April 19, 2014

Decision on FDCPA and Whether Consumer Dispute Must Be In Writing

The FDCPA (Fair Debt Collection Practices Act) gives protection to consumers but debt collectors often argue the law should give less protection than the law actually gives.

One example is to argue disputes on the validity of a debt must be in writing.

The Fourth Circuit decided this issue in favor of consumers and against debt collectors in Clark v. Absolute Collection Service by ruling that disputes can be done verbally and do not have to be done in writing.

The text is copied below for your convenience. If you want the simple dispute letter we recommend sending out in most cases, you can click on it here:

Simple Dispute Letter To Debt Collectors

If you live in Alabama and want to discuss this with us or if you are an attorney (anywhere) and you want to discuss the law or having us help you in your case, feel free to call us at 205-879-2447 or contact us through our website AlabamaConsumer.com.
This case involves a putative class action under the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692 et seq. Dana Clark and David Clark ("the Clarks") sued Absolute Collection Service, Inc. ("ACS"),[1] on behalf of themselves and all others similarly situated, for its actions in attempting to collect a debt. The Clarks alleged that ACS's collection notice violated section 1692g(a)(3) of the FDCPA by stating that debtors only could dispute the validity of their debt in writing. ACS moved to dismiss the Clarks' lawsuit, contending that the collection notice complied with the FDCPA because section 1692g(a)(3) contains an inherent writing requirement. The district court granted the motion, and the Clarks appealed. For the reasons set forth below, we vacate the district court's judgment and remand the case for further consideration.


The Clarks incurred two debts at a health care facility in Raleigh, North Carolina. When the Clarks were unable to pay, the health care facility referred the debts to ACS, a third-party collector. In its efforts to collect, ACS sent separate collection notices to the Clarks at their home in Raleigh. In both collection notices, a disclosure statement provided that:

J.A. 11, 12.

The Clarks sued ACS in the United States District Court for the Eastern District of North Carolina, at Raleigh, alleging that its collection notice failed to comply with the FDCPA. 15 U.S.C. § 1692 et seq. The Clarks asserted that ACS violated their right to challenge their debt orally under section 1692g(a)(3) of the FDCPA because the collection notice stated that the debt would be "assumed valid unless disputed in writing." They also contended that ACS's imposition of a writing requirement amounted to the use of "false representation or deceptive means to collect or attempt to collect any debt," in violation of section 1692e(10) of the FDCPA.

ACS moved to dismiss the complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, arguing that section 1692g(a)(3) contains an inherent writing requirement and that the Clarks, therefore, failed to state a claim upon which relief could be granted. The district court agreed, dismissing the complaint. In its reasoning, the district court stated that permitting an oral dispute of the validity of a debt under section 1692g(a)(3) would leave consumers "with fewer protections and in a potentially far more confusing station than if a writing is required." J.A. 26.


We review de novo the district court's decision to grant the motion to dismiss. Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008). We also review de novo questions of statutory construction. Stone v. Instrumentation Lab. Co., 591 F.3d 239, 242-43 (4th Cir. 2009).


As in all statutory construction cases, our inquiry begins with the language of the statute. See Lamie v. U.S. Tr., 540 U.S. 526, 534 (2004). "[W]hen the statute's language is plain, the sole function of the courts—at least where the disposition required by the text is not absurd—is to enforce it according to its terms." Id. (internal quotation marks omitted).

Congress enacted the FDCPA with the goal of eliminating abusive, deceptive, and unfair debt collection practices. 15 U.S.C. § 1692. Among its safeguards against abuse and deception, the FDCPA requires a debt collector to send written notice to consumer debtors with whom it communicates in connection with the collection of a debt. 15 U.S.C. § 1692g. Section 1692g(a) provides that the written notice must contain:

(1) the amount of the debt;
(2) the name of the creditor to whom the debt is owed;
(3) a statement that unless the consumer, within thirty days after receipt of the notice, disputes the validity of the debt, or any portion thereof, the debt will be assumed to be valid by the debt collector;
(4) a statement that if the consumer notifies the debt collector in writing within the thirty-day period that the debt, or any portion thereof, is disputed, the debt collector will obtain verification of the debt or a copy of a judgment against the consumer and a copy of such verification or judgment will be mailed to the consumer by the debt collector; and
(5) a statement that, upon the consumer's written request within the thirty-day period, the debt collector will provide the consumer with the name and address of the original creditor, if different from the current creditor.
15 U.S.C. § 1692g(a)(1)-(5).

Pursuant to section 1692g(b), if a consumer "notifies the debt collector in writing" that the debt is disputed, the debt collector must "cease collection of the debt, or any disputed portion thereof, until the debt collector obtains verification of the debt . . . and a copy of such verification . . . is mailed to the consumer by the debt collector." 15 U.S.C. § 1692g(b).

On appeal, the Clarks ask whether section 1692g(a)(3) permits consumers to dispute the validity of a debt orally, or whether it imposes a writing requirement. This is a matter of first impression for this Court. The Third Circuit has held that section 1692g(a)(3) must be read to include a writing requirement, finding any other reading contrary to the purposes of the FDCPA. See Graziano v. Harrison, 950 F.2d 107 (3d Cir. 1991). In contrast, the Second and Ninth Circuits have found that the plain text of section 1692g(a)(3) permits oral disputes, and that such a reading results in a logical, bifurcated scheme of consumer rights. See Hooks v. Forman, Holt, Eliades & Ravin, LLC, 717 F.3d 282 (2d Cir. 2013); Camacho v. Bridgeport Fin. Inc., 430 F.3d 1078 (9th Cir. 2005).

In line with the Second and Ninth Circuits, we find that the FDCPA clearly defines communications between a debt collector and consumers. Sections 1692g(a)(4), 1692g(a)(5), and 1692g(b) explicitly require written communication, whereas section 1692g(a)(3) plainly does not.[2] ACS asks that we disregard the statutory text to read into it words that are not there. We decline to do so. "[W]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion." Russello v. United States, 464 U.S. 16, 23 (1983) (internal quotation marks omitted).


Accepting that section 1692g(a)(3) does not contain an explicit writing requirement, ACS argues that it must be read as imposing an inherent writing requirement or else the procedure would be inconsistent with the other debt dispute mechanisms under section 1692g. In ACS's view, allowing oral disputes under section 1692g(a)(3) serves only to confuse consumers. ACS also points out that a writing requirement preserves the core protections of sections 1692g(a)(3) through 1692g(b), and all other rights consumers have under other sections of the FDCPA. Without it, ACS argues, "consumers may be led to believe that an oral dispute triggers the further protections" of sections 1692g(a)(4), 1692g(a)(5), and 1692g(b) when, in fact, those protections are waived if not invoked in writing. Appellee's Br. at 21.

We find ACS's arguments unavailing for several reasons. First, like the Second and Ninth Circuits, we are not persuaded that the plain language of section 1692g(a)(3) leads to absurd results, which would have permitted a search for meaning beyond the statutory text. See Lamie, 540 U.S. at 534. As written, section 1692g(a)(3) triggers statutory protections for consumers independent of the later sections 1692g(a)(4), 1692g(a)(5), and 1692g(b). For one, once a consumer disputes a debt orally under section 1692g(a)(3), a debt collector cannot communicate that consumer's credit information to others without disclosing the dispute. 15 U.S.C. § 1692e(8); see Hooks, 717 F.3d at 285; Camacho, 430 F.3d at 1082. Also, if a consumer owes multiple debts and makes a payment, a debt collector cannot apply that payment to a debt that has been disputed orally. See 15 U.S.C. § 1692(h); Hooks, 717 F.3d at 285-86; Camacho, 430 F.3d at 1082. Because we conclude that the plain language of section 1692g(a)(3) does not lead to absurd results, we decline to insert additional language.

Second, under well-established principles of statutory construction, this Court must "give effect, if possible, to every clause and word of a statute." United States v. Menasche, 348 U.S. 528, 538-39 (1955) (internal quotation marks omitted). If possible, a court should avoid an interpretation that renders any "clause, sentence, or word . . . superfluous, void, or insignificant." Duncan v. Walker, 533 U.S. 167, 174 (2001). Relying on the writing requirements in sections 1692g(a)(4), 1692g(a)(5), and 1692g(b) to give effect to section 1692g(a)(3) would violate these principles, leaving section 1692g(a)(3) with no independent meaning.

As a result, we find that section 1692g(a)(3) permits consumers to dispute the validity of a debt orally, and it does not impose a writing requirement.


Accordingly, we vacate the judgment of the district court that dismissed the plaintiff's complaint and remand for further proceedings consistent with this opinion.


[1] ACS changed its corporate name on June 29, 2012, after this case was filed. Although the defendant now is called FKAACS, Inc., we refer to it as ACS throughout.

[2] We also note that the term "dispute," as commonly used, contemplates oral communication. See, e.g., Random House Webster's Unabridged Dictionary 569 (2d ed. 2001) ("to argue or debate about; discuss").

April 7, 2014

Decision on FDCPA and RESPA Claims Against Nationstar Mortgage

There was a recent decision relating to Nationstar which was sued under the FDCPA and RESPA and we thought it was an interesting opinion so we did a video review of the actual opinion. You can read the decision (Dynott v. Nationstar) and we have copied it below for your convenience.

If you have questions, feel free to give us a call at 205-879-2447 or contact us through our website AlabamaConsumer.com.

John Watts


No. 1:13-cv-1474-WSD.
United States District Court, N.D. Georgia, Atlanta Division.

March 17, 2014.


WILLIAM S. DUFFEY, Jr., District Judge.

This matter is before the Court on Magistrate Judge Justin S. Anand's Final Report and Recommendation ("R&R") [16] recommending that Defendants' Motions to Dismiss [3, 9] be granted in part and denied in part.


