Blog – Page 6 – Hartman Law Office Inc.

2014

PAYDAY LOANS, TITLE LOANS, SHORT TERM LOANS….LEGAL LOANSHARKING?

Jared Hartman, Esq Posted on August 21, 2014
There are laws in California that prohibit loan transactions from having a APR (annual percentage rate) of greater than 12%–or 7% in many instances. These laws are called Usury Laws and can be found at Article XV, Section 1 of the California Constitution and in California Civil Code § 1916.12-1 through 1916.12-5. Pursuant to Calif. Civ. Code §1916.12-3(b), any person who contracts to receive a usurious amount of interest is considered “loan sharking” and is a felony crime. Additionally, someone who has suffered a usurious loan can sue civilly to recover all interest paid on the loan within the previous two years in addition to triple the amount of interest paid within the previous one year—these are not limited to just the usurious interest paid but applies to all interest paid.

Unfortunately, there are many exemptions from usury laws, such as banks, which is why credit cards, private student loans, and mortgage loans are typically between 10%-24%. There has been a disturbing rise in the past few years for “short term loans”, which are also listed as an exemption.

Short term loans are the types of loans that allow someone to get a quick influx of cash for a very high interest rate. The expectation is that the loan will be repaid in a short period of time and is not usually expected to take an entire year or more to be repaid, and therefore the high annual percentage rate is not expected to be detrimental to the borrower. If the company is labelling the loan a “short term loan” with the intention of evading the Usury laws, then the loan is not protected from Usury laws prohibitions.

If someone is truly in need of emergency funding and has the ability to repay the loan on time, these loans can be beneficial. The problem, though, is that most people don’t know how problematic it can be to pay these loans off on time, and then unexpectedly suffer high penalties, acceleration clauses, and losing both title and possession to their vehicles being used as collateral. Even more disturbing is that almost half of the people who take out these loans have to incur more debt with another company just to pay off the first company, thereby creating a never-ending cycle of debt for the company’s to simply sit back and profit from the unfortunate debtor struggling to survive on a day to day basis.

A very disturbing depiction of these loans was presented by John Oliver on HBO’s Last Week Tonight on Sunday August 10, 2014. Watch the video below for more:

The law offices of Semnar Law Firm, Inc. and Hartman Law Office, Inc. have teamed up to file a lawsuit recently against a company called Trading Financial Credit, LLC. The lawsuit was filed in the Orange County Superior Court under case number 30-2014-00735404. The complaint can be found here complaint. The lawsuit alleges that Trading Financial deceptively labelled their tile loan mandating 92% APR on a $4,000.00 loan as a type of loan exempt from Usury, but only did so with the intention of avoiding usury law prohibitions. The lawsuit further alleges violations of Rosenthal FDCPA (for more on that see our tab called “Debt Collection”) by having someone falsely threaten the plaintiff with criminal investigations for fraud and by calling her references with the same false threats, among other matters.

The bottom line, every person should be very careful when entering into these types of loans. Tough economic times may require quick cash, but there are many other ways to obtain cash that might not cause as many problems. If you or a loved one has entered into such a loan and is being taken advantage of and feel that the loan company is violating your rights, contact us immediately for a free and confidential consultation to discuss your circumstances.

Related Tags: Trading Financial Credit, title loans, California usury, loansharking, loan sharking, usurious loan, 1916.12, California fair debt collection, San Diego fair debt collection, San Diego debt collection harassment, California debt collection harassment, FDCPA, California Rosenthal Act, California RFDCPA, debt harassment, bankruptcy, consumer attorneys, consumer rights

2014

LAW FIRMS FILING LAWSUITS FOR OUTSTANDING DEBTS ARE SUBJECT TO THE FDCPA!

Jared Hartman, Esq Posted on August 4, 2014
If you have been sued for an outstanding debt, you MUST contact us immediately for a FREE, CONFIDENTIAL consultation to discuss the circumstances of whether the law firm has violated your rights under the Federal Fair Debt Collection Practices Act and the California Rosenthal Act.

