By: Robert J. Nahoum
You’ve fallen behind on bills and get a debt collection letter from a lawyer. The letter says that if you don’t pay a $75 medical bill you will be sued. You’re a pretty smart guy and you know that the lawyer is just blowing smoke – he’s not really going to sue you for $75 because it’s such a small amount. Turns out you were right and the lawyer never sued you. In fact, it’s pretty clear the lawyer made a false threat, but you never believed him anyway.
Is it ok for a debt collector to make a false threat, even if you knew it was false?
Federal debt collection laws, known as the Fair Debt Collection Practices Act (FDCPA for short), regulates the collection of consumer debts. The FDCPA prohibits debt collectors from using false, misleading and harassing debt collection tactics.
In determining whether any particular conduct violates the FDCPA, the courts have used an objective test based on the “least sophisticated consumer”. The basic purpose of the least sophisticated consumer standard is to protect all consumers—from the educated to the naïve, the gullible as well as the shrewd. It does not require actual deception, only a finding that the least sophisticated consumer would have been deceived or misled.
So who is this “least sophisticated consumer? As one court put it “the hypothetical least sophisticated consumer does not have “the astuteness of a `Philadelphia lawyer’ or even the sophistication of the average, everyday, common consumer,” but is neither irrational nor a dolt.” Ellis v. Solomon and Solomon, PC, 591 F. 3d 130 (2nd Cir. 2010). As another court explained it, “even the least sophisticated consumer can be presumed to possess a rudimentary amount of information about the world and a willingness to read a collection notice with some care.” Clomon v. Jackson, 988 F.2d 1314, 1318-19 (2d Cir.1993).
WHAT YOU SHOULD DO:
If a debt collector has engaged in what you to believe to be false or misleading conduct, even if you don’t believe it, the conduct might have still violated the FDCPA. The question is not were you fooled, but would the least sophisticated consumer have been fooled. To find out, contact a consumer protection attorney familiar with the FDCPA.
The FDCPA includes a private right of action under which a consumer may sue a debt collector for FDCPA violations. If a debt collector is found to have violated the FDCPA, you may recover up to $1,000.00 in statutory damages, plus actual damages (for example pain and suffering) and your reasonable attorneys’ fees.
The FDCPA empowers the consumer to swing the pendulum in the other direction and sue the debt collector for its wrongful conduct.
If you need help settling or defending a debt collection law suit, stopping harassing debt collectors or suing a debt collector, contact us today to see what we can do for you.