On April 1, 2013, Plaintiff George Dynott ("Plaintiff"), proceeding pro se, filed his Complaint [1.1] in the Superior Court of Cobb County. On May 1, 2013, Nationstar Mortgage, LLC ("Nationstar") removed the action to this Court with the consent of McCalla Raymer, LLC ("McCalla") (together, "Defendants").

Plaintiff alleges that on August 31, 1999, he entered into an FHA loan agreement with Home Banc Mortgage Corporation. After Home Banc Mortgage Corporation became insolvent on or about August 21, 2007, EMC Mortgage Corporation was awarded certain servicing rights under an Asset Purchase Agreement. Notwithstanding the Asset Purchase Agreement, Metlife Home Loans began servicing Plaintiff's loan on an unspecified date. Plaintiff alleges that he then received foreclosure notices from McCalla dated February 22, 2013. Plaintiff also alleges that Nationstar acquired the mortgage servicing rights from Metlife Bank, N.A.

Plaintiff asserts claims arising under both federal and state law. The Magistrate Judge determined that Plaintiff's Complaint asserted two claims under federal statutes. In Count Four of his "Damage Claims," Plaintiff asserts a claim "for damages under FDCPA statute violation for actual damages $1,000.00 per defendant, compensatory and punitive. MCCALLA failed to provide a clear and concise information with respect to the validation of the debt when called upon." (Compl. at 15). Plaintiff further asserts, in Count Five, a claim "for damages under RESPA statute violation for actual damages of $1,000.00 for failure to provide, compensatory and punitive. Nationstar failed to provide a bona fide servicing notice with no evidence of an agreement to service Mr. Dynott's loan." (Id.).

The remainder of Plaintiff's claims arise under Georgia law. Plaintiff asserts claims (1) for "breach of duty and breach of negligence per se due to legal duties under the FHA Contract," (2) "under Georgia Statutes for attempted Wrongful foreclosure by both Defendants," and (3) for "libel damages and restoration of his name." (Id.). He seeks to recover "punitive and compensatory damages and negligence attributable to actions by Defendants under O.C.G.A. § 44-14-160 through §§ 162.4," "a set aside of any foreclosure sale . . . [and] appropriate damages to unwind such sale," and other damages "deemed appropriate by the court at trial." (Id.).

On May 8, 2013, Nationstar and McCalla filed their Motions to Dismiss for Failure to State a Claim [3, 9]. On December 18, 2013, Magistrate Judge Anand issued his R&R recommending that the motions be granted in part and denied in part. The Magistrate Judge recommends that Plaintiff's claims under federal law be dismissed, and that Plaintiff's claims under state law be remanded to the Superior Court of Cobb County. The parties do not object to the R&R.


A. Legal Standard

After conducting a careful and complete review of the findings and recommendations, a district judge may accept, reject, or modify a magistrate judge's report and recommendation. 28 U.S.C. § 636(b)(1) (Supp. V 2011); Williams v. Wainwright, 681 F.2d 732, 732 (11th Cir. 1982) (per curiam). A district judge "shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1). If no party has objected to the report and recommendation, a court conducts only a plain error review of the record. United States v. Slay, 714 F.2d 1093, 1095 (11th Cir. 1983) (per curiam). Because no objections were asserted, the Court reviews the R&R for plain error.

B. Analysis

1. Plaintiff's FDCPA and RESPA Claims

The Magistrate Judge determined that Plaintiff's pro se Complaint, construed liberally, attempts to assert claims against both Nationstar and McCalla under the Fair Debt Collection Practices Act ("FDCPA") 15 U.S.C. § 1692 et seq., and under the Real Estate Settlement Procedures Act ("RESPA"), 12 U.S.C. § 2600 et seq.[2] The Magistrate Judge concluded that Plaintiff filed a shotgun pleading in respect to his FDCPA and RESPA claims, including because he does not allege sufficiently specific actions that Defendants took to violate the statutes. Plaintiff offers an Indiana Court of Appeals case to support his claim, but fails to explain how it is relevant to his case. The Magistrate Judge recommended that Plaintiff's claims under the FDCPA and RESPA be dismissed because his Complaint is a shotgun pleading. The Court does not find any plain error in these findings, conclusions, or recommendations. See Davis v. Coca-Cola Bottling Co. Consol., 516 F.3d 955, 979 (11th Cir. 2008) (explaining that shotgun pleadings are "roundly, repeatedly, and consistently condemn[ed]" in the Eleventh Circuit); Strategic Income Fund, LLC v. Spear, Leeds, & Kellog Corp., 305 F.3d 1293, 1295 (11th Cir. 2002) ("The typical shotgun complaint contains several counts, each one incorporating by reference the allegations of its predecessors, leading to a situation where most of the counts (i.e., all but the first) contain irrelevant factual allegations and legal conclusions."). Plaintiff's shotgun pleading in respect to his FDCPA and RESPA claims is required to be dismissed.