Many people mistakenly believe that, because they are being sued by a law firm, the FDCPA does not protect them for the unfair and oppressive actions taken by the law firm. However, courts all across the country recognize that law firms whose practice primarily engage in the collection of debts on behalf of others—including whose primary practice is to file lawsuits for many of these firms operate like a mill and they do not engage in any meaningful review of the case provided to them by the creditor on whose behalf they are pursuing suit (if they engage in any review at all). Instead, their primary operation is to simply accept the creditor’s claim that the debt is owed, that the particular person being sought after is the right person, the amount sought is proper, and that the lawsuit is not barred by statute of limitations. They will then send a few letters and place a few phone calls to the claimed debtor, and upon receiving no response they will file hundreds of lawsuits in bulk and then seek default judgment on bogus proofs of service. This in turn results in judgment liens being placed upon the unfortunate debtor’s home, bank accounts, or vehicles, and may also result in a garnishment of the unfortunate debtor’s wages directly from his or her paycheck.

Many violations that are committed by these law firm mills include the following:

Threatening to file a lawsuit or seek judgment on a debt that is barred by statute of limitations
Filing a lawsuit that is barred by applicable statute of limitations
Discussing the debt with friends, neighbors, or family of the actual debtor
Seeking default judgment on fraudulent proofs of service when the debtor was not actually served properly
Asking for more money in the lawsuit than what they are entitled to collect
Filing suit in a county other than where the debtor currently resides or where the debt was actually incurred
Most people are misinformed when they believe that such violations by law firms in connection with a lawsuit are not able to prosecuted because of a state law litigation privilege. However, the courts have repeatedly denied such arguments in finding that the Federal Pre-emption Clause prohibits any state law litigation privilege from barring a lawsuit for violations of Federal Laws. Depending on the violation involved, it is also possible that their conduct could give rise to a charge for abuse of process or malicious prosecution and result in punitive damages against them.

The law offices of Semnar Law Firm, Inc. and Hartman Law Office, Inc. have teamed up with the firms of Kazerouni Law Group, APC and Hyde & Swigart to file a federal lawsuit against Mandarich Law Group, LLP and CACH, LLC because the client entered into payment arrangements with Mandarich, then made every monthly payment as agreed, but Mandarich still filed a lawsuit against her, told her not to worry about the lawsuit and advised her she did not have to appear in court, but thereafter sought default judgment against her for the full amount of the debt without crediting any of the payments she had made. This atrocious violation of the client’s rights resulted in a lawsuit for Federal Fair Debt Collection Practices Act and Abuse of Process. The lawsuit can be found under case number 5:14-cv-01496 in the Central District of California.

DO NOT LET THIS HAPPEN TO YOU OR YOUR LOVED ONE. Let us help you stand up for your rights!!!

Related Tags: Mandarich Law Group, CACH LLC, FDCPA, fair debt collection practices act, California FDCPA, San Diego FDCPA, California debt harassment, San Diego debt harassment, unfair debt harassment, debt harassment lawsuit, credit card lawsuit, bankruptcy, abuse of process, law firm debt collector, malicious prosecution

2014

DEPLOYED MILITARY MEMBERS ARE PROTECTED FROM DEFAULT!!

Jared Hartman, Esq Posted on July 28, 2014
If you or a loved one is in any branch of the military and is deployed or pending deployment, the servicemember may be protected from being declared to be in default on certain financial obligations. Members of the national military branches (U.S. Army, U.S. Air Force, U.S. Marine Corps, or U.S. Navy) are protected under federal law found at 50 U.S.C. Appendix 500 to 597b—known as the Federal Servicemembers Civil Relief Act. Members of the California National Guard or the California Reserves are protected under state law found at California Military and Veterans Code 800 to 812—known as the California Military Families Financial Relief Act. State guardsmen of any state may be protected under the federal laws if they are dispatched in response to a national emergency under Presidential orders.

