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Fair Debt Collection: 7.2.3.1 Generally

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:

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Fair Debt Collection: 7.2.3.2 Non-Attorneys Impersonating Attorneys

FDCPA § 1692e(3) prohibits a debt collector from even indirectly impersonating an attorney.208 Non-attorney collection agencies can violate FDCPA § 1692e(3) by using a name that implies they are attorneys, such as “Lawyers Collection Services,”209 or by creating a fake law firm website.210 It can also be a FDCPA § 1692e(3) violation where a non-attorney collection agency’s phone calls have a caller ID of “law office.”

Fair Debt Collection: 7.2.3.3.1 Introduction

With the possible exception where the attorney clearly discloses it has not reviewed the consumer’s account,222 FDCPA § 1692e(3) is violated where a collection letter is on an attorney’s letterhead or is signed by an attorney, but the attorney has not meaningfully reviewed the account.

Fair Debt Collection: 7.2.3.3.2 Does a letter indicate it is from an attorney?

Not every form letter suggests it is from an attorney, and lawyers may defend a FDCPA § 1692e(3) claim by arguing that the letter does not indicate it is from an attorney. This argument will not get the collector far if there is the mention of “attorney,” “law offices,” “law firm” or the like on the letterhead, in the signature block, or in the address where payment should be made.242

Fair Debt Collection: 7.2.3.3.4 Creditor liability for letters on attorney letterhead

FDCPA § 1692a(6) provides that the FDCPA applies to a creditor that uses a name other than its own, so as to indicate that a third person is collecting or attempting to collect the debt owed the creditor.257 Where in fact the creditor sends out a collection letter that is on law firm letterhead, does the FDCPA then apply to the creditor and has the creditor violated section 1692e(3)?

Fair Debt Collection: 7.4.10.3.1 Service of the complaint and accompanying documents

FDCPA § 1692e can be violated where a collector improperly serves a court summons or complaint and misrepresents in the affidavit of service that it was properly served—also known as sewer service.1046 FDCPA § 1692a(6)(d) exempts from the FDCPA process servers “serving or attempting to serve legal process on any other person in connection with the judicial enforcement of any debt.” Courts hold that this exemption does not apply to a process server’s filing of a false affidavit.1047

Fair Debt Collection: 7.4.10.3.3 Suing on an inapplicable or unclear legal theory

Collectors may sue the consumer on a legal theory inapplicable to the facts pled in the case. This can be the result of sloppiness where the collector is filing thousands of complaints on a cookie-cutter basis without professional attention of an attorney. Or the practice can be deliberate because the inapplicable theory authorizes a larger recovery (such as attorney fees or prejudgment interest) and the collector assumes it will prevail by default on the inapplicable theory.

Fair Debt Collection: 7.4.10.3.4 Amounts sought

A collection lawsuit can violate FDCPA § 1692e where it seeks amounts the plaintiff is not entitled to,1084 including stating an amount due that includes amounts that the plaintiff might have a right to in the future, but is not yet entitled to.1085 A collector violates FDCPA § 1692e where, in litigation, it alleges the plaintiff is owed attorney fees to which the collector is not entitled,1086 where it alleges it is owed interest charges not

Fair Debt Collection: 7.4.10.4.2 Initiating a lawsuit without sufficient evidence of debt

Debt buyers may file suit with insufficient evidence to prove their case, on the assumption they will win by default. If the consumer contests the case, the debt buyer may or may not have any access to account-level business records on the debts that they buy.1105 It may be a factual issue whether a debt buyer has or can obtain (from the original creditor or a prior debt buyer) the additional information and documentation.

Fair Debt Collection: 7.4.10.5 Deceptive Affidavits and Business Records

Debt collection litigation often includes affidavits submitted by the collector—attached to the complaint, used to introduce business records, and in support of summary judgment. Even where the collector has prevailed in its collection lawsuit, misrepresentations in affidavits may be actionable under FDCPA § 1692e.

Fair Debt Collection: 7.4.10.8.1 Pursuing postjudgment remedies when debt no longer or never owed

It is a FDCPA § 1692e violation to agree to a settlement as full satisfaction for a judgment debt, but then continue pursuing postjudgment creditor remedies.1142 Also deceptive is to continue to garnish or threaten garnishment even after prior garnishments had satisfied the judgment.1143 Similarly it is a FDCPA § 1692e violation to collect on a judgment after it has been vacated.1144 After the judgment has been vacated, it also violates FDCPA

Fair Debt Collection: 7.4.10.8.2 Misrepresentations concerning exemptions

Exemptions may limit a collector’s ability to garnish consumer income or assets or seize consumer property, and representations can be deceptive where they suggest a creditor can seize more than exemption law allows.1148 State law may provide for differing amounts that can be garnished depending on the consumer’s status (such as head of family).

Fair Debt Collection: 7.4.10.8.3 Misrepresentations concerning creditor rights or the amount owed postjudgment

Collectors can violate FDCPA § 1692e by misrepresenting to the consumer the collector’s rights in pursuing postjudgment remedies. It can be deceptive to inform the consumer that joint bank accounts are subject to complete seizure when they are not.1155 It can also violate FDCPA § 1692e where the garnishment order sent to the consumer’s employer and/or to the consumer contains a misrepresentation of state law garnishment requirements.1156

Fair Debt Collection: 7.4.11.1 Generally

Enforcement of a mortgage is the collection of a debt.1164 As described at § 4.7.5, supra, the FDCPA applies to a wide range of mortgage collection and foreclosure activities carried out by law firms, mortgage servicers, and other players in the mortgage lending industry.