Posted On: June 30, 2013 by Watts & Herring, LLC

Watts & Koval Discuss Debt Collectors -- Final Part

This is the final of a four part interview I had with Steve Koval, a great FDCPA lawyer in Atlanta, Georgia. You can read part one, part two, and part three.


Steve: You didn't mention too much about the TCPA. I'm looking to that part after we finish on the FDCPA, The Fair Debt Collection Practices Act.

John: I'm glad you mentioned that. We're going to dive into more of the FDCPA. We're going to talk about what Steve thinks about cease-and-desist letters, which are letters to debt collectors saying, "Do not contact me again."

We'll talk about if we should be recording phone calls. What are the advantages and disadvantages?

We might get some of Steve's insight into how his clients feel after they have decided to take action, meet with a consumer attorney, and file suit against an abusive debt collector. There's a common type of violation that involves messages on our phones, whether cell phone or home phone. Steve and I will talk about that.

Then we'll shift our focus to a related law, which is the TCPA, Telephone Consumer Protection Act. We'll talk about how it regulates debt collectors who call our cell phones. It's a powerful law.

Steve, why don't we jump into an issue that comes up in my practice a lot? Clients will say, "Should I send a cease-and-desist letter to this collector that is being abusive or annoying?" Give us your thoughts on that.

Steve: The answer to that is that it depends. I know people don't like those kinds of answers. The affect that the cease-and-desist letter is supposed to have under the Fair Debt Collections Practices Act is that once it's received, the debt collector is supposed to stop contacting you. There are a few exceptions, but generally, they're not supposed to contact you anymore, and certainly not to collect on the debt.

The cease-and-desist letter often gets trashed. It doesn't get processed, it doesn't get processed properly, or the left hand doesn't know what the right hand is doing within the debt collector's business.

If you're going to send them, these letters should always be sent by regular and certified mail
return receipt. I guarantee that if you send it by regular mail, they'll always claim they didn't get it. It's important to have proof that it was sent.

I have clients who can't handle any more contact from the debt collector. All they want is for whatever is happening to come to an immediate stop. I generally advise those folks to send a cease-and-desist letter.

I have other folks who, although it may be annoying and they may have been truly upset in the past, once I've explained the law to them, they feel more confident and it doesn’t bother them as much.

We want to document the abuse. Otherwise, it's often a he said/she said if there's no a paper trail or there aren't recordings. Sometimes, we will not send a cease-and-desist letter because we know or think we're going to file a suit, but we need to have proof of some of the things my client has told me.

A client may say, "Every time they call, they call me stupid and a deadbeat or worse." I say, "How are we going to prove that?" They say, "I told some people about that at the same time." I say, "That's good. That's some evidence."

Otherwise, it degenerates into a he said/she said. The debt collector almost universally will never say that they used that kind of language. It certainly won't be in the notes they take from each phone call.

If you send a cease-and-desist letter, it may work. You may not get any more contact, but then you can't prove this abusive pattern that has been going on.

That's why there's no single answer to it. It depends on the client, the level of abuse, and the circumstances. I certainly would never advise anyone who's truly to the breaking point with the abuser being continually abusive to continue just to further their case. I don't think that's a good idea.

We all have different ways of handling situations. Something that may upset somebody else may not upset someone else as much. You need to talk about this with your client, see how they feel, and how they're able to handle this.

John: That's very good advice. In our practice, we have the same experience. Sometimes people say, "I can't deal with it anymore," and so sometimes we'll have them send a cease and desist. Other times, we'll file a suit, which is the ultimate cease and desist.

We'll talk about whether or not we send demand letters before we sue these guys.

One thing the cease and desist will do that doesn't necessarily make sense, but that we have to accept as true is when we send a cease and desist, some collection agencies will say, "If I can't call you, then I'm going to sue you."

Steve: That's true. That's a very good point, John.

John: Some clients are not looking to be sued. Other collection agencies will say, "If I can't talk to you, I'm going to send it to another collection agency." That new collection agency, as we know, doesn't have any obligation to not call us. You can get into a cycle where you get calls, send a cease and desist, it goes to another place, and it's on and on.