To not be found in default on certain financial credit obligations during a specified time period as provided by law (typically no less than 6 months and no longer than the term of deployment);
To defer payments on the financial obligation for a specified time period as provided by law;
To not be subjected to any remedies granted to the creditor for breach of the payment obligations (such as prohibitions from vehicle repossession, home foreclosure, derogatory credit reporting, and/or pursuing a lawsuit); and
Possible reduction in the interest rate upon the outstanding debt so that the accumulated interest is no oppressive upon reinstating financial obligations.
However, in order to invoke these protections, both sets of laws require the servicemember to take the following actions:

Send a letter to the creditor, signed by the servicemember under penalty of perjury, requesting deferment of the specific financial obligation, and
Enclose with the letter a copy of the servicemember’s deployment orders.
Please note that THE ONLY WAY TO INVOKE THESE PROTECTIONS IS TO TAKE THE ACTIONS DESCRIBED ABOVE.

Many financial institutions are not properly informed of these laws, and therefore they do not properly train their employees and agents on how to honor these protections. It is VERY COMMON for financial institutions to simply ignore the written request for deferment, or to erroneously claim that the servicemember is not protected. This is especially true when the servicemember is a California guardsman and the financial institution is not familiar with the California state laws that specifically protect guardsmen in the absence of protection under federal laws.

A financial institution that ignores these protections, IF PROPERLY INVOKED BY THE SERVICEMEMBER, is subject to a civil lawsuit to recover actual damages (such as emotional distress and/or loss of actual money or property), as well as attorney’s fees and costs of bringing the lawsuit. Such a lawsuit is permitted regardless of whether the financial institution knew they were breaking the law. However, intentional violations of these laws may result in criminal charges being prosecuted against the financial institution.

The California laws also protect the deployed servicemember’s spouse in the same manner as the servicemember, which means the spouse also has standing to bring his/her own lawsuit if s/he experienced any of the violations directly.

The law offices of Semnar Law Firm, Inc. and Hartman Law Offices, Inc. have teamed up to file multiple cases under these laws, and the two firms regularly tie these violations into additional causes of action under the Federal Fair Debt Collection Practices Act and the California Rosenthal Act. For example, one client who properly invoked his protections against Alphera Financial Services (a subsidiary of BMW Financial Services) and his wife had to experience the unfortunate experience of being actively harassed by Alphera during the serevicemember’s deployment with excessive phone calls, threats of repossession, threats of criminal prosecution, and the company’s agents even told the servicemember and his wife that they don’t care about these laws and they intended to repossess the vehicle for what they considered to be a default. This lawsuit can be found under this case number 5:14-cv-01357, in the U.S. District Court for the Central District of California.

DO NOT LET THIS HAPPEN TO YOU!!!! If you or a loved one is a servicemember who is deployed or is pending deployment, contact us immediately for a FREE, CONFIDENTIAL consultation to discuss your rights and the specific circumstances of any potential violations of your rights

Related Tags: Hunt & Henriques, Nelson & Kennard, military debt harassment, Federal military servicemember civil relief act, 50 U.S.C. Appendix 500, California Military Families Financial Relief Act, California Military and Veterans Code 800, military credit protection, debt relief, Alphera debt harassment, Alphera BMW debt harassment, military vehicle repossession, debt harassment deployed, FDCPA

2014

UNSOLICITED TEXT MESSAGES TO YOUR CELL PHONE?

Jared Hartman, Esq Posted on April 11, 2014
Receiving blast text messages from a company trying to solicit you to sign up for their services, or to enter a contest, or to receive some type of discount or coupon? Then you may be entitled to compensation for a violation of your privacy rights!!

Many people don’t realize that the TCPA (Telephone Consumer Protection Act) not only protects people from unwanted robo-calls to your cell phone, but it also protects people from unwanted text messages as well!

