Tonight! Foreclosure Mills Are Accountable Under FDCPA

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Tonight’s Show Hosted by Neil F Garfield, M.B.A., J.D.

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see Brock and Scott Law Firm Sued Under FDCPA

I think the recent spate of cases against law firms who collect debts is indicative of the tremendous liability assumed by a lawyer who, knowing that there are defects in the claim, pursues it anyway.

In foreclosure litigation countless law firms entered into agreements with various parties to achieve the result of a foreclosure sale. They knew or MUST have known that the documents that they referenced or attached to their pleadings in court were either fabricated by then, or at their instruction, or fabricated by others. They knew or MUST have known that the “client” was not the Plaintiff/Claimant but they fraudulently continued acting as if the named Plaintiff both existed and had a valid claim.

The reason they MUST have known is that every lawyer is required by his state and Federal bar ethical and disciplinary standards to engage in enough due diligence to know with certainty that the named claimant exists and that filing a lawsuit or other claim or sending out notices on behalf of such “clients” without having been retained by them, is legal and valid. Naming US Bank as trustee, when there is no trust is a breach of those standards no matter how you cut it. Naming or implying the existence of a trust when it is in fact nonexistent is also a breach.

Such actions among others are violations of the FDCPA. The banks suckered the lawyers into what appeared to be lucrative retainers to handle mass debt collection and foreclosure without disclosing the fact that with the retainer came liability for violation of multiple state and Federal laws.

These lawyers and law firms were intentionally set up by the banks to be thrown under the bus, followed by a disclaimer by the banks that they were unaware of their conduct when in fact the law firms were acting as instructed by the banks.

Don’t forget that if the law firm is proven t have been negligent as opposed to committing an intentional act, there might be insurance coverage. Besides the obvious reservoir of funds for payment of a settlement or judgment the presence of insurance assures that a lawyer who is far more objective than the law firm policyholder will be the one litigating and negotiating the claim.

Resources:

FDCPA Statute

Quotes from the Statute:

15 USC 1692

§ 802.  Congressional findings and declarations of purpose

(a) Abusive practices
There is abundant evidence of the use of abusive, deceptive, and unfair debt collection practices by many debt collectors. Abusive debt collection practices contribute to the number of personal bankruptcies, to marital instability, to the loss of jobs, and to invasions of individual privacy.

(b) Inadequacy of laws
Existing laws and procedures for redressing these injuries are inadequate to protect consumers.

(c) Available non-abusive collection methods
Means other than misrepresentation or other abusive debt collection practices are available for the effective collection of debts.

(d) Interstate commerce
Abusive debt collection practices are carried on to a substantial extent in interstate commerce and through means and instrumentalities of such commerce. Even where abusive debt collection practices are purely intrastate in character, they nevertheless directly affect interstate commerce.

(e) Purposes
It is the purpose of this subchapter to eliminate abusive debt collection practices by debt collectors, to insure that those debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged, and to promote consistent State action to protect consumers against debt collection abuses.

15 USC 1692e

§ 807.  False or misleading representations

A debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section:

(1) The false representation or implication that the debt collector is vouched for, bonded by, or affiliated with the United States or any State, including the use of any badge, uniform, or facsimile thereof.

(2) The false representation of —

(A) the character, amount, or legal status of any debt; or

(B) any services rendered or compensation which may be lawfully received by any debt collector for the collection of a debt.

(3) The false representation or implication that any individual is an attorney or that any communication is from an attorney.

(4) The representation or implication that nonpayment of any debt will result in the arrest or imprisonment of any person or the seizure, garnishment, attachment, or sale of any property or wages of any person unless such action is lawful and the debt collector or creditor intends to take such action.

(5) The threat to take any action that cannot legally be taken or that is not intended to be taken.

(6) The false representation or implication that a sale, referral, or other transfer of any interest in a debt shall cause the consumer to —

(A) lose any claim or defense to payment of the debt; or

(B) become subject to any practice prohibited by this subchapter.

(7) The false representation or implication that the consumer committed any crime or other conduct in order to disgrace the consumer.

(8) Communicating or threatening to communicate to any person credit information which is known or which should be known to be false, including the failure to communicate that a disputed debt is disputed.

(9) 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 its source, authorization, or approval.

(10) The use of any false representation or deceptive means to collect or attempt to collect any debt or to obtain information concerning a consumer.

(11) The failure to disclose in the initial written communication with the consumer and, in addition, if the initial communication with the consumer is oral, in that initial oral communication, that the debt collector is attempting to collect a debt and that any information obtained will be used for that purpose, and the failure to disclose in subsequent communications that the communication is from a debt collector, except that this paragraph shall not apply to a formal pleading made in connection with a legal action.

(12) The false representation or implication that accounts have been turned over to innocent purchasers for value.

(13) The false representation or implication that documents are legal process.

(14) The use of any business, company, or organization name other than the true name of the debt collector’s business, company, or organization.

(15) The false representation or implication that documents are not legal process forms or do not require action by the consumer.

(16) The false representation or implication that a debt collector operates or is employed by a consumer reporting agency as defined by section 1681a(f) of this title.

15 USC 1692f

§ 808.  Unfair practices

A debt collector may not use unfair or unconscionable means to collect or attempt to collect any debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section:

(1) The collection of any amount (including any interest, fee, charge, or expense incidental to the principal obligation) unless such amount is expressly authorized by the agreement creating the debt or permitted by law.

(2) The acceptance by a debt collector from any person of a check or other payment instrument postdated by more than five days unless such person is notified in writing of the debt collector’s intent to deposit such check or instrument not more than ten nor less than three business days prior to such deposit.

(3) The solicitation by a debt collector of any postdated check or other postdated payment instrument for the purpose of threatening or instituting criminal prosecution.

(4) Depositing or threatening to deposit any postdated check or other postdated payment instrument prior to the date on such check or instrument.

(5) Causing charges to be made to any person for communications by concealment of the true purpose of the communication. Such charges include, but are not limited to, collect telephone calls and telegram fees.

(6) Taking or threatening to take any nonjudicial action to effect dispossession or disablement of property if —

(A) there is no present right to possession of the property claimed as collateral through an enforceable security interest;

(B) there is no present intention to take possession of the property; or

(C) the property is exempt by law from such dispossession or disablement.

(7) Communicating with a consumer regarding a debt by post card.

(8) Using any language or symbol, other than the debt collector’s address, on any envelope when communicating with a consumer by use of the mails or by telegram, except that a debt collector may use his business name if such name does not indicate that he is in the debt collection business.

15 USC 1692g

§ 809.  Validation of debts

(a) Notice of debt; contents
Within five days after the initial communication with a consumer in connection with the collection of any debt, a debt collector shall, unless the following information is contained in the initial communication or the consumer has paid the debt, send the consumer a written notice containing —

(1) the amount of the debt;

(2) the name of the creditor to whom the debt is owed;

(3) a statement that unless the consumer, within thirty days after receipt of the notice, disputes the validity of the debt, or any portion thereof, the debt will be assumed to be valid by the debt collector;

(4) a statement that if the consumer notifies the debt collector in writing within the thirty-day period that the debt, or any portion thereof, is disputed, the debt collector will obtain verification of the debt or a copy of a judgment against the consumer and a copy of such verification or judgment will be mailed to the consumer by the debt collector; and

(5) a statement that, upon the consumer’s written request within the thirty-day period, the debt collector will provide the consumer with the name and address of the original creditor, if different from the current creditor.

(b) Disputed debts
If the consumer notifies the debt collector in writing within the thirty-day period described in subsection (a) of this section that the debt, or any portion thereof, is disputed, or that the consumer requests the name and address of the original creditor, the debt collector shall cease collection of the debt, or any disputed portion thereof, until the debt collector obtains verification of the debt or a copy of a judgment, or the name and address of the original creditor, and a copy of such verification or judgment, or name and address of the original creditor, is mailed to the consumer by the debt collector. Collection activities and communications that do not otherwise violate this subchapter may continue during the 30-day period referred to in subsection (a) unless the consumer has notified the debt collector in writing that the debt, or any portion of the debt, is disputed or that the consumer requests the name and address of the original creditor. Any collection activities and communication during the 30-day period may not overshadow or be inconsistent with the disclosure of the consumer’s right to dispute the debt or request the name and address of the original creditor.

(c) Admission of liability
The failure of a consumer to dispute the validity of a debt under this section may not be construed by any court as an admission of liability by the consumer.

(d) Legal pleadings
A communication in the form of a formal pleading in a civil action shall not be treated as an initial communication for purposes of subsection (a).

(e) Notice provisions
The sending or delivery of any form or notice which does not relate to the collection of a debt and is expressly required by title 26, title V of Gramm-Leach-Bliley Act [15 U.S.C. 6801 et seq.], or any provision of Federal or State law relating to notice of data security breach or privacy, or any regulation prescribed under any such provision of law, shall not be treated as an initial communication in connection with debt collection for purposes of this section.

15 USC 1692h

§ 813.  Civil liability

(a) Amount of damages
Except as otherwise provided by this section, any debt collector who fails to comply with any provision of this subchapter with respect to any person is liable to such person in an amount equal to the sum of —

(1) any actual damage sustained by such person as a result of such failure;

(2) (A) in the case of any action by an individual, such additional damages as the court may allow, but not exceeding $1,000; or

(B) in the case of a class action, (i) such amount for each named plaintiff as could be recovered under subparagraph (A), and (ii) such amount as the court may allow for all other class members, without regard to a minimum individual recovery, not to exceed the lesser of $500,000 or 1 per centum of the net worth of the debt collector; and

(3) in the case of any successful action to enforce the foregoing liability, the costs of the action, together with a reasonable attorney’s fee as determined by the court. On a finding by the court that an action under this section was brought in bad faith and for the purpose of harassment, the court may award to the defendant attorney’s fees reasonable in relation to the work expended and costs.

(b) Factors considered by court
In determining the amount of liability in any action under subsection (a) of this section, the court shall consider, among other relevant factors —

(1) in any individual action under subsection (a)(2)(A) of this section, the frequency and persistence of noncompliance by the debt collector, the nature of such noncompliance, and the extent to which such noncompliance was intentional; or

(2) in any class action under subsection (a)(2)(B) of this section, the frequency and persistence of noncompliance by the debt collector, the nature of such noncompliance, the resources of the debt collector, the number of persons adversely affected, and the extent to which the debt collector’s noncompliance was intentional.

(c) Intent
A debt collector may not be held liable in any action brought under this subchapter if the debt collector shows by a preponderance of evidence that the violation was not intentional and resulted from a bona fide error notwithstanding the maintenance of procedures reasonably adapted to avoid any such error.

(d) Jurisdiction
An action to enforce any liability created by this subchapter may be brought in any appropriate United States district court without regard to the amount in controversy, or in any other court of competent jurisdiction, within one year from the date on which the violation occurs.

(e) Advisory opinions of Bureau
No provision of this section imposing any liability shall apply to any act done or omitted in good faith in conformity with any advisory opinion of the Bureau, notwithstanding that after such act or omission has occurred, such opinion is amended, rescinded, or determined by judicial or other authority to be invalid for any reason.

7 Responses

  1. As long as Judgesters support Banksters no law works – at all.

    I have ALL evidence of fraud upon the Court, from official sources – and Illinois corrupt Judgesters stole my property anyway even though here are even NO documents in my case records (which was criminally concealed by Judgester Robert E. Senechalle Jr.) based on which my property was stolen

    Like

  2. I would like for us to file a “Recall Petition” and hold them accountable for fraud under Identity Theft. What do you think?

