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January 2014 Archives

§ 1692C - FURTHER REGULATIONS ON THE WAY A DEBT COLLECTOR MAY CONTACT A CONSUMER

Section 1692c of the FDCPA is commonly disregarded by over zealous debt collectors in pursuit of consumers. As before, the entirety of this section is below: § 1692c. Communication in connection with debt collection(a) Communication with the consumer generally. Without the prior consent of the consumer given directly to the debt collector or the express permission of a court of competent jurisdiction, a debt collector may not communicate with a consumer in connection with the collection of any debt--(1) at any unusual time or place or a time or place known or which should be known to be inconvenient to the consumer. In the absence of knowledge of circumstances to the contrary, a debt collector shall assume that the convenient time for communicating with a consumer is after 8 o'clock antimeridian and before 9 o'clock postmeridian, local time at the consumer's location;(2) if the debt collector knows the consumer is represented by an attorney with respect to such debt and has knowledge of, or can readily ascertain, such attorney's name and address, unless the attorney fails to respond within a reasonable period of time to a communication from the debt collector or unless the attorney consents to direct communication with the consumer; or(3) at the consumer's place of employment if the debt collector knows or has reason to know that the consumer's employer prohibits the consumer from receiving such communication.

KAZEROUNI LAW GROUP, APC PROGRESSES PAST PROGRESSIVE CASUALTY INSURANCE COMPANY'S ATTEMPT TO DISMISS NATIONWIDE CLASS ACTION

On January 24, 2014, the Honorable Gonzalo P. Curiel of the United States District Court, Southern District of California, denied defendant Progressive Casualty Insurance Company's Motions to Dismiss and Strike in the matter of Olney v. Progressive Casualty Insurance Company, 13-cv-2058 GPC (NLS). Read the full Order here. In Olney, plaintiff Olney alleges that Progressive violated the Telephone Consumer Protection Act, 47 U.S.C. § 227, et seq. ("TCPA") by calling Olney on Olney's cellular telephone while using an autodialer in conjunction with prerecorded voices. The purpose of Progressive's telephonic communications was to collect an alleged debt alleged to be owed by an unknown third party. In response to Olney's allegations, Progressive argued that (i) Olney lacked standing since Olney was not the "intended recipient" of the calls; and, (ii) the TCPA does not apply to the debt collection calls at issue.Intended Recipient - Judge Curiel quickly rejected this argument while noting the plethora of case law to the contrary. For example, Judge Curiel cited Breslow v. Wells Fargo Bank, N.A., 857 F. Supp. 2d 1316 (S.D. Fla 2012) stating that "companies who make automated calls bear the responsibility of regularly checking the accuracy of their account records or placing intermittent live verification calls...[I]t seems to the Court that entities like [the defendant]...are in a much better position to bear this responsibility than are individuals." Judge Curiel's Order, page 5, lines 21-24. Therefore, this argument was rejected.The TCPA Applies to Debt Collection Calls - This argument was also rejected by Judge Curiel based upon both binding case law and public policy. Judge Curiel stated "[a]cknowledging that debt collectors are exempt from liability under TCPA, regardless of whose cell phone number is called, would leave without redress an individual who receives prerecorded messages simply because he has a phone number that previously belongs to a debtor." See page 10, lines 5-9 of Judge Curiel's Order. Therefore, this argument was rejected.Based upon the discussion above, Judge Curiel rejected Progressive's Motions.

KAZEROUNI LAW GROUP, APC GRANTED PRELIMINARY APPROVAL FOR CLASS ACTION SETTLEMENT

On January 23, 2014, the Honorable Anthony J. Battaglia approved a class action settlement obtained by the Kazerouni Law Group, APC in Knell, et al. v. FIA Card Services, N.A., 12-cv-426 AJB (WVG). [A copy of Judge Battaglia's Order may be found here]. InKnell, the plaintiffs alleged that defendant FIA Card Services, N.A. recorded California consumers without said consumers' knowledge and/or consent in violation of California Penal Code § 632. The Kazerouni Law Group, APC believes that this decision is of great benefit in protecting California consumers from further invasions of privacy.

