JOSE GONZALEZ v. MITCHELL N. KAY; LAW OFFICES OF MITCHELL N. KAY, P.C.

[GoArsenal]

Hello,

 

I did a search for this case on CB's, but couldn't find anything under "JOSE GONZALEZ".

 

This is a very important case and a must read, it pertains to lawyers sending debt collection letters.

 

"We caution lawyers who send debt collection letters to state clearly, prominently, and conspicuously that although the letter is from a

 

lawyer, the lawyer is acting solely as a debt collector and not in any legal capacity when sending the letter. The disclaimer must explain to

 

even the least sophisticated consumer that lawyers may also be debt collectors and that the lawyer is operating only as a debt collector at

 

that time. Debt collectors acting solely as debt collectors must not send the message that a lawyer is involved, because this deceptively

 

sends the message that the “price of poker has gone up.â€

 

http://caselaw.lp.findlaw.com/data2/circs/...0820544cv0p.pdf

[DragonFlyer]

Heyyyyy!! That's great info! I have a couple of those letters sitting here in my files. Yep. Yep. Eyyyep.

 

Hot damn. Thank you!!!

[DragonFlyer]

Crap. I didn't save the PDF. Now I can't access it without a login, or they got smart. LOL

[GoArsenal]

Crap. I didn't save the PDF. Now I can't access it without a login, or they got smart. LOL

 

Its free to register.

[hegemony]

I can get it but can't link directly to it.

[GoArsenal]

Different link.

 

http://docs.google.com/gview?a=v&q=cac...hl=en&gl=us

[DragonFlyer]

Thanks...I got pulled away and then saw it was free registration after I came back to actually LOOK at the page that came up. D'OH!

[linney]

gee....i had mitchell n. kay on my credit report because of a phone bill since last year, and in august they removed themselves from my credit report!!

 

 

hmmm.....could it be because of litigation involving jose gonzalez????

 

 

veeeeeeeeeerrrrrrrrrrrry interesting......

 

great job with the info goarsenal!!

[JunkBuyersWorstNightmare]

[NeverQuietHere]

Love this case!!! Thank you!!!

 

I am a bit confused though. Can someone explain this??

 

If you get a letter from a lawyer, on his letterhead, with his signature in pen, and it states that you have 30 days to dispute etc etc, but that he , not OC or someone else, can sue you in those 30 days. Is he acting as a lawyer or a debt collector? Can he act as both?

 

If he doesn't provide validation or verification, that's an FDCPA violation, right? (if he continues to try and collect by filing a lawsuit or by sending letters or reporting)

 

For a lawyer NOT to be acting as a debt collector, how would his letter have to read?

[DragonFlyer]

http://www.examiner.com/x-6013-Houston-US-...llection-letter

 

In part, this article says:

 

Mr. Gonzalez contended that the letter was deceptive because the Kay Law Firm operated as a debt collection agency but pretended to be a law firm with an attorney who handled collections. Although neither Mr. Kay nor any of his associated attorneys actually performed any meaningful review of Mr. Gonzalez’s file, the unsigned letter bore the Kay Law Firm’s letterhead. Mr. Gonzalez asserted that the defendants had violated 15 U.S.C. § 1692e of the FDCPA because they used the appearance of attorney involvement to scare him into paying the debt.

 

AND

The two-judge majority determined that the district court prematurely dismissed Mr. Gonzalez’s lawsuit because the “least sophisticated consumer†who read the letter in question might have been deceived into thinking that a lawyer was involved in the collection of the debt. Acknowledging the case to be a close one, the majority opinion states:

 

Based only on the allegations in the complaint and the letter itself, reasonable minds can differ as to whether this letter is deceptive. Although the mere presence of disclaimer language might be dispositive in certain circumstances, the context and placement of that disclaimer is also important.

 

The majority ended its discussion with a warning to attorneys who act as debt collectors:

 

We caution lawyers who send debt collection letters to state clearly, prominently, and conspicuously that although the letter is from a lawyer, the lawyer is acting solely as a debt collector and not in any legal capacity when sending the letter. The disclaimer must explain to even the least sophisticated consumer that lawyers may also be debt collectors and that the lawyer is operating only as a debt collector at that time. Debt collectors acting solely as debt collectors must not send the message that a lawyer is involved, because this deceptively sends the message that the “price of poker has gone up.â€

 

Emphasis mine.

