Harvey v. United Adjusters, Civ. No. 79-1349.

• Decision Date: 20 March 1981
• Docket Number: Civ. No. 79-1349.
• Citation: 509 F. Supp. 1218
• Parties: Harriet E. HARVEY, Plaintiff, v. UNITED ADJUSTERS, a corporation, Defendant.
• Court: U.S. District Court — District of Oregon

509 F. Supp. 1218

Harriet E. HARVEY, Plaintiff, v. UNITED ADJUSTERS, a corporation, Defendant.

Civ. No. 79-1349.

United States District Court, D. Oregon.

March 20, 1981.

COPYRIGHT MATERIAL OMITTED

Richard A. Slottee, Northwestern Legal Clinic, Portland, Or., for plaintiff.

Gino G. Pieretti, Jr., Souther, Spaulding, Kinsey, Williamson & Schwake, et al., Portland, Or., for defendant.

OPINION AND ORDER

PANNER, District Judge:

Plaintiff brings this action for money damages for alleged violations of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. (1977). The claim arises from defendant's attempts to collect $125 allegedly owed to Fred Meyer, Inc. and assigned to defendant for collection.

In January 1979 plaintiff wrote four checks in the total amount of $125 to Fred Meyer which were dishonored by plaintiff's bank and assigned to defendant for collection. Defendant sent collection notices to plaintiff in May and June 1979. On June 28, 1979 defendant filed a complaint in state court. Plaintiff filed a response to defendant's complaint on July 26, 1979, and was represented at that time by the Northwestern Legal Clinic. On November 6, 1979 plaintiff confessed judgment to defendant's suit, and was again represented by the Northwestern Legal Clinic. Plaintiff, through her counsel, filed this action against defendant in November 1979 alleging violations of the Fair Debt Collection Practices Act. She alleged various violations of the Act, including several abusive phone calls from the defendant in May and June of 1979. On December 17, 1979 defendant mailed a notice to plaintiff, at plaintiff's personal residence, soliciting payment of the indebtedness. On January 3, 1980 defendant again mailed a collection notice to plaintiff at her personal residence. On September 15, 1980 plaintiff filed a supplemental complaint in this action, alleging additional violations of the Act which occurred during the pendency of this action.

Defendant is a "debt collector" as defined in 15 U.S.C. § 1692a(6). All of the defendant's collection activities relevant to this action were subject to the provisions of the Fair Debt Collection Practices Act.

Section 1692c(a) places limitations on communication by a collector to a consumer who is represented by counsel:

(a) Communication with the consumer directly. — Without the prior consent of the consumer given directly to the debt collector or the express permission of a court of competent jurisdiction, a debt collector may not communicate with a consumer in connection with the collection for any debt —

(2) if the debt collector knows the consumer is represented by an attorney with respect to such debt and has knowledge of, or can readily ascertain, such attorney's name and address, unless the attorney fails to respond within a reasonable period of time to a communication from the debt collector or unless the attorney consents to direct communication with the consumer.

When the December 1979 and January 1980 collection notices were sent to plaintiff, she was represented by counsel from the Northwestern Legal Clinic in both the state and federal actions. Max Lesman, President and Manager of the defendant, testified that when the notices were sent he knew that the plaintiff was represented by an attorney. Lesman believed that after entry of judgment he had the right to deal directly with the judgment debtor, despite his knowledge that she was represented by counsel. There is no evidence that plaintiff, her counsel, or any court agreed to permit defendant to communicate directly with the plaintiff. I find, therefore, that defendant violated section 1692c(a)(2) when the communications were sent to plaintiff in December 1979 and January 1980.

Section 1692g requires the collector, within five days of the initial communications with the consumer, to provide certain information concerning the consumer's right to dispute or obtain verification of the debt. The defendant asserts that such notice was mailed on May 14, 1979; plaintiff contends that she never received this communication. I find that the "Verification Notice," even if received by plaintiff, violates 15 U.S.C. § 1692g. The form notice used by defendant does not provide all the information required. It does not inform the plaintiff that she has a right to dispute a portion of the debt as well as the entire amount. The notice also requires any dispute as to the validity of the debt to be in writing. That is not required under section 1692g(a)(3). I therefore hold that the defendant violated section 1692g by not providing proper notice.

Section 1692d prohibits a debt collector from engaging in any conduct, the natural consequence of which is to harass, oppress, or abuse any person in connection with the collection of a debt. Plaintiff asserts that the notice sent to her on June 5, 1979 is abusive and insulting, in violation of this section. I agree. The letter implies that plaintiff removes her head when she receives letters from the defendant, that she ignores her mail and her bills, and lacks the common sense to handle her financial matters properly. In fact, the plaintiff had called defendant on May 16, 1979 in response to an earlier letter and defendant never returned her call. I hold that this communication violates 15 U.S.C. § 1692d. See Dixon v. United Adjusters, Inc., Civil No. 79-179 (D.Or.Feb. 1981) (Magistrate Juba considered the same form and found it to violate the Act).

Section 1692e provides that a debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt. Plaintiff asserts that the communications of May 1979, December 1979, and January 1980 violate this section in that they state (1) that United Adjusters has "Representation Everywhere," and (2) "Your credit is a valuable asset. Pay your bills and retain good credit." I do not find these statements violate the Act. Lesman testified that his firm is a member of the American Collectors Association which has over 2800 correspondent members in the United States and overseas. The notice does not misrepresent defendant's status as a collection agency; it merely states that persons who pay their bills will retain a good credit rating. See Lewis v. United Adjusters, Inc., Civil No. 80-177 (D.Or.February 1981) (Magistrate Juba reached the same conclusion).

Plaintiff also alleges that defendant violated various sections of the Act by making abusive and obscene phone calls to plaintiff. Plaintiff has not met her burden of proving that such phone calls were made by the defendant.

DAMAGES

A debt collector who violates any provision of the Act is liable to the consumer for damages. In an individual action, the damage award is the sum of:

(1) any actual damages sustained by the consumer;

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