Debt Collector Discussion

THE CASE OF THE OVERZEALOUS DEBT COLLECTOR

Samantha brought a bought a boat from a large company, Arc Marine, for the sum of $50,000. At purchase, Samantha paid $10,000 in cash and gave Arc a note for the balance, which was payable in sixty monthly installments.

She kept the boat in her driveway. After making several payments, Samantha had financial problems and fell behind in making payments. Arc’s attorneys, who are not part of a collection agency instead work only for Arc, began calling Samantha every day at her place of work and in the evening at her home. The calls continued despite Samantha’s verbal demands that they cease. When they did not, Samantha brought an action against Arc pursuant to the Fair Debt Collection Practices Act.

The Trial

There was testimony at trial about the number of times that the law firm’s employee called Samantha and that both Samantha and her employer were very upset. Samantha’s attorneys questioned partners of the law firm regarding how many such suits they handled and their normal collection practices.  Her attorney pointed out the fact that the law firm had a standard practice of collecting a percentage of any payments they convinced a delinquent debtor to pay although the balance of their work is paid on an hourly basis.   A lawyer for Arc testified that it was very difficult to contact Samantha except during the daytime at work or in the evening at home.  They had mailed registered letters to Samantha but she has refused to accept them. She also had no current email account.

The Arguments at Trial

Arc’s attorneys argued that the suit should be dismissed because the Fair Debt Collection Practices Act did not include attorneys under the category of debt collectors, and therefore, the Act did not apply to the facts of this case. Samantha’s attorneys argued that a law firm that did extensive collection work for Arc should be considered a debt collector under the act. They also argued that when a creditor misused the collection process in an unreasonable way, the act should apply regardless of the status of the creditor.

Questions to Discuss

  1. Who do you believe has the stronger argument, Samantha or Arc? Why?
  2. If you were the jury hearing this case, for whom would you decide? Why?
  3. Based on your reading of the text and ordinary common sense, do you believe that the Fair Debt Collection Practices Act should apply to all attorneys or just to those attorneys who specialize in collection work?

Answer:

Based on the information provided in the case, it appears that Samantha has the stronger argument. According to the Fair Debt Collection Practices Act (FDCPA), a “debt collector” is defined as “any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another.” The law firm in this case appears to meet this definition, as they are working on behalf of Arc Marine to collect debts owed to the company.

Given this definition, the FDCPA should apply to the law firm in this case. Furthermore, the fact that the law firm has a standard practice of collecting a percentage of any payments made by delinquent debtors, and that they continued to call Samantha despite her verbal demands to cease, suggests that their actions may have been unreasonable.

If I were the jury in this case, I would decide in favor of Samantha, as the law firm appears to have violated the provisions of the FDCPA.

In terms of whether the FDCPA should apply to all attorneys or just those who specialize in collection work, I believe it should apply to all attorneys who engage in debt collection activities as defined in the Act, regardless of whether they specialize in collection work or not. This would provide clear and consistent protection for consumers against abusive debt collection practices.

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