As you can tell from reading our other blogs on the TCPA, it is a federal law that allows a person to recover $500-$1500 per violation for receiving calls to a cell phone, without prior express consent and without emergency purposes, if the call is placed with either an auto-dialer and/or with pre-recorded or artificial voice messages.

In order to keep up with the changing state of the times when most people utilize text messaging as a quick and easy way to communicate, business and telemarketers have tried to change their “auto blast” tactics to text messaging. The courts and the FCC have specifically stated that unsolicited text messages also constitute a “call” for purposes of the TCPA, because it is a method of trying to communicate with the phone subscriber without prior express consent and without emergency purposes.

For instance, in Satterfield v. Simon & Schuster, Inc., 569 F.3d 946 (9th Cir.2009) the 9th Circuit Court of Appeal held that text messaging is a form of communication used primarily between telephones and is therefore consistent with the definition of a “call”. Further, in its opinion from February of 2012, the FCC specifically stated “The Commission has concluded that the prohibition encompasses both voice and text calls, including short message service (SMS) calls, if the prerecorded call is made to a telephone number assigned to such service.”

BE CAREFUL, though, when you opt in and opt out for text messages. If you send a text to a company to “opt in”, or to receive a discount for their services, or to enter a contest, you may have inadvertently given consent to receive a blast of text messages that you didn’t really want. After you “opt out” by texting back with “STOP”, they are allowed to send you one final confirming text message to make sure you actually meant to opt out. Any further messages beyond that one final confirming message is a violation.

Related Tags: FDCPA, Fair Debt Collection Practices Act, FCRA, Fair Credit Reporting Act ,TCPA, telephone consumer protection act, auto dial calls, robo dial calls, robo dialers, California debt harassment attorney, san diego debt harassment attorney, riverside debt harassment attorney, orange county debt harassment attorney

2014

CONSUMER FINANCIAL PROTECTION BUREAU REPORTS ON DEBT COLLECTION COMPLAINTS

Jared Hartman, Esq Posted on March 25, 2014
A governmental entity known as the Consumer Financial Protection Bureau (CFPB) exists to protect consumer’s rights. Not only does a consumer have the right to file a lawsuit against a company that has violated the person’s consumer rights, but the CFPB also has power to take complaints from consumers and enforce consumer rights by issuing civil penalties against companies that are in violation and may even seek closure of some businesses in extreme cases. The CFPB often issues reports regarding statistical data that they compile from complaints received by consumers. Below is a report that was recently issued by the CFPB regarding the types of complaints they see on a repeat basis, and the most concerning is that many people complain about being harassed about debts that they do not even owe!

If you have been contacted by a debt collector about a debt you do not owe, then your consumer rights may have already been violated as well as the rights of the person who does actually owe the debt depending on what information was conveyed to you by the debt collector. Therefore, you should not hesitate to contact us to schedule a free, confidential consultation to evaluate whether your rights have been violated and whether you may be entitled to financial compensation as a result of their abusive debt collection practices.

Report from the CFPB issued for immediate release on March 20, 2014:

CONSUMER FINANCIAL PROTECTION BUREAU: CONSUMERS REPORT BEING HOUNDED ABOUT DEBTS NOT OWED

Top Debt Collection Complaints Also Include Aggressive Communication Tactics and Threatening Illegal Actions

WASHINGTON, D.C. – The Consumer Financial Protection Bureau (CFPB) today issued a report on the more than 30,000 consumer complaints it has received about the debt collection market. The report finds that many consumers complain that they are being hounded by debt collectors about debts they do not owe. Top complaints also include debt collectors’ use of aggressive communication tactics and threats of illegal actions.

“Consumers should never be hounded about debts they do not owe,” said CFPB Director Richard Cordray. “We will not tolerate companies harassing consumers or threatening illegal actions in the debt collection market. We will continue to work hard to ensure that consumers are treated with dignity and fairness.”

