. It is hardly fair for a debt collector to be able to cause a consumer to be faced with one of two choices -- either be forced to accept calls from debt collectors at any place they might be when an alleged debt is not an emergency and can be resolved via a land line or by mail, or to turn off their cellular phone and risk missing calls signifying a true emergency. Additionally, calling a cellular telephone is, in effect, causing the debtor to be charged for the communication since the 8am - 9 pm timeframe for debt collection calls is during peak hours for cellular phone charges. The ACA has attempted to make calling a cellular telephone legal under the TCPA, but this has not addressed its legality under the FDCPA. Until the legal ramifications of calling debtors on cellular telephones under the FDCPA is established this will continue to be a problem for consumers and a grey area for collection agencies attempting to remain in compliance. Thank you for your time.