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What Do You Do When a Debt Collector Calls? Tips On What They Can and Cannot Do
3/10/2010
Source: By Kalamazoo Gazette staff

The Fair Debt Collection Practices Act lays out clear rules about what debt collectors can and can’t do — and it allows you to sue if you believe your rights have been violated.

Here’s what you need to know if a debt collector calls you:

Calls
Debt collectors can call only between 8 a.m. and 9 p.m. They can call you at work, but have to stop if you tell them your boss doesn’t approve.

You can write to a collection agency to demand it stop calling you at home, too, but that won’t make a legitimate debt go away: A creditor could choose to note the debt on your credit report or seek a court judgment against you.

In writing
Within five days of contacting you by phone, the debt collector must send you a letter telling you the amount you owe, the name of the creditor you allegedly owe it to and instructions for disputing if you don’t believe the debt is yours. If you get a collection call, log the date on your calendar and start looking for that letter.

Taping
If you’re getting calls you believe are abusive, you might consider taping them. Most states, including Michigan, allow you to record phone calls as long as one party to the conversation (for example, you) knows the call is being recorded. A few states require everyone on the line to know. Check the rules before you tape.

Record-keeping
Getting one debt collection call could mean you’re in for others. That’s because debts may be resold over and over. Or if a consumer demands verification, the account may be bounced back to the original account holder, who ships it off to a new debt collector. To protect yourself, keep copies of letters, logs of calls, canceled checks or other documents relating to the account — and plan to keep them for years.

Fighting back
If you suspect a debt collector isn’t playing fair, complain to both the Federal Trade Commission (1-877-382-4357) and to the [Illininos] attorney general.

You also can stop repeated or harassing calls by going to court [and hiring an attorney].

More information
The FTC’s free Fair Debt Collection fact sheet is available online at this location or call 1-877-382-4357.

Calling No-Nos
Debt collectors are forbidden to:

• Harass you or people who know you.
• Talk to anyone except you (or the attorney that you designate) about the debt.
• Call people you know for any reason except to locate you.
• Physically or verbally threaten you.
• Swear at you or call you names.
• Call you repeatedly (or call you right back if you hang up on them).
• Imply they’re government employees or work with government agencies.
• Say they’re attorneys, if they’re not.
• Falsely imply you’ve committed a crime (debts are civil, not criminal).
• Misrepresent the amount you owe.
• Ignore your written denial of the debt. (They need to show you proof it’s yours or assure you the matter has been dropped.)

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Our Chicago business law lawyers were very interested in a recent Supreme Court decision upholding an established standard for determining when a mutual fund’s investment advisor has breached his or her fiduciary duty to shareholders. In Jones et al. v. Harris Associates L.P., No. 08-586 (March 30, 2010), three shareholders in the Oakmark family of mutual funds sued the funds’ investment manager, Harris Associates. They alleged that Harris charged the Oakmark funds twice as much as it did other funds, but did the same work. The situation was not challenged by the funds’ board members because they were all appointed by Harris Associates, the shareholders claimed. As a result, they said, the Oakmark funds paid $37 million to $58 million more than other funds for the services of Harris Associates in just one year.

Mutual funds typically use outside investment advisors to manage all of their affairs, including picking board members. Because this creates the potential for abuse, Congress enacted the Investment Company Act of 1940 to protect mutual fund shareholders. Among other things, that act creates a fiduciary duty for investment advisors with respect to their compensation, and allows shareholders to sue if that duty was breached. The plaintiff shareholders in this case sued Harris Associates in Chicago federal court for a breach of that fiduciary duty, alleging that it charged fees disproportionate to the services rendered and that were not equivalent to fees negotiated at arm’s length. Harris Associates successfully moved for summary judgment. The trial court, applying the standard laid down in Gartenberg v. Merrill Lynch Asset Management, Inc., 694 F. 2d 923 (CA2 1982), held that there was no evidence that the fees were outside a range that could have been produced by arm’s length negotiations.

