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Fair Debt Collection: 5.3.2 Prohibitions Apply to Communications in Connection with Collection of a Debt

In order for the restrictions found in FDCPA § 1692c(a) to apply, a communication must be made to the consumer “in connection with the collection of any debt.”91 This section discusses a few relevant FDCPA § 1692c cases interpreting “in connection with the collection of any debt.” For a more general discussion of cases interpreting “in connection with the collection of any debt” that cuts across different sections of the FDCPA, see

Fair Debt Collection: 5.3.3 Consumer’s Prior Consent to the Communication

FDCPA § 1692c(a)’s three prohibitions96 as to collector communications do not apply if the consumer has provided “prior consent of the consumer given directly to the debt collector.”97 The burden is on the collector to show such consent. Several 1977 House bills98 and a 1976 Senate bill99 required that consumers plead and prove the absence of prior consent when alleging violations of these provisions.

Fair Debt Collection: 5.4.2 Contacts at Inconvenient Times

FDCPA § 1692c(a)(1) creates a presumption that any communication received between 9:00 p.m. and 8:00 a.m. was made at an unusual or inconvenient time. The parallel provision in Regulation F § 1006.6(b)(1)(i) (effective November 30, 2021) clarifies that this provision applies to any mode of communication between 9:00 p.m.

Fair Debt Collection: 5.4.3 Contacts at Inconvenient Places

FDCPA § 1692(c)(a)(1) and Reg. F § 1006.6(b)(1) (effective November 30, 2021) prohibit a collector from contacting the consumer at unusual or inconvenient places, and not just unusual or inconvenient times. Examples might be a hospital, a military combat zone, a church or other place of worship, a daycare,156 or a funeral parlor.

Fair Debt Collection: 5.4.4 The Known or Which Should Be Known Standard

FDCPA § 1692c(a)(1) provides that a collector cannot contact the consumer at a time or place that is “known or should be known” as inconvenient. This clearly means that once a debt collector receives a request to cease communication at specified inconvenient times or places, whether the request is made orally or in writing, the debt collector then knows the time or place is inconvenient and must honor that request.170

Fair Debt Collection: 5.4.5 Other FDCPA Provisions Also Regulate Phone Calls

FDCPA § 1692c(b)177 prohibits most calls to unobligated persons, except to obtain the consumer’s location information as permitted by section 1692b.178 Collectors are prohibited under FDCPA § 1692f(5) from causing charges to be made to any person for phone calls (or other communications) by concealing the true purpose of the communication.179 When the debt collector reaches a consumer, FDCPA § 1692e(11)180

Fair Debt Collection: 5.5.2 Overview of FDCPA § 1692c(a)(2)

FDCPA § 1692c(a)(2) prohibits collectors contacting consumers if the collector knows the consumer is represented by an attorney with respect to the debt.194 The provision only refers to representation by an attorney,195 but one court has suggested a debt collector may be restricted from contacting a consumer if the consumer authorized an agent to communicate with the debt collector.196

Fair Debt Collection: 5.5.3.1 Actual Knowledge

Notice to the collector that an attorney represents the consumer for all or specified current or future debts should trigger the requirement that the collector deal only with the consumer’s attorney on the specified debts.212 Issues may arise where the notification is not clear as to the scope of representation.213 Notification should be made clear that it is an attorney representing the consumer and not just a paralegal or other non-attorney.214

Fair Debt Collection: 5.5.3.2 Imputed Knowledge of the Consumer’s Representation

Where there is no proof of the collector’s actual knowledge, consumers would benefit if they could impute such knowledge, such as where the creditor hiring the collector has that knowledge or where the collector has knowledge of the consumer’s legal representation in another matter. The statutory language is not helpful here because it requires the collector to know about the representation, not “know or should have known.”

Fair Debt Collection: 5.7.1 Text of FDCPA § 1692c(b)

(b) Communication with third parties—Except as provided in section 1692b of this title, without the prior consent of the consumer given directly to the debt collector, or the express permission of a court of competent jurisdiction, or as reasonably necessary to effectuate a post-judgment judicial remedy, a debt collector may not communicate, in connection with the collection of any debt, with any person other than the consumer, his attorney, a consumer reporting agency if otherwise permitted by law, the creditor, the attorney of the creditor, or the attorne

Home Foreclosures: 8.2.1 Client Interview

The client interview process is critical in evaluating the homeowner’s potential defenses to foreclosure and affirmative claims. The initial interview defines the scope of the legal services needed based on the problem and the homeowner’s goals. The first client interview also shapes the homeowner’s perception of the lawyer.

Home Foreclosures: 3.5 Bankruptcy Proceedings and the Authority to Foreclose Under State Law

Bankruptcy courts frequently consider issues pertaining to a party’s right to enforce a mortgage, deed of trust, and promissory note. Bankruptcy court rulings often contain thorough analyses of a creditor’s authority to enforce these loan documents and to foreclose.269 When bankruptcy courts decide that a party has authority to obtain relief from the bankruptcy stay or file a proof of claim in a bankruptcy case, they apply state law.270

Home Foreclosures: 8.2.3.2 Documents to Review for Loan Origination Claims

Certain types of home loans trigger disclosure requirements. For example, variable rate disclosures are required for variable rate loans.7 At a minimum, advocates should obtain copies of the loan note and the mortgage or deed of trust. The Loan Estimate and Closing Disclosure, Truth in Lending Act (TILA) disclosure and HUD-1 settlement statement, or TILA/Real Estate Settlement Procedures Act (RESPA) Integrated Disclosure, whichever set of documents is applicable, should also be reviewed.

Home Foreclosures: 8.2.4 Appraisal

A determination of the current fair market value of the client’s home is important for determining what claims the homeowner may be able to assert as well as what outcomes are realistic for the homeowner. When dealing with abusive lending, property flipping, or foreclosure rescue scams it is also a good idea to obtain an estimate of the home value at the time of the transaction. Some loan modification programs are also based, at least in part, on the value of the home.

Consumer Arbitration Agreements: 10.2.2.2 Courts Rarely Overturn Arbitrator’s Determination of Intent

In Sutter, the Court explained that the general rule that “courts may vacate an arbitrator’s decision only in very unusual circumstances,” also applies to an arbitrator’s interpretation of an arbitration agreement regarding whether the agreement allows for class arbitration.37 As long as the arbitrator “(even arguably) interpreted the parties’ contract,” their interpretation should not be disturbed.38

Consumer Arbitration Agreements: 10.3.3 JAMS Classwide Arbitration Rules

The JAMS classwide arbitration rules are set out at www.jamsadr.com. Unlike the AAA’s policy, JAMS Rules specify that any case pleaded as a class action goes to the arbitrator on that basis. “These Class Action Procedures (‘Procedures’) shall apply to any dispute . . . where a party submits a dispute to arbitration on behalf of . . . a class or purported class. . . .

Consumer Arbitration Agreements: 10.6 Waiver of Right to Bring Individual and Collective Actions on Behalf of the State

The United States Supreme Court has ruled that to proceed in arbitration on an individual basis is a fundamental attribute of arbitration. To broadly allow class arbitration would “stand as an obstacle to the accomplishment of the [Federal Arbitration Act]’s objectives.”113 While the parties can explicitly agree to allow class arbitration, an arbitration agreement can also prohibit classwide relief in either court or arbitration, despite state law being to the contrary.

Consumer Arbitration Agreements: 8.7.8.2 Arbitration Provider Displays Actual Bias in Favor of Corporations

The Fourth Circuit has refused to enforce an arbitration award when the arbitration service provider’s rules were “crafted to ensure a biased decision maker.”348 In that case the employer did not need to file an answer; only the employee was required to provide a list of witnesses; the arbitrators were selected from a list chosen by the employer; only the employer could expand the scope of the arbitration; only the employer could seek summary judgment; only the employer could record the proceedings; only the employer could appeal in certain s