Claims of unfair collection practices survive dismissal

Lesson: SAVE ALL VOICEMAILS AND LETTERS. TAKE CONTEMPORANEOUS NOTES.

Case study:

In response to debt collector's motion to dismiss under 12(b)(6) for failure to state a claim, plaintiff sufficiently pleads that:

1) the caller did not disclose that he was a debt collector;

2) the caller did not provide defendant's name; and

3) the caller did not state that the call was an attempt to collect a debt.

"When determining whether a complaint states a claim, the court must construe it liberally, accept all factual allegations as true, and draw all reasonable inferences in the plaintiff's favor." "Facial plausibility is present when the factual content of the complaint allows for a reasonable inference that the defendants is liable for the misconduct alleged.

The court noted as a general rule that every subsequent communication by the debt collector must identify it as an attempt to collect a debt.

The court also deemed the debt collector's statement that the call related to debtor's "social" was sufficiently deceptive to qualify as a violation of 15 U.S.C.§1692(d). This section makes it generally unlawful for a debt collector to engage in any conduct "the natural consequence of which is to harass, oppress, or abuse any person in connection with the collection of a debt."

Finally, §1692 prohibits a debt collector from using unfair or unconscionable means to collect or attempt to collect any debt. But the unfair or unconscionable conduct alleged must be in addition to the acts that plaintiff alleges violates other sections. The plaintiff failed to show any additional acts.

The plaintiff-debtor's claim that the debt collector called Debtor before 8 a.m. survived even though Collector produced a log sheet that allegedly showed no such call. The court, however, excluded it from evidence citing that the sheet was not part of the complaint or referenced in the complaint; nor did the plaintiff identify the log sheet as the basis for her claim.

The debtor sufficiently pleaded that Collector impermissibly contacted his employer by again referencing Debtor's "social" and "business matter." The court noted that Collector's inquiry with Debtor's employer should have been limited to Debtor's location information. Reasonable minds could conclude that Collector violated this rule.

(Krapf v. Collectors Training Institute of Illinois, Inc., NYLJ, February 26, at 32, col 1)

Categories: Debt Defense
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