We tell clients that when they talk to a collection agency, they're trying to gain information. We tell people, "Pretend you're a reporter. You're just asking questions of who, what, when, why, where and how. Who are you? Why are you calling me? What do you say I owe? How do you say I owe this? What are you going to do next?"

Sometimes, the collector calls the wrong person. When they figure out it's the wrong person, they'll leave you alone. This applies to people who aren't answering their phone calls.

A cease and desist can be very good. It can also end up with some negative consequences. We're pretty sparing in our use of them. Steve, I don't know if this is a common thing that you do. Is it pretty uncommon to send those?

Steve: Those are really great points you made, John. You and I approach it the same way. There are relatively few instances where I send a cease-and-desist letter.

The consequences, as you point out, can be unintended. A cease-and-desist letter can result in suit being filed immediately. Of course, sometimes you don't know what the affect is going to be, and we tell our clients that.

Once the entity or company that owns the debt is informed by the debt collector that they received the cease-and-desist letter, they say, "You no longer have the account. I can send the account to a different debt collector." Then the process starts all over again.

When I started doing this, I didn't understand that because you've notified the current debt collector to cease and desist, it doesn't apply to the next debt collector. It's a loophole for debt collectors, but it's used all the time. You have to start the process again. Sometimes the debt will get recycled many times.

John: This leads to another point. Sometimes clients say, "Should I send a cease and desist?" We say, "No, we don't think you ought to do that." They say, "I want you to write a letter to the collection agency and get them to compensate me, but I don't want to sue them."

We have a very strict policy about writing what are called "demand letters," which are letters before you file suit. I'd like you to talk about your approach, Steve. Do you typically write letters before a lawsuit is filed asking a collector to compensate your client?

Steve: No, I don't. I can't think off the top of my head of any instances where I've done that. That's for a few reasons.

If you're an attorney and you're sending the letter out of state, the entity, company, or law firm you're sending it to can try to say it was improper. They can wind up trying to sue you the attorney, and perhaps the client for doing that. We've heard horror stories about that.

The general practice for attorneys who do this kind of work is to not send letters. My only exception to that, which usually doesn't consist of a letter, is what we talked about earlier. There are additional requirements, but generally, collection law firms are subject to the Fair Debt Collection Practices Act.

Many times, in my case, I sue law firms. If it's an out-of-state law firm, I generally do not send a demand letter. If it's a law firm here in Georgia, or particularly here in Atlanta that I know or know of, I will sometimes reach out to that law firm. I'll send a letter or make a phone call prior to suing them.

There are a lot of reasons for that. One is that our courts feel that since all the parties involved are attorneys, and I file most of my cases in federal court, they want to see that you've made some effort to resolve it before you file a lawsuit.

Another exception is if there's a company that I've sued a lot. If I know the corporate representative or the law firm that always represents them, and I know their practices as far as handling these things, I will sometimes give them a call. I know it won't result in anything bad. The worst that can happen is they'll say, "No. Even though this is like the last case we handled, we're not interested in settling this either pre-suit or early in the suit."

Those are some of the exceptions, but generally speaking, I don't send demand letters.

John: We follow the same practice. There's one debt collector in the nation that I will call before suit is filed. We can normally work things out.

Another issue with sending demand letters before we sue is that a lot of times it ends up burning up two, three or four weeks, and maybe two months of time going back and forth.
There is something powerful, as a friend of ours says, about sending a demand letter that has the words "Federal Court" written on it across the top. In other words, "Here's a lawsuit. Now, do you want to talk?" That makes it very serious, and it starts deadlines. It lets the debt collector know we're not afraid to sue. We typically do not send letters before we file suit.

A lawsuit is the ultimate cease-and-desist letter. If somebody wants the calls to stop, that will do it. If the calls continue, that makes the case even better.

