Latest Webrecon Data on FDCPA, FCRA and TCPA

All,

The latest WebRecon data was sent out in WebRecon’s free newsletter.

WebRecon tracks consumers who litigate against collection agencies. How dare the consumer stand up for their rights and hold collectors accountable to Federal Law!

Anyhow, the information that WebRecon sends out is pretty interesting. Here are some highlights:

Full Statistics: There were about 1285 lawsuits filed under consumer statutes in April 2013. Here is an approximate breakdown:

  • 1125 FDCPA
  • 232 FCRA
  • 156 TCPA

WebRecon Statistics FDCPA FCRA TCPA

 

 

 

 

 

Fight the essential fight, Boiler

 

Failure to State a Claim upon Which Relief can be Granted 26(b)(6)

After filing a lawsuit in federal court it is common for the defendant to file a Motion for Summary Judgement to get rid of a case against a Pro Se litigant. If this is your first case, this Motion can seem like a trump card has been played and youPro Se Motion For Summary Judgment are done.

No so fast.

As you will learn after have a couple of cases under your belt, ridding yourself of a Motion for Summary Judgement is usually quite easy. In this article, I am not going to focus on the reply or the process. I am going to forward on to you some case law that was sent to me that relates to the situation. If you are knee deep in a case and have a 26(b)(6) on your plate, email me and I will likely be able to help.

Here is the case law I was discussing:

In General, Pro Se pleadings are held to less stringent standards than those applied to members of the Bar (lawyers…).

For example, in reviewing a pro se litigant’s complaint for dismissal, the court must read the complaint less stringently than it would an attorney’s. See Hughes v. Rowe, 449 U.S. 5, 9-10 (1980) (per curiam); Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (per curiam); Madyun v. Thompson, 657 F.2d 868, 876 (7th Cir. 1981). Pro se prisoners are not prejudiced by the filing of handwritten materials. See Twyman v. Crisp, 584 F.2d 352, 358 (10th Cir. 1978) (per curiam); Tarlton v. Henderson, 467 F.2d 200,201 (5th Cir. 1972) (per curiam).

If the complaint misapprehends the claim appropriate to its grievance, the trial court must re-characterize the claim.

See Madison v. Tahash, 359 F.2d 60, 61 (8th Cir. 1966) (construing application for appointment of counsel as one for a certificate of probable cause); United States ex rel. Johnson v. Chairman, N.Y. State Bd. of Parole, 363 F. Supp. 416, 417 (E.D.N.Y. 1973) (application for order mandating parole board to state reasons for denying parole may be treated as habeas corpus petition), aff’d, 500 F.2d 925 (2d Cir.), vacated and remanded, 419 U.S. 1015 (1974). But see Mundy v. Winston, 457 F. Supp. 678, 680 (E.D. Va. 1978) (pro se litigant always must have ultimate decision to elect what claim he will pursue).

Pro Se complaints should not be dismissed for failure to state a claim unless it is apparent that they are unsupportable in law or fact.

See Brandon v. Dist. of Columbia Bd. of Parole, 734 F.2d 56, 62 (D.C. Cir. 1984), cert, denied, 469 U.S. 1127 (1985); Williams v. Kullman, 722 F.2d 1048, 1050 (2d Cir. 1983); Bayron v. Trudeau, 702 F.2d 43, 45 (2d Cir. 1983).

Pro Se complaints cannot be construed inflexibly so as to require dismissal if the complaint fails to request precise appropriate relief.

See DeWitt v. Pail, 366 F.2d 682, 684-85 (9th Cir. 1966); Downing v. New Mex­ico Supreme Court, 339 F.2d 435, 436 (10th Cir. 1964) (per curiam); Holsey v. Bass, 519 F. Supp. 395, 402-03 (D. Md. 1981), aff’d, 712 F.2d 70 (4th Cir. 1983). See generally Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (per curiam) (pro se pleadings held to less stringent standards than those applied to attorneys).

