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HOW TO DOCUMENT TCPA VIOLATIONS TO BUILD A CASE:

  • Jared Hartman, Esq.
  • Posted on December 16, 2013

 

  1. Try to answer your every call so that the call will appear on your phone bill, as most phone companies will not keep a record of missed calls. Even if a voicemail is left, your phone record will not show the call was ever made. The only way to make sure your phone record logs the call is to answer the call, ask who they are, and then hang up on them!
  2. Google the phone number and read what others have to say on popular websites “1 800 notes, “whocalledus” and other website bulletin boards.
  3. Take screenshots or some other photo of the specific caller ID, showing the date and time of call.
  4. Save all voice messages to your computer, as most phones will automatically delete messages after a few days. Saving the voice message is important for proof of a pre-recorded or artificial voice message.
  5. Obtain and save all phone records and highlight incoming calls from debt collectors and telemarketers.
  6. Keep track of the following information in a hand-written diary: 1) date of call, 2) time of call, 3) caller ID, 4) Caller’s identity, 5) Summary of conversation.
  7. Always send a letter revoking consent just in case you have forgotten whether you have previously given them your number. In your letter, simply state, “I do not believe I have ever given you consent to call me. I am hereby insisting that you stop calling me for any purpose whatsoever.” Then send this letter via certified mail as proof it was sent, because they will always deny you sent it.
  8. Then call us for a FREE CONFIDENTIAL consultation to evaluate whether you have a valid lawsuit.
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WHAT IS A VIOLATION OF THE TCPA?

  • Jared Hartman, Esq.
  • Posted on December 16, 2013

 

The TCPA protects calls to consumers’ cell phones, residential lines, and to any number registered on the “Do Not Call List” (DNC).

Regarding cell phones-47 U.S.C. S 227(b)(1)(A)(iii):

The TCPA makes it unlawful for any person within the United States to make any call using an automatic telephone dialing system (ATDS) or an artificial or prerecorded voice to a cell phone line without prior express consent and without emergency purposes. 47 U.S.C. S 227(b)(1)(A)(iii). The TCPA defines ATDS as “equipment which has the capacity (A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers.” 47 U.S.C S 227(a)(1). According to the FCC, an ATDS is any telephone equipment that has the capacity to dial numbers without human intervention. Therefore, if the telephone equipment has the potential to be programmed to make auto dialed calls, then it is considered an ATDS and is regulated by the TCPA and the FCC. See Satterfield v Simon (9th Cir. 2009) 569 F.3d 946. Predictive dialers are also regulated in a similar fashion as an ATDS, because they have the capacity to dial numbers “without human intervention”, as it is equipment that utilizes lists or databases of known, nonrandom telephone numbers.” See Griffith v. Consumer Portfolio Serv., Inc., 838 F. Supp. 2d 723.

It is usually pretty easy to tell if you have received a call from an ATDS, because upon answering the phone you are first faced with dead air, and then you hear some clicking noises, and then you finally hear a pre-recorded voice message or your call is transferred to a live person. The courts have ruled that someone receiving a call with a robotic message is a factor to consider as circumstantial evidence that the call was placed with an ATDS. See Vaccaro v. CVS Pharm., Inc., (Southern District Calif. 2013) 2013 U.S. Dist. LEXIS 99991.

The TCPA applies to all cell phones whether used for business or personal use, and does not require the consumer to answer the call in order to establish a violation.

The only defenses are if the call was placed for emergency purposes-such as the City informing you of an impending disaster, which is very rare-or consent. A consent defense to a TCPA lawsuit against a telemarketer usually arises because you previously gave the caller permission to call you. A consent defense to a TCPA lawsuit against a debt collector usually arises because you provided your cell phone number on the credit application or in connection with the transaction that resulted in a debt. You do not have to actually agree to receive robo calls for a consent defense to apply; it is enough if you simply gave your number to the creditor or debt collector. Even if you just gave your number to the original creditor, then the consent defense still applies to a third party debt collector trying to collect a debt that you may owe to someone else.

The only way to prevent this consent defense is if you revoke consent. Revocation can be orally by simply telling them during a phone call to stop calling you. However, they always deny that you revoked consent, so the best way to revoke consent is by sending a certified letter asking the creditor/collector to stop calling your cell phone.

