Law Offices of John L. Fallat
523 Fourth Street Suite 210 San Rafael  CA 94901
Tel 415-457-3773 Fax 415-457-2667
Consumer Law
Consumer Law

SUV Rollovers and Product Liability Claims

"Sport Utility Vehicles" (SUV's) have become increasingly popular. It has been estimated that SUV's comprise 25% or more of new ...(more)


General Principles of Product Liability Law

Product or products liability is the area of personal injury law concerning liability for injuries caused by "defective" products. "Defective" ...(more)


The Financial Threat Posed by Uninsured or Underinsured Motorists

Almost every state in the U.S. requires that drivers have liability automobile insurance, although the amount of coverage that is ...(more)


Check Truncation and Electronic Check Exchange Under Check 21

Effective October 28, 2004, the Check Clearing for the 21st Century Act (Check 21) generally authorizes banks to exchange and ...(more)


Consumer Law News Headlines

New Study Charges No Major Card Issuers Good for Consumers

Consumer Confidential: Credit cards, muscle carts and car seats

Lawmakers eye small bank exemption for consumer agency

Obama's mortgage relief plan falling short

U.S. mortgage backer may need bailout

Remedies Available for Debt Collection Violations of the FDCPA

In 1977, Congress enacted the federal Fair Debt Collection Practices Act (FDCPA).  Even though many states have enacted similar laws, the FDCPA will take precedence over state law, unless state law provides greater protections.
Provisions of the FDCPA
The FDCPA regulates the conduct of "debt collectors" (including attorneys) who regularly collect debts that were incurred for "personal, family or household" purposes.  The FDCPA requires certain disclosures by the debt collector and prohibits other specified conduct, including conduct that constitutes:
  • Harassment or abuse
  • False or misleading representations
  • Unfair or unconscionable practices
Consumers/debtors who are subjected to such conduct by a debt collector are given two ways to seek redress under the FDCPA.
Civil Lawsuit by the Debtor
If a debt collector violates any of the provisions of the FDCPA, the aggrieved debtor may bring suit in state or federal court, but only within one year of the violation.  Recovery by the debtor/consumer may include:
  • Any actual damages sustained as a result of the misconduct
  • An additional award of up to $1,000, awarded at the discretion of the judge
  • Costs of the successful action, including attorneys' fees

If suit is filed against the debt collector as a "class action," (i.e., multiple debtors with the same or similar complaints join in one action), the court may award up to $1,000 for each participant, up to a maximum of $500,000 or 1% of the net worth of the debt collector, whichever is less.  If the court finds that the suit was brought in bad faith, however, it may allow the debt collector to recover its reasonable attorneys' fees.

Standards for Awards by the Court
In deciding what penalties to apply, the court is authorized to consider:
  • The frequency and persistence of the debt collector's violations of the FDCPA
  • The nature of the noncompliance with FDCPA
  • The extent to which the violations were intentional
Administrative Enforcement Actions
Enforcement of the FDCPA is assigned to the Federal Trade Commission (FTC).  Debtors/consumers who believe that they have been the victims of a FDCPA violation may file a complaint directly with the FTC and/or the proper state authority.  In response to consumer complaints, or other reports of misconduct, the FTC may conduct an investigation.  The FTC reported that it received more than 25,000 complaints regarding debt collectors in 2002.
In an attempt to avoid filing a lawsuit, the FTC will usually first inform the violator of its findings.  The FTC typically attempts to settle any violations through a consent judgment (whereby the debt collector acknowledges the violation(s) and agrees to the imposition of penalties and fines).  If the violator agrees, the consent judgment is forwarded to the federal Department of Justice, and then filed with the appropriate federal court.  If the violator does not consent to the judgment, the FTC may file suit.

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