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1 Table of Contents See also Summary of Contents on the previous page. Chapter One Section One: The Fair Debt Collection Practices Act (FDCPA): An Introduction to Coverage, Violations and Remedies... 1 Jason M. Rapa, Esquire I. Overview: Fair Debt Collection Practices Act... 3 II. Specific Application and Prohibition... 3 A. Legislative Intent/Background... 3 B. Definitions... 4 C. Regulations/Prohibitions Restricted Communications Abuse/Harassment False, Deceptive or Misleading Unfair or Unconscionable Conduct Notice Requirements Enforcements... 7 D. Enforcement Act is a Strict Liability Statute Upon Successful Litigation of an Individual Suit Plaintiff/Consumer is Entitled to Upon Successful Litigation of a Class Action the Class of Consumers is Entitled to... 8 E. Defenses Factual Dispute Bona Fide Error Defense... 8 F. Recent Amendments to FDCPA and Recent Case Law Recent Amendments Recent Case Law... 9 a. Validation Notice... 9 b. False and Deceptive Conduct... 9 c. Meaningful Involvement Requirement d. Mini Miranda Required III. Other Sources for Information Concerning the FDCPA and Protection of Consumers Chapter One Section Two: Unlawful Debt Collection: State and Tort Law Claims Jason M. Rapa, Esquire I. Applicable Law A. State Law Fair Credit Extension Uniformity Act xi

2 2. Unlawful Collection Agency Practices B. Tort Law Claims Intentional Infliction of Emotional Distress (IIED) a. Elements b. Damages Invasion of Privacy Intrusion Upon Seclusion a. Elements b. Damages II. Specific Application and Prohibition A. The Fair Credit Extension Uniformity Act (FCEUA) Overview Definitions Regulations/Prohibitions a. Unfair or Deceptive Conduct Prohibited b. Harassing, Oppressive and Abusive Conduct Prohibited c. False, Deceptive and Misleading Representations Prohibited d. Unfair and Unconscionable Conduct Prohibited Enforcement and Penalties a. Jurisdiction b. Penalties c. Bonafide Error Defense B. Unlawful Collection Agency Practices Overview Requirements a. Assignments of Claims b. Appearances for Creditors c. Unfair and Deceptive Conduct Prohibited d. Coercion and Intimidation Prohibited e. Penalty: Misdemeanor of 3rd Degree Chapter Two Section One: Developing a Successful Collection Campaign: Using Technology, Rules of Civil Procedure, and Legal Precedent to Find Assets Christopher P. Coval, Esquire I. The Primary Tools of Post-Judgment Collections A. Wait and See B. Garnishment/Attachment Examples C. Personal Property Levies Tools and Equipment D. Sheriff Sales of Real Estate E. Exceptions: Property Not Subject to Execution F. Odds and Ends Fees Owed to Garnishees Where They are Found to Have No Property of the Defendant Out of State Assets xii

3 II. Using Technology to Find Assets A. What Information is Helpful to Know III. Many On-Line Resources A. Always Start by Searching the Dockets B. Recorder of Deeds C. Board of Tax Assessment D. Department of State E. DMV Records F. Google G. Facebook H. WHOIS Search I. Internet Archive IV. Vendors A. LEXIS/NEXIS Substantial Public Records Database Can Be a Bit Costly B. WESTLAW PeopleMap C. Asset Reports by Private Investigative Services D. Using Social Media ( Jury Scout ) V. Some of the Legal Ways to Find a Debtor s Bank Accounts A. Cancelled Checks; On-line Statements Previous Business before the Default Settlements that Have Fallen Through Interrogatories in Aid of Execution Buy Something from the Debtor Divorce Records Failed Bankruptcy Attempts (PACER) UCC Filings Loan Applications and Financial Statements Rental Applications or Security Deposits Trash Searches Shot Gun Levy Do Not Call Banks Pretending to Be the Debtor VI. Rules of Civil Procedure and Precedent A. Execution May Issue on Common Pleas Judgments Simultaneous with Their Entry or Thereafter B. Long-Arm Execution The Prothonotary The Writ Venue Implications C. Interrogatories in Aid of Execution D. Depositions in Aid of Execution E. Post-Judgment Request for Inspection under Rule F. Rule 3118 Supplementary Relief in Aid of Execution Petition of Plaintiff Entitlement to Relief xiii