Debt collection is a multi-billion dollar industry. It is estimated that there are more than 4,500 debt collection firms nationwide. Banks and other original creditors may collect their own debts or hire third-party debt collectors. Original creditors and other debt owners also may sell their debts to debt buyers. Debt buyers may sell the debt, collect the debt themselves, or hire third-party debt collectors to do so.

Approximately 30 million Americans had, on average, $1,400 of debt subject to collection in 2013. The main law that governs the industry and protects consumers is the 1977 Fair Debt Collection Practices Act (FDCPA). In 2010, the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank) revised the FDCPA, making the Bureau the first agency with the power to issue substantive rules under the statute. Today’s annual report to Congress highlights the Bureau’s efforts to carry out the FDCPA.

Consumer Complaints
The Bureau began accepting debt collection complaints in July 2013. These complaints quickly became the largest source of complaints each month. The Bureau received 30,300 debt collection complaints between July and December 2013. Companies have already responded to about 82 percent of the complaints the Bureau has sent to them for a response in that time frame. The top three complaints were about:

Collectors hounding consumers about a debt they do not owe: More than one-third of the complaints the CFPB handled were about a debt collector continually attempting to collect a debt that the consumer does not believe is owed. Of these complaints, almost two-thirds of consumers report that the debt is not theirs, while others report that the debt was paid, was the result of identity theft, or was discharged in bankruptcy.
Aggressive communication tactics used by debt collectors: Nearly a quarter of the complaints received by the Bureau were about debt collectors using inappropriate communication tactics. More than half of those complaints cite frequent or repeated calls from a collector and often the collector is calling the wrong phone number. Consumers also complain about debt collectors calling their places of employment or collectors using obscene, profane, or abusive language.
Taking or threatening an illegal action: About 14 percent of consumers report that a company is taking or threatening an illegal action. Most of these complaints are about threats to arrest or jail consumers if they do not pay. Other complaints relate to collectors threating to sue or attempting to seize property.
Taking or threatening an illegal action: About 14 percent of consumers report that a company is taking or threatening an illegal action. Most of these complaints are about threats to arrest or jail consumers if they do not pay. Other complaints relate to collectors threating to sue or attempting to seize property.
The CFPB took several important steps to protect consumers and create a level playing field for law-abiding debt collectors in 2013. The Bureau’s larger participant rule for debt collection became effective on January 2, 2013. Under this rule, the Bureau has supervisory authority over any firm with more than $10 million in annual receipts from consumer debt collection activities, which extends to about 175 debt collection companies.

In November 2013, the Bureau took the first step toward considering consumer protection rules for the debt collection market with an Advance Notice of Proposed Rulemaking (ANPR). Through this ANPR, the Bureau is collecting information on a wide array of issues, including the accuracy of information used by debt collectors, how to ensure consumers know their rights, and the communication tactics collectors employ to recover debts. The Bureau can use the information it gathers to inform future rulemaking.

The Bureau also pursued two debt collection enforcement actions in 2013. The Bureau sued an online loan servicer, CashCall Inc., its owner, its subsidiary, and its affiliate, for collecting money on loans that were legally invalid. The Bureau also ordered payday lender, Cash America International, Inc. to refund up to $14 million to consumers for robo-signing court documents in debt collection lawsuits. Through its ongoing supervision and enforcement activities, the Bureau will continue to prevent and deter debt collectors from violating the law.

The Bureau issued sample letters consumers can use in dealing with debt collectors. These letters may help consumers obtain valuable information about claims being made against them or may help consumers protect themselves from inappropriate or unwanted collection activities. And the Bureau’s interactive online tool, Ask CFPB, contains more than 85 questions and answers related to the topic of debt collection.