Steve: Let me briefly add something to that. The reason it is supposed to stop is that the debt collector is not allowed to contact your client after they know your client is represented by an attorney. That's the mechanism that goes into play.
Sometimes I have clients that want me to write a letter not necessarily making a demand. They want me to send the cease-and-desist letter under my own name, or they want me to have some contact with the debt collector. As a rule, I don't do that. Most attorneys don't do that because we become witnesses in the case because we've written something. That can disqualify us from actually representing our clients.

Off the top of my head, I can't think of any instances where I picked up the phone and called the debt collector. That's something I would never do because they're going to call me as a witness in the case as to what happened, and I won't be able to represent my client. If there is some reason for an attorney to contact a debt collector, I would have another attorney do it. It would be someone I know who could do that one little part of it so that I'm not disqualified from representing my client.

John: That's a great point. Let me shift our focus to something that a lot of clients ask about. You've touched on it already. It's the idea of recording phone calls. I want you to talk to us about that, Steve. What are some of the advantages? What are some of the dangers of recording phone calls? We're not talking about voicemail messages, but recording actual conversations.

Steve: Let's start with the voicemail messages. We talked a little about this last week in one of my cases. If somebody leaves a message on your answering machine or telephone, that's fair game. You need to make sure you save it. You won't get into trouble because they knew they were being recorded when they left it, so that's never an issue.

You always want to preserve those messages. It's sad when someone comes in to me and says, "I got 20 phone calls and voicemails in one day." I say, "Oh, that’s great! It's going to be a wonderful case. Where are they?" They say, "I erased them." Don't do that. Save it in multiple places. Put one in your safe-deposit box, because they could be worth a lot of money.

Move on to recording actual conversations. If you remember anything about this, the words are to be careful. It's not common that we hear about this, but John and I are both familiar with cases where people have recorded calls they thought were okay to record and then wound up getting sued or criminally prosecuted for doing it.

In Georgia, and I believe in Alabama, it's okay to record a phone call if you are a party to the call. If you are on the receiving end or you're making the call, that's okay, but there's a catch to it. What if the person you're talking to is in a state where the rules are different and both parties have to consent? Cases have held that that's illegal.

Pennsylvania is a two-party state where all parties need to consent to the phone call. Let's say an 800 number pops up. You don't know where that call is coming from, and you record it. Then you later find out that the call originated in Pennsylvania. It's quite possible that what you did was illegal. You didn't have bad intent, but you still violated the law.

Be careful. You need to talk with an attorney to find out if it's an okay state to do it in. I always advise my clients before they record to find out where the person is that they're talking to. That's the only way you can know for sure. Sometimes the numbers may be an Alabama area code, but they're really calling you from Pennsylvania, or it's an 800 number, and you don't know where they're calling from.

The other thing is a part that I like. Often, when you call, or you receive a call, there will be a recording, or the person will say, "This call may be recorded." Be careful, and be cautious. I take the position, and I think it's the correct position, that if someone tells you the phone call may be recorded, it means this phone call may be recorded. Therefore, you have that person's permission.

I will also say that I had a client who made a phone call to California, which is a two-party state. They recorded the phone call because at the beginning, when they called the debt collector, a pre-recorded message came on and said, "This phone call may be recorded." When we sued them, the attorney representing the debt collector tried to take the position that it was illegal. It didn't affect the case because I completely discounted his position, which was incorrect.

Just because someone is taking an incorrect position doesn't mean they can't sue you or try to use it to coerce an inadequate settlement or worse.

John: Here in Alabama, and it’s the same thing in Georgia, we're a one-party state.

Steve, I'm sure you do this. Three, four or five years ago, I told everybody, "You're in Alabama. You can record any phone call you want as long as you're a party to it." Then these two-party states started taking the position of, “It may be okay in Alabama or Georgia, but it's illegal in California or Florida.”

If you want to be absolutely safe, tell the person, "I'm going to record this phone call. If you want to keep talking, understand that I'm recording it."

Steve: That's a good one. Of course, if you tell them that, they may not believe you. It may not have any impact. If someone has been told that they're being recorded, then unless they're complete idiots, and sometimes they are, they're going to be careful. They're not going to use bad language or anything else. It may not help your case.

