Menu

How to Avoid Lawsuit Bait

  • Written by Debra J. Ciskey

ciskey debra jSometimes collectors have conversations with consumers leaving collectors feeling like someone just played them. They feel manipulated in a way difficult for them to describe. These may be instances in which the collector was baited by the consumer in an attempt to get the collector to violate the Fair Debt Collection Practices Act. Let’s look at some of the known baiting scenarios.

In a very recent case, a call between the consumer and the debt collector occurred about a week after the collection agency had sent the consumer the initial notice, including the validation notice which informs the consumer of his right to dispute the debt. The agency had spoken with the consumer a few days earlier, reaching no resolution of the debt. When the consumer called the agency a few days after the initial conversation, the consumer asked the collector, “When do I have to take care of this debt?” The collector explained the placement date and told the consumer they look to resolve the balance immediately. When asked again, the collector said they were looking for payment “as soon as possible.” The consumer asked whether the collector meant payment in full, to which she responded “correct.” When asked if they wanted it paid immediately, she responded “correct.” The consumer said he could not pay the debt and he had hired an attorney.

The consumer claimed the debt collector overshadowed his rights by demanding immediate payment, implying partial payment must be made within the validation period. After discussion of other cases in the same district related to overshadowing, the court concluded, with application of the least sophisticated consumer standard, the debt collector overshadowed the consumer’s right to dispute the debt by answering the consumer’s questions in such a way communicating payment in full was due immediately, when the consumer had several weeks remaining in the validation period. The court said, “It is unlikely that an unsophisticated consumer would understand that he could still dispute the debt despite making immediate payment arrangements as [the consumer] was encouraged to do.” (Schuller v. AllianceOne Receivables Management, Inc., Case No. 4:15 CV 298 CDP, USDC, Eastern District of MO, Eastern Division. decision filed 02/01/16, page 14.)

Indications the consumer was baiting the collector were as follows: 1) The consumer’s approach to communicating with the collector was very different in the last call than the previous two calls; 2) The consumer consulted with someone in the room during the final call; 3) The consumer provided attorney representation information to the collector at the conclusion of the call. The collection agency argued these circumstances indicated the consumer was not a least sophisticated consumer, but the court said the standard is objective and the court applied the standard.

Other attempts to bait debt collectors seek to confuse them by changing the subject of the call. For example, the call proceeds with this line of comment and questioning by the consumer:

• How much do I owe?

• I don’t think I owe this much.

• Is a settlement available?

• I can only pay $10 per month.

• I’ll do the best I can.

In this scenario, the debt has already been furnished to credit reporting agencies. About 30 days or so after the phone call occurs the consumer checks his credit report. If the account does not carry a status of disputed then the consumer’s attorney threatens to file a lawsuit contending the consumer verbally disputed the debt in the telephone conversation yet the debt collector did not provide a status of disputed to credit reporting agencies. The FDCPA Section 807(8) [1692e7] is generally cited: Communicating or threatening to communicate to any person credit information which is known or which should be known to be false, including the failure to communicate a disputed debt is disputed. The consumer’s “I don’t think I owe this much” statement is the dispute, but collectors can be led to disregard the statement when discussion of the account turns to settlement and eventual payment. When collectors experience this line of questioning, the safest next step is to disposition the account as a disputed account to ensure credit bureau reporting meets the consumer’s expectation.

Consumers also attempt to bait consumers into FDCPA violations by asking repeated and specific questions about the credit reporting status of their account, including:

• How long will this stay on my account if I pay this?

• If I can’t pay it off how long will the account affect my credit?

• What do I have to do to dispute this account?

• So my dispute has to be valid?

• What proof do I need to dispute the account?

• What do I need to do to dispute the account?

• Does my dispute have to be in writing?

• Do I need a reason why I am disputing the account?

• Your company doesn’t think the debt is valid?

We have to rely on our front line staff to recognize baiting scenarios and respond to them properly. This requires solid policies and procedures, frequent training including role playing out these scenarios, and job aids easily accessed by collectors in the instance they recognize they are the target of a consumer who intends to get them to violate the law. My experience is sometimes collectors feel compelled to demonstrate their perceived expertise related to credit reporting. However, in this case, to quote Alexander Pope, “a little knowledge is a dangerous thing.” Provide scripted responses your collectors must use for these questions reflecting your policies and procedures, empower them to say, “I don’t know,” and to repeat the same answer.

Collectors should inform their manager and the compliance officer when they feel they have been subject to baiting. Review the recordings and the account and treat the account accordingly to protect yourself from liability. With the right policies, training, and account management practices, you can avoid the traps others set for you.

Debra Ciskey is the Compliance Officer at Wakefield & Associates. Inc. She is a member of the board of directors and a certified instructor for ACA International.