If a bank sent a jack booted thug to come kick down your door, burst into your home, take your personal property and then asked for your mortgage account number and whether you had 401 k’s that could be liquidated to pay your mortgage, even the most hostile court might just find that to be unfair debt collecting….right?
I mean even in corporate fascist Amerika circa 2012, our courts are going to recognize the terrifying march towards tyranny and violence and ratchet this behavior back…right?
Most every law that seems like it might offer a glimmer of hope to consumers is a paper tiger. The corporate lobbyists add so many exceptions then courts limit the application any further until consumers are left naked, vulnerable, weak and exposed….completely defenseless to the abuses and terror from the banks.
In the context of mortgages, the banks have created a special little ruse, a little wink and a nod that allows them to engage in thuggish, intimidating debt collecting not much different than the baseball bat wielding, kneecap shattering attacks the comparatively ethical mafia would use on their debtors. But their $600/hour attorneys have tried to slither away from calling their behavior actual debt collecting under state and federal law….
“We’re just inspecting the property…we’re just securing our collateral…we’re just preserving the property…”
(wink, wink)
No, you’re harassing debtors, terrorizing homeowners, burglarizing homes and creating very dangerous conditions that are going to get someone killed. Here’s what the FDCPA says:
Under the FDCPA, ” [a] debt collector may not use any false, deceptive, or
misleading representation or means in connection with the collection of any debt,”
15 U.S.C. § 1692e, which includesabusive, deceptive,
and unfair debt collection practices,” which had ” contribute[d]
to the number of personal bankruptcies, to marital instability, to the
loss of jobs, and to invasions of individual privacy.”
Next to someone breaking into my home and rummaging through my property, I can’t think of any greater invasion of privacy than that. And that’s exactly what they’re doing. The thugs try to thread the needle too narrowly, arguing that by “merely” securing or inspecting or preserving property they are not debt collectors, but that narrow definition clearly ignores the intent and construction of FDCPA:
Contrary to the district court’s suggestion, an entity that meets
the general definition of ” debt collector” remains a ” debt collector” for
purposes of the entire Act even if it is enforcing a security interest in
the particular case. The fact that an entity attempts to enforce a security
interest in a particular case bears on whether its activity relates to
debt collection, not on whether the entity is a debt collector. By its plain
terms, the statute defines ” debt collector” not by reference to an entity’s
conduct in any particular case, but rather by reference to the ” principal
purpose” of its ” business” or the activities it ” regularly” undertakes. See
15 U.S.C. § 1692a(6). If an entity has debt collection as its ” principal
purpose,” or if it ” regularly collects or attempts to collect “¦ debts,” it
qualifies as a ” debt collector” for purposes of the entire Act, regardless
of its activity in the particular case.
We cannot allow this thuggish debt collection regime to rampage across this country, kicking down doors, drilling out locks, taking personal property and terrorizing the consumers we have the duty and honor of protecting just because they claim their acts are securing the property:
In other contexts, however, activities relating to enforcement of
security interests can also relate to debt collection. In fact, some common
conduct inherently relates to both: Debt collectors regularly use
the threat of enforcing a security interest to induce consumers to pay
their debts. See, e.g., Piper, 396 F.3d at 230 (debt collector threatened
sheriff’s sale of home if consumers did not pay debts); Wilson, 443 F.3d
at 376″“77 (debt collector initiated foreclosure proceedings and then requested
money to ” reinstate the “¦ account”). In the context of both judicial
and nonjudicial foreclosures, debt collectors regularly initiate
foreclosure proceedings and then advise debtors to pay a specified
amount to avoid foreclosure. Because such communications both move
toward foreclosure and seek to obtain payment of a debt, they relate
both to enforcement of a security interest and to collection of a debt.
Neither AHMSI nor the district court has pointed to any statutory text
suggesting otherwise.