I believe there are a dozen or so states where you need both parties’ consent or that it's not allowed at all. I won't rattle them all off, but we already mentioned Pennsylvania. I know Maryland is a two-party state because in one of the cases I was talking about where someone got sued, one of the parties was in Maryland. Florida is also a two-party state. Off the top of my head, those are some of the states to be careful in.

John: There are a couple quick points about recording calls. The purpose of recording the call is the same reason the debt collectors record calls.

A lot of times, as Steve mentioned, when you call in, the debt collector will say, "Please be advised that this call may be recorded." They do it to have proof of what was said in that conversation. It's amazing that they will have the recordings where their collector is professional, but the ones where they use profanity are accidentally lost.

The reason they want to record is to document. That's the same reason we want to do it. It's not to trap or trick anybody. If you record a conversation, don't act different. Don't try to set somebody up. That's not what this is about. It's about documenting what is occurring.

If you tell somebody, "I'm recording this conversation," maybe they'll act nicer. That's all right. They may not believe you. A lot of consumers will say, "I'm recording this call," when they're really not. Never lie to a collector. You always want to be truthful. If you say that, make sure you are recording it. It can help document abuse.

I feel comfortable when I have clients call in to a place that says, "Please be advised this call may be recorded." That's the collector's message saying it can be recorded. That's one party. If you agree to it, that's two parties, so that's fairly safe.

Steve and I want to emphasize that there is still some danger. I had a case one time where my guy recorded a phone call. It had an area code from a one-party state, and the person on the phone said they were from a one-party state. When we got into the lawsuit, I sent the recording to the defense lawyer, and he said, "Actually, this guy made the call from Florida. He just lied about where he was from."

Steve: That's a good one.

John: I said, "That's even better for me." He said, "No, I'm going to turn this over to the DA. I think we're going to prosecute your client down here." I said, "Wait a minute. You lied about where you're from." I thought that was an absurd position, but it goes to show you that there is some danger in recording.

I'm much more reluctant to have recordings because if clients are credible and they document the number and length of calls, then we can accomplish a lot without the recordings.

Certainly, having a recording of some abusive debt collector screaming at you and using profanity is very helpful. As Steve said, for some unknown reason, they will not document, "I cussed out the consumer and called him racial slurs, and then screamed at him again, and hung up." For some reason, they don't want to put that in their notes.

Steve: You made a very good point, John. I actually had a client who recorded a phone call. I had covered all of this with him, but I don’t know what happened. He lied. It wasn’t about a big deal, but he just lied about something in the phone call. He knew he was recording the call, and he lied on the phone. It ruined my ability to use a tape. We settled the case.

Rather than helping, the recording hurt.

You want to act naturally. You don’t want it to appear that you’re trying to trap the debt collector. You're trying to document the abuse. If it looks like you’re egging them on trying to be sneaky, for lack of a better word, and jurors hear it played in court, I don’t think they’ll think much of the case. Sometimes a recording can hurt your case.

If a client comes in with an illegally recorded call, meaning it’s clear that it’s from a state where it wasn’t permitted, and they play it for me, I say, “That’s a great phone call. Do you know where the person was calling from or where you were calling to?” They say, “It was Pennsylvania.” I say, “That’s a real problem because you’re not allowed to do that.”

They say, “I can just throw the tape away.” "No, you can’t destroy evidence.” “I won’t admit that I did that.” “No. Sorry. I can’t. Once I know about it, I wouldn’t advise you to lie, and I certainly can’t advance anything in the case on your lies.”

Like I said at the beginning, be very careful with recordings. You should consult with an attorney before you do anything like that because you can have a good case and actually ruin it with a recording.

John: That’s right. I’ve had people tell me about terrible conversations, and they say, “I recorded it.” I say, “Great.” They come in, we press play, and all we can hear is our client. The other part of the conversation’s not recorded. If you’re going to record a conversation, then practice it. Call your brother-in-law or your buddy down the street.

You can go to Radio Shack. It’s probably the easiest place to get the stuff. Tell them what you need, and they’ll help you. Call somebody and record it. Then see if it sounds right. Is there a lot of feedback?