In response to the difficulty Pro Se litigants have in recognizing sum­mary judgment obligations, some courts have expanded the liberality tra­ditionally demonstrated towardPro Se pleadings

See, e.g., Hughes v. Rowe, 449 U.S. 5, 9-10 (1980) (per curiam); Haines v. Ker­ner, 404 U.S. 519, 520-21 (1972) (per curiam).

There should be a general attitude of paternalism by the judiciary towards Pro Se litigants

See, Muhammad v. Rowe, 638 F.2d 693 (7th Cir. 1981

Hope this case law was helpful for you.

Fight the essential fight, Boiler

FDCPA Case Law

All,FDCPA Case Law

I was reading some complaints from the Federal Court in Denver. While researching the next defendant I am going after, I read some case law I thought was pretty basic.

Sometimes I think that people that are versed in the FDCPA take this basic case law for granted. This basic case law gets overlooked and thus not communicated.

Anyhow, here it is:

“The Act is a strict liability statute; violations of the Act do not need to be
intentional to be actionable.” Smith v. National Credit Systems, Inc., 807
F.Supp.2d 836, 840 (D.Az. 2011).

and

“Because the FDCPA “is a “strict liability statute,” Plaintiff need only demonstrate
“one violation of its provisions” to be entitled to a favorable judgment.” Doshay v.
Global Credit and Collection Corporation, 796 F.Supp.2d 1301, 1304 (D.Colo.
2011).

and

The FDCPA is a remedial statute, it should be construed liberally in favor of the
consumer. Johnson v. Riddle, 305 F.3d 1107, 1117 (10th Cir. 2002).

Fight the Essential Fight, Boiler

TCPA Case Law

All,

Daniel A. Edelman is a consumer attorney from Chicago who wrote a pretty nice article on the TCPA. This article has lots of Case law that may be helpful to you.

As you probably know, I am anti-lawyer. I admit that there are some good lawyers out there working for the good of their fellow man. If you find one let me know.

Edelman might be one…Please check it out:

Daniel A. Edelman – TCPA

Fight the Essential Fight, Boiler

Supreme Court Chimes in on Your Right To Travel

All,Rolls Royce

As you know that collection issues, credit issues and driving issues are dear to my heart.

I received a document on your right to travel. As you may also know, traveling and driving are different activities legally. Traveling is going from point A to point B, even if you are controlling an automobile.

Driving is completely different. It is controlling an automobile or such as a commercial endeavor.

If you are going to Grandmother’s house in a car so the kids can visit, you are traveling. If you are working an deliver eggs to a customer while on the clock, you are driving.

You have a right to travel. He is what Wikipedia says:

Freedom of movement under United States law is governed primarily by the Privileges and Immunities Clause of the United States Constitution which states, “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” As far back as the circuit court ruling in Corfield v. Coryell, 6 Fed. Cas. 546 (1823), the Supreme Court recognized freedom of movement as a fundamental Constitutional right. In Paul v. Virginia, 75 U.S. 168 (1869), the Court defined freedom of movement as “right of free ingress into other States, and egress from them.”[1] However, the Supreme Court did not invest the federal government with the authority to protect freedom of movement. Under the “privileges and immunities” clause, this authority was given to the states, a position the Court held consistently through the years in cases such as Ward v. Maryland, 79 U.S. 418 (1871), the Slaughter-House Cases, 83 U.S. 36 (1873) and United States v. Harris, 106 U.S. 629 (1883).[2][3]

Also check out the attached document for case law from the Supreme Court:

SUPREME COURT CASES 13 ON RIGHT TO TRAVEL

With this information in your arsenal, you will still have a hard time getting a favorable ruling in a county court. As most of you know, the local courts are not concerned about laws and such. The are just worried about cash flow. Often, the local judges are just glorified cashiers in an extremely ugly dress.

Fight the Essential Fight, Boiler