Lawyers, there is no doubt that when we attempt to collect consumer debts, we are all governed by the Fair Debt Collection Practices Act (“FDCPA“). We now have another gruesome reminder in the case of McCollough v Johnson, Rodenburg & Lauinger.
Johnson Rodenburg and Lauinger is a North Dakota law firm accused of trying to collect a $3,800 debt after the statute of limitations had expired. Mr. McCollough obviously had done his homework and learned of his rights under the FDCPA. A law firm previous to JRL had file a lawsuit against McCollough on the very same debt. McCollough had represented himself and had the case dismissed on the basis of the Statute of Limitations.
The debt was sold to another entity who hired JRL to file the lawsuit. This new entity was not truthful with JRL and had misinformed it that a payment was made on the account and thus the statute of limitations had been renewed. JRL filed a second lawsuit on the same debt prompting McCollough to file his FDCPA lawsuit against JRL.
An appellate court has upheld a $311,000 jury award to a McCollough for violating his rights under the FDCPA. The trial court awarded McCollough $1,000 in statutory damages, plus $60,000 in punitive damages and $250,000 for emotional distress.
The judge granted partial summary judgment on the Fair Debt Collection Practices Act claims against JRL, in part because JRL sought to have McCollough admit “facts” that were not true – that he had never disputed the debt, that he made a partial payment in June 2004 and that every statement in JRL’s complaint was true. The requests for admission didn’t include a notation that under Montana Rule of Civil Procedure, the requests would be deemed admitted if McCollough didn’t respond within 30 days.
Moral of the Story to my fellow collection attorneys – When you accept a claim, you have to look at it. You cannot blindly file a lawsuit on it without challenging every number that comprises the claim. Frequently, clients send me claims to pursue that include interest that they are not entitled to. I always call a client who is suing for interest to find out the legal basis for interest. I obtain documentary support for a claim including invoices, statements and copies of checks. I hate to throw salt into the wound of JRL, but I never accept old credit card debt for collection. It is just too risky and this is a case in point.
Nitzkin and Associates has been collecting debts for over 20 years. We represent businesses and frequently consult with other lawyers to collect “uncollectible debts.” If you have a claim or judgment that you need collected, contact Attorney Gary Nitzkin by email at firstname.lastname@example.org or call toll free (888) 293-2882. For more information about Nitzkin and Associates, Debt Collection Attorneys, visit our website at www.creditor-law.com.