FLAT FEE DEFENSE FOR COLLECTIONS LAWSUITS

The following was written by Abbas Kazerounian, Esq., partner and founder of the Kazerouni Law Group, APC. CONSUMER CREDIT CARD DEFENSE FOR AN AFFORDABLE FLAT FEE Have You Recently Been Sued? If you have been sued by a credit card company or a collections company recently, it is NOT the end of the world - WE CAN HELP YOU. We have a long standing history of helping consumers in their times of need. We understand that you are in a position where funds are tight and you cannot afford attorneys charging you more than the sum of your alleged debt. Most attorneys and/or firms charge by the hour to defend lawsuits by credit card companies and/or collection companies. We are different - we can help you by assisting in defending your case for an affordable FLAT FEE plus your filing fee (which is the mandatory fee that goes to the court only) for a complete defense. What Is The Flat Fee? Most people think that there is a catch to this - like the flat fee is going to be very high. This just isn't true. Our flat fee system is highly affordable and unmatched in Southern California. What is more is that your flat fee provides a complete defense. We charge 10% of the debt that you are being sued for OR $875, whichever is higher (plus your filing fees). Examples: - If you are being sued for $4500, your flat fee for a complete defense would be $875 plus your filing fee (your filing fee will be different depending on the amount you are being sued for and the county where the suit was filed - see below). In this scenario your flat fee defense is capped at $1000 and will not be a penny more. - If you are being sued for $35,000, your flat fee for a complete defense would be $3500 plus your filing fee (your filing fee will be different depending on the amount you are being sued for and the county where the suit was filed - see below). In this scenario your flat fee defense is capped at $3500 and will not be a penny more because that is 10% of what you are being sued for.
Does The Flat Fee System Short Change My Defense In Any Way? Absolutely NOT - we pride ourselves in the manner that we represent our clients and integrity and ethics that go with that. When we take your case for the flat fee, we are taking your case to its final determination. What does that entail - though the majority of the cases that we take on are dismissed very swiftly, a few are fought to the end. And we are prepared to take it to the end for the very same flat fees discussed above. If a case is taken to trial, we are prepared to do the following for that very same flat fee. 1. Assess your case and analyze the merits of the Plaintiff's (credit card or collection company) case and of course the defenses available to you. 2. Write an answer and file it with the court and serve the Plaintiff with a copy. 3. Draft written discovery narrowly tailored to your lawsuit and serve on Plaintiffs [to seek out all the evidence (if any) that the Plaintiff has against you in order to prepare for trial]. 4. Defend depositions/s (including potentially yours) set by the Plaintiff. 5. Take deposition/s of Plaintiff or Plaintiff's Person Most Knowledgeable (PMK). 6. Partake in motion practice for discovery issues and or other issues that make arise like summary judgment. 7. Prepare for trial (including the gathering of all evidence, subpoenaing all witnesses, filing exhibits as per local court rules, preparing opening statement, closing statement, direct examinations, cross examinations, preparing legal briefs for the battles that arise in trial and of course preparing YOU for trial). 8. Trying your case. Steps 1-8 usually take hundreds of hours of work and most law firms would charge in excess of $30,000.00 to provide the same defense. However, true to our word, we will provide you with that same defense for our flat fee system described above. Furthermore, it should be noted that we have great resources available to us in order to be able to provide you with such a defense. We have 4 offices in Southern California alone, which allows us to serve your in San Luis Obispo County, San Bernardino County, Riverside County, Orange County, Los Angeles County and San Diego County. How Successful Are we in Defending These Cases? It is important to note that we offer NO guarantees of success in defending your case, as that would be unethical and misleading. However, what we can tell you, is that the majority of the cases we take are dismissed by the Plaintiff very early on in litigation with no need to go trial. These set of cases that are dismissed early are dismissed as soon as we file your answer with the Court and serve the Plaintiff written discovery (usually within the first 90 days of being retained). This would amount to approximately 60% of the cases that we take on. From the remaining 40% of cases that we take on, half of those are dismissed by the Plaintiffs further along in litigation but still before trial (approximately within 8 months of retaining us). From the 20% that remain, half are dismissed by Plaintiffs at the doorsteps of trial. Seeing that we are prepared to show up and try your case on the merits calls the credit card companies' bluff and the majority of them do not wish to try these cases. From the remaining 10% of the cases that remain to be tried, we have a great record at trial and prevail on over 50% of them. If we prevail at trial on the merits, you are entitled to bring a motion for attorney's fees (if your credit card contract has such a provision - which most do). Once again, it is important to note that we offer no guarantees of success but our track record speaks for itself. Filing Fees: Filing fees differ in all counties in southern California (though they are in the same range) and the fees are also split into the following three categories:

WHY IS IT WORTH IT TO FIGHT CREDIT CARD LAWSUITS

The following was written by Abbas Kazerounian, Esq., partner and founder of the Kazerouni Law Group, APC. WHY IT IS WORTH FIGHTING CREDIT CARD LAWSUITS There are a myriad of reasons why you would want to defend and litigate a credit card suit against you. Your Opponent: - You are not usually litigating against seasoned litigators - usually the firms that bring these cases are debt collectors under the guise of law firms. These are firms that file approximately 2000 lawsuits a month. These are firms that are using large secretarial/paralegal staff and very few attorneys. Essentially, the few attorneys that are working at these firms have so many cases to deal with that they do not wish to deal with a real litigant opponent. Even if they did have the litigation experience, they do not have the time and/or the resources to deal with additional paper work. Step 1 - The Complaint: Such firms work on the premise that over 95% of lawsuits will default and that they will get a judgment without any fight. So all the complaints are boilerplate form complaints and only names and figures have been changed. A lot of the time errors have been made in quickly putting together these complaints and you may have a chance to demurrer the complaint, which immediately starts the paper work process for the overworked plaintiff counsel. If the debt is small enough, they may dismiss at this early stage. Step 2 - Initial Discovery: If and when the plaintiff has overcome your demurrer and/or you have answered, immediately propound discovery. The last thing they will want to deal with is discovery and the paper intensive work that is related to that. If it is a debt buyer plaintiff, you will want to request paper work showing how they have standing to bring the suit in the first place. You obviously must request any contract that you they have alleged exists and the lawsuit is based on. Step 3 - Meet & Confer and Discovery Motions: More than likely the Plaintiff counsel will delay in responding and miss deadlines, and even if not, 9/10 times the responses are insufficient. It is crucial that you meet and confer and calendar the response date. More than likely they will miss the date and at this point you will have the opportunity to be the aggressor. Bring your motion to compel and seek sanctions. Far too many times these plaintiffs bring lawsuits and they are not prepared to engage in good faith discovery and that is where you can win your case. You will win your motion and the plaintiff will see that it is facing heavy sanctions. You will see a high success rate at this stage. A lot of cases are dismissed (don't forget you can seek costs if they drop the case) and/or the offers to settle are drastically lower than before. By this time you have bought yourself or your client close to 8 months to save money so that you can settle at this stage. Step 4 - Trial: If you have not settled by now, you have to maintain the willingness to go to trial attitude because the likeliness is that the Plaintiff will not want to go to trial (and more importantly for them, they will not have the resources and the time to take you to trial). You will have bought yourself or your client close to 12 months of more by now. You will have a good chance of receiving pennies on the dollar offers to settle the case if it has not already been dismissed. If you do go to trial, do not let them testify by declaration; force their witnesses to fly in (causing more expense and hassle). Also be sharp with your rules of evidence as a lot of the time the witness that has been brought in by the Plaintiff will not have actual knowledge of the documents and will not be able to lay foundation in order to get them into evidence. It is possible to non-suit these cases if you are alert. For debt buyer plaintiffs, attack their standing to bring the suit in the first place. Furthermore, debt buyer plaintiffs very rarely will have the full account documents or the any alleged contract that you or client was alleged to have made with the initial creditor.

§ 1692B - ACQUISITION OF LOCATION INFORMATION

As a matter of context, one section of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692b, regulates the manner in which debt collectors may contact third parties while attempting to collect a debt from consumers. So that you may follow along, I have copied and pasted that section below:

THE ROSENTHAL FAIR DEBT COLLECTION PRACTICES ACT

§ 1788.1. Legislative findings; Purpose(a) The Legislature makes the following findings:(1) The banking and credit system and grantors of credit to consumers are dependent upon the collection of just and owing debts. Unfair or deceptive collection practices undermine the public confidence which is essential to the continued functioning of the banking and credit system and sound extensions of credit to consumers.(2) There is need to ensure that debt collectors and debtors exercise their responsibilities to one another with fairness, honesty and due regard for the rights of the other.(b) It is the purpose of this title to prohibit debt collectors from engaging in unfair or deceptive acts or practices in the collection of consumer debts and to require debtors to act fairly in entering into and honoring such debts, as specified in this title.

PURPOSE

The Kazerouni Law Group, APC believes that all consumers need to be informed of their rights when it comes to debt collectors. As such, the Kazerouni Law Group, APC has created this blog in order to provide consumers with simple explanations regarding the rules that govern debt collectors. This blog is for information purposes only and does not form an attorney-client relationship between the Kazerouni Law Group, APC and the reader.

THE FAIR DEBT COLLECTION PRACTICES ACT

§ 1692 - Congressional Findings and Purpose(a) Abusive practices. There is abundant evidence of the use of abusive, deceptive, and unfair debt collection practices by many debt collectors. Abusive debt collection practices contribute to the number of personal bankruptcies, to marital instability, to the loss of jobs, and to invasions of individual privacy.(b) Inadequacy of laws. Existing laws and procedures for redressing these injuries are inadequate to protect consumers(c) Available non-abusive collection methods. Means other than misrepresentation or other abusive debt collection practices are available for the effective collection of debts.(d) Interstate commerce. Abusive debt collection practices are carried on to a substantial extent in interstate commerce and through means and instrumentalities of such commerce. Even where abusive debt collection practices are purely intrastate in character, they nevertheless directly affect interstate commerce.

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