San Jose Bankruptcy & Fair Debt Collection Practices Act Lawyer Blog

A Fair Debt Collection Practices Act (FDCPA) case against debt collector Bakalar & Associates will to go to a jury, despite the collection agencies attempts to have the federal case thrown out. Rios v. Bakalar, 795 F. Supp. 2d 1368; (S.D. FL 2011). Back in June, Plaintiff Maria Rios filed a lawsuit in Florida against debt collector Bakalar & Associates for alleged violations of the FDCPA after the firm attempted to collect a consumer debt which was discharged in her bankruptcy. Bakalar & Associates argued Rios' case should be thrown out because bankruptcy laws do not allow consumers to file a FDCPA lawsuit when a debt collector tries to collect a debt that was discharged in bankruptcy. The firm also claimed the Ninth Circuit Court of Appeals, which includes California, supported their position in the case of Walls v. Wells Fargo Bank, N.A., 276 F. 3d 502 (9th Cir. 2002).

Rios argued her case should not be dismissed, relying on a case from the Seventh Circuit Court of Appeals which allowed claims for violations of the FDCPA even though the consumer's debt had been discharged in bankruptcy Randolph v. IMBS, Inc., 368 F. 3d 726 (7th Cir. 2004).

In the Walls v. Wells Fargo case the Ninth Circuit Court of Appeals said if the consumer wanted to sue they had to do it in bankruptcy court, under bankruptcy law. However, the Seventh Circuit Court of Appeals, disagreed, reasoning that the consumer could bring the claim in either bankruptcy court or federal court.

The federal court in Florida disagreed, or distinguished the Rios v. Bakalar case from Walls v. Wells Fargo, and refused to throw out the case against Bakalar & Associates, reasoning:

[T]he FDCPA and the Bankruptcy Code do not exist in irreconcilable conflict; in fact, the FDCPA and the Bankruptcy Code have different elements, require different levels of scienter, offer different defenses, and allow different damages where someone attempts to collect on discharged debt....Nor can anyone seriously argue that the Bankruptcy Code covers the whole subject of the FDCPA or vice versa. Bakalar & Associates, moreover, do not argue that Congress clearly intended the Bankruptcy Code as a substitute for the FDCPA. Hence, to the extent that Walls suggests that a discharge injunction under the Bankruptcy Code prevents consumers from bringing any FDCPA claim, I disagree.

Simply put, the Florida court found no conflict existed between the bankruptcy code and the FDCPA, and refused Bakalar & Associates' request to throw out the consumer's lawsuit.

A jury will now have the opportunity to decide whether Bakalar & Associates violated the FDCPA when the firm attempted to collect on a consumer debt which was already discharged during bankruptcy.

Background

Bakalar & Associates is a Florida based collection law firm which attempt to collect consumer debts arising from homeowners association's and other entities. The firm's debt collection efforts are primarily focused on the collection of HOA fees and assessments.

Last month, the a federal court in the Eastern District of Pennsylvania refused to dismiss a Fair Debt Collection Practices Act (FDCPA) complaint against NCO Financial Systems, Inc. In the lawsuit, plaintiff Anne Carr claimed NCO Financial Systems placed repeated and continuous calls to her over a period of roughly 30 days in violation of the FDCPA. Carr specifically identified nine telephone calls by both time and date and alleged she believed other calls were also made to her home telephone. She claims NCO Financial Systems violated the FDCPA's prohibition against abusive and harassing behavior when it placed the automatic telephone calls.

NCO Financial Systems filed a motion to dismiss Carr's complaint and argued nine telephone calls do not, as a matter of law, constitute harassing conduct under the FDCPA. The company also stated the number and frequency of the calls were not sufficient for the court to infer intent to harass or annoy Carr. The Eastern District of Pennsylvania disagreed with NCO Financial Systems, however, and denied the company's motion to dismiss. The court stated Carr was only required to plead her case with enough specificity to demonstrate the volume and frequency of telephone calls made by NCO Financial Services may have resulted from intent to annoy or harass her.

The court also disagreed with NCO Financial Systems' argument that the number and frequency of telephone calls alleged in the complaint failed to meet the definitions of continuously and repeatedly described in the FTC Staff Commentary on the Fair Debt Collection Practices Act. According to the court:

The Commentary defines "continuously" as "making a series of telephone calls, one right after the other," and defines "repeatedly" as "calling with excessive frequency under the circumstances." Id. The Court fails to see how these general definitions would dictate that nine calls does not constitute repeated or continuous telephone calls. Indeed, nine calls in thirty days could possibly constitute excessive frequency under these circumstances.

The federal court also distinguished McVey v. Bay Area Credit Serv., (N.D. Tex. Jul. 26, 2010) from the case at hand by stating the plaintiffs in McVey failed to allege specific facts and instead "merely regurgitated the statute's language in its complaint." In contrast, Carr identified specific telephone call dates and times in her complaint.

Because no controlling case law states the precise number and frequency of telephone calls that would be a violation of the FDCPA, the court refused to dismiss Carr's lawsuit. Simply put, this means a jury gets to decide whether NCO Financial Services engaged in harassing or annoying behavior in violation of the Act when the company called Carr nine times in a 30 day period.

Background

NCO Financial Systems is a collection agency and debt buyer. Creditors use the services of NCO Financial System in order to collect on unpaid debts. The company also purchases unpaid debts from an original creditor and then makes repeated automated telephone calls in an attempt to collect the debt.