Fdcpa Violation Continuing to Collect Phone Calls Standing
ARE YOU RECEIVING ROBO CALLS ON YOUR CELL PHONE ABOUT AN ACCOUNT THAT BELONGS TO YOU OR YOUR SPOUSE?
If a company is robo calling you about a debt that you allegedly owe and you provided your cell phone number to the original creditor, providing the number constitutes "prior express consent" for the creditor and any assigns of the account (e.g., a debt collector) to call you on your cell phone using an Automated Telephone Dialing System ("ATDS") or pre-recorded or artificial voices to introduce their call or in your voicemail.
In Florida (as in many other but not all states), a cell phone user can revoke their prior express consent. In Florida (and in many other but not all states), a cell phone user can revoke their consentverbally. (In a few states, such revocation must be in writing.)
A cell phone user who no longer wishes to receive telephone calls about their or their spouse's debt should keep their revocation unconditional and unequivocal :
"Stop calling me"
Document these calls! If you are a Florida resident and receive a call while you are in Florida, take thorough notes of the conversations especially the exact words you used to tell the caller to "Stop Calling".
I recommend that you tell the caller to "Stop Calling" during a call to your cell phone so the caller can not argue that they misunderstood the instruction to "stop calling" to apply only to a landline or other number that they were also calling.
If the caller stops calling you on your cell phone, then you receive the peace and quiet that the TCPA provides. If the calls continue and the caller is using an ATDS or prerecorded voice, then the caller is probably violating your rights under the TCPA. Plaintiffs who win in their TCPA cases are entitled to an amount of at least $ 500 per call and, if the violation is willful, up to $ 1,500 per call.
To get started towards enjoying your privacy again, call or contact Don Petersen today.
CALL DONALD E. PETERSEN AT 407 – 648 – 9050
Or, provide a brief description of you potential case and along with your contact information for a free case evaluation.
FREE CASE EVALUATION
YOUR SPOUSE MAY BE YOUR "AGENT"
Sometimes, a spouse will provide a creditor or service provider their spouse's telephone number and, often, the spouses have each other's permission to do so. As the saying goes — "happens all the time". In cases where the spouse did business with the caller (or the original creditor if the caller is a debt collector), it's usually best for both spouses to each revoke any possible prior express consent as early as possible after the calls begin.
STATUTORY DAMAGES
The TCPA provides that callers who violate the TCPA are liable in the amount of $ 500 per call. If the violation is willful, the court may award an additional amount of up to $ 1,000 per call. That'sa total of up to $ 1,500 per call.
If a creditor, debt collector, and most other companies continue to call a cell phone after the user tells them that they are calling the wrong person, further callsmay be willful violations. If the cell phone user tells themtwice, then the caller can not blame their failure on an isolated mistake to attempt to mitigate the willful nature of their conduct.
If the caller disregards ample warning that they are calling the wrong person, they risk paying up to $ 1,500 per call if they robocall a cell phone.
HOW DID THE CALLER OBTAIN YOUR CELL PHONE NUMBER?
Clients often ask me, "how did they obtain my cell phone number?" Most callers use a skip trace service or access a data base to obtain telephone numbers. For example, your credit reports probably list your current address, past address, and cell phone number and work telephone number. It will also probably list your landline number if you have one.
Any decent data base will also flag cell phone numbers as "probable cell phone number" (or similar description) but disreputable debt collectors unleash their robo dialers on the cell phones anyway. The increase in TCPA lawsuits is teaching them that this is wrong and the amounts paid to TCPA plaintiffs provides callers an incentive to improve their business practices.
Persuading callers — especially debt collectors and many telemarketers — to "stop calling" is often surprisingly difficult. Many debt collectors often ignore instructions to "stop calling" even when the person they are calling never owed the debt. Debt collectors are accustomed to calling people and, if they refuse to pay the debt, bullying them into paying it. This conduct usually violates the TCPA and is growing less frequent as consumers become aware of their rights and pursue TCPA lawsuits.
DOCUMENT YOUR CASE
If you are receiving calls on your cell phone concerning people you do not even know, Mr. Petersen encourages you to read "Proving Your TCPA Case" for instructions how to preserve the evidence he will need to prove your TCPA case or call Mr. Petersen at 407 – 648 – 9050 for a free consultation.
TO GET STARTED ON YOUR TCPA CASE
Call or contact Don Petersen today.
CALL DONALD E. PETERSEN AT 407 – 648 – 9050
Or, provide a brief description of you potential case and along with your contact information for a free case evaluation.