I won’t say there’s nothing worse, but it’s not very good to have what should be a great tape that nobody can understand. The defense lawyer will be looking at us saying, “What was that supposed to be?” Be careful. If you’re going to do it, then do it right.

Steve: I have one last horror story on tapes. I had warned my client ahead of time. I said, “Make sure you put in a fresh tape each time and not a 15-minute tape." You shouldn’t be talking with a debt collector for more than 30 minutes, but I want there to be at least 30 minutes on one side of the tape if you’re using an old standard tape recorder.

There was a great recording. It was legal. Everyone was in a one-party state. We were getting great stuff, and in the middle of the phone call, the person ran out of tape. I had two-thirds of a tape, and just as it was getting really good, we ran out of tape. Don’t do that.

John: Get extra tapes. If you’re going to all this effort, buy a package of tapes, or get a digital recorder that holds 60 hours.

Let’s go to voicemails, Steve. This will flow us into the TCPA. You and I are doing a lot of cases that involve illegal voicemails. I’ll mention a couple things.

Everything Steve talked about earlier about threats, profanity and all that, also means whatever would be wrong in a live conversation is wrong on a voicemail.

Here’s something in addition to that, which is the mini-Miranda.

Steve, what does a debt collector have to say in a voicemail? Maybe we can explore why they’re often reluctant to give the required disclosures.

Steve: Your timing on this is good because I recently got a case on exactly this point. There were several violations, but one of them was they never said, “This is a communication from a debt collector. Any information we get, we can use for collection purposes.”

That’s the essence of a mini-Miranda. Miranda refers to a criminal case where anything you say may be used against you in a court of law. You have the right to remain silent and that kind of thing. In the debt-collection context, it’s called the mini-Miranda, which requires them to inform you that they’re a debt collector and that the information they get can be used against you.

It is amazing how many times that is not done. The case I recently got has a clear violation, which, in my opinion, gives rise to statutory damages up to $1,000 for the client under the FDCPA.

It’s a very common thing. If you have phone calls from different debt collectors, they have to say that every time. If they don’t do that, each of those calls is potentially worth $1,000 to you. It may be a subtle thing or something you might not think about, but it’s very important to look for that.

Please, don’t erase those messages. Save the message because that message may be $1,000 to you.

John: Let me make a point so everybody is clear on this. If we have one debt collector that leaves 10 of these messages, unfortunately, the law says we can only get up to $1,000 for all those when we file suit.

Generally, our clients don’t just have one collector calling them. There are multiple collectors. The reason this is so important is collectors try to trick us into calling.

I had a case that was a law firm in New York. They called and made a third-party disclosure, which we talked about last week. They called the mother-in-law and said, “Your daughter-in-law is going to be so excited to hear from us. We have wonderful news for her. Please have her call us immediately so she can claim it.”

The mother-in-law was thinking, “Wow! Some rich uncle we don’t know about died. My daughter-in-law and son are about to get all this money.”

The daughter-in-law called, and the collector said, “You owe this money. How would you like to pay it?”

That’s being unfair, and it’s part of why these collectors have to disclose, “We are a debt collector. We’re trying to collect a debt.”

They resist doing that for a couple reasons, and you may have more to add, Steve. One reason is if you get a mysterious call, curiosity gets you. “Who was that calling? I’ll call Bob back.”

The other reason is they’re worried about making a third-party disclosure. What if your roommate, son, mother or father hears that message? That can be a violation.

These debt collectors wring their hands and go crying to the courts saying, “This is unfair. We have to be able to leave voicemail messages, but we can get in trouble for leaving voicemail messages.”

The courts have said, “Don’t leave a voicemail message.” It’s pretty simple. There’s no God-given right to be able to leave voicemail messages.

Steve: This is not part of the mini-Miranda, but they have to identify who they are. They can’t just say, “This is Bob.” They have to say, “This is ABC Debt Collection Company. This is Bob Smith.”

John: These are very common violations. We do this, and I’m sure you do this, Steve. When we tell clients, “Save every voicemail message,” we usually tell them to bring them or email them to us.