The Magistrate Judge further concluded that even if it were not a shotgun pleading, Plaintiff's Complaint fails to state a claim for relief under the FDCPA or RESPA. The Magistrate Judge recommended that Plaintiff's FDCPA claim against Nationstar[3] be dismissed because the FDCPA applies only to statutorily defined "debt collectors," and Plaintiff does not allege sufficient facts that Nationstar qualifies as a "debt collector" or engaged in any activities other than as servicer of Plaintiff's loan. The Court finds no plain error in these findings or recommendations. See Stroman v. Bank of Am. Corp., 852 F. Supp. 2d 1366, 1375 (N.D. Ga. 2012) (explaining that 15 U.S.C. § 1692a(6)(f) has been interpreted to mean that "mortgage servicers are not covered by the FDCPA if they began servicing the loan at a time when it was not in default."). Plaintiff's FDCPA claim against Nationstar is required to be dismissed.

The Magistrate Judge concluded that McCalla did act as a "debt collector" under the FDCPA, but that Plaintiff failed to establish that McCalla engaged in activity that violated the statute. Plaintiff alleges that McCalla violated the FDCPA by failing to respond to his request to validate the debt. Plaintiff's validation notices, however, were inadequate, and even if they were adequate, Plaintiff fails to allege that McCalla continued the debt collection activities after receiving the alleged debt verification request. Plaintiff further alleged that McCalla violated the FDCPA by sending him "intentionally confusing and deceptive" letters and "failed to provide the complete information about the Secured Creditor which includes their address, telephone number." The Magistrate Judge concluded that, under the "least-sophisticated consumer" standard, McCalla's failure to include the address and telephone number of the secured creditor does not violate the FDCPA, and Plaintiff fails to explain any other way in which the letters were either confusing or deceptive. The Court finds no plain error in these findings or recommendations. See LeBlanc v. Unifund CCR Partners, 601 F.3d 1185, 1194 (11th Cir. 2010) (citing Colman v. Jackson, 988 F.2d 1314, 1319 (2d Cir. 1993)) (The "least-sophisticated consumer" standard presumes a person "to possess a rudimentary amount of information about the world and a willingness to read a collector's notice with some care."). Plaintiff's FDCPA claim against McCalla is required to be dismissed.

The Magistrate Judge concluded that Plaintiff alleged a RESPA claim against Nationstar for failure to notify him when it became his mortgage loan servicer, but that Plaintiff failed to allege facts to show that he suffered any actual damages or that Nationstar has a pattern or practice of noncompliance with RESPA.[4] Plaintiff's claim that Nationstar failed to respond to his Qualified Written Request ("QWR") also does not allege actual damages, and the Magistrate Judge further recommends dismissal because the letter that Plaintiff allegedly sent does not qualify as a QWR because it requests information about matters well beyond the mere servicing of Plaintiff's individual loan. The Court does not find plain error in these findings or recommendations. See 12 U.S.C. § 2605(f) (liability under RESPA is limited to "actual damages to the borrower" and, "in the case of a pattern or practice of noncompliance with the requirements of this section, in an amount not to exceed $2,000.00"); Liggion v. Branch Banking and Trust, No. 1:11-cv-1133-WSD, 2011 WL 3759832 at *3 (N.D. Ga. Aug. 24, 2011) ("Plaintiff's information document requests are not a proper qualified written request under RESPA because they do not relate to the servicing of the loan."). Plaintiff's RESPA claim against Nationstar is required to be dismissed.

2. Plaintiff's State Law Claims

Plaintiff's FDCPA and RESPA claims, now dismissed, were the only claims in this action over which the Court had original subject matter jurisdiction. The Magistrate Judge recommended that the Court decline to exercise supplemental jurisdiction over Plaintiff's remaining claims, which involve only state law causes of action. The Magistrate Judge determined that concerns of comity, judicial economy, convenience, and fairness to the parties weigh in favor of remanding the state law claims. The state court will be able to decide Defendants' motions to dismiss more efficiently and with the benefit of more expertise. The Court does not find any plain error in these findings or recommendations. See 28 U.S.C. § 1367(c) ("The district court may decline to exercise supplemental jurisdiction over a claim . . . if . . . the district court has dismissed all claims over which it had supplemental jurisdiction[.]"); Ingram v. School Bd. Of Miami-Dade Cnty., 167 F. App'x 107, 108 (11th Cir. 2006) ("State courts, not federal courts, should be the final arbiters of state law."); Murray v. Marks, No. 4:10-cv-126 (CDL), 2012 WL 359702, at *3 (M.D. Ga. Feb. 2, 2012) ("Although dispositive motions are currently pending before the Court, district courts are encouraged to dismiss any remaining state claims when, as here, the federal claims have been dismissed prior to trial.'") (quoting Murphy v. City of Aventura, 383 F. App'x 915, 919 (11th Cir. 2010)). Plaintiff's state law claims are remanded to the Superior Court of Cobb County.


Accordingly, for the foregoing reasons,

IT IS HEREBY ORDERED that Magistrate Judge Justin S. Anand's Final Report and Recommendation [16] is ADOPTED.