A copy of today’s report is available at: http://files.consumerfinance.gov/f/201403_cfpb_fair-debt-collection-practices-act.pdf

Related Tags: FDCPA, Fair Debt Collection Practices Act, FCRA, Fair Credit Reporting Act ,TCPA, telephone consumer protection act, auto dial calls, robo dial calls, robo dialers, California debt harassment attorney, san diego debt harassment attorney, riverside debt harassment attorney, orange county debt harassment attorney

2014

WHAT IF I AM SUED BY A DEBT COLLECTOR OR CREDITOR?

Jared Hartman, Esq Posted on March 16, 2014
You MUST contact an attorney right away to evaluate your case! Debt collectors and credit card companies often file a high volume of lawsuits without all the necessary documentation to actually prove their case, and they often rely on false proofs of service that fraudulently claim the consumer was personally served.

There have been many times where the debt collector or credit company wins default judgment against a consumer and then starts issuing levies upon the consumer’s bank accounts even though the debtor was not even aware she or he was sued because the proof of service fraudulently claims the consumer was served!

There are also many times when a debt collector or credit card company files a lawsuit without sufficient proof to actually win the lawsuit because they don’t have proof that the person sued is actually the person who owes the debt or they don’t have proof that they are within the statute of limitations, but because the consumer was too afraid to appear in court they didn’t show up and then the debt collector or credit company gets default judgment for a case that they could not have even won in the first place!

It is also a violation of consumer rights to be sued in an area of the state that is inconvenient and detrimental for the consumer to have to appear in.

Even if the lawsuit is legit and the consumer has been personally served, the debt collector or credit company may have violated the Fair Debt Collection Practices Act in their methods of trying to collect the debt before filing the lawsuit, and they are therefore subject to a cross-complaint for their own legal violations. Many times the amount of money they owe the consumer for violating consumer rights far exceeds the amount of the alleged debt upon which they have filed the lawsuit in the first place.

The bottom line is, if you are being threatened with a lawsuit or if you have received notice that you have been sued by a debt collector or credit company, YOU MUST CONTACT AN ATTORNEY RIGHT AWAY. Our offices provide free and confidential consultations to evaluate your case, and if we discover a basis to file a lawsuit against them for violating your consumer rights then we can represent you at NO COST TO YOU. We have been successful in having many lawsuits dismissed against our clients because the debt collection and credit companies have realized that our lawsuit against them for violation of consumer rights could far exceed any amount of judgment they could obtain from the consumer.

2014

WHAT IF I’M BEING CONTACTED BUT MY FRIEND/FAMILY MEMBERS ACTUALLY OWES THE DEBT?

Jared Hartman, Esq Posted on February 2, 2014
Debt collectors often contact friends and/or family members of the person who actually owes the debt, and this is called “third party contact”. Third party contacting is usually done in an effort to obtain contact information for the person who actually owes the debt (called the debtor), to use the friend/family member to get the debtor to pay the debt, or even sometimes in an effort to the get the friend/family member to pay the debt themselves! Both you, as the third-party, and the debtor may be able to sue the debt collector depending on what the debt collector states in the phone call.

If the debt collector informs you as the third party that the person they are trying to contact owes a debt, that is a violation and the debtor can sue for monetary relief and a court order to stop the calls.

If the debt collector is contacting you as the third party in an effort to obtain contact information for the debtor, and if we can prove that they already have that person’s contact information, that is a violation of your rights as a third-party and you can sue for monetary relief and a court order to stop the calls.

If the debt collector calls you as the third party more than once, or if they try to urge you to notify the debtor to call them back, or if they lie to you in any manner, then that is a violation of your rights as the third party and you can sue for monetary relief and a court order to stop the calls.

Bottom line, the ONLY legal reason for a debt collector contacting you as the third party is to call you ONE TIME to request contact information for the debtor, but they have to walk a very fine line because they also cannot inform you that the debtor owes a debt. If you have been contacted by a debt collector looking for a friend or family member, you should contact us immediately for a free and confidential consultation to discuss whether your consumer rights have been violated.

2014

WHAT IF I’M BEING CONTACTED BUT MY FRIEND/FAMILY MEMBERS ACTUALLY OWES THE DEBT?