Either the mini-Miranda is on there or it’s not. There’s no excuse for not leaving it on there.
That can be something that gives you the ability to sue, but more than that, it lets you know that this debt collector is willing to break the law and that they’re so arrogant that they want you to record them breaking the law.

They’re saying, “I’m going to leave on a voicemail, which is recorded, the fact that I’m willing to break the law.”

If they’re willing to do that, you know you’re dealing with an abusive debt collector. Where they’re willing to do that, they’re going to do a lot more than that.

It can also let you know if you’re dealing with an honorable place or a dishonorable place.

Definitely keep that in mind as you listen to messages that you may have from debt collectors.

Steve: John, some were talking about the TCPA. Give us a thumbnail sketch of what this law is and how you see it impacting your practice.

John: This is a law that’s been around for almost two decades. It was originally passed to stop all the junk faxes. Remember when we had fax machines, and we’d come in in the morning and there would be a whole stack of junk faxes that we didn’t ask for? They burned through all our toner and used up our paper.

That’s what this was designed for. It was also designed to stop certain types of calls to hospital rooms, 911 centers, and cell phones. Those are all in the same category.

The types of calls it was designed to stop are calls from what are known as auto-dialers or computer dialers. Some people call them robodialers. It’s not a human being calling you. A computer is dialing the number. It’s also designed to stop prerecorded messages to cell phones. These are messages that are prerecorded or computer-generated.

An example that’s very common in the debt-collection side of this is that you may get a call, and when you pick up the phone, it says, “Please hold for the next available representative.” Those always annoy me. I think, “If you’re calling me, you need to be available now. I’m not here to wait on you.”

That is a prerecorded message because it’s not a live human being saying it. It also shows you that it’s an auto-dialer or a computer dialer. A computer has called you, and now that computer is, in effect, looking for the next collector that’s available. As soon as they’re available, it’ll shoot you into their headphone.

That’s why sometimes these collectors are almost a little confused when they get on the phone. First of all, they just hung up. Now you’re sitting in their ear, and they’re waiting on their computer to bring up your account.

Sometimes they’ll say, “What is your name?” Most people think, “Well, you called me. You ought to know who you’re calling for.”

Those are the types of things that the TCPA regulates. The basic test on cell phones is whether we gave permission or consent to the original creditor or debt collector to call us on our cell phone.

If we did, then it’s okay. If we did not, then it’s illegal.

The remarkable thing about this law and why it’s so powerful in dealing with abusive debt collectors is, like we were talking about with the FDCPA, the statutory damages. When we file a case, we can only get up to $1,000 in statutory damages against a particular debt collector no matter what they did. We can get actual damages if it really bothered us or caused us injury.

Under the TCPA, it’s $500 per call. If the calls were made intentionally against the law, it would be $1,500 per call. If we tell a collector, “I never gave you permission to call my cell phone. Never call my cell phone again," and they continue to do it, that may very well be $1,500 per call. Again, I’m talking about the calls made by an auto-dialer or a prerecorded message. It can be a very powerful law. That’s the thumbnail sketch of it.

Steve: As John was saying, in a FDCPA case, you may only be entitled to statutory damages of $1,000 even if they have called you and haven’t left mini-Miranda messages 50 times.

What if they’ve called you 50 times using an auto-dialer, and they didn’t have permission to call you? You’re not limited to a $1,000 cap. What was potentially a $1,000 case could now be times the number of calls between $500 and $1,500. There’s great potential for recovery there if you can document it.

John: This will give you the greatest insight. Debt collectors hate this law. They don’t mind the FDCPA because Congress hasn’t changed the statutory damages amount in 30 years. It blows their minds that they could be on the hook for every call they make. They might be forced to pay damages for that.

They will often blatantly violate the law and say, “Oh well, give $1,000 to a client and pay some attorneys’ fees. Big deal.”

Steve: There’s one other thing that’s a little bit subtle. What was interesting to me about this law, among the other things we’ve talked about, is it’s not just that they called you and actually left you a message or spoke to you. It’s even if they attempt to do it.

