All posts by Tony G

The term “vehicle” in the Missouri Lemon Law

The Missouri lemon law defines a motor vehicle as “those vehicles propelled by power other than muscular power.” This certainly covers almost all cars and trucks on the road, which use an engine and/or battery power. The Flintstones’ car, though, would not be covered.

The Missouri lemon law also covers the “chassis, engine, powertrain and component parts” of Recreational Vehicles (RVs).

What about an RV without an engine?  The statute does not say that a vehicle must be self-propelled. Most RVs are designed to be mobile, but cannot be moved by muscle power alone. Therefore, the “component parts” should be covered by the Missouri lemon law.

Although the Missouri lemon law excludes off-road vehicles, mopeds, and motorcycles, the Magnuson-Moss Warranty Act may still apply.

About the Lemon Laws

If you own a product you feel is defective or does not meet your expectations, a “lemon law” can provide additional help, beyond just another repair attempt and another repair attempt and another repair attempt…

The word “lemon” has been used to refer to something that is unsatisfactory since Shakespeare, in “Love’s Labour’s Lost,” Act V, Scene II.  The first “lemon law” to protect vehicle owners was passed in Connecticut in 1982. That law is still on the books as Title 42, Chapter 743b of the General Statutes of Connecticut.  Since then, all 50 states have passed a lemon law, including Missouri in 1984.

The Missouri state lemon law covers new vehicles purchased in the last 18 months. If you have been to the dealership four or more times for repair attempts or if your vehicle has been at the dealership for more than 30 days, then you may be able to ask the manufacturer to take the vehicle back and refund your money.

In 1975, the federal government passed a law, the Magnuson-Moss Warranty Act,  designed to protect consumers of almost product, including cars and trucks and electronics and appliances, as long as it came with a warranty.

If your product has had an unreasonable number of repair attempts , or has been at the dealership for an unreasonable length of time, then you may be able to recover money and keep the product to do with as you please.

Furthermore, if your vehicle still has an ongoing problem, then the manufacturer may have breached the warranty, meaning the manufacturer may owe you money because they have been unable, or unwilling, to actually fix the vehicle.

Law Office of Bryan Brody has experience with these laws and more.  Please contact us to obtain more information about how we might be able to help you.

Can a Debt Collector Call Your Family Members?

Consumers may experience call from family and friends who inquire as to whether the consumer is having problems paying their bills.  This is embarrassing for the consumer.  If it is a debt collector who is contacting the consumer’s family (other than spouses) and friends, then the debt collector may be breaking the law.

The FDCPA flatly prohibits a debt collector from engaging in collection communications with third parties: “A debt collector may not communicate, in connection with the collection of any debt, with any person other than the consumer…”  15 U.S.C. § 1692c(b); Evon v. Law Offices of Sidney Mickell, 688 F.3d 1015, 1025-26 (9th Cir. 2012); Thomas v. Consumer Adjustment Co., Inc., 579 F.Supp.2d 1290, 1296-1297 (E.D.Mo. 2008).

There are several exceptions in Section 1692c.  For example, if the debt collector is seeking contact information for a consumer then it generally gets to place one call to a third party to seek that information.  Unfortunately, however, many debt collectors will insist on calling these third parties even when they have a good address or phone number for the consumer.  This is likely illegal conduct.  The consumer can recover a statutory penalty of up to $1,000 and the debt collector will likely be required to pay the consumer’s attorneys’ fees.

Is a Debt Buyer a Debt Collector under the FDCPA?

This article focuses on a commonly asked question: is a debt buyer (for example, LVNV Funding, www.lvnvfunding.com, is a well-known purchaser of consumer debt) the same as a “debt collector” pursuant to the Fair Debt Collection Practices Act?  The short answer is yes, a debt buyer will most likely be a debt collector for purposes of the FDCPA.

Under the Act, “debt collectors” are defined as entities “who regularly collect or attempt to collect, directly or indirectly, debts owed or due or asserted to be owed or due another.”  15 U.S.C. § 1692a(6).

In litigation, a debt buyer might contended that it is not a debt collector.  It might claim that it is merely a “passive debt buyer.”  This precise argument has been rejected again and again by various courts.  See, e.g., Murr v. Tarpon Finan. Corp., No. 3:10–CV–372, 2014 WL 546690, at *4 (E.D. Tenn. Feb. 10, 2014); Bridge v. Ocwen Fed. Bank, FSB, 681 F.3d 355, 359 (6th Cir. 2012); Perry v. Stewart Title Co., 756 F.2d 1197, 1208 (5th Cir. 1985); Schlosser v. Fairbanks Capital Corp., 323 F.3d 534, 536 (7th Cir. 2003); F.T.C. v. Check Investors, Inc., 502 F.3d 159, 173 (3d Cir. 2007); Munoz v. Pipestone Finan., LLC, 397 F. Supp. 2d 1129, 1133 (D. Minn. 2005); Flint v. EMC Mortg. Corp., No. 05-4137-CV-C-SOW, 2005 WL 2237693, at *2 (W.D. Mo. Sept. 14, 2005).

The Circuit courts have uniformly held that the statutory definition of “debt collector” includes debt buyers.  Those courts have determined that the operative inquiry under Section 1692a(6) is “the status of the debt at the time it was acquired.”  Check Investors, 502 F.3d at 173.  If the debt in question was in default at the time it was acquired by an entity, that entity is considered a debt collector.  Schlosser, 323 F.3d at 536; Bridge, 681 F.3d 355, 359.  The analysis is no more complicated than that.

If a consumer hires a lawyer, what is the debt collector’s obligation?

This article focuses on what happens when a consumer tells a debt collector that the consumer has hired an attorney.  The cited law is generally applicable in Missouri.  In short, the debt collector must stop all collection attempts made to the consumer directly.  The debt collector must exclusively deal with the consumer’s attorney.

The relevant statute is 15 U.S.C. 1692c.  Section 1692c(a)(2) provides in relevant part:

Without the prior consent of the consumer given directly to the debt collector or the express permission of a court of competent jurisdiction, a debt collector may not communicate with a consumer in connection with the collection of any debt…if the debt collector knows the consumer is represented by an attorney with respect to such debt and has knowledge of, or can readily ascertain, such attorney’s name and address, unless the attorney fails to respond within a reasonable period of time to a communication from the debt collector or unless the attorney consents to direct communication with the consumer.

15 U.S.C. § 1692c(a)(2); see also Courchene v. Citibank, No. 06-4026-CV-C-NKL, 2006 WL 2192110, at *1 (W.D. Mo. Aug. 1, 2006) (“The FDCPA…prohibits a debt collector from contacting a debtor where the collection agency knows the consumer is represented by an attorney.”); Shapiro v. Law Offices of Cohen & Slamowitz, LLP, No. 06 Civ. 3773(WCC), 2007 WL 958513, at *4 (S.D.N.Y. Mar. 28, 2007) (“The plain language of the FDCPA clearly states that a debt collector may have no contact whatsoever with a consumer once it becomes aware that he is represented by counsel.”) (emphasis in original).

The knowledge element requires a showing of actual knowledge on the part of the debt collector.  Schmitt v. FMA Alliance, 398 F.3d 995, 997 (8th Cir. 2005).  Furthermore, the knowledge must be specific to the debt at issue; knowledge that the consumer is currently or was represented as to other debts is insufficient.  Berndt v. Fairfield Resorts, Inc., 337 F. Supp. 2d 1120, 1132–33 (W.D. Wis. 2004) (citing Graziano v. Harrison, 950 F.2d 107, 113 (3d Cir. 1991)).  “As the Federal Trade Commission commentary on this provision explains, ‘[i]f a debt collector learns that a consumer is represented by an attorney in connection with the debt, even if not formally notified of this fact, the debt collector must contact only the attorney and must not contact the debtor.’” Goins v. JBC & Associates, P.C., 352 F. Supp. 2d 262, 272–73 (D. Conn. 2005) (quoting Federal Trade Commission, Statements of General Policy or Interpretation Staff Commentary on the Fair Debt Collection Practices Act, 53 Fed. Reg. 50097, 50104 (1988)).  Because such notice need not be formal, courts have consistently rejected the argument that such notice must be in writing.  See, e.g., Morrow v. Weinerman & Assoc., LLC, Civil No. 11–104 (RHK/LIB), 2011 WL 4472651, at *4 (D. Minn. Sept. 26, 2011); Goins, 352 F. Supp. 2d at 272–73.

In Bieber, the court rejected a distinguishable Section 1692c(a)(2) claim.  Bieber v. Associated Collection Servs., Inc., 631 F. Supp. 1410, 1417 (D. Kan. 1986).  There, the debt collector phoned the consumer.  Id.  The consumer told the debt collector that she was represented by counsel with respect to the debt the collector was calling about, and advised the debt collector to contact her attorney.  Id.  The debt collector then inquired whether the consumer was planning to file bankruptcy.  Id.  Nothing more was said during the conversation.  Id.  The court found that the debt collector’s lone question after receiving notice of the consumer’s representation was a “legitimate business inquiry” and “was not so extensive as to have been the kind of additional ‘communication’ prohibited by subsection c(a)(2).”  Id.

Moreover, although Section 1692c states that the consumer or his attorney may consent to direct communications with the consumer, neither exception can possibly apply here.  In Backlund, the court faced precisely this issue.  Backlund v. Messerli & Kramer, P.A., Civil No. 12–808 (JRT/JJK), 2013 WL 4050197, at * 4 (D. Minn. Aug. 9, 2013).  There, the debt collector sent the consumer two notices of default pursuant to a stipulation signed by the collector and the consumer.  Id.  The court noted that there is no Eighth Circuit precedent on this issue.  Id.  The court instead relied on the waiver/consent concept examined by the Ninth Circuit in Clark:

The Eighth Circuit has not considered whether consent may waive the protections of the FDCPA. However, in Clark v. Capital Credit Collection Services, Inc., the Ninth Circuit considered whether a collection agency’s phone call to Mrs. Clark in response to her request for information violated § 1692c(c)6 in light of letters sent by Mr. Clark to the collection agency directing them not to call Mrs. Clark. 460 F.3d 1162, 1168 (9th Cir.2006). The court found that although, in general, a party may waive “a benefit of a provision of a statute … enacted … for his protection,” not all rights are waivable and “waiver is not appropriate when it is inconsistent with the provision creating the right sought to be secured.” Id. at 1170 (internal quotation marks omitted). The court went on to find that “a debtor may waive the rights created by a cease communications directive.” Id. The waiver must, however, be knowing and voluntary, and the Ninth Circuit “will enforce a waiver of the cease communication directive only where the least sophisticated debtor would understand that he or she was waiving his or her rights under § 1692c(c).” Id. at 1170–71. The court concluded that “even the least sophisticated debtor would recognize that Mrs. Clark’s request for information constituted consent” for the return phone call “in order to provide the specific information she requested.” Id. at 1172.

Id.  Under the Clark analysis, the court in Backlund concluded that the stipulation constituted prior consent given directly to the debt collector.  Id.  Thus, the debt collector’s communications were exempted by Section 1692c.  Id.