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Fair Debt Collection: Neb. Rev. Stat. §§ 45-601 to 45-623 (Collection Agencies)

Coverage: Collection agencies, defined as all persons or business entities directly or indirectly engaged in soliciting, from more than one person, claims owed or asserted to be owed to the solicited person, and all those directly or indirectly engaged in asserting, enforcing, or prosecuting such claims. Also includes creditor that uses fictitious name to create the appearance of third-party involvement, or providers of forms or letters to enable a creditor to do so. § 45-602.

Fair Debt Collection: Nev. Rev. Stat. §§ 649.005 to 649.440 (Collection Agencies)

Coverage: Applies to collection agencies, defined as persons engaging directly or indirectly, as a primary or secondary object, business or pursuit, in the collection of or soliciting or obtaining in any manner the payment of a claim owed or asserted to be owed to another. Excludes lawyers retained to collect claims “in the usual course of . . . their profession;” financial institutions, real estate professionals, and other entities whose collection activities are incidental to another business.

Fair Debt Collection: N.H. Rev. Stat. Ann. §§ 358-C:1 to 358-C:5 (Unfair Debt Collection)

Coverage: Most prohibitions apply to debt collectors, defined as any person who by direct or indirect action enforces or seeks to enforce an obligation that is owed or due, or alleged to be due, by a consumer as a result of a consumer credit transaction; any person who for consideration other than wages or salary directly or indirectly seeks to enforce an obligation that is owed or due, or alleged to be owed or due, by a consumer as a result of a consumer transaction; or any person who, pursuant to an assignment, sale or transfer of a claim against a consumer as a result of a cons

Fair Debt Collection: N.M. Stat. Ann. §§ 61-18A-1 to 61-18A-33 (Collection Agencies)

Coverage: Collection agencies, defined as persons engaging in the business of collecting or attempting to collect directly or indirectly, consumer debts owed or asserted to be due to another, if that person is engaged by two or more creditors; also covers creditor using fictitious name to create the appearance of third-party involvement. § 61-18A-2(C). Excludes entities whose collection activities in the state are limited to collecting debts not incurred in the state from debtors located in the state by means of interstate communications from another state. § 61-18A-5.

Fair Debt Collection: N.C. Gen. Stat. §§ 58-70-15, 58-70-90 to 58-70-155

Coverage: Statute applies to “collection agencies,” defined as a person directly or indirectly engaged in soliciting, from more than one person delinquent claims of any kind owed or due or asserted to be owed or due the solicited person and all persons directly or indirectly engaged in the asserting, enforcing or prosecuting of those claims.

Fair Debt Collection: N.D. Cent. Code §§ 13-05-01 to 13-05-10 (Collection Agencies)

Coverage: Collection agencies, defined as persons or entities who, in the ordinary course of business engage in debt collection. “Debt collection” is defined as collecting or attempting to collect, directly or indirectly debts owed or due or asserted to be due another, but also includes soliciting debts for collection or accepting assignment of debts for the purpose of collection. § 13-05-01.1.

Fair Debt Collection: Okla. Stat. tit. 14A, § 5-107

[Editor’s Note.20]

Coverage: Creditors.

Prohibited Practices: Extortionate extensions of credit, i.e., if creditor and consumer understand that delay in repayment may result in the use of violent or criminal means to harm the person, property or reputation of any person. See also Okla. Stat. tit. 15, § 755.1. Automatic dialing device may be used by creditor or it assignee, but only between 9 a.m. and 9 p.m. (and not at any hour that would be forbidden by FDCPA).

Fair Debt Collection: Or. Rev. Stat. §§ 646.639 to 646.643 (Unlawful Debt Collection Practices)

Coverage: “Debt collector” is defined as a person that by indirect or direct action collects or attempts to collect a debt owed or alleged to be owed to a creditor or debt buyer. § 646.639(h) “Creditor” is defined as a person that in the ordinary course of that person’s business engages in consumer transactions that result in a consumer owing a debt to that person. § 646.639(e).

Fair Debt Collection: Or. Rev. Stat. §§ 697.005 to 697.107 (Collection Agency Businesses)

Coverage: Applies to any collection agency, defined as a person directly or indirectly engaged in soliciting a claim for collection, or collecting or attempting to collect a claim that is owed, due or asserted to be owed or due to another person or to a public body. Excludes consumer credit sellers, billing, and factoring. Billing is defined as sending out monthly statements without making personal or phone contact with delinquent debtors.

Fair Debt Collection: 15.7.6 Other Potential Tort Claims

A few states, including Georgia, Louisiana, New Mexico, and Texas, recognize a tort action for unreasonable collection methods.525 Kansas and Colorado recognize a cause of action for wrongful garnishment.526 Georgia and Hawaii recognize a cause of action for wrongful foreclosure.527

Fair Debt Collection: 15.7.8 Tort Claims Against Governmental Entities

Where state officials are involved, a tort claim may be cast as a civil rights violation.541 Ordinary tort actions against governmental creditors will, however, raise special problems: the consent to suit found in state tort claims acts generally excludes certain collection activities, such as tax collection, and the complexities of municipal liability law are beyond the scope of this treatise.542

Fair Debt Collection: 15.8 Attorney’s Liability to Third Parties for Collection Negligence and Other Torts

Collection attorneys can be held liable under the Fair Debt Collection Practices Act to debtors against whom they prosecute claims.543 Attorneys can also generally be held liable to opposing parties for intentional torts,544 but common law rules may insulate the attorney from liability to consumers for damages caused by negligent debt collection acts.545 Thus, a collection attorney who negligently files suit against or levies on the home of the wro

Fair Debt Collection: 15.9 Liability of Principals, Officers

The liability of the creditor for acts of a collection agency, which often possesses inadequate capital, should always be investigated. This liability generally turns on the level of control the creditor exercised over the collector’s activities.557 A creditor may also be liable for negligently hiring a collector, even if the collector is an independent contractor.558

Fair Debt Collection: Alaska Stat. §§ 08.24.041 to 08.24.380

Coverage: Collection agencies: Applies to collection agencies, defined as persons licensed or authorized to engage in the collection agency business, defined as the business of engaging directly or indirectly and having as a primary or secondary object, the solicitation of claims for collection or repossession of collateral security or the collection of claims owed or due or asserted to be due to another, or the repossession of collateral security.

Unfair and Deceptive Acts and Practices: 11.9.1 Introduction

Constitutional challenges to UDAP statutes are rarely successful. The fundamental notion that UDAP statutes and regulations can provide a right of action with flexible remedies for unfair or deceptive sales conduct is unchallengeable. Nevertheless, consumer litigants need to be familiar with constitutional UDAP issues because intransigent merchants may raise constitutional defenses in order to complicate, confuse, or postpone UDAP actions.

Home Foreclosures: 5.2.2 Judicial Foreclosure

In less than half of the states, mortgages are always foreclosed by judicial action, either because of state law requirements or local custom. In these states, the lender must file an action in court, usually in the county where the property is located, to obtain a judicial decree authorizing a foreclosure sale.

Home Foreclosures: 5.2.3 Non-Judicial, “Power of Sale” Foreclosure

In thirty states and the District of Columbia, foreclosing lenders are permitted to sell the mortgaged property at a foreclosure sale without filing a court action.11 In these jurisdictions, foreclosures are accomplished by the lender’s exercise of the “power of sale” contained in the mortgage (or deed of trust).