Often, you’ll only know of a few times that they actually got through. Maybe they got through five times, but they tried to get through 25 times. Their potential liability is significant in these cases, and that’s why it’s important to be mindful of it.

You may come in to see John or me thinking, “I have $1,000 statutory case,” when actually you could have a $25,000 potential case because of all these TCPA violations.

John: I’ll say this to illustrate how serious Congress is about this law. If you make calls to a home phone, it’s fairly rare that the TCPA comes into play. It can, but for our purposes we’ll stick with cell phones.

Somebody can port their home phone to a cell phone. I’m not talking about forwarding it. I’m talking about instead of you paying AT&T for your home phone, that you’re now paying T-Mobile, but have the same number on your cell phone.

There’s only a 15-day window or what we sometimes call a “safe harbor” for a debt collector or original creditor to call that number with an auto-dialer or a prerecorded message and not be liable.

You could have a home number, and if you never gave it to the collector, and they’re calling you, that’s okay. If that switches to a cell phone, starting on day 16, they’re liable for those calls.
Collectors hate this.

When we sue them, they say, “That’s unfair.” We say, “Obviously, Congress wanted you to be very careful in calling cell phones, and you are supposed to scrub or check numbers to see if this is a cell phone or still a home phone.” That’s how serious this law is.

That’s a fairly unusual situation of somebody changing their home number to a cell, but it goes to show that for many of us, all we use are our cell phones. I know a lot of people that don’t have a home phone. Why do you want one? You have a cell phone with unlimited calls.

If you’re getting calls on your cell phone, it’s critical to figure out who’s calling and how they’re calling. If they leave a message, we can generally tell if it’s prerecorded. If they’re not leaving messages, you definitely need to answer the call and see if it says anything. Does it say,

“Please hold for the next person”?

When you get a human being on the phone, you can ask, “Why do you guys call me five times in two hours? Are you just trying to harass me?” A lot of times they’ll say, “No. that’s just the computer dialer. We don’t have any control over that.” They’re generally pretty free with telling us about this.

The thing I would stress to everybody and this is what we do, and I know it’s what Steve does, is if you’re getting calls to your cell phone, we’re going through a checklist in our mind. Did we give our cell phone out to anybody like the creditor or collector? Are they prerecorded? Are they auto-dialed?

We were talking about this before the call when we were down in Jacksonville at a seminar. I’ll tell you what we do, and I’d like your thoughts on it.

There’s this idea of whether you gave consent or permission to the collector or creditor to call your cell phone. It’s our strong belief that anytime in the law that we give consent, we can take that consent or permission away.

Maybe we did give our cell phone number to the credit card company, but if we don’t want these calls coming in, it’s our permission that we can revoke that consent or take it away. We can send a letter, like Steve said, certified mail return receipt and say, “If I ever gave you permission, I’m taking it away. Never call my cell phone again.”

I’m curious, Steve, how you handle that.

Steve: It’s the same thing. About two weeks ago, I had a phone call with a defense attorney for a national law firm who handles FDCPA and TCPA cases. There was a case where my client had revoked permission in writing. They acknowledged that they received it.

They said their position is that you can’t revoke permission. It’s a relatively unsettled area of the law, but I think our argument is much better. You don’t give eternal permission to be harassed on your cell phone.

That’s the position we take. I wouldn’t hesitate to sue a debt collector where my client may have originally given permission, but then clearly revoked it.

If you tell them over the phone that they no longer have permission, sometimes they will actually document that. Most of the time, they won’t.

You could file suit based upon telling them that. It gets into a he-said, she-said, so you want to have it in writing. You don’t want that to be an issue. You want it to be clear that you revoked permission.

John: There are a couple other things as we draw this to a close. Maybe we can talk about some differences between the TCPA and the Fair Debt Act. The statute of limitations on Fair Debt is a year, right?

Steve: Yes.

John: It’s one year from whenever the violation was. With the TCPA, and it’s not 100% clear, but it appears to be four years. We have a longer period of time, but the thing we want to caution everybody about is don’t delay.

If you have violations of the TCPA, sit down with a lawyer who does this type of work. Let me tell you what can happen. Steve, I know you have a personal story on this.

