Roth, Morgan and Associates

Roth, Morgan and Associates is a fictitious name used by Allied Credit Consultants, LLC, an Orlando based Florida debt collector.   It's debt collectors call consumers and impersonate paralegals acting on behalf of an attorney.  Moreover, they also use pseudonyms such as "Scott Stevens", "Thomas Schaffer" and "Michael Bennett."  Roth, Morgan and Associates debt collectors communicate with consumers in a manner that gives the false impression and appearance that they were associated with an attorney.   On its website, the company boasts:  "Roth & Morgan is an international business corporation that collects your delinquent accounts using our vast network of law firms and collection agencies. Before developing our network, we were your normal brick-and-mortar collection agency. Our personal collections experience and communications with other agencies and law firms convinced us there are better ways of collecting your debts - faster and with a higher collection rate."

                         

Consumer Protection from Unwanted Cellphone Calls

Recent headlines have drawn attention to a prevalent consumer complaint - unwanted cell phone calls. A class action lawsuit against Papa John’s involves franchises that sent customers a total of 500,000 unwanted text messages in early 2010 offering deals for pizza. Some of these texts were sent during the middle of the night. The lawsuit is based upon the Telephone Consumer Protection Act of 1991 (TCPA).

The TCPA was enacted into law to “protect the privacy interests of residential telephone subscribers” by placing certain restrictions on the use of unsolicited, automated phone calls made by telemarketers who were “blasting” out advertising by the use of both “facsimile machines and automatic dialers. An essential requirement of a TCPA claim is that the phone call be sent to a cell phone by use of auto dialing technology which either (1) utilizes a so-called “random or sequential number generator” or (2) automatically leaves a prerecorded, as opposed to a live, message.

In the context of debt collection practices, creditors have contacted consumers by cell phones on a regular basis. If a debt collector is found to have violated the TCPA, the consumer is entitled to recover statutory damages of $500 per call, and up to $1500 per call if the violation is willful, without any cap on damages. Claims under the TCPA by consumers against debt collectors are frequently joined with actions brought under the Fair Debt Collection Practices Act.

For more information, please visit us at Consumer Rights Orlando.

Plaintiff Accused by Court of Deliberately Defaulting on Debts to Create FDCPA Claims

The Fair Debt Collection Practice Act (FDCPA), enacted in 1977, aimed to "eliminate abusive debt collection practices.” Among many other reforms, the FDCPA prohibits harassing or oppressive conduct on the part of debt collectors, and it requires debt collectors to provide notice to debtors of their right to require verification of a debt. Both the text of the FDCPA and its legislative history emphasize the intent of Congress to address the previously common and severe problem of abusive debt collection practices and to protect unsophisticated consumers from unscrupulous debt collection tactics. The Act, as a U.S. District court recently stated, was not intended to enable plaintiffs to bring serial lawsuits against different debt collector defendants alleging various and often insignificant deviations from the Act’s provisions.

In Ehrich v. Credit Prot. Ass’n, 2012 U.S. Dist. LEXIS 134142 (E.D.N.Y. Sept. 19, 2012), accused the plaintiff in that case of abusing the FDCPA by, among other things, filing a total of nine complaints, including the present case, over the past seven years. The court stated that the record suggests that the plaintiff may be deliberately defaulting on his debts in order to provoke collection letters which are then combed by his lawyer for technical violations of the FDCPA.

The facts of this unique case are that Ehrich filed a complaint against Credit Protection Association, L.P., alleging violations of the FDCPA. Ehrich alleged that CPA sent him a collection note seeking to recover a debt owed to Time Warner Cable Company. Ehrich did not dispute the validity of the debt CPA sought to collect, nor did he claim that the primary text of the letter violates the FDCPA. Rather, Ehrich based his claim on two Spanish sentences at the top and bottom of the letter.

Printed at the top of the letter is the phrase “aviso importante de cobro,” which Ehrich, relying on a Google translation, translated as “important collection notice.” At the bottom of the collection notice were three Spanish phrases: “Opciones de pago,” “Llame” followed by a phone number, and “Envíe MoneyGram,” which Ehrich translated as “Payment options,” “Call" and “Send MoneyGram.” Ehrich, who does not speak Spanish, claimed that the notice’s inclusion of these Spanish phrases without a Spanish translation of the FDCPA-mandated disclosures and notices provided in English could mislead Spanish-speaking consumers and cause them to inadvertently waive their rights under the FDCPA.

CPA moved for summary judgment which was granted by the court based on lack of standing. The basis for the Court’s ruling was that the collection notice contained all disclosures required by the FDCPA and that Ehrich fully understood it. Therefore, he suffered no injury sufficient to support standing.

Attorney's fees under the FCCPA

The Florida Consumer Collection Practices Act, Section 559.77(2) of the Florida Statutes, provides, among other things, that "upon adverse adjudication, the defendant shall be liable for actual damages and for additional statutory damages of up to $1,000, together with court costs and reasonable attorney's fees incurred by the plaintiff." Occasionally, fee shifting statutes such as this one can produce unexpected non-economic results where the attorneys' fee award greatly exceeds that recovery for the client. This problem also appears to exist with statutory fees awarded in personal injury protection ("PIP") lawsuits. See, e.g., Progressive Express Ins. Co. v. Schultz , 948 So. 2d 1027 (Fla. 5th DCA 2007) where the disputed PIP benefit at issue amounted to $1,315.30 and the lodestar attorneys’ fees amounted to $77,500. However, as the Court pointed out in the case discussed below, the cause for this unbalanced result is not to be placed at the feet of the plaintiff and his/her counsel. In addressing this point, the court noted that: "We are not prepared to place blame for this noneconomic outcome on any party. If there is blame, there is surely enough to spread among many participants."