4 G. Break and Enter Defendant s Refusal to Allow Sheriff Entry into Premises Where Property for Levy is Located Rule Montgomery County Local Rule 3118(a)(6)(A) VII. Out of State Judgments A. Uniform Enforcement of Foreign Judgments Act Judgments Entered in State and Federal Courts Outside of Pennsylvania Procedure VIII. Foreign Judgments A. Uniform Foreign Money Judgment Recognition Act B. When Judgments are Not Subject to Recognition C. Procedure IX. Bankruptcy A. Bankruptcy Protection B. Automatic Stay C. Stay Relief Appendix A: LexisNexis Public Records Advantage Appendix B: Enforcement of Foreign Judgments Appendix C: Uniform Foreign Money Judgment Recognition Act Appendix D: Westlaw PeopleMap Appendix E: Plaintiff s Interrogatories in Aid of Execution Directed to Defendant Appendix F: 42 Pa.C.S Right of Participants to Receive Counsel Fees Appendix G: Praecipe to File, Register, and Index Foreign Judgments xiv

5 Appendix H: Postjudgment Request to Enter Designated Premises for Inspection of Property Pursuant to Pa.R.Civ.P in Aid of Execution Chapter Two Section Two: Developing a Successful Collection Campaign: Using Technology, Rules of Civil Procedure, and Legal Precedent to Find Assets Shawn P. McClure, Esquire I. Technology A. New Sources of Information Social Media Westlaw/LexisNexis B. Traditional Sources of Information Prothonotary s Office County Tax Assessor s Office Recorder of Deeds Office Secretary of the Commonwealth-Corporations Bureau Pennsylvania Department of Transportation Your Own Documents a. A Sale of Goods or Services on Credit b. Lease or Loan Transactions II. Rules of Civil Procedure/Legal Precedent A. Discovery in Aid of Execution Depositions and Interrogatories Expenses of Discovery Information Subpoena B. Garnishments Garnishee Procedure and Effect Interrogatories to Garnishee Bank Accounts Partnership Interests C. Supplementary Relief in Aid of Execution Catch All Limitations D. Charging Orders General Rule Redemption Period E. Sequestration of Rents or Payments F. Dealing with Property Claims and Sheriff s Interpleader xv

6 Chapter Three: Counseling Your Clients to Plan for Debt Collection: What Can They Do Beforehand to Make Collections Easier Christopher P. Coval, Esquire Nicholas D. Krawec, Esquire I. Credit Application/Credit Agreement A. Identify the Legal Form of Your Customer Changes in the Legal Formation of the Customer Change in Business Form Counsel Your Client to Review and Update Its Credit Applications Consumer/Retail Transactions B. Identify Who at the Customer is Authorized to Make Purchases, or Incur Charges on the Account Change in Authorizations Creditor Reliance C. Set Forth the Credit & Payment Terms Credit Limit Payment Due Date D. What are the Consequences of Default? Unilaterally Change the Credit Terms or Cut-Off Credit Change the Terms to C.O.D. or Cash-in-Advance Interest or Finance Charge Terms Collection Costs and Attorney Fees E. Jurisdictional/Forum Selection Clauses Litigation Jurisdiction Provision Jurisdiction of the State or Federal Court s in the Creditor s Locale Enforcement of Jurisdictional/Forum Selection Clauses Arbitration Clauses II. Creditor Enhancements A. Additional Protections with Borderline Creditworthy Customers Continuing Personal Guaranties Continuing Personal Guaranty from Principal s Spouse Written Consent for Checking Guarantor s Personal Credit Report B. Cross Corporate Guaranties C. Confession of Judgment Clauses D. Security Agreements III. Watch the Calendar A. Reminders B. Dunning Letters C. Policy for When to Turn It Over to Outside Counsel D. Policy for When Not to Pursue Collections IV. Special Situations A. Creditor Provides Construction Materials and/or Labor B. Make Sure Your Contract is Enforceable C. Mechanics Liens xvi

7 1. Filing Deadline Day Notice of Intent to File Mechanics Lien Claim Information Needed for Your Client to Protect Its Mechanics Lien Rights Appendix A: Commercial Credit Application and Account Agreement with Terms and Conditions Nicholas D. Krawec, Esquire Appendix B: Mechanic s Lien Claim: Job Profile Sheet Nicholas D. Krawec, Esquire xvii

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The Fair Debt Collection Practices Act, 15 U.S.C. 1692, et seq. Richard J. Perr, Esquire

I. Overview II. III. The Fair Debt Collection Practices Act, 15 U.S.C. 1692, et seq. Richard J. Perr, Esquire a. Private civil cause of action b. Regulates debt collectors conduct c. Protects consumers