Trend: Fax-and-Wait FDCPA Claims on the Rise
Debt collectors and others subject to the Fair Debt Collection Practices Act take note: a prolific plaintiffs’ attorney has a new tactic. I call it the “Fax-and-Wait” approach to FDCPA litigation.
At least four FDCPA cases filed in the past six weeks allege the same basic fact pattern.
In each case, the consumer contacts the attorney about ongoing debt collection efforts. The attorney then faxes a letter to the debt collection company. The faxed letter may indicate that the consumer disputes the debt. At a minimum, the letters indicate that the attorney has been retained to represent the consumer in connection with the debt.
Next, the attorney waits a few months. Then, he essentially looks for ways in which the debt collection company may have failed to respond to the information included in the faxed letter.
For example, if the letter states that the debt is disputed, the attorney reviews the consumer’s credit report to see if the debt is reported as disputed. Or, he waits to see if the debt collection company sends further correspondence directly to the consumer (as opposed to directing correspondence to the consumer’s attorney).
Any alleged failure to report the debt as disputed to the credit reporting agencies results in a claim under 15 U.S.C. § 1692e(8). Allegations that the debt collector communicated with the debtor directly, despite knowing that the consumer was represented by an attorney, are leveraged to support a claim under 15 U.S.C. § 1692c(a)(2).
Regardless of the merits of these allegations, the tactic is plainly designed to take advantage of the fact that the fax machine is likely the least monitored form of communication in any office setting.
Please contact me directly for additional information, including copies of the relevant complaints.