Way back in 2005, I wrote about a need to reform our state rules on returns of service. You’ll find that article here. In August of 2006, then Mass. Bar Association President Warren Fitzgerald wrote a column in the Boston Globe also calling for reform based on the failure of small claims defendants to get any meaningful notice of a suit being filed against them. Today we’re learning that in New York, Attorney General Anthony Cuomo has filed suit to vacate over 100,000 judgments that were entered against consumers who were not properly served. (more…)
Posts Tagged ‘Zwicker & Associates’
FDCPA Violation Case Brief: Failing to Identify Creditor
Saturday, November 19th, 2005
When law firms send out collection or “dunning” letters to consumers, they are required by the Fair Debt Collection Practices Act to identify the name of the creditor to whom the debt is really owed. 15 U.S.C. Section 1692g(a)(2). The US District Court in the Eastern District of New York found that Zwicker & Associates did not comply with this important provision. Sparkman v. Zwicker & Associates, PC, 374 F.Supp.2d 293 (2005)
Ms. Sparkman was in debt. Apparently, Ms. Sparkman had a major credit card with Chase that went into default. Chase managed to sell the delinquent account to an entity called The Bureaus, Inc. a company that buys debt. She filed for bankruptcy protection in August 2004. Prior to filing, she received a collection letter from Zwicker & Associates in October 2003.
The letter was two pages, printed on Zwicker’s letterhead and signed by one of Zwicker’s attorneys. The subject line of the letter read: “RE: The Bureaus, Inc. Original Credior: CHASE.” However, the body of the letter read “This office has been retained by The Bureaus, Inc., an agent of the current owner of your account, to assist it in the collection of the funds you owe….”.
When the courts are called upon to determine whether there has been a violation of the FDCPA, the courts apply the standard of the “least sophisticated consumer.” 15 U.S.C. Section 1692g(a). The District Court found that the use of this language “suggests that the creditor is someone other than The Bureaus.” In finding against Zwicker & Associates, ‘[t]he least sophisticated consumer would not deduce from reading the [October 2003 letter] that the name of the creditor seeking collection is The Bureaus.” Because the court found this to be a violation of Section 1692g(a)(2), the court awarded judgment and damages to Ms. Sparkman.
One of the fundamental purposes of enacting the Fair Debt Collection Practices Act was to promote fair and ethical debt collection practices. “The Act was the result of compromises that resulted in its bipartisan support and support by both the major debt collection trade associations involved and consumer organizations.” National Consumer Law Center, Fair Debt Collection (4th Ed. 2000). Obeying the rules is not rocket science, especially the rather simple one of identifying the creditor in a communication to the debtor, which is why Zwicker & Associates was on the losing side of Sparkman’s case.