IT IS FURTHER ORDERED that Defendants' Motions to Dismiss [3, 9] are GRANTED IN PART AND DENIED IN PART. The Motions to Dismiss are GRANTED as to Plaintiff's claims under the FDCPA and RESPA, and those claims are DISMISSED. The Motions to Dismiss are DENIED as to Plaintiff's state law claims, and those claims are REMANDED to the Superior Court of Cobb County.


[1] The parties have not objected to any facts set out in the R&R, and finding no plain error in the Magistrate Judge's factual findings, the Court adopts them. See Garvey v. Vaughn, 993 F.2d 776, 779 n.9 (11th Cir. 1993).

[2] Complaints filed pro se are to be liberally construed and "held to less stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. 89, 94 (2007)(citations and internal quotation marks omitted). Nevertheless, a pro se plaintiff must comply with the threshold requirements of the Federal Rules of Civil Procedure. "Even though a pro se complaint should be construed liberally, a pro se complaint still must state a claim upon which the Court can grant relief." Grigsby v. Thomas, 506 F. Supp. 2d 26, 28 (D.D.C. 2007).

[3] Although Plaintiff's FDCPA claim does not specifically mention Nationstar, it does request "damages of $1,000.00 per defendant." The Magistrate Judge interpreted Plaintiff's claims liberally and assumed that Plaintiff asserted his FDCPA claim against both Nationstar and McCalla.

[4] It appears that Plaintiff asserted his RESPA claim against only Nationstar, failing to allege any facts indicating that McCalla violated RESPA in any way. The Magistrate Judge recommended that McCalla's Motion to Dismiss be granted with respect to Plaintiff's RESPA claim against it. This Court does not find plain error in this recommendation.

February 17, 2014

"Why am I getting letters from Ferry & Nicholas and bankruptcy lawyers before I've been served with a collection lawsuit?"

Alabama consumers are being sued by debt collectors in staggering numbers. Often, before you are even served by the sheriff with a lawsuit, you will receive a letter from Ferry & Nicholas which claims to be a "non lawyer mediation firm" or you may receive letters from bankruptcy lawyers.

If you are wondering about this and also want to know how to use this to help you, then read one (or both!) of the following articles:

“Why am I getting a letter from Ferry & Nicholas about a lawsuit?"

“Why am I getting letters from bankruptcy lawyers before I have been served with my collection lawsuit?”

If we can help you with defending a lawsuit against you in Alabama or if you want to know your options about suing a debt collector in Alabama, give us a call at 205-879-2447 or you can contact us through our website here.

February 15, 2014

Consumer Power -- Procrastination and BP Oil Spill Claims

I hope you are having a great week -- after much chatter about it we finally got a bit of snow where I live in Birmingham.

Anyone ready for Spring?

When we look forward to something, we want time to "fly" by but when we dread something, we want to procrastinate.

Everyone procrastinates -- the ones who say they never do are merely procrastinating telling us the truth..... :)

Here's a quote I hope you find helpful -- I'm reminding myself of this so I cut down on procrastination:

Someday is not a day of the week. Janet Dailey.

To beat procrastination, we need to just get started. Kind of like working out -- if I put on my workout clothes and just get started, then I tend to finish the workout.

It is easier to resist in the beginning than at the end. Leonardo da Vinci.

So my encouragement to you -- and to me -- is to get started as that often fixes the little (big?) problem of procrastination.

What do we procrastinate that has a deadline in April?

Well, yes our taxes..... I've driven by the line to the post office on the 15th. :) Truthfully, I've been in that line a time or two "I'll never do this again!"....

But this time I'm talking about the deadline for business owners (we'll define this below and it is very broad) to file a claim under the BP Oil Spill Settlement.

BP wanted protection from being sued so it agreed to a settlement -- and a federal judge approved it -- that prevented business owners from suing BP for damages.

In exchange, BP agreed any business in Alabama, Mississippi and Louisiana could submit a claim if they had the right "revenue pattern."

Basically, this means during a three month period in 2009 your revenues were X, and then in the same time period in 2010 your revenues went down, and then back up in 2011. So there is a "V" shape if we graphed the revenues on a chart.

There is a lot more complexity to submitting a claim -- we need accurate profit and loss statements, tax returns, etc. but we have clients that are going to receive anywhere from ten thousand dollars to in the hundreds of thousands of dollars.

But is this fair to BP as I can't prove the oil spill caused the decline?

Yes, it is.

Because BP agreed to the rules of the settlement so it would not get sued. Now it is whining about it but the judge basically said "You begged me to give you this settlement and now because you under-estimated the cost, you want me to change the rules? Nope -- you live with your agreement."

(A similar situation is for veterans we represent who were in Viet Nam. The settlement is if you were "boots on the ground" in Viet Nam, then you are exposed to Agent Orange. If exposed to Agent Orange, and you have one of 14 diseases -- including diabetes, prostate cancer, neuropathy, etc -- then it is absolutely caused by Agent Orange and you can file a claim. No one tricked the goverment into this -- it did it to buy its peace from being sued for exposing our service men and women to this deadly chemical.)