Sometimes companies will accidentally call the wrong person, because of how often consumers change cell phone numbers. Even if a company was legitimately trying to call someone who had previously given them consent, but you now have that person’s number, then the consent defense does NOT apply to you because you—the subscriber receiving the unwanted calls-did not give them consent. In Soppet v Enhanced Recovery Co (7th Cir 2012), 679 F.3d 637, the court held that caveat emptor (buyer beware) applies to a company dialing the wrong number and even suggested that the collector seek indemnification against the original creditor (jointly liable) for its TCPA violation losses.

It does not even matter if you legitimately owe the debt upon which a debt collector is calling about.

Also, callers who have obtained your number from skip tracing (obtaining your cell number from some other source like consumer credit reports or court papers) are violating the TCPA because they did not obtain your number from you directly. Sometimes a company may obtain your cell number by capturing it on its own caller ID, which also does NOT amount to a consent defense.

The bottom line, if you are receving calls to your cell phone with either and ATDS or with pre-recorded or artificial voice messages, it is worth your time to contact us to fully evaluate your circumstances to determine if your rights have been violated.

Regarding calls to residential lines 47 U.S.C. 227(b)(1)(B):

The TCPA prohibits “Artificial or Prerecorded Voice” messages for calls to residential line phones. Auto-dialed calls to a residence line are never a violation of the TCPA, because for whatever reason Congress did not write that prohibition into the law. Additionally, this TCPA section only applies to telemarketing solicitations from sellers with which the consumer does not have an “Established Business Relationship” (EBR). If the seller uses a telemarketing contractor who violates the TCPA, then both seller and telemarketer are jointly liable. If you have done business with a seller within the last eighteen months or made inquiry within the last three months, then the TCPA presumes that you have an EBR with that seller, absent evidence to the contrary. Evidence to the contrary would be a letter to the seller or telemarketer requesting that they stop calling you, and this letter should be sent via certified mail as proof of it having been sent (they always deny that you sent the cease contact letter).

Unfortunately, calls from debt collectors to residential lines are not illegal, even if the collector mistakenly calls a person who does not owe the debt. A consumer’s remedy in this situation would be under the Fair Debt Collection Practice Act (FDCPA), for harassment where the collectors continue to call after the consumer has pointed out the mistake and requests them to stop.

Because here is no need to prove that the caller is using an ATDS under this TCPA section. The consumer only needs to show that the call is a solicitation and that seller used an artificial or pre-recorded voice message.

Regarding Telemarketing Calls to “Do-Not-Call” Numbers- 47 USC 227(c)(5):

This section only applies to telephone solicitation calls. Anyone whose numbers are registered on the DNC list that has received two telemarketing calls within a twelve month period can sue for all calls including the first. It does not matter if calls are live, pre-recorded, or placed with an ATDS. This section applies to calls to both cell phone and residential lines that are registered on the federal or company specific do-not call lists.

It is easy to register your numbers on the national DNC list. Simply Google the “Do-Not-Call Registry” and register up to three numbers on its website. You will receive email confirmation of your registration, which you must keep record of as evidence in your favor.

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WHAT ARE MY DAMAGES UNDER THE TCPA?

  • Jared Hartman, Esq.
  • Posted on December 16, 2013

 

The TCPA allows you to seek an injunction (a court order for them stop the illegal activity), and also for actual or statutory damages, whichever is greater. Statutory damages are those damages specified by law for a violation. TCPA violations bring statutory damages of $500-$1500 PER CALL. This means that EVERY SINGLE CALL that violates the TCPA can bring damages of $500-$1500. If your number that was called is listed on the Do Not Call registry, you may be able to stack the damages for each call, meaning a single call may carry up to $3000.00 in statutory damages.

Actual damages are any out of pocket loss suffered by you as a result of the TCPA violation. For instance, if your job requires you to have your cell phone on, but the incessant calls to your cell phone caused you to be terminated from employment, then you can recover actual damages for your economic loss and emotional distress in being fired. Also, the court in Soppet (see above) has held that the use of airtime minutes on a cell phones constitutes “out of pocket” damages.