 

The letter that Mr. Gonzalez received had a disclaimer on the BACK of the letter stating that no attorney had reviewed his file. The first judge dismissed the case citing the disclaimer was sufficient. Mr. Gonzalez appealed, and the judgment was REVERSED.

 

The fact is, if someone calls you or sends you a letter claiming to be a law office, they MUST STATE CLEARLY that they are either pursuing litigation (and do so) or state they are merely attempting to collect on a debt.

[NeverQuietHere]

Thank you for the clarification. Sometimes when I've read things all day long, things just get jumbled!!

[GoArsenal]

http://www.examiner.com/x-6013-Houston-US-...llection-letter

 

In part, this article says:

 

Mr. Gonzalez contended that the letter was deceptive because the Kay Law Firm operated as a debt collection agency but pretended to be a law firm with an attorney who handled collections. Although neither Mr. Kay nor any of his associated attorneys actually performed any meaningful review of Mr. Gonzalez’s file, the unsigned letter bore the Kay Law Firm’s letterhead. Mr. Gonzalez asserted that the defendants had violated 15 U.S.C. § 1692e of the FDCPA because they used the appearance of attorney involvement to scare him into paying the debt.

 

AND

The two-judge majority determined that the district court prematurely dismissed Mr. Gonzalez’s lawsuit because the “least sophisticated consumer†who read the letter in question might have been deceived into thinking that a lawyer was involved in the collection of the debt. Acknowledging the case to be a close one, the majority opinion states:

 

Based only on the allegations in the complaint and the letter itself, reasonable minds can differ as to whether this letter is deceptive. Although the mere presence of disclaimer language might be dispositive in certain circumstances, the context and placement of that disclaimer is also important.

 

The majority ended its discussion with a warning to attorneys who act as debt collectors:

 

We caution lawyers who send debt collection letters to state clearly, prominently, and conspicuously that although the letter is from a lawyer, the lawyer is acting solely as a debt collector and not in any legal capacity when sending the letter. The disclaimer must explain to even the least sophisticated consumer that lawyers may also be debt collectors and that the lawyer is operating only as a debt collector at that time. Debt collectors acting solely as debt collectors must not send the message that a lawyer is involved, because this deceptively sends the message that the “price of poker has gone up.â€

 

Emphasis mine.

 

The letter that Mr. Gonzalez received had a disclaimer on the BACK of the letter stating that no attorney had reviewed his file. The first judge dismissed the case citing the disclaimer was sufficient. Mr. Gonzalez appealed, and the judgment was REVERSED.

 

The fact is, if someone calls you or sends you a letter claiming to be a law office, they MUST STATE CLEARLY that they are either pursuing litigation (and do so) or state they are merely attempting to collect on a debt.

 

A very good explanation!

 

ETA: It's good to someone actually took the time to check the opinions of the media!

Edited September 5, 2009 by GoArsenal

[Syricon]

I could be wrong in my interpretation. As I am reading this it doesn't seem to indicate that a violation has occurred, only that the lower court was incorrect to dismiss this out of hand.

 

The "lowest common denominator" test used for a motion to dismiss will not apply during actual litigation. It will become how a reasonable person would have acted.

 

The motion to dismiss was reversed, and the case was remanded back to the lower court for further litigation.

[GoArsenal]

I could be wrong in my interpretation. As I am reading this it doesn't seem to indicate that a violation has occurred, only that the lower court was incorrect to dismiss this out of hand.

 

The "lowest common denominator" test used for a motion to dismiss will not apply during actual litigation. It will become how a reasonable person would have acted.

 

The motion to dismiss was reversed, and the case was remanded back to the lower court for further litigation.

 

It was reversed because it was wrong, and they set a precedent, just as they did with Pintos.

 

The violation was that the consumer could think that the letter was from a lawyer who was acting as a lawyer, not as a debt collector.

[x-large debt]

Excellent case. The "no lawyer has reviewed this file" statement has been been already won in court in another case. The statement is deceptive and the FDCPA is explicit about prohibiting deceptive means of collection.

[Lynn37]

Wow! That is Great!!!