So I want to encourage you if you are a business owner -- or know one -- to look into your options. You cannot sue BP because you are bound by this settlement so you are playing by the rules -- and one of the rules is you can submit a claim.

The deadline is April 22 but you can't wait until then because there is a lot of work involved to make this happen. So take action now -- no procrastination -- it is easier to finish once you begin so begin by today.

Tony Robbins says:

Never leave the site of a decision without taking immediate action towards obtaining your goal.

So if you have made a decision to look into this, one of the first steps or "action" you can take is to request a simple sheet that will allow you to put your revenues on it and then we can see if you pass the initial test. If so, then we can send you more detailed information. There is no cost to you -- this is done on a strictly contingency basis.

A business owner is someone who owns a business and normally also includes anyone who receives a 1099 so this includes:

Real estate agent
Truck driver
Mortgage broker

All of these (and many more) are considered business owners even though we may not normally think of them as such because they work in an office "under" someone else or because they drive for a company.

If you have any question about whether you qualify, call us at 205-879-2447 and ask to speak to Carolyn or Randi and we'll get you a simple sheet to fill out to find out if you are eligible for money damages.

Thanks for being with us this week and enjoy what appears to be much nicer and warmer weather and remember we are one day closer to spring.... :)

Watts & Herring, LLC

February 15, 2014

Is fixing your credit report really a years long nightmare? It doesn't have to be.....

I read an interesting article that I agreed with in many respects by John Matarese of Channel 5 News in Florida. My one point of disagreement is that there is another solution -- read below.

First, here are some interesting quotes from this excellent article:

"You will hear that's easy to do, to simply write a dispute letter," an exasperated Gayle Collier said.

TransUnion, one of the "big 3" credit bureaus, tells you the same thing. They even have an online video to tell you exactly how to dispute an error.

Federal law mandates all credit reporting agencies to investigate any dispute.

But critics say that investigation often goes nowhere.

Ohio Attorney General Mike DeWine states his opinion bluntly: "It's a joke, the investigation that they do," DeWine told us.

DeWine, and other attorneys general across the country, say they have started a large scale investigation into credit report errors that plague millions of consumers.

"This is a system that works real well for everybody but the consumer," DeWine said.

And the process to fix errors?

Here are some things you should do, according to DeWine: -Check your credit report with the 3 credit bureaus every year: It's free at www.annualcreditreport.com .

-As soon as you find an error, start writing letters to get it corrected. You'll want that mistake gone next time you apply for a loan.

-If you get nowhere in 2 months, contact your state attorney general's office and ask for their help

My suggestion is when there really is false information on your credit reports -- and you have properly disputed those errors with the credit reporting agencies/bureaus (and normally with the furnisher of the false information), then you sue in federal court.

It is amazing that when you sue Equifax, Experian, and Transunion as well as the furnisher (Bank of America, Capital One, etc) in federal court, then these guys will quickly fix the error and will agree to pay you money damages.

Since they know you will sue if there is false information, they will generally make sure not to mess with you again. If they do, you repeat the process and sue again.

If you have questions about your credit reports in Alabama, call us at 205-879-2447 and ask to speak to Randi or Carolyn who will gather some basic information and then set you up an appointment by phone or in person with me. You can also read more about how to get an accurate credit report here.

February 8, 2014

Consumer Power -- New Help For Homeowners Facing Foreclosure -- RESPA Rules Changed In January 2014

Over the last 5 or 6 years we have primarily helped those who have already been foreclosed. It is a long battle to get the mortgage company to agree to set aside the foreclosure but sometimes we have been successful -- other times the company will not agree. But we did not help as many consumers who have not yet been foreclosed because the law was -- ironically -- in some ways not as good before a foreclosure as it was after a foreclosure. And it was not good for anyone and the law has been getting worse.

That has now changed and so we are staying flexible and changing with it as it has been a long time since there was any positive change in the law in favor of homeowners.

Let me give you a little bit of summary about these new rules as this might be of help to you or your family or friends who are facing foreclosure. Really I should say if anyone is 30 days late on their mortgage these rules will be very helpful.

These new rules are the RESPA rules which went into effect in January 2014.

First, they apply to homewoners who are living in their home -- so not rentals or investments.

Second, there is not much help after a foreclosure as these rules are focused on what can be done before a foreclosure to prevent it.

Third, there are very strict deadlines the mortgage company has to follow when it wants to foreclose. We doubt the mortgage companies will follow these deadlines -- we intend to motivate them to follow the law by suing them in federal court.

Fourth, these new rules will (directly and indirectly) help prevent the normal games mortgage companies play when considering a loan modification including lying about receiving your loan modification package, giving you 48 hours to give more documents, etc.

Fifth, the rules give you the ability to demand information and documents from mortgage companies. They hate this and have always been reluctant to give any information. If they continue this, then they need to be sued in federal court to encourage them to become flexible and actually start -- amazingly -- following the law.

