Noted Plaintiffs’ Attorney Shares Secret To Keep From Showing Up On His Radar; Lawyers Share Opinions on Recent TCPA Rulings

AccountsRecovery.net is proud to be partnering with WebRecon to publish a series of articles that will help shed light on the issues facing collectors when it comes to complying with laws such as the Fair Debt Collection Practices Act and the Telephone Consumer Protection Act, as well as defending themselves against complaints filed with the Consumer Financial Protection Bureau. WebRecon offers a free report that tracks consumers who are frequent filers of lawsuits. Know who the problem consumers are, before they sue you.

Coming from a man who has made his living suing collection agencies, those interested in not being sued should follow one incredibly simple rule: be nice.

Most consumers who end up filing lawsuits against collection agencies do so because they feel they have been mistreated by a collector, said Sergei Lemberg of The Lemberg Law Group, one of the most frequent filers of lawsuits against collection agencies, during a webinar hosted last week by AccountsRecovery.net and sponsored by WebRecon.

“The people who call us are humans,” Lemberg said during the webinar, which provided updates about a number of cases related to the Telephone Consumer Protection Act. “They call us when they are pissed and feel they have been mistreated. If you want to reduce the number of lawsuits, train your associates to deal with these sorts of situations and make sure they don’t go to a lawyer.”

The webinar focused on two key areas: the use of automated telephone dialing systems, or autodialers, in contacting consumers, and the request and revocation of consent when it comes to contacting consumers. Both of these areas were key points in changes to the TCPA made by the Federal Communications Commission in July. Under the new TCPA, any technology which has the current or future capacity to be used as an autodialer should be considered an autodialer, and consumers now have the power to revoke consent to be contacted by any means necessary.

There have been a number of court case rulings since the FCC’s changes went into effect and those rulings impact how collectors can operate and contact consumers with delinquent or defaulted accounts.

One recent case, for example, Dominguez v. Yahoo, from the Third Circuit Court of Appeals, used the language from the FCC’s July order to cut down a plaintiff’s complaint.

But recent rulings have opened the door for allowing further discovery when it comes to analyzing the technology used by collection agencies to contact borrowers.

These rulings “create a fact issue which requires discovery,” said Donald Maurice of the law firm Maurice Wutscher. Plaintiffs’ lawyers, like Lemberg, will request that agencies “hand over documents, manuals and all of the code used by that technology and have their experts review and opine if it has the capacity to become an autodialer.”

Like determining whether a particular piece of technology is an autodialer, determining whether an individual has revoked consent to be contacted is becoming more tricky.

Currently, it seems as though the standard language used by collectors to acquire consent from borrowers is something along the lines of, “Is it ok for us to contact you at this number?” But Lemberg feels that collectors using that particular language are leaving out something important.

It should be, “Is it ok for us to use autodialing technology to contact you,” Lemberg said during the webinar. Both Maurice and Scott Wortman, a partner at the law firm of Warshaw Burstein, disagreed.

“As long as you provide an opportunity for the person to opt-out, I think it will stand up,” Wortman said.

Maurice said that adding additional language to the consent request, when coupled with all of the other notices and disclosures that collectors must give, was too burdensome.

Those interested in accessing and listening to a recording of the webinar can do so by clicking on this link. Those attempting to download the recording on a mobile device should be warned that the webinar recording is 60Mb.

Check out more about WebRecon by visiting www.WebRecon.com and click here to download the free Frequent Filers Report.