Plaintiffs appealed to the Seventh Circuit, where their claim still failed, but for different reasons. The Seventh rejected the Gartenberg standard, saying it relied too little on markets. Instead, the panel applied a standard from trust law, saying a trustee is free to negotiate any compensation that the trust is willing to pay. Similarly, a fiduciary’s compensation need not be limited by an arbitrary cap, the panel wrote. It suggested that market forces would help keep fees reasonable and noted that comparing fees for other Harris Associates clients is unfair because different clients require different amounts of work. An investment advisor’s compensation would only be subject to interference, the Seventh wrote, if the amount was so out of the ordinary that observers might think “that deceit must have occurred, or that the persons responsible for decision have abdicated.”
After the Seventh denied an en banc rehearing, with a dissent by Judge Posner, the Supreme Court took up the case to resolve a split in the circuits over the standards used to judge breaches of the Investment Company Act. In its unanimous opinion, the court found that Gartenberg was indeed the correct standard, reversing the Seventh Circuit. That standard has been adopted by other federal appeals courts, the high court noted, as well as by the SEC. The opinion, authored by Justice Alito, quoted at length from the Second Circuit’s decision in Gartenberg, which among other things said that “[t]o be guilty of a violation of [the Act], … the adviser-manager must charge a fee that is so disproportionately large that it bears no reasonable relationship to the services rendered and could not have been the product of arm’s-length bargaining.” This approach is consistent with other protections in the Act and the Act’s role in federal regulations.

The Seventh Circuit erred by focusing almost entirely on full disclosure to determine a breach of fiduciary duty, the Supreme Court wrote. Courts should take a more nuanced look, giving deference to well-informed, independent board decisions and avoiding over-reliance on market comparisons. Thus, the court vacated the Seventh Circuit’s decision and sent the case back to trial court.

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Larry Lessig gives an interesting and entertaining lecture on how copyright law is strangling creativity on the internet:


Based in Chicago and Oak Brook, Illinois, Lubin Austermuehle represents clients in business litigation throughout Illinois, the Midwest and the United States. We represent Chicago area businesses of all sizes, from family-owned small businesses to large corporations and partnerships. Our Oak Brook business attorneys also handle claims of trade libel and online or internet based defamation of a product, service or business, as well as unfair competition and other business claims. If your business is facing or wants to bring a lawsuit including on online infringement and unfair defamation of your products or services, we can help. To set up a consultation with one of Chicago business law attorneys to learn more about us, please contact us online or call us toll-free at 630-333-0333.

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Lubin Austermuehle prosecutes and defends cases involving controversies over a covenant not to compete, or other restrictive covenants and other business law issues. Our Illinois restrictive covenant attorneys represent clients in active litigation over the validity and enforcement of these covenants, as well as helping to evaluate whether litigation may arise over such a contract. With more than 25 years of experience, we have handled these claims for businesses of every size, from large corporations to family-owned businesses, as well as individual employees. Based in downtown Chicago and in Oak Brook near Naperville, Hinsdale, Wheaton and Downers Grove, our Chicago business law lawyers represent clients throughout the state of Illinois, as well as in Indiana and Wisconsin. To learn more about how our Illinois covenant not to compete lawyers can help you, please do not hesitate to contact us through our Web site or call toll-free at 630-333-0333.

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The Illinois Attorney General has listed the top 10 consumer complaints of 2009. The Attorney General’s website describes those complaints:

The intensifying home foreclosure crisis dominated Attorney General Lisa Madigan’s Top 10 Consumer Complaints for 2009. Madigan today reported that 31,264 consumers filed complaints with her Consumer Protection Division last year. The consumer debt category topped the complaints filed by Illinois consumers, including a 65 percent increase in residential mortgage-related complaints. In addition, an estimated 21,000 consumers have called the Attorney General’s Homeowner Helpline for assistance since 2008, while the Attorney General’s Consumer Fraud Bureau helped secure an estimated $23 million in mortgage-related savings, including loan modifications for at-risk borrowers, last year.