Sometimes defendants like class-action cases. Normally, we think of class-action cases as being terrible for corporations, but sometimes corporations want a class-action. They think it can buy them peace for everybody.

Sometimes they will seek out a lawyer. In this business, it’s known as a “sweetheart deal.” They’ll pay the lawyer a bunch of money, but the class members don’t get anything. The corporation gets to say, “We’ve settled with everybody that we did wrong.”

This happens in the TCPA context. If we delay, it may be that somebody settles a class-action case. We’re not going to get into whether or not it’s a binding or valid settlement. The point is that it’s an argument we have to face.

I’d encourage everybody to not delay just because you have a little bit longer period of time. That was your experience, wasn’t it, Steve?

Steve: Unfortunately, it was. The class members were notified by one or two ads in a national newspaper. My client never had any idea that she was part of this class, and the time for her to file a claim expired.

Arguably, her claims disappeared, so there are reasons not to delay. Certainly, there are reasons to bring it to the attention of an attorney early so that if there is a class-action going on, perhaps you can opt out of it to preserve your rights to sue independently. Most of the time, you’ll be better off doing that.

John: One of our main purposes here is to help people understand what their rights are. If we don’t know what our rights are, we don’t know what to do, but once we know what our rights are, we need to take action.

We hope that we’ve been able to give you at least a little bit of information that will be helpful and encourage you to say, “Wait a minute. This doesn’t sound right,” “It doesn’t feel right,” or “I’m looking at this situation I’m in with this debt collector, and it doesn't appear to be correct.”

Take action. That normally means to save everything, like letters and voicemails. Document everything, and then sit down with a lawyer. Find out what your options are.

It may be that it’s better to wait a little bit. Sometimes we meet with people and we don’t file suit for three or four months. Sometimes we meet and file suit the next day. It’s a good idea to sit down with somebody and find out what your options are.

Steve, I appreciate you being on here. In case we have some people that joined us late in this call, why don’t you give people your contact information again so that if somebody’s in Georgia or if they’re dealing with a collector in Georgia and they want to give you a call, they’ll be able to easily find your information?

Steve: My name is Steve Koval. My phone number is (404) 350-5900. My website address for the firm is www.KovalFirm.com. I can be reached by email at Steve@KovalFirm.com.

John: I appreciate that. My name is John Watts. My phone number is (205)879-2447. You can find out information and reach me through my website www.AlabamaConsumer.com.

Steve, do you have any last thoughts or suggestions for people that are dealing with debt collectors, whether or not the TCPA or FDCPA applies, or any last thoughts for people?

Steve: Call an attorney who knows how to do this. If you’re in Georgia or Alabama, call John or me, or go to the NACA website at www.NACA.net.

Get advice because you may have a case, and because of the statue of limitations and other considerations, you may have a case, and then it may disappear on you or go beyond the time that you can do something about it.

If you think you have a case, contact a lawyer. Set up an appointment, and find out what your rights are. Then you’ll know how to proceed. You’d hate to find out that you had a great case, missed a deadline, and now it’s not worth anything.

John: The best way to stop an abusive debt collector is to sue them.

Steve: That’s true.

John: It’s not only to stop them from abusing you, but to stop them from abusing other people. The abusive collectors are not just inherently bad. This is economics. They have made a very calculated decision that if they break the law, they will make more money than they have to pay out.

If you let people you work with, go to church with or your family and friends know about their rights and options, and people start standing up and taking action against these abusive debt collectors, they’ll eventually say, “This wasn’t such a good business deal. Maybe we should not use profanity, threaten that people will go to jail, or call their neighbors. Let’s start following the law. We’ll make more money that way.”

Ultimately, of we don’t take action against these guys, nothing will change. Given our economy, it’s going to continue to get worse because they are going to have to push people hard to try to get them to pay money.

We appreciate everybody being with us. Steve, thanks for being here.

We’ll give you your Fridays back since you’ve given us your last two. We appreciate it.

Steve: Thanks, John. I’ve enjoyed participating.

John: We’ll talk to you soon.