    Liked by 1 person

  3. One more thing… if you have not read the Birster Amicus referenced above… then please take a couple of minutes to do so. You will be very pleasantly surprised. Here’s another snippet:

    Until recently, the FTC was the primary agency charged with enforcing
    the FDCPA. See 15 U.S.C. § 1692l (2010). With passage of the
    Dodd-Frank Act in 2010, Congress granted the Bureau authority to enforce the Act along with the FTC and other agencies. See Dodd-Frank

    2 See also Federal Trade Commission, Annual Report 2010: Fair
    Debt Collection Practices Act 4 (2010), http://www.ftc.gov/os/2010/
    04/P104802fdcpa2010annrpt.pdf.
    6

    Act, § 1089(3) (to be codified at 15 U.S.C. § 1692l(b)). The Dodd-Frank
    Act also gives the Bureau exclusive authority to issue advisory opinions
    and rules implementing and interpreting the FDCPA. See Dodd-Frank
    Act, §1089(4) (to be codified at 15 U.S.C. § 1692l(d)); see also id.
    § 1022(b)(4)(B) (codified at 12 U.S.C. § 5512(b)(4)(B)) (addressing the
    deference due to Bureau interpretations of Federal consumer financial
    law). The Bureau is the first agency ever to have general rulemaking
    authority under the FDCPA.

    Liked by 1 person

  4. and let’s throw this in the heap too…

    Wells Fargo Home Mortgage
    Foreclosure Attorney Procedure Manual, Version 1
    Status: Revision 3
    Origination Date: 11/09/2011
    Date Last Published: 02/24/2012

    https://www.housingwire.com/ext/resources/files/Editorial/WF-Attorney-Manual.pdf

    Liked by 1 person

  5. and of course this will always bring up the issue of “we’re not debt collectors!” (for whatever reason… which was directly and specifically addressed by the CFPB (which is the ONLY AGENCY given, by legislature, the ability to “define” just what a “debt collector is” and it’s all laid out in the Birster Amicus… here’s a snippet:

    “The Consumer Financial Protection Bureau (the Bureau) respectfully
    requests an opportunity to participate in oral argument. This case
    presents important questions regarding the interpretation of the Fair
    Debt Collection Practices Act (FDCPA), a statute for which Congress
    has granted the Bureau rule making and enforcement authority. See
    Dodd-Frank Wall Street Reform and Consumer Protection Act, Pub. L.
    No. 111-203, §§ 1002(12)(H), 1022(b)(1), 1061(b)(5), 1089 (2010). In particular, the Bureau wishes to present argument on the extent to which the FDCPA prohibits harmful debt collection practices that occur in the context of foreclosure proceedings.

    the Amicus Brief can been seen in full… here: https://files.consumerfinance.gov/f/201112_CFPB_Birster-amicus-brief.pdf

    Liked by 1 person

  6. Kozeny & McCubbin out of St Louis MO was the firm handling the Holm v Wells Fargo & Freddie Mac where the $150,000 property was illegally foreclosed and the Judge (not a jury trial) awarded Holm $3 million as neither of the Plaintiffs could provide proof of ownership.

    Kozeny & McCubbin was the firm that handled my foreclosure as they forged the Assignment of Deed of Trust as if they purchased the debt when in fact they could not and did not purchase the debt!

    Washington Mutual Bank (WaMu) was at a time before the bank was seized it lost the authority of the Note due to the UCC3 procedure to attach the loan to the WaMu Ginnie MBS. At no time did I or other Dept of VA borrowers obligate ourselves to any MBS as this is a post-closing separate financial arrangement between WaMu and the investors investing in the MBS. The investors don’t and cannot purchase the loans and are only receiving a set return of the invested funds.

    At the time that the FDIC declared WaMu a “failed bank” they had no ability under the law to call my loan debt as it was current, so after Sept 25, 2008, WaMu stop existing! There not another entity on earth that WaMu could give the debt to or purchase it, as the debt holder stop existing without having ownership of the Note (contract)!

    There is this windfall that occurs because you have a party only contract between the bank and military personnel, that the bank obligates itself to a series of loan that are draws against the securities that WaMu is responsible for paying back. Ginnie allows this to be misinterpreted as the lender/issuer repurchasing the loans when in fact there is never a purchase of these loans.

    Ginnie Mae does not originate, buy or sell any mortgage loans as it not funded to perform those acts. Ginnie is only the insurer of the MBS.

    Liked by 1 person

  7. The tsunami is coming. I hope I live long enough.

    Liked by 2 people

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