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Fair Debt Collection: 6.2.7 Legal Proceedings and Postjudgment Conduct

Litigation misconduct is within the FDCPA’s scope,60 but consumer litigants are often unsuccessful in challenging such conduct under section 1692d,61 and are more likely to succeed alleging violations of section 1692e (deception) or section 1692f (unfairness).62 Nevertheless, litigation conduct can in some cases be egregious enough to violate FDCPA § 1692d, such as where the consumer alleged that a debt buyer filed a “bogus” lawsuit to collect a de

Fair Debt Collection: 6.3 Use or Threat of Use of Violence or Criminal Means; FDCPA § 1692d(1)

(1) The use or threat of use of violence or other criminal means to harm the physical person, reputation, or property or any person.69

The threat or use of violence or criminal means to harm the person physically, or harm the person’s reputation or property is actionable under FDCPA § 1692d(1). Regulation F (effective November 30, 2021) restates this language at Reg. F § 1006.14(c).

Fair Debt Collection: 6.4 Obscene, Profane, or Abusive Language; FDCPA § 1692d(2)

(2) The use of obscene or profane language or language the natural consequence of which is to abuse the hearer or reader.78

FDCPA § 1692d(2) has two prohibitions—the use of obscene or profane language and any language the natural consequence of which is to abuse the person hearing or reading the language—as long as either communication is by a collector in connection with collection of a debt. Regulation F (effective November 30, 2021) restates this language at section 1006.14(d).

Fair Debt Collection: 6.7.1 Overview

(5) Causing a telephone to ring or engaging any person in telephone conversation repeatedly or continuously with intent to annoy, abuse, or harass any person at the called number.109

Fair Debt Collection: 6.7.2.5 Prior Consent to Additional Calls

Under Regulation F (effective November 30, 2021), telephone calls do not count toward the frequency limits discussed in § 6.7.2.1, supra, where the person has given prior consent directly to the debt collector172 and the call is placed within a period no longer than seven consecutive days from the day of consent, with

Fair Debt Collection: 6.7.2.6 When Does a Call Count Toward the Frequency Limits

One counts the frequency limits differently under the call frequency prong than the conversation frequency prong.182 The first call counting toward the conversation frequency prong includes not only calls the collector initiates where there is a conversation, but also where the consumer initiated the call and there is a conversation. Then a second collector call within seven days would violate the standard.

Consumer Arbitration Agreements: 3.5.4.0 FAA Section 2 Exemption When Dispute Does Not Arise Out of Contract or Transaction

FAA section 2 applies to a “written provision in any maritime transaction or a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction.”194 The United States Supreme Court opined on this “arising out of” language in a footnote to its 2022 opinion in Viking River Cruises, Inc. v.

Consumer Arbitration Agreements: 3.5.4.1a.2 Court determines whether exemption applies

The Supreme Court has clearly held that the applicability of the section 1 exemption must be determined as a threshold matter by a court, not an arbitrator, before any arbitration is ordered—regardless of any delegation clause that purports to delegate such issues to the arbitrator.216 Because if the FAA does not apply to a contract of employment, the court has no authority or power to order arbitration under the FAA.

Consumer Arbitration Agreements: 3.5.4.1a.6 Discovery in FAA section 1 exemption cases

Some courts have held that when the section 1 exemption cannot be decided purely based on the facts alleged in the complaint, discovery is necessary to help determine if a class of workers is, in fact, engaged in interstate commerce.234 When such discovery is permitted, courts have recognized that motions to compel arbitration should be held in abeyance until that discovery is complete.235

Consumer Arbitration Agreements: 3.5.5 When Parties Contract to Have State Law Displace the FAA

The FAA’s application, particularly to rules of procedure, can also be limited by the terms of a contract that provides that state law displaces the FAA.249 As described below, the question often will be whether language in a contract selecting state law should be interpreted as displacing the FAA, and whether that displacement applies to the arbitration agreement’s enforceability or only to arbitration procedure.