“These numbers demonstrate how this economic crisis is hitting home for tens of thousands of Illinois families,” Madigan said. “Hardworking people are struggling to make their mortgage payments on time. They’re fighting to cope with mounting debts, and they’re being targeted by con artists looking to make a quick buck. This is a challenging time, and I urge anyone who is struggling to make ends meet to contact my office to make sure that they do not become victims of fraud.”
Consumer Debt Complaints Rank First
Since 2008, complaints to Madigan’s office about consumer debt grew nearly 16.5 percent, a reflection of the increasingly dire financial constraints people in Illinois are experiencing during the economic downturn. Complaints in this top category cover a wide range of consumer debt issues, such as residential mortgages, credit card debt, and installment loan debt. Specifically, the highest reported debt-related complaints involved:

Mortgage Foreclosure
In 2009, nearly 4,000 homeowners filed residential mortgage complaints with Madigan’s office, a 65 percent increase over the previous year. In addition to the significant increase, the types of complaints reported are also transforming. In the first wave of the foreclosure, a majority of complaints reported to the Attorney General’s office came from homeowners who were placed in risky home loans that they could never afford. As the foreclosure crisis continues, Madigan said that around 2008 her office began receiving more calls from homeowners who have lost their jobs and can no longer make their mortgage payments.

Madigan has made helping homeowners stay in their homes a top priority. In October 2008, the Attorney General brokered a ground-breaking $8.7 billion settlement in her predatory lending lawsuit against Countrywide, the nation’s largest mortgage lender, that established the country’s first mandatory loan modification program. As a result of this settlement and President Obama’s subsequent HAMP program, thousands of Countrywide borrowers in Illinois, and hundreds of thousands nationwide, have been able to modify their loans and remain in their homes. During 2009, Madigan also filed suit against Wells Fargo, alleging the lender engaged in consumer fraud and illegally discriminated against African American and Latino homeowners by selling them high-cost subprime mortgage loans while white borrowers with similar incomes received lower cost loans.

The Attorney General’s office also reported an increase in complaints against mortgage rescue companies that prey on homeowners who are desperate to save their homes. In the most common form of the scam, these so-called foreclosure “rescue” businesses charge homeowners a large up-front “consulting” fee to negotiate a loan modification with the lender. But after taking the homeowners’ money, these companies actually do little or nothing to save the home, leaving homeowners in an even more difficult situation. Madigan has filed 31 lawsuits targeting mortgage rescue scams.

Madigan established the Homeowner Helpline (1-866-544-7151) in 2008 to provide direct assistance for borrowers who risk losing their homes to foreclosure. Since its inception, the helpline has received more than 21,000 calls from homeowners seeking assistance. The Attorney General’s office also has helped secured more than $21 million in loan modification savings for borrowers who were at risk of losing their homes to foreclosure over the past year. Madigan encouraged consumers who are at risk of falling behind on their mortgage payments to call her office to learn more about homeowners’ rights and the options available to them to try to save their home.

Collection Agencies
In 2009, the consumer debt complaints received by Madigan’s office included more than 1,300 reports about collection agencies, including complaints that agencies started collection efforts without verifying that the consumer actually owed the debt, attempted to collect a debt from the wrong person and used abusive tactics such as making calls to a consumer’s workplace or using threatening language.

Credit Card Companies
More than 1,000 consumers sought help from Madigan’s office for problems with their credit cards. Increasing numbers of consumers called to complain that their credit card companies added unexpected fees and charges to their monthly statements and suddenly increased the interest rate on their cards. Other consumers complained that the credit card companies suddenly reduced their credit limits. Madigan said that consumers can dispute the changes to their credit agreements directly with the credit card company or call her Consumer Fraud Bureau for assistance in disputing charges.

Identity Theft Complaints Rank Second
After calls to Madigan’s office about consumer debt, identity theft remained high on the annual list of consumer complaints, coming in at the second most-reported issue. Madigan’s office received 4,376 identity theft-related complaints in 2009. A significant number of the complaints involve:

1.Credit card complaints (1,279), including reports of the takeover of an existing credit card account by a thief and also instances of a thief opening a new credit card account in the name of an ID theft victim;
2.Utility company complaints (464), concerning fraudulent wireless or landline phone, Internet, gas, electric and water accounts opened in the ID theft victim’s name; and
3.Bank fraud complaints (437), including complaints regarding stolen checks, new bank accounts opened in an ID theft victim’s name, and fraudulent withdrawals of money from victims’ bank accounts.
Consumers brought most of these complaints to Madigan’s office by contacting her Identity Theft Hotline (1-866-999-5630). Trained advocates and attorneys staff the hotline, working with consumers one-on-one to help them take the steps necessary to report the crime to local law enforcement and financial institutions, repair their credit and prevent future problems.