Finally, when the mortgage companies break these new laws they can be sued in federal court and have to pay you damages as well as attorney fees. This should be a nice kick to their backside to get them moving. :)

There is a lot more detail and we will be writing articles -- shooting videos -- and probably doing a webinar on these new laws but I hope this gives you a flavor of some of the protection that is now out there that we didn't have before January. (Here is one article on using RESPA to help stop Alabama foreclosures).

As I mentioned abover, anyone who is 30 days late on their mortgage should contact a foreclosure defense lawyer to find out their options -- if you live in Alabama we will glad to chat with you.

Thanks for taking the time to read this as this can help you or your friends and family who are behind and facing foreclosure.

November 27, 2013

"Should the TCPA be changed to protect debt collectors and robo dialed calls?"

Yes according to the ACA the lobbying group for debt collectors. Here is the argument:

ACA noted that up to 90 percent of accounts worked by collection agencies now include a consumer cell phone number and that it takes nearly twice the number of attempts to reach a consumer on a landline telephone than a cell phone. On average, it takes 3 attempts to reach a consumer on a cell phone versus 7 on a landline phone.

On autodialer use, the report noted that it takes more than twice as many employees to manually call accounts versus using an autodialer. ACA said that manual dialing is roughly 50-75% more expensive for collection agencies, adding more than $178 million to the cost of doing business for collection agencies.

The proposed changes to the TCPA are pretty straightforward in both the independent report and in ACA’s analysis: that the use automatic dialing systems and prerecorded voice messages should be allowed.

Here's my take -- of course it is cheaper to use auto dialers and pre-recorded messages. It is also cheaper to allow send spam email rather than having to get permission to send marketing emails.

It is cheaper to send mass text messages rather than getting permission.

And of course text messages don't work so great with landlines and most people have cell phones.

It is also cheaper to do collection by lying, intimidating, and threatening consumers. It makes them pay.

Abusive debt collectors don't engage in these types of behaviors just for the fun of it -- they do this because it helps the bottom line. Congress recognizes this in the FDCPA when it says part of the reason for the FDCPA is to make sure honorable debt collectors who follow the law are not at a competitive disadvantage.

But, the ACA will say, it is not really abusive to call someone on their cell phone with a robo dialer or to leave pre-recorded messages. Even when you don't have permission.

Really? Says who?

Consumers think it is.

The government thinks it is.

Even the ACA thinks it is -- when it is telemarketing. The ACA doesn't want its phones blown up with telemarketing calls.

But think about it. Don't telemarketing calls -- when robo dialed -- reduce the cost of doing business? Reduce marketing costs? Return money to the economy?

So why demonize telemarketers and consider the debt collectors to be angels?

Here's the bottom line. No one wants the auto dialed calls or pre-recorded messages unless they give permission. The same as spam on email.

In our "always connected" world, maintaining some level of privacy is critical. The TCPA is one of the few areas that protects our cell phone -- if a debt collector is calling at least you know there should be a human being on the phone -- not a computer.

Hardly seems too much for the debt collection industry to bear....

August 22, 2013

Certegy (check collection) pays 3.5 million dollar fine for violating FCRA

Certegy is a company we have dealt with before -- we have not been impressed with their business practices. They just agreed to a massive fine -- 3.5 million dollars for violating the Fair Credit Reporting Act (FCRA).

Certegy Check Services, Inc., one of the nation’s largest check authorization service companies, has agreed to pay $3.5 million to settle Federal Trade Commission charges that it violated the Fair Credit Reporting Act (FCRA).

Certegy, based in St. Petersburg, Florida, is a consumer reporting agency (CRA) that compiles consumers’ personal information and uses it to help retail merchants throughout the United States determine whether to accept consumers’ checks. Under the FCRA, consumers whose checks are denied based on information Certegy provides the merchant, have the right to dispute that information and have Certegy correct any inaccuracies.

The FTC’s complaint alleges, among other things, that Certegy did not follow proper dispute procedures. The complaint further alleges that Certegy failed to follow reasonable procedures to assure maximum possible accuracy of the information it provided to its merchant clients, as required by the FCRA.

Here's the kicker:

“Inaccurate information in a consumer reporting agency’s file can have a huge impact on a person’s everyday life, starting with their check being denied at the grocery store,” said Jessica L. Rich, Director of FTC’s Bureau of Consumer Protection. “In this case, we alleged that Certegy delivered a one-two punch: the company not only failed to assure that the information it provided to retailers was accurate, but it also failed to follow proper dispute procedures. Today’s settlement will benefit consumers who use checks to pay for essential goods and services, including many older consumers and people without alternate means of payment, such as credit cards.”

If you have not checked your Certegy credit report, I suggest you do so to make sure that it is accurate. If it is not, then you can follow simple steps to make sure it gets fixed.

If you want to know more about credit reports (whether Certegy or the more traditional places such as Equifax), feel free to look at our website Alabama Consumer and you can also let us know you would like to be a part of our free webinar on Friday, August 23, 2013, at 1 pm central time:

4 Simple Steps To Fixing Any Credit Report Errors.

You can call us at 205-879-2447 or contact us through our website Alabama Consumer.

