[creditwrench newsletter] New Post/Thread Notification: ASK AN ATTORNEY

Hello,

Creditwrench has just posted in the ASK AN ATTORNEY forum of CreditWrench under the title of rss:Debt Law Network.

This thread is located at http://www.creditwrench.com/consumers/showthread.php?t=3496

Here is the message that has just been posted:
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Richard Rosenau received a debt collection letter from Unifund Corp saying it was from the Unifund Legal Department.* Rosenau learned the Legal Department consisted of six employees, four of whom are Legal Liasons who handle various daily clerical duties, one is a Project Coordinator and one is an Administrative Assistant.* The Legal Department is supervised by a Vice President of Legal Operations.* No one in the Legal Department is a lawyer.
Rosenau felt deceived and filed a lawsuit under Fair Debt Collection Practices Act (FDCPA) 15 U.S.C. 1692e(10) alleging Unifund used a false representation or deceptive means to collect a debt.* While he was at it, he included a request to act as a class action representative on behalf of similarly situated persons who received letters from the same Legal Department.* Unifund defended on the basis that the letter is not from a law firm and is not signed by an attorney.* Two courts agree.
The District Court in Eastern Pennsylvania believed the letter was not deceptive and concluded it would be bizarre or idiosyncratic to infer that it came from an attorney.* On appeal to the 3rd Circuit, that Court agreed and said "using the term Legal Department is not equivalent to using the letterhead or signature of an attorney."* The Appellate Court took a subjective look at the facts and said "different legal departments have different functions."* After reviewing the evidence, the Court concluded that Unifund had a Legal Department, therefore the broad allegation of deception under 1692e(10) was meritless.
Note:* As I discuss in Debt Collection Letter May Not Falsely Imply it is from Lawyer, this Court remanded the case to the District Court for further action on Rosenau's 1692e(3) allegation that the letter falsely implied it was sent by a lawyer.
*If you liked that post, then try these...*

Debt Collection Letter May Not Falsely Imply it is from Lawyer (http://www.debtlawnetwork.com/debt-collection-letter-may-not-falsely-imply-it-is-from-lawyer/) by Andy Miofsky, Illinois Consumer Law Attorney
How Long Does It Take A Check To Clear (http://www.debtlawnetwork.com/how-long-does-it-take-a-check-to-clear/) by Andy Miofsky, Illinois Consumer Law Attorney
Bill collectors don't care where you get the money - just pay them! (http://www.debtlawnetwork.com/bill-collectors-dont-care-where-you-get-the-money-just-pay-them/) by Pamela Stewart

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[creditwrench newsletter] New Post/Thread Notification: ASK AN ATTORNEY

Hello,

Creditwrench has just posted in the ASK AN ATTORNEY forum of CreditWrench under the title of rss:Debt Law Network.

This thread is located at http://www.creditwrench.com/consumers/showthread.php?t=3460

Here is the message that has just been posted:
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Collection attorneys without warning of a bankruptcy stay won an action by farmers against them last week.* The Court ruled 1) actions for violation of the bankruptcy stay require a warning letter, and 2) consumer protection laws don't apply to collection of Kansas agricultural debts. _Smith vs. Butler_, 07-7065, (D.Kan. August 29, 2008).
The Smiths are family farmers who wrote bad checks to the local cooperative for fuel and cattle feed. The Smiths filed a chapter 12 bankruptcy two months later.* The attorneys sued the Smiths in state court to collect the checks.* The Smiths sued the attorneys in bankruptcy court for violation of the bankruptcy stay on collection and for violations of the "Fair Debt Collection Practices Act and the Kansas Consumer Protection Act.
Debtors lost their stay violation claim because they didn't tell the collection attorneys about the bankruptcy filing. Citing Johnson v. Smith (In re Johnson), 501 F.3d 1163, 1172 (10th Cir. 2007), the Court ruled that recovery under 11 U.S.C. 362(k)(1) requires proof that the creditor knew of the automatic stay and intended the actions, though no specific intent is required.
The Court found the following uncontroverted facts to be true: the Smiths did not respond to collection* letters.* The attorneys filed a collection lawsuit.* The Smiths, knowing they were debtors in a bankruptcy case, did not tell the attorneys about the bankruptcy case in their state court answer to the lawsuit.* In a reply to a counterclaim, the Smiths finally disclosed the bankruptcy.* The collection attorneys dropped the lawsuit once they knew of the bankruptcy.
The Court ruled against the debtors on the consumer violation claims saying the those laws did not apply to Kansas agricultural debts.
*If you liked that post, then try these...*

Is All Debt Collection Governed By The FDCPA? (http://www.debtlawnetwork.com/is-all-debt-collection-governed-by-the-fdcpa/) by Karen Oakes, Southern Oregon Debt Law Attorney
How Does the 3rd Circuit Determine FDCPA Violations (http://www.debtlawnetwork.com/how-does-the-3rd-circuit-determine-fdcpa-violations/) by Andy Miofsky, Illinois Consumer Law Attorney
Some Attorneys are Not Debt Collectors - In House Counsel (http://www.debtlawnetwork.com/some-attorneys-are-not-debt-collectors-in-house-counsel/) by Andy Miofsky, Illinois Consumer Law Attorney

More... (http://www.debtlawnetwork.com/feed/)
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