FREE CASE EVALUATION
CALLS TO BORROWER'SLANDLINES
If you are receiving robocalls from debt collectors to your landline, the TCPA does not prohibit such calls. The debt collector must still comply with the FDCPA.
Cell phone users would have their rights under the Fair Debt Collection Practices Act ("FDCPA") in addition to their rights under the TCPA. Sometimes though, the calls are coming in only on a landline such as when a consumer does not have a cell phone or the caller knows it does not have consent to call the consumer's cell phone. Debt collector's calls to a landline attempting to collect a consumer debt are often covered by the Fair Debt Collection Practices Act ("FDCPA").
Landline subscribers have very limited rights compared to borrowers who who receive calls from debt collectors on their cell phones. The portion of the TCPA that is discussed above would not apply to a business call (such as a collection call) to a landline.
THE FAIR DEBT COLLECTION PRACTICES ACT ("FDCPA") AND THE FLORIDA CONSUMER COLLECTION PRACTICES ACT ("FCCPA") PROVIDE ADDITIONAL PROTECTION AGAINST HARASSING PHONE CALLS
If the caller is a debt collector, the Fair Debt Collection Practices Act ("FDCPA") probably governs the debt collector's conduct when calling a consumer including the time, place, and frequency of calls attempting to collect a consumer debt. (The FDCPA does not apply to original creditors because they are not "debt collectors".) The Florida Consumer Collection Practices Act ("FCCPA") applies to original creditors as well as debt collectors. Some other states have similar laws but many don't.
Even if caller complies with the FDCPA (or the FDCPA does not apply to them because they are an original creditor, or any other reason), the caller must still comply with the TCPA or face substantial liability.
"You're calling my cell phone. Stop calling!" will revoke consent in Florida and many other states.
If the caller is calling a cell phone, the called party should identify themselves, remind the caller "You're calling my cell phone", and tell them to "Stop Calling." If the caller is calling a landline, it helps to tell the caller to "Stop Calling". Under either scenario, it helps to take accurate notes abut the conversation.
Although the TCPA and the FDCPA both provide for statutory damages for each "violation", the law is well established that the same words have drastically different outcomes under each statute.
Under the TCPA, each call is a "violation". So, persons who violate the TCPA are required to pay the prevailing plaintiff at least $ 500 per call and, if the violation is proven to be willful, an additional amount of up to $ 1,000. In other words, statutory damages may total up to $ 1,500 per call.
Under the FDCPA or the FCCPA, each plaintiff's entire case is one violation. So, if there is one plaintiff in the case and the plaintiff successfully pursued their FDCPA case, the court may award statutory damages of up to $ 1,000. If the plaintiff also successfully brought their FCCPA claims, the court could award an amount up to $ 1,000 as statutory damages for prevailing on the FCCPA claim.
Callers are liable for TCPA violations ($ 500 to up to $ 1,500 per call) for violations of the Act regardless of whether they comply with the FDCPA or similar state collection practices acts. But, let's explore the FDCPA in order to understand where the debt collector may be.
If a debt collector is calling a "wrong person" repetitively on a landline and the called party informs them that they are calling the wrong person, the called party probably may have a case against the caller if the debt collector. If the caller is not a debt collector but is an original creditor instead and is calling a landline, some state collection practices acts would protect the hapless landline owner from a "harassing" volume of calls. Recovery under the collection practices statutes — both the Fair Debt Collection Practices Act ("FDCPA") and the Florida Consumer Collection Practices Act ("FCCPA") — are usually limited to $ 1,000 per case plus reasonable attorney's fees and costs. Many states' collection practices acts do not apply to original creditors. Landline owners who are being harassed about a debt allegedly owed by a person who they do not even know should consult with a local attorney who is licensed to practice in their state.
GET STARTED TODAY
Donald E. Petersen, Orlando Florida Consumer Rights Lawyer
Hopefully, the information in this site assures you that you do NOT have to continue to tolerate unwelcome telephone calls which you are receiving. Mr. Petersen looks forward to learning more about your potential case and discussing how he can help you enforce your rights.
To get started towards enjoying your privacy again, call or contact Don Petersen today.
CALL DONALD E. PETERSEN AT
407 – 648 – 9050
Or, provide a brief description of you potential case and along with your contact information for a free case evaluation.
FREE CASE EVALUATION
(C) Donald E. Petersen 2017 – 2021
Source: https://tcpa.mobi/cell-phone-calls-my-debt/
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