August 21, 2013

Bill designed to decrease identity theft of the deceased

Representative Sam Johnson has an interesting bill that he says will decrease the likelihood of identity theft in an unusual area -- identity thieves who are stealing the identities of people who have . . . died.

HR 2720, co-introduced by Johnson and Rep. Xavier Becerra (D-Calif.), is named after a deceased child victim of identity fraud and would delay the now-required publication of the SSA’s Death Master File.

If the bill passes, beginning January 2014, only death information released three years after the person has died would be made available – giving family members adequate time to file tax returns and preventing criminals from stealing the returns or information.

“For far too long, identity thieves have been exploiting the so-called Death Master File in order to cash in on deceased Americans’ identities,” Johnson said. “That’s just wrong. Worse, these criminals are deliberately targeting deceased children, like 4-year-old Alexis Agin. Worrying about a deceased loved one’s identity is the very last thing a grieving family needs.”

The DMF contains Social Security numbers, first and last names, dates of birth and death and is available to the public. It has been in use for decades and has collected death information for more than 87 million people.

“This common-sense bill will protect families and prevent further abuse of taxpayer dollars,” Johnson said. “Even the president included a similar proposal in his 2014 budget. It’s a no-brainer. We must protect Americans from fraud at every turn.”

I've not seen this very often but this bill sounds like a reasonable measure to cut down on crime. I remember when most public records had social security numbers on them and then we realized this was a problem. Good to see this is being addressed in this unusual context.

If you want to know more about credit reports and identity theft, feel free to look at our website Alabama Consumer and you can also let us know you would like to be a part of our free webinar on Friday, August 23, 2013, at 1 pm central time:

4 Simple Steps To Fixing Any Credit Report Errors.

You can call us at 205-879-2447 or contact us through our website Alabama Consumer.

August 20, 2013

Verdict against Equifax for credit reporting errors

Justin Baxter from Oregon obtained a remarkable verdict (18 million) for his client in a lawsuit against Equifax.

The jury was told she contacted Equifax eight times between 2009 and 2011 in an effort to correct inaccuracies, including erroneous accounts and collection attempts, as well as a wrong Social Security number and birthday. Her lawsuit alleged the Atlanta-based company failed to correct the mistakes.

While the verdict may be reduced as the punitive damage portion was many multiples of the compensatory portion the verdict should still be very significant and it sends a message that credit reports are important and juries do not like to see credit report errors that the credit bureaus refuse to fix.

Congratulations to Justin Baxter and his father Michael Baxter for this great verdict and work they did.

If you want to know more about credit reports, feel free to look at our website Alabama Consumer and you can also let us know you would like to be a part of our free webinar on Friday, August 23, 2013, at 1 pm central time:

4 Simple Steps To Fixing Any Credit Report Errors.

You can call us at 205-879-2447 or contact us through our website Alabama Consumer.

August 19, 2013

Identity Theft -- danger to college students

Nick LaFleur has a great article on the danger to college students from identity thieves that I recommend you read.

According to the FTC’s 2013 Consumer Sentinel Report, 21 percent of identity theft complaints in 2012 were filed by young adults- the most of any age group. What’s more, a 2010 survey by Javelin Strategy found that young adults aged 18-24 took the longest to detect identity theft—132 days on average—when compared to other age groups.

There are seven suggested steps to guard against this that Nick lists.

If you want to know more about credit reports and identity theft, feel free to look at our website Alabama Consumer and you can also let us know you would like to be a part of our free webinar on Friday, August 23, 2013, at 1 pm central time:

4 Simple Steps To Fixing Any Credit Report Errors.

You can call us at 205-879-2447 or contact us through our website Alabama Consumer.

July 13, 2013

New Articles on the FDCPA and FCRA

We have several new articles on Alabama Consumer that we think you might enjoy reading -- these articles address the FDCPA (Fair Debt Collection Practices Act) and the FCRA (Fair Credit Reporting Act):

**You can expect and have a credit report that is 100% accurate. No errors. If you don't, then we hope the story of Susie, who fought Bank of America and Trans Union, will inspire you to not give up but instead -- keep fighting, even if you have to sue. Suing the bad guys in federal court tends to end very well. And it will get your report to where it is 100% accurate.

**Debt collectors who threaten to call your family members violate the FDCPA (Fair Debt Collection Practices Act), especially the ones that actually do call your family. This is known as a "third party disclosure" when a debt collector calls your family members (other than your spouse). There is a very limited exception which most debt collectors don't fit into -- instead they call family members to harass you and bring pressure on you so that you will pay the debt. Even though this is illegal they do it because it works.

**Can you get punitive damages when you sue an abusive debt collector under the FDCPA? The short answer is "No" but if you sue, as normally you will, under Alabama state law, then punitive damages may be an option. Punitive damages are designed to punish the wrongdoer -- the abusive debt collector -- and to serve as a warning (deterrent) to all debt collectors to not abuse consumers in the same way ever again.

If there are articles you would like us to write or if you have any questions about your situation and you live in Alabama, call us at 205-879-2447 or contact us through our website. We look forward to hearing from you.