Another case for phone violations

[NeverQuietHere]

FDCPA Class Action Defense Cases–Anchondo v. Anderson: New Mexico Federal Court Denies Motion To Dismiss FDCPA Class Action Holding Class Action Complaint Adequately Alleged Debt Collector Violated State And Federal Laws

Class Action Alleging Violation of Fair Debt Collection Practices Act (FDCPA) Survives Defense Motion to Dismiss because Class Action Complaint Alleged Debt Collector Failed to Identify Itself or that it was Attempting to Collect a Debt in its Initial Communication with Plaintiff New Mexico Federal Court Holds

 

Plaintiff filed a class action against a debt collector alleging violations of the federal Fair Debt Collection Practices Act (FDCPA) and New Mexico’s Unfair Practices Act; the class action complaint asserted that. Anchondo v. Anderson, Crenshaw & Associates, L.L.C., 583 F.Supp.2d 1278, 1280 (D. N.M. 2008). According to the allegations underlying the class action, plaintiff purchased a home alarm system which failed to work properly so she stopped paying the monthly service fee; the alarm company retained debt collector Anderson, Crenshaw & Associates to collect the fees owed. Id. Defendant telephoned plaintiff and left a message on her answering machine requesting a return call; the message said the matter was “important,†but did not identify defendant or disclose that it concerned an attempt to collect a debt. Id. Plaintiff filed her class action complaint a few months later, alleging claims for relief under the FDCPA and the UPA, id. Defense attorneys moved to dismiss the class action under Rule 12((6) or, alternatively, for judgment on the pleadings under Rule 12©. Id., at 1279-80. The defense argued that the class action failed because the message left on plaintiff’s answering machine was not a “communication†within the meaning of the FDCPA, and because the FDCPA was unconstitutionally vague and unreasonably impeded defendant’s First Amendment right to exercise commercial speech. Id., at 1280. The district court denied the motion.

 

With respect to defendant’s Rule 12((6) motion, the district court readily found that the allegations in the class action complaint satisfied the requirements for pleading a violation of the FDCPA because it alleged that defendant (1) “fail[ed] to identify itself†and (2) failed to “state that the voicemail message was left on her answering machine as an attempt to collect a debt.†Anchondo, at 1280 (citing 15 U.S.C. § 1692e(11)). And because the complaint’s allegations are accepted as true for purposes of Rule 12((6) motions, the alleged constitutional law defenses “have no bearing as to whether Plaintiff has made sufficient factual allegations to state a claim upon which relief can be granted.†Id., at 1280-81 (citation omitted).

 

With respect to the Rule 12© motion, the federal court explained that the FDCPA requires debt collectors to disclose their identity in initial communications made for the purpose of collecting a debt, and that the purpose of the communication is to collect a debt. Anchondo, at 1281. Congress enacted the FDCPA to protect consumers against abusive debt collection practices, and because the message defendant left for plaintiff did not include the required disclosures she “would be entitled to relief, pursuant to the FDCPA, if she can prove that the voicemail was a communication regarding a debt.†Id. (citation omitted). The district court concluded that nothing more was required “at this stage of the proceedings,†and that the constitutional challenges were not ripe for adjudication. Id., at 1281-82. Accordingly, it denied the defense motion in its entirety. Id., at 1282.

 

NOTE: In its entirety, the message defendant left on plaintiff’s answering machine was as follