Various credit collecting tactics

Section 1692g(b) then provides that if the consumer disputes the debt in writing,
the collector must cease further collection efforts until the validation procedure is complied with:
Disputed debts (b) If the consumer notifies the debt collector in writing within the thirty day
period described in subsection (a) of this section that the debt, or any portion
thereof, is disputed, or that the consumer requests the name and address of the
original creditor, the debt collector shall cease collection of the debt, or any
disputed portion thereof, until the debt collector obtains verification of the debt or
a copy of a judgment, or the name and address of the original creditor, and a copy
of such verification or judgment, or name and address of the original creditor, is
mailed to the consumer by the debt collector.
Although the notice literally requires the debt collector to provide validation information, the
Seventh Circuit has held that the debt collector does not violate the statute if it ceases all furthercollection activities without providing the information. Jang v. A. M. Miller & Assoc., Inc.,1996 U.S.Dist. LEXIS 10883 (N.D.Ill., July 30, 1996), aff'd, 122 F.3d 480 (7th Cir. 1997)

Section 1692g is related to §1692e(8). Under §1692e(8), if a consumer disputes a
debt, either orally or in writing, Brady v. Credit Recovery Co., 160 F.3d 64 (1st. Cir. 1998), the
debt collector cannot report it as undisputed to a credit bureau. Thus, if the consumer orally disputes the debt, the debt collector cannot assume that the debt is valid or report it as undisputed to a credit bureau, but need not provide validation information to the debtor.
If the consumer requests a credit bureau to remove a trade line or note that the debt is disputed, the furnisher of information, which can be a debt collector, violates the Fair Credit Reporting Act as well as the FDCPA by verifying or continuing to report it as undisputed.
VI. VIOLATIONS: THREATS OF UNINTENDED, UNAUTHORIZED OR ILLEGAL
ACTION
The FDCPA prohibits "the threat to take any action that cannot legally be taken or
that is not intended to be taken." 15 U.S.C. §1692e(5). Examples of violations include:
1. Threatening criminal prosecution or liability for multiple damages or civil
penalties, when collecting bad checks. If the collector states or implies that
it regularly prosecutes criminally when it does not, its communications
violate §1692e(5). Alger v. Ganick, O'Brien & Sarin, 35 F.Supp. 2d 148
(D.Mass. 1999); Davis v. Commercial Check Control, Inc., 98 C 631, 1999
WL 89556, 1999 U.S. Dist. LEXIS 1682 (N.D.Ill. Feb. 16, 1999).
2. Section 1692e(5) is also violated if the collector misstates the consumer's
liability for multiple damages or civil penalties, such as by implying that
liability for multiple damages is absolute when the consumer has a right to
tender the amount of the check prior to trial and avoid liability for multiple
damages, or where a statutory notice is a precondition to liability and no
such notice has been given. Stadler v. Devito, 931 P.2d 573 (Colo. App.
1996) (where bad check statute required notice by certified mail before
IX. VIOLATIONS: INABILITY TO PROVE WHAT IS DUE
In In re Maxwell, 281 B.R. 101 (Bankr. D. Mass. 2002), Fairbanks Capital
Corporation obtained a mortgage loan that was allegedly in default. It did not have the note, an
account history, or other information from which the amount due could be accurately computed.
It demanded more money than was due. The court held that it violated 1692f and could not
qualify for a good faith defense.

DISCOVERY
Among the areas that have been held discoverable in FDCPA cases:
1. The source of a debt and the amount a bad debt buyer paid for plaintiff’s debt.
Coppola v. Arrow Financial Services, 302CV577, 2002 WL
(D.Conn., Oct. 29, 2002) (must phrase request clearly); Kimbro v. IC System,
301CV1676, 2002 WL (D.Conn. July 22, 2002).
2. How amount sought was calculated. Coppola v. Arrow Financial Services,