WHAT IF I’M BEING CONTACTED BUT MY FRIEND/FAMILY MEMBERS ACTUALLY OWES THE DEBT?
Jared Hartman, Esq Posted on February 2, 2014
Debt collectors often contact friends and/or family members of the person who actually owes the debt, and this is called “third party contact”. Third party contacting is usually done in an effort to obtain contact information for the person who actually owes the debt (called the debtor), to use the friend/family member to get the debtor to pay the debt, or even sometimes in an effort to the get the friend/family member to pay the debt themselves! Both you, as the third-party, and the debtor may be able to sue the debt collector depending on what the debt collector states in the phone call.

2013

WHAT IS THE TCPA?

Jared Hartman, Esq Posted on December 16, 2013
The acronym TCPA stands for the Telephone Consumer Protection Act, and is codified at 47 U.S.C. S 227. Congress enacted this law in 1991 with the intention of protecting individuals’ privacy rights, because of the spike in complaints from consumers about unwanted and unrelenting phone calls. In the Legislative Intent and Purpose of the TCPA, Congress found that unwanted automated calls were a “nuisance and an invasion of privacy, regardless of the type of call”. Banning these unwanted calls was “the only effective means of protecting telephone consumers from this nuisance and privacy invasion”.

One member of Congress made the following statements when discussing the need to pass the TCPA, “Computer telephone calls are invading our homes and destroying our privacy”. Consumers around the country are crying out for Congress to put a stop to these computerized telephone calls. Congress has a clear opportunity to protect the interests of our citizens, and we should not pass up this chance.

Computerized telephone calls are the scourge of modern civilization. They wake us up in the morning; they interrupt our dinner at night; they force the sick and elderly out of bed; they hound us until we want to rip the telephone right out of the wall. These machines are out of control, and their use is growing by 30% every year. It is telephone terrorism, and it has got to stop.

2013

WHAT IS A VIOLATION OF THE TCPA?

Jared Hartman, Esq Posted on December 16, 2013
The TCPA protects calls to consumers’ cell phones, residential lines, and to any number registered on the “Do Not Call List” (DNC).

Regarding cell phones-47 U.S.C. S 227(b)(1)(A)(iii):

The TCPA makes it unlawful for any person within the United States to make any call using an automatic telephone dialing system (ATDS) or an artificial or prerecorded voice to a cell phone line without prior express consent and without emergency purposes. 47 U.S.C. S 227(b)(1)(A)(iii). The TCPA defines ATDS as “equipment which has the capacity (A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers.” 47 U.S.C S 227(a)(1). According to the FCC, an ATDS is any telephone equipment that has the capacity to dial numbers without human intervention. Therefore, if the telephone equipment has the potential to be programmed to make auto dialed calls, then it is considered an ATDS and is regulated by the TCPA and the FCC. See Satterfield v Simon (9th Cir. 2009) 569 F.3d 946. Predictive dialers are also regulated in a similar fashion as an ATDS, because they have the capacity to dial numbers “without human intervention”, as it is equipment that utilizes lists or databases of known, nonrandom telephone numbers.” See Griffith v. Consumer Portfolio Serv., Inc., 838 F. Supp. 2d 723.

It is usually pretty easy to tell if you have received a call from an ATDS, because upon answering the phone you are first faced with dead air, and then you hear some clicking noises, and then you finally hear a pre-recorded voice message or your call is transferred to a live person. The courts have ruled that someone receiving a call with a robotic message is a factor to consider as circumstantial evidence that the call was placed with an ATDS. See Vaccaro v. CVS Pharm., Inc., (Southern District Calif. 2013) 2013 U.S. Dist. LEXIS 99991.

The TCPA applies to all cell phones whether used for business or personal use, and does not require the consumer to answer the call in order to establish a violation.

