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PostPosted: Sat Dec 30, 2006 7:46 am 
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Section 1692e of the FDCPA provides that a debt collector may not engage in false or misleading representations in order to collect a debt.

This section outlines specific examples of false and misleading representations and, for the most part, contains prohibitions that are a matter of common sense.

Under the provisions of § 1692e(4) and (5), the FDCPA specifically prohibits debt collectors from threatening legal action that the debt collector or attorney does not intend to take.

This has been a source of much litigation and debate and has proven to be one of the most common violations of the FDCPA. See Jeter v. Credit Bureau, Inc. 760 F.2d 1168 (11th Cir. 1985) ( The Court held that there was a triable issue of fact when a collection agency sent two notices to a consumer one month apart threatening legal action in five days.);Yelvington v. Buckner, Clearinghouse No. 36,581 (N.D. Ga. 1984) (The Court held that threats of garnishment against the consumer’s employer before the collector had filed suit violated this section.)

There are two other sections of the FDCPA which directly address unfair or unconscionable collection activities.

Section 1692d deals with harassment or abuse and Section 1692f deals with unfair practices generally. Section 1692d contains a list of specific conduct which is considered harassment and abuse under the FDCPA, but it also prohibits anyother conduct not specifically outlined which is harassing or abusive.

The Eleventh Circuithas held that whether conduct is considered harassing or abusive under the terms of § 1692d “should be viewed from the perspective of a consumer whose circumstances makes him relatively more susceptible to harassment, oppression, or abuse.â€

_________________
David Szwak
Chairman, Consumer Protection Section, Louisiana State Bar Association
Bodenheimer, Jones & Szwak
509 Market Street, 7th Floor
Mid South Tower
Shreveport, Louisiana 71101
318-221-6444
Fax 318-221-6555


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