In the FCCPA case that dramatically illustrates this point, the plaintiff sued DISH Network for being billed after he terminated his service prior to the end of the contract term. His complaint alleged that DISH violated the Florida Consumer Collection Practices Act (FCCPA) by (1) willfully engaging in conduct that reasonably could be expected to abuse or harass the plaintiff or a member of his family, and (2) attempting to collect a debt that it knew was illegitimate. Plaintiff sought monetary relief from DISH claiming that suffered from post traumatic stress disorder and depression as a result of his mistreatment. After a 2 day trial, the jury found for the plaintiff on the second theory and awarded him only $5,000, apparently rejecting his claim for psychological damages. Plaintiff's attorney sought to establish a lodestar attorneys' fee amount of $89,000,based primarily on 250 hours of time at an hourly rate of about $350. The trial court accepted the lodestar amount and applied a contingency fee multiplier resulting in an award of 176,992.64. While the appellate court reversed the trial court's application of the contingency fee multiplier, and disallowed some travel time, the final judgment was affirmed in all other respects.

Dish Network Serv. L.L.C. v. Myers, 87 So. 3d 72 (2nd DCA 2012)

For more information about the Fair Debt Collection Practices Act, or, its state law counterpart, the Florida Consumer Collection Practices Act, visit us at: Stop Collection Harassment; or Consumer Rights Orlando

The FCCPA applies to creditors and their agents collecting their own accounts

Does a claim under the Florida Consumer Collection Practices Act ("FCCPA") have to be based on an “extension of credit”? Popular opinion about collection harassment suits is that they apply only to banks, credit card companies, and other lenders who extend credit to consumers. In fact, under the 1981 version of section 559.55 of the Florida Statutes, a “consumer claim” was defined as as a transaction “wherein credit has been offered or extended to a natural person . . . “ By contrast, under the 2009 version of Florida Statutes, states that a “consumer claim” is: “any obligation . . . of a consumer to pay money arising out of a transaction in which the money, property, insurance or services which are the subject of the transaction are primarily for personal, family or household purposes.” To paraphrase this current statute, the FCCPA applies to any person who engages in illegal collection activity regarding any obligation to pay money if it was primarily for personal purposes. Under that broad definition, the FCCPA applied to the law firm, the attorney and his assistant in the recent case of Morgan v. Wilkins, 74 So.3d 179 (Fla. 1st DCA 2011).

Robin Morgan retained the law firm of Arnold & Wilkins. Morgan did not pay the law firm and they sued her is Small Claims Court. She counterclaimed against the law firm, as well as the attorney and his assistant, individually, for violations of the Florida Consumer Collection Protection Act (“FCCPA”). The trial court granted the counter-defendants’ motion to dismiss finding that the FCCPA only apples to debt collectors not creditors collecting their own accounts as Morgan has alleged counter-defendants were doing.

On appeal, the law firm and the individual counter-defendants conceded that the trial court was in error when it ruled that FCCPA pertains only to debt collectors, however, they argued that that the trial court reached the right result for the wrong reason because Morgan’s debt was not a debt within the purview of the FCCPA since the debt did not flow from an extension of credit. The appellate court reversed holding that that the obligation to the law firm was a debt covered by the FCCPA.

This decision makes it clear that the FCCPA applies to creditors, and their agents, collecting their own accounts.

For more information about the Fair Debt Collection Practices Act, or, its state law counterpart, the Florida Consumer Collection Practices Act, visit us at: Stop Collection Harassment; or Consumer Rights Orlando

Who is a “debt collector” under Florida Law?

Under Florida law, and more specifically the Florida Consumer Collection Practices Act (“FCCPA”), a “debt collector” is defined as: “any person who uses any instrumentality of commerce within this state,  . . . in any business the principal purpose of which is the collection of debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another.  The term ’debt collector’ includes any creditor who, in the process of collecting her or his own debts, uses any name other than her or his own which would indicate that a third person is collecting or attempting to collect such debts.”

So, the FCCPA applies to any person or persons, collecting his/her own debts.  Under that broad definition, the FCCPA would apply to alaw firm attempting to collect its own fees, as well as the employees engaged in such collection activity on the law firm's behalf.

Robin Morgan retained the law firm of Arnold & Wilkins.   Morgan did not pay the law firm and they sued her is Small Claims Court.  She counterclaimed against the law firm, as well as the attorney and his assistant, individually, for violations of the FCCPA.  The law firm and the individuals moved to dismiss the counterclaim because they were not “debt collectors” under the FCCPA.   Morgan responded to the motion to dismiss by arguing that the FCCPA applies not only to a collection agency, but to any party seeking to collect a consumer debt.  The trial court granted the motion to dismiss finding that the FCCPA only apples to debt collectors not creditors collecting their own accounts as Morgan has alleged counter-defendants were doing.

On appeal, the law firm and the individual counterdefendants conceded that the trial court was in error when it ruled that FCCPA pertains only to debt collectors, however, they argued that that the trial court reached the right result for the wrong reason because Morgan’s debt was not a debt within the purview of the FCCPA since the debt did not flow from an extension of credit.  The appellate court reversed holding that that the obligation to the law firm was a debt covered by the FCCPA.

Morgan v. Wilkins, 74 So. 3d 179 (Fla. 1^st DCA 2011). 

For more information about the Fair Debt Collection Practices Act, or, its state law counterpart, the Florida Consumer Collection Practices Act, visit us at: Stop Collection Harassment; or Consumer Rights Orlando