Actual damages include emotional distress. The debt collector may be held "liable for
any mental and emotional stress, embarrassment, and humiliation caused" by improper debt collection
activities. Kleczy v. First Federal Credit Control, Inc., 21 Ohio App.3d 56, 486 N.E.2d 204,); Venes v. Professional Service Bureau, Inc., 353 N.W.2d 671 (Minn. Ct. App. 1984); Baez-
Martinez v. PMS, 1997 U.S. Dist. LEXIS 3314 (D.P.R. 1997); McGrady v. Nissan Motor Accep. Corp.,
40 F.Supp. 2d 1323 (M.D.Ala. 1998); Carrigan v. Central Adjustment Bureau, 502 F.Supp. 468 (N.D.
Ga. 1980); Rawlings v. Dovenmuehle Mtge, Inc., 64 F.Supp.2d 1156 (M.D.Ala. 1999). State law
requirements regarding the proof of intentional or negligent infliction of emotional distress are not
applicable to actual damages under the FDCPA. Smith v. Law Offices of Mitchell N. Kay, 124 B.R.
182, 185 (D.Del. 1991); Howze v. Romano, 92-644, 1994 WL, 1994 U.S. Dist. LEXIS 20547
(D.Del. Dec. 9, 1994); Crossley v. Lieberman, 90 B.R. 682 (E.D.Pa. 1988), aff'd, 868 F.2d 566 (3d Cir.
1989); Teng v. Metropolitan Retail Recovery, 851 F.Supp. 61, 68-9 (E.D.N.Y. 1994); Donahue v. NFS,
Inc., 781 F.Supp. 188, 193-4 (W.D.N.Y. 1991).
D. STATUTORY DAMAGES
In addition to actual damages, if any, the consumer may be awarded "such additional
damages as the court may allow, but not exceeding $1,000." 15 U.S.C. §1692k(a)(2). The consumer need not show any actual damages in order to recover statutory damages. Bartlett v. Heibl, supra; Baker v. G.C. Services Corp., 677 F.2d 775, 780-81 (9th Cir. 1982); Harvey v. United Adjusters, supra, 509 F.Supp. 1218 (D.Or. 1981); Woolfolk v. Van Ru Credit Corp., 783 F.Supp. 724, 725 (D.Conn.
1990); Cacace v. Lucas, 775 F.Supp. 502 (D.Conn. 1990); Riveria v. MAB Collections, Inc., 682
F.Supp. 174, 177 (W.D.N.Y. 1988); Kuhn v. Account Control Technol., 865 F.Supp. 1443, 1450
(D.Nev. 1994). It follows that where only statutory damages are claimed "any FDCPA or related
lawsuits filed in the past by this plaintiff have no bearing on whether the letter sent by [the collector]
violated the FDCPA" and are not discoverable. Lee v. Robins Preston Beckett Taylor & Gugle Co.,
L.P.A., 1999 U.S. Dist. LEXIS 12969 (S.D. Ohio July 9, 1999).
In determining the amount of statutory damages in an individual action the court is to
consider "the frequency and persistence of non-compliance by the debt collector, the nature of such non-compliance, and the extent to which the non-compliance was intentional". 15 U.S.C.
§1692k(b)(1). One court has held that continued use of an unlawful letter after being placed on notice of its illegality warrants the maximum. Cacace v. Lucas, 775 F. Supp. 502, 507 (D. Conn. 1990).Others hold that the factor requires a court to consider whether the defendant “has a history of violating
the Act.” Blum v. Lawent, 02 C 5596, 2003 WL (N.D.Ill., Sept. 8, 2003). Accord,
Evanauskas v. Strumpf, 300CV1106JCH, 2001 WL (D.Conn. June 27, 2001), *6; Yancey v.
Hooten, 180 F.R.D. 203 (D.Conn. 1998); Miller v. McCalla, Raymer, Padrick Cobb, Nichols & Clark,
LLC, 198 F.R.D. 503, 506 (N.D.Ill. 2001) (“The noncompliance here involved thousands of individual
violations over several years”); Creighton v. Emporia Credit Service, Inc., 981 F.Supp. 411, 417
(E.D.Va. 1997) (lack of other complaints in 19 years collection agency was in operation is favorable
factor). In King v. Int'l Data Servs., 2002 U.S. Dist. LEXIS 26426 (D.Haw.), the court found that the fact that the debt collector had sent out thousands of similar letters to other debtors was the
"frequency" referred to in the statute.

D. TRUTH IN LENDING ACT
1. 15 U.S.C. § 1643(b)
"authorized use" for charges.