The only defenses are if the call was placed for emergency purposes-such as the City informing you of an impending disaster, which is very rare-or consent. A consent defense to a TCPA lawsuit against a telemarketer usually arises because you previously gave the caller permission to call you. A consent defense to a TCPA lawsuit against a debt collector usually arises because you provided your cell phone number on the credit application or in connection with the transaction that resulted in a debt. You do not have to actually agree to receive robo calls for a consent defense to apply; it is enough if you simply gave your number to the creditor or debt collector. Even if you just gave your number to the original creditor, then the consent defense still applies to a third party debt collector trying to collect a debt that you may owe to someone else.

The only way to prevent this consent defense is if you revoke consent. Revocation can be orally by simply telling them during a phone call to stop calling you. However, they always deny that you revoked consent, so the best way to revoke consent is by sending a certified letter asking the creditor/collector to stop calling your cell phone.

Sometimes companies will accidentally call the wrong person, because of how often consumers change cell phone numbers. Even if a company was legitimately trying to call someone who had previously given them consent, but you now have that person’s number, then the consent defense does NOT apply to you because you—the subscriber receiving the unwanted calls-did not give them consent. In Soppet v Enhanced Recovery Co (7th Cir 2012), 679 F.3d 637, the court held that caveat emptor (buyer beware) applies to a company dialing the wrong number and even suggested that the collector seek indemnification against the original creditor (jointly liable) for its TCPA violation losses.

It does not even matter if you legitimately owe the debt upon which a debt collector is calling about.

Also, callers who have obtained your number from skip tracing (obtaining your cell number from some other source like consumer credit reports or court papers) are violating the TCPA because they did not obtain your number from you directly. Sometimes a company may obtain your cell number by capturing it on its own caller ID, which also does NOT amount to a consent defense.

The bottom line, if you are receving calls to your cell phone with either and ATDS or with pre-recorded or artificial voice messages, it is worth your time to contact us to fully evaluate your circumstances to determine if your rights have been violated.

Regarding calls to residential lines 47 U.S.C. 227(b)(1)(B):

The TCPA prohibits “Artificial or Prerecorded Voice” messages for calls to residential line phones. Auto-dialed calls to a residence line are never a violation of the TCPA, because for whatever reason Congress did not write that prohibition into the law. Additionally, this TCPA section only applies to telemarketing solicitations from sellers with which the consumer does not have an “Established Business Relationship” (EBR). If the seller uses a telemarketing contractor who violates the TCPA, then both seller and telemarketer are jointly liable. If you have done business with a seller within the last eighteen months or made inquiry within the last three months, then the TCPA presumes that you have an EBR with that seller, absent evidence to the contrary. Evidence to the contrary would be a letter to the seller or telemarketer requesting that they stop calling you, and this letter should be sent via certified mail as proof of it having been sent (they always deny that you sent the cease contact letter).

Unfortunately, calls from debt collectors to residential lines are not illegal, even if the collector mistakenly calls a person who does not owe the debt. A consumer’s remedy in this situation would be under the Fair Debt Collection Practice Act (FDCPA), for harassment where the collectors continue to call after the consumer has pointed out the mistake and requests them to stop.

Because here is no need to prove that the caller is using an ATDS under this TCPA section. The consumer only needs to show that the call is a solicitation and that seller used an artificial or pre-recorded voice message.

Regarding Telemarketing Calls to “Do-Not-Call” Numbers- 47 USC 227(c)(5):

This section only applies to telephone solicitation calls. Anyone whose numbers are registered on the DNC list that has received two telemarketing calls within a twelve month period can sue for all calls including the first. It does not matter if calls are live, pre-recorded, or placed with an ATDS. This section applies to calls to both cell phone and residential lines that are registered on the federal or company specific do-not call lists.

It is easy to register your numbers on the national DNC list. Simply Google the “Do-Not-Call Registry” and register up to three numbers on its website. You will receive email confirmation of your registration, which you must keep record of as evidence in your favor.