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DISCLAIMER: This article is based on a complaint. The defendant has not responded to the complaint to present its side of the case. The claims mentioned are accusations and should be considered as such until and unless proven otherwise.
A consumer is accusing a bank of violating the Rosenthal Fair Debt Collection Practices Act and the Telephone Consumer Protection Act while also attempting to hold the bank liable for the actions of the collection law firm that it assigned the account to, because the bank included the mini-Miranda in emails and letters that were sent to the consumer and for leaving voicemail messages after the consumer sent the bank a refusal to pay letter.
The background: The plaintiff fell behind on a credit card that was issued by the defendant. After the defendant began attempting to collect on the debt, the plaintiff mailed a letter to the defendant, saying, “I am experiencing financial challenges and cannot afford the payments on this account. With this letter I am informing you that I refuse to pay.”
- After the letter was allegedly received by the defendant, it still placed at least 30 calls to the plaintiff’s cell phone, leaving artificial or prerecorded messages on 20 of those calls. The messages were essentially the same: “Thank you for being a part of the [defendant] family. We know you’re busy, but if you could please just take a few minutes to log in at [website] to review your [card name] account status, it would be appreciated. If you would prefer to call us, please feel free to, as it is always great to get a chance to speak with one of our valued clients. Our toll-free number is [number]. Once again, thanks for being a valued [defendant] customer.”
- Because the messages referred to the status of the account, instructed the plaintiff to log into an account, came from a number known to be used for debt collection communications, and because the defendant also was sending letters and emails, the plaintiff assumed the messages were debt collection communications.
- Some of the letters and emails sent by the defendant included the statement, “The purpose of this communication is to collect a debt and all information will be used for that purpose.”
- The plaintiff sent a second refusal to pay letter, using the same language as the first.
- The defendant responded, “We won’t reach out to you to collect on your account — this includes calls to your home, work, and cell phone numbers as well as text messages, letters and emails.”
- Four months later, the defendant sent another email, saying that the minimum payment due was not the entire balance.
- The defendant then assigned the account to a collection law firm, which also sent letters to the plaintiff. The law firm then filed a lawsuit to collect on the unpaid debt.
- By including the mini-Miranda, the defendant “falsely and misleadingly represented itself as a debt collector” that is subject to the Fair Debt Collection Practices Act.
The claims: The complaint accuses the defendant of violating Section 1788.17 of the RFDCPA, which incorporates Section 1692c(c) of the FDCPA, as well as Sections 1692d, 1692e, 1692e(2)(A), 1692e(10), and 1692f of the FDCPA. The defendant is also accused of violating Section 1788.11(d)-(e) of the RFDCPA, which references Section 1692d(5) of the FDCPA.
- The complaint also attempts to hold the defendant vicariously liable for the actions of the collection law firm.
- The defendant is also accused of violating Section 227(b)(1)(A)(iii) of the TCPA by using an artificial or prerecorded voice.