If the court finds that the defendant willfully or knowingly violated the regulations under the TCPA, the court may, in its discretion, increase the amount of the award to not more than 3 times the amount of the statutory damages described above. In determining “willfulness”, one can look at 47 USC S 312(f). 47 USC S 312(f)(1) The term “willful”, when used with reference to the commission or omission of any act, means the conscious and deliberate commission or omission of such act, irrespective of any intent to violate any provision of this chapter or any rule or regulation of the Commission authorized by this chapter or by a treaty ratified by the United States. Although neither the TCPA nor the FCC regulations define the terms “willfully or knowingly”, courts have generally interpreted willfulness to imply only that an action was intentional. Smith v. Wade (1983) 461 U.S. 30, 41 n.8. The Communications Act of 1943 defines willful as “the conscious or deliberate commission or omission of such act, irrespective of any intent to violate any provision, rule or regulation.” Moreover, the FCC in In re Dynasty Mortgage, L.L.C. (2007) 22 F.C.C.R. 9453 has stated “Willful” in this context means that the violator knew that he was doing the act in question, in this case, initiating a telephone solicitation and A violator need not know that his action or inaction constitutes a violation; ignorance of the law is not a defense or mitigating circumstance. Therefore, it is clear that, to trigger the treble damages provision to request $1500.00 per call, one need only show that the violator knew they were making a telephone call and intended to make the call

However, there is a four-year statute of limitation on TCPA violations, so be sure to document your case in order to build your proof.

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WHAT IS THE TCPA?

  • Jared Hartman, Esq.
  • Posted on December 16, 2013

 

The acronym TCPA stands for the Telephone Consumer Protection Act, and is codified at 47 U.S.C. S 227. Congress enacted this law in 1991 with the intention of protecting individuals’ privacy rights, because of the spike in complaints from consumers about unwanted and unrelenting phone calls. In the Legislative Intent and Purpose of the TCPA, Congress found that unwanted automated calls were a “nuisance and an invasion of privacy, regardless of the type of call”. Banning these unwanted calls was “the only effective means of protecting telephone consumers from this nuisance and privacy invasion”.

One member of Congress made the following statements when discussing the need to pass the TCPA, “Computer telephone calls are invading our homes and destroying our privacy”. Consumers around the country are crying out for Congress to put a stop to these computerized telephone calls. Congress has a clear opportunity to protect the interests of our citizens, and we should not pass up this chance.

Computerized telephone calls are the scourge of modern civilization. They wake us up in the morning; they interrupt our dinner at night; they force the sick and elderly out of bed; they hound us until we want to rip the telephone right out of the wall. These machines are out of control, and their use is growing by 30% every year. It is telephone terrorism, and it has got to stop.

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OREGAN WOMAN AWARDED $18.6 MILLION JURY VERDICT AGAINST EQUIFAX FOR FAIR CREDIT REPORTING ACT VIOLATIONS.

  • Jared Hartman, Esq.
  • Posted on November 22, 2013

 

For two years an Oregon woman tried and tried and tried to ask Equifax to correct the mistakes on her credit report. She discovered in 2009 that information belonging to someone else with the same name was being mixed into her credit report (known as a “mixed credit report”), including the other woman’s birthdate, social security number, negative credit information, among other wrong information. She only discovered the inaccuracies when she was denied a line of credit. The unfortunate woman tried many times to have these mistakes corrected and to have her credit report cleaned up. All credit reporting agencies other than Equifax followed through with their responsibilities. Because Equifax repeatedly denied any wrongdoing and repeatedly failed to correct their mistakes, they were sued for violations that included 15 U.S.C. §§ 1681i(a)(1)(A) & (a)(5)(A) of the Fair Credit Reporting Act (FCRA).

These Sections of the FCRA require the credit reporting agency to conduct a reasonable investigation into a dispute lodged by a consumer within 30 days, and to either delete the information if they fail to conduct the dispute within 30 days, delete the information if they cannot verify its accuracy, or modify the information if they discover the correct information.

Failure to comply with these requirements could result in damages owed to the consumer for any actual damages sustained as compensation for any financial harm or physical or emotional injury arising out of the violation, or statutory damages of $100-$1,000 for every willful violation, and any punitive damages that the court may allow. Also, a successful lawsuit guarantees that the offender will pay your attorney’s fees and costs of litigation, which means you will not have to pay any money in connection with filing the lawsuit.

Because Equifax repeatedly ignored the woman’s efforts to correct her credit report and repeatedly denied any wrongdoing, the jury found them in violation of the FCRA and awarded her $180,000 in actual damages plus $18.4 Million in punitive damages!

Read the news reports at the links below:

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DOES YOUR CREDIT SCORE CONTAIN INACCURATE INFORMATION?

  • Jared Hartman, Esq.
  • Posted on November 16th, 2013

 

Debt collectors and creditors often furnish inaccurate information to credit reporting agencies. Even if the inaccuracy is something so simple as putting the wrong date of default, it may still have serious consequences when you apply for a new loan, line of credit, or even for certain professional licenses. Also, the date of default is what dictates how long the negative item will stay on your credit report, and if the date of default is being reported as more recently than what the default actually was, then the negative item will stay on your credit report for longer than it actually should.

DO NOT JUST IGNORE IT—ignoring the inaccuracies means they will be able to continue to mis-report the information, which may eventually hurt you in the future. Taking care of the inaccuracy now will help prevent future harm to you.

Both the Federal and California laws allow a consumer to sue the furnisher of information, and you may be entitled to receive any actual damages suffered from their inaccurate reporting, or up to $1,000.00 per violation under the Federal law or up to $5,000.00 per violation under the California laws, depending on what type of violation they have committed.

HOWEVER, it is not as easy as you might think to sue the furnisher of information under the Federal laws for inaccurate reporting. One of the ways the U.S. Legislature has tried to help the business industry from frivolous lawsuits is that they only permit a private lawsuit if the furnisher of the information fails to conduct a reasonable investigation into disputed information after being notified by the credit reporting agency that you are disputing the inaccurate information.

YOU LODGING THE DISPUTE WITH THE FURNISHER ONLY DOES NOT TRIGGER CIVIL LIABILITY UNDER THE FEDERAL LAWS. Only if the furnisher receives a notice of dispute from a credit reporting agency does their failure to conduct a reasonable investigation into the dispute trigger liability for a civil lawsuit. If you only send the dispute to the furnisher and you do not dispute the inaccurate reporting with the credit reporting agency, then you cannot sue the furnisher under Federal law. See 15 U.S.C. 1681s-2(b).

You are also not able to sue the furnisher under Federal laws simply for supplying the inaccurate information to the credit reporting agency. You can only sue for their failure to conduct a reasonable investigation, as explained above. However, 15 U.S.C. 1681s-2(c) and (d) permit State and Federal officials to enforce the furnisher’s obligation to supply accurate information, and you should report any such inaccuracies to the Federal Trade Commission, the State Attorney General, and also lodge a dispute with the credit reporting agency to begin the process for triggering a civil lawsuit.

On the other hand, California laws are more favorable to the consumer. There is no obligation at all for the consumer to lodge a dispute with the credit reporting agency or the furnisher in order to trigger liability in a civil lawsuit for furnishing inaccurate information! See California Civil Code 1785.25(a). However, California laws could entitle you to receive punitive damages of up to $5,000 per violation if their violation was committed willfully (if they either knew or should have known of the inaccuracy of the information).

Although there are some hoops to jump through, here is the bottom line if any inaccurate information is being reported on your credit report:

  1. File a complaint with State and Federal officials to enforce their authority upon the violator.
  2. Lodge a dispute with the credit reporting agencies in order to trigger the civil lawsuit process under the Federal laws. If they fail to amend or remove the inaccurate information, then you may have a lawsuit under the Federal laws for their failure to conduct a reasonable investigation after being notified of a dispute. THIS DISPUTE MUST BE LODGED WITH THE CREDIT REPORTING AGENCIES.
  3. Also lodge the dispute with the furnisher of the inaccurate information, because if they fail to amend or remove the inaccurate information then you may be entitled to punitive damages under the California laws for their willful violations.
  4. KEEP COPIES OF ALL CORRESPONDENCE AS PROOF, AND SEND LETTERS VIA CERTIFIED MAIL AS PROOF OF THEIR RECEIPT, AND TAKE DETAILED NOTES OF EVERY EVENT.
  5. Call us for a free and confidential consultation to discuss how we can assist you in asserting your rights!
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ARE CREDIT INQURIES LOWERING YOUR CREDIT SCORE?

  • Jared Hartman, Esq.
  • Posted on October 30th, 2013

 

There are two ways a credit inquiry can be conducted on a consumer’s credit reports: a hard inquiry and a soft inquiry. A soft inquiry merely obtains the consumer’s person ID information, such as name and address. A hard inquiry allows the requester to obtain information more in depth towards the consumer’s credit (such as who else is conducting inquiries, how much debt you have, when you have defaulted on past credit, etc.). A soft inquiry will not appear as an inquiry on your credit report and therefore will not impact your credit score. However a hard inquiry does appear on your credit report and too many of them in a short period of time can and will lower your credit score, because it looks as if you are applying for too many lines of credit contemporaneously. It is strictly within the decision of the entity conducting the inquiry as to whether they will conduct a hard or soft inquiry, but if the entity needs to determine and evaluate your creditworthiness then the inquiry will most likely be a hard inquiry.

Both the Federal and State Fair Credit Reporting laws require one conducting a credit inquiry to have a “permissible purpose” in conducting the inquiry, and both sets of laws establish what constitutes a permissible purpose. See, for example, Calif. Civil Code 1788.11 and 15 U.S.C. 1681b. The requesting entity does not need your permission to conduct the inquiry so long as they identify to the credit reporting agency that they have such a permissible purpose; yet most of them will ask for your approval just to cover themselves in case a dispute arises over their purpose for the inquiry. If the entity does not have such a permissible purpose, then they need your express permission to conduct the inquiry under both sets of laws. However, if the entity conducting the inquiry lies to the credit reporting agency about the true purpose of the inquiry (for instance, telling the credit reporting agency they have a permissible purpose but then using the information for a non-permissible purpose), then you can and should file a lawsuit for conducting the inquiry under “false pretenses”.

If the improper inquiry has caused you actual damages, such as being denied a job, line of credit, or purchase money home loan, then you can recover those damages as compensation. If you do not have such actual damages, then you can still recover statutory damages as specified in the law. Either way, attorneys’ fees and costs of litigation are guaranteed to be paid by the party found to have violated the law, which means there is NO COST TO YOU for filing such a lawsuit.

If you have any concerns over inquiries being conducted on your credit reports, then you should contact us immediately to discuss the circumstances in detail during a free and confidential consultation.

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WHY DO WE SUE DEBT COLLECTORS?

  • Jared Hartman, Esq.
  • Posted on December 8, 2013

 

“Your client allowed himself to go into debt in the first place, so it’s his fault for being harassed by debt collectors.” We sometimes hear people make this statement when talking about suing debt collectors. People who have never had to deal with debt collection harassment and who have never had to go through the frustrating and unforgiving process of credit repair sometimes just don’t understand how it feels. The reality is, though, that the debt collection harassment laws were enacted by Congress to promote four guiding principles: 1) Truth, 2) Fairness, 3) Dignity, and 4) Respect.

No-one wants to go into debt. Virtually every debt is incurred because of some form of economic hardship, such as unplanned-for interest fees, company lay-offs, inability to find a job in a tough economy, or even death or serious illness or injury within the family. Hardly anyone actually incurs a debt with the intention of never paying it back. Although debt collectors try to make it look like debtors are low-life people who had malicious intentions upon incurring the debt, this is almost always far from the truth. Everyone deserves to be treated with fairness, dignity, and respect, and deserves to be free from dishonesty and trickery from debt collectors.

When debt collectors show no mercy or forgiveness, and fail to treat people with truth, fairness, dignity, and respect, they are generally violating the many laws that govern how debt collectors can operate their collection activities. Such violations undermine the integrity of our society and our economy, and allowing them to get away with simply shows them that they can continue their harassing conduct towards others.

Before these laws were in place, debt collectors would often go to the extremes of threatening people with violence, falsely threatening that the debtor has committed a crime by failing to pay a debt, falsely threatening lawsuits, publishing in the media lists of “dead-beats” containing names of people who are in debt, and many other extremely disturbing conduct. These extreme violations are rare today, but they still do happen. Do not let them get away with it; YOU DO HAVE RIGHTS!

Contact us TODAY for a free, confidential consultation to discuss what your rights are and to discuss the proper ways to assert your rights.