The Top 10 consumer complaints for 2009 are as follows:

CATEGORY # OF COMPLAINTS
1. Consumer Debt (mortgage lending, collections, credit cards) 7,843
2. Identity Theft (fraudulent credit cards and utility accounts, bank fraud) 4,376
3. Construction Home Improvement (remodeling, roofs/gutters) 2,601
4. Telecommunications (wireless service, local phone service, cable/satellite) 2,240
5 Promotions and Schemes (sweepstakes, pyramid, work-at-home schemes) 1,689
6. Motor Vehicles/Used Auto Sales (as-is sales, financing, warranties) 1,372
7. Mail Order (Internet purchases, catalog ordering, television/radio) 1,364
8. Fraud Against Business (consulting, directories/publications) 1,135
9. Utilities (natural gas, electric, water/sewer) 843
10. Motor Vehicle/Non-Warranty Repair (collision/body, engines, tune ups) 728

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As Chicago business law attorneys, we were interested to see a recent appellate opinion reminding Illinois businesses that severability clauses won’t necessarily protect contract provisions from other clauses that have been voided. That was what happened in Kepple and Company, Inc. v. Cardiac, Thoracic and Endovasclar Therapies, S.C., No. 3-09-0033, Ill. 3rd. Dec. 16, 2009. In that case, the Third District Court of Appeal upheld a Peoria trial court’s ruling that an entire services contract between a medical biller and a medical corporation was void, because a fee-sharing provision violated the Medical Practice Act of 1987.

Kepple is a medical billing and collection services company. Cardiac, a medical corporation run by a single doctor, hired Kepple in 2003. Their services contract contained a fee-sharing clause allowing Kepple to retain 5% of all the money it collects for Cardiac. It also had non-compete, non-solicitation and no-hire clauses forbidding either company to solicit or hire away the other company’s employees without a release. And it had a severability clause specifying that if one part of the contract was found void, other parts should still be enforceable.

Cardiac became unhappy with Kepple’s services in mid-2006 and called a meeting on Aug. 3, 2006. Two days later, Kepple’s vice president, Debra Hawley, gave notice that she would leave on Nov. 3. Hawley was the sole person handling Cardiac’s work. Her employment contract had a non-compete clause preventing her from joining a company with 50% or more of its business from medical billing within one year of leaving Kepple. On Sept. 13, Cardiac gave notice that it was terminating its contract with Kepple as of Nov. 10. On Nov. 13, Hawley started working for Cardiac.

Kepple sued both of them when it found out and requested a preliminary injunction keeping Hawley from working at Cardiac. The trial court turned this down, finding that Hawley’s employment contract didn’t apply, since Cardiac is not a competitor to Kepple, and that the non-compete clause of the services contract was unenforceable because it had no time limit. It also found that Hawley was solicited, but not hired, while she was at Kepple, but that suing was an adequate remedy for this. An interlocutory appeal to the Third District upheld these findings.

On remand, the defendants promptly filed for summary judgment based on both courts’ findings. The trial court granted it, saying that the service contract’s fee-sharing clause violated the Act, which prohibits physicians from sharing fees with anyone other than physicians practicing in the same business. Thus, the court said, the contract was void in its entirety. And even if the contract was severable, the trial court had already found that Cardiac did not induce Hawley to leave her job at Kepple. Thus, there was no violation of the non-solicitation clause, the trial court found. Kepple appealed, arguing only the severability issue. It agreed that the Medical Practice Act banned the fee-sharing agreement, but said other provisions are severable and enforceable.

In its opinion, the Third District said that under the Second Restatement of Contracts, the essential issue was whether the voided part of the contract was an essential part of the contract. In this case, the court said “there can be no dispute” that it was. The fee-sharing clause is “the very essence” of the agreement, the court said, and thus the entire contract is void and unenforceable. That means the trial court was correct to grant summary judgment in Cardiac’s favor. With that settled, the appeals court noted that it did not have to consider the remainder of either side’s arguments. It also dismissed an argument by Kepple as waived on appeal because it was not raised in trial court.

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If you believe you purchased a car, motorcyle, boat, or RV that is a lemon, have been a victim of auto fraud, RV fraud, boat fraud, auto dealer fraud, auto repair fraud or have been deceived into buying a flood car, rebuilt wreck or salvage vechicle Lubin Austermuehle may be able to help rectify the problem. We or experienced co-counsel are prepared to file suit in the right case anywhere in the country. For a free consultation on your rights as an employee, contact us today.

Our Auto Dealer Fraud, Auto Repair Fraud Auto Fraud, RV Fraud, and Boat Fraud private law firm and our affliated co-counsel handle individual and class action consumer rights, lemon law, and autofraud lawsuits that government agencies and public interest law firms may decide not pursue. Class action lawsuits our law firm has been involved in or spear-headed have led to substantial awards totalling over a million dollars to organizations including the National Association of Consumer Advocates, the National Consumer Law Center, and local law school consumer programs. Lubin Austermuehle is proud of our achievements in assisting national and local consumer rights organizations obtain the funds needed to ensure that consumers are protected and informed of their rights. By standing up to employee and consumer fraud and rip-offs, and in the right case filing employee or consumer protection lawsuits and class-actions you too can help ensure that consumers’ rights are protected from unscrupulous, illegal or dishonest practices.

Our Hinsdale, Aurora, Elgin, Joiliet, and Wheaton consumer law attorneys and Chicago lemon law and auto fraud attorneys provide assistance in RV, boat, motorcyle and automobile fraud and consumer fraud and consumer rights cases including in Illinois and throughout the country. You can click here to see a description of the some of the many individual and class-action consumer cases we have handled. A video of our lawsuit which helped ensure more fan friendly security at Wrigley Field can be found here. You can contact one of our Chicago area consumer rights, predatory lending or consumer protection lawyers who can assist in auto dealer fraud, auto repair fraud, lemon law, auto fraud, RV fraud, wage claim, unfair debt collection and other consumer fraud or consumer class action cases by filling out the contact form at the side of this blog or by clicking here.

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Our Chicago consumer rights private law firm handles individual and class action unfair debt collection and other consumer fraud cases that government agencies and public interest law firms such as the Illinois Attorney General may not pursue. Class action lawsuits our law firm has been involved in or spear-headed have led to substantial awards totalling over a million dollars to organizations including the National Association of Consumer Advocates, the National Consumer Law Center, and local law school consumer programs. Lubin Austermuehle is proud of our achievements in assisting national and local consumer rights organizations obtain the funds needed to ensure that consumers are protected and informed of their rights. By standing up to consumer fraud and consumer rip-offs, and in the right case filing consumer protection lawsuits and class-actions you too can help ensure that other consumers’ rights are protected from consumer rip-offs and unscrupulous or dishonest practices.

Our Hinsdale, Wheaton, Naperville, Batavia and Oak Brook consumer lawyers provide assistance in fair debt collection, consumer fraud and consumer rights cases including in Illinois and throughout the country. You can click here to see a description of the some of the many individual and class-action consumer cases we have handled. A video of our lawsuit which helped ensure more fan friendly security at Wrigley Field can be found here. You can contact one of our Chicago consumer protection lawyers who can assist in lemon law, unfair debt collection, wage claims, unpaid overtime and other consumer, consumer fraud or consumer class action cases by filling out the contact form at the side of this blog or by clicking here.

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In addition to gift card fraud, some retailers fail to honor gift cards. Our Chicago class action attorneys file suit against retailers who refuse to honor gift cards.

Our Chicago consumer rights private law firm handles individual and class action unfair debt collection and other consumer fraud cases that government agencies and public interest law firms such as the Illinois Attorney General may not pursue. Class action lawsuits our law firm has been involved in or spear-headed have led to substantial awards totalling over a million dollars to organizations including the National Association of Consumer Advocates, the National Consumer Law Center, and local law school consumer programs. Lubin Austermuehle is proud of our achievements in assisting national and local consumer rights organizations obtain the funds needed to ensure that consumers are protected and informed of their rights. By standing up to consumer fraud and consumer rip-offs, and in the right case filing consumer protection lawsuits and class-actions you too can help ensure that other consumers’ rights are protected from consumer rip-offs and unscrupulous or dishonest practices.

Our Evanston, Highland Park and Wilmette consumer lawyers provide assistance in fair debt collection, consumer fraud and consumer rights cases including in Illinois and throughout the country. You can click here to see a description of the some of the many individual and class-action consumer cases we have handled. A video of our lawsuit which helped ensure more fan friendly security at Wrigley Field can be found here. You can contact one of our Chicago consumer protection lawyers who can assist in lemon law, unfair debt collection, wage claims, unpaid overtime and other consumer, consumer fraud or consumer class action cases by filling out the contact form at the side of this blog or by clicking here.

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Our Chicago consumer fraud attorneys were pleased to see a recent ruling affirming real estate buyers’ right to relief, and punitive damages, after fraud by the builder. Linhart v. Bridgeview Creek Development Inc., No. 1-07-2712, (Ill. 1st May 20, 2009). Plaintiffs Ken Linhart, Beverly Linhart, Amy Gable, Jane Longo, Lloyd Clark and Diane Latta bought four townhomes in the Bridgeview subdivision in Palatine, Ill. in 1997 and 1998. All four units were part of the same building. During construction of that building, a town inspector noted that the foundation was sinking. This problem was not obvious during the pre-purchase walk-throughs, but later allegedly caused the building to sink seven to ten inches, causing cracks in the walls, slanted floors, floors and ceilings pulling apart, sticking doors and windows and flooding.

In 2001, the plaintiffs sued the developer, builder and its owner over these defects, claiming breach of implied warrant of habitability; fraudulent misrepresentation and concealment; and violation of the Illinois Consumer Fraud and Deceptive Business Practices Act. A jury trial returned a verdict of $1.38 million in compensatory damages for all plaintiffs, plus punitive damages of $5,000 plus attorney fees for each plaintiff. Defendants appealed, saying the jury’s decision was against the manifest weight of the evidence; the jury was improperly instructed; the six plaintiffs should have had six separate verdicts rather than one; and punitive damages were improper.

The First District started with the meatiest issue: whether the verdict itself was not supported by the evidence. On the fraud and Consumer Fraud Act claims, the defendants argued that plaintiffs should have shown that they relied on defendants’ misrepresentations when they purchased the townhouses. As to the four plaintiffs claiming common-law fraud, the court wrote, there was in fact ample evidence that they did so. The evidence in the record shows that defendants lied about the cause of cracks in the walls and the foundation, including the statement that “it’s not like the house is going to sink or anything.” Thanks to the village inspector’s report, defendants knew this was not true. Thus, the common-law fraud verdict was valid, and because common-law fraud is enough to support a Consumer Fraud Act claim, both verdicts were affirmed. The court also upheld the amount of the damages, saying qualified expert testimony supported it.

The court next examined the defendants’ argument that plaintiffs should have presented evidence for their own claims separately and received separate verdicts. It’s true that Illinois law requires separate verdicts when separate recoveries are sought, the First District wrote, but on the relevant count — breach of implied warranty of habitability — all of the plaintiffs presented their case as a single plaintiff, asking for repairs to the building as a whole. Thus, the ruling was affirmed. The First also rejected defendants’ arguments that the jury instructions were deficient in several ways. It did find an error in the jury instructions for breach of implied warranty of habitability, but said this error was harmless.

Last, the First District considered the issue of whether punitive damages were proper even though the plaintiffs never explicitly requested them. Punitive damages are available under the Consumer Fraud Act, the court noted, and plaintiffs asked for any relief provided by that law. Furthermore, evidence at trial showed that the defendants acted fraudulently or maliciously, as required for punitive damages, because they failed to correct a defect they knew about and intentionally misrepresented that defect to the buyers. And the trial court did not abuse its discretion, the appeals court said, because it considered both sides’ arguments and the defendants’ financial position. Thus, it upheld the punitive damages award and affirmed all of the trial court’s rulings.

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