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 Post subject: Section 1692e[5]
PostPosted: Tue Aug 08, 2006 12:43 am 
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Joined: Fri Jul 14, 2006 6:19 am
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The FDCPA prohibits "the threat to take any action that cannot legally be taken or that is not intended to be taken." 15 U.S.C. 1692e(5). This prohibition is commonly violated. Examples of violations include:

*** The threat of suit within a short time when the creditor has not authorized suit or the debt collector does not file suit within the period stated. Bentley v. Great Lakes Collection Bureau, 6 F.3d 60 (2d Cir. 1993); Graziano v. Harrison, supra, 950 F.2d 107 (3d Cir. 1991); Pipiles v. Credit Bureau of Lockport, Inc., supra, 886 F.2d 22 (2d Cir. 1989) (48 hour notice); Edwards v. National Business Factors, Inc., 897 F.Supp. 455 (U.S.D.C. Nev. 1995); Tsenes v. Trans-Continental Credit and Collection Corp., 892 F.Supp. 461 (U.S.D.C. E.D. N.Y. 1995). However, a statement that legal action "could result" does not violate 15 U.S.C. 1692e(5). Brown v. Card Serv. Ctr., 2005 U.S. Dist. LEXIS 12810 (U.S.D.C. E.D. Pa. 2005).

*** Threats of suit by an attorney not licensed within the jurisdiction or who does not in fact file suits in the jurisdiction. Newman v. Checkrite California, Inc., 912 F.Supp. 1354 (U.S.D.C. E.D. Cal. 1995); Rosa v. Gaynor, 784 F.Supp. 1, 5 (U.S.D.C. Conn. 1989).

*** Threats to enforce creditor remedies which cannot be enforced at the time stated or to the extent stated. Picht v. Jon R. Hawks, Ltd., 236 F.3d 446 (8th Cir. 2001). For example, a debt collector may threaten to obtain a wage garnishment or execution without disclosing that this can only be done after notice, hearing and judgment, or may threaten to garnish "all" of a consumer's wages when the law clearly imposes limitations on the amount which may be garnished. Woolfolk v. Van Ru Credit Corp., 783 F.Supp. 724 (U.S.D.C. Conn. 1990) (oppressive list of post-judgment remedies); Seabrook v. Onondaga Bureau of Medical Economics, Inc., 705 F.Supp. 81 (U.S.D.C. N.D. N.Y. 1989) (threat to garnish wages in excess of amounts permitted under federal law); Cacace v. Lucas, 775 F.Supp. 502 (U.S.D.C. Conn. 1990) (letter stating that litigation could result in seizure of real estate and bank account deceptive; mere filing of litigation could not have any of stated effects). The threat to collect amounts unauthorized by contract or law, i.e., attorney’s fees, violates this provision. Sandlin v. Shapiro & Fishman, 919 F.Supp. 1564 (U.S.D.C. M.D.Fla. 1996); Newman v. CheckRite California, Inc., 912 F.Supp. 1354 (U.S.D.C. E.D. Cal. 1995). Several district courts have held that a debt collector which has not been licensed by the state in which it attempted to collect a debt has also violated 1692e(5) [Sibley v. Firstcollect, Inc., 913 F.Supp. 469 (U.S.D.C. M.D.La. 1995); Russey v. Rankin, 911 F.Supp. 1449 (U.S.D.C. N.M. 1995); Kuhn v. Account Control Technology, Inc., 865 F.Supp. 1443 (U.S.D.C. Nev. 1994); Gaetano v. Payco, Inc., 77 F.Supp. 1404 (U.S.D.C. Conn. 1990).], but the Ninth Circuit has held otherwise. Wade v. Regional Credit Association, 87 F.3d 1098 (9th Cir. 1996). The consumer’s complaint regarding a collector’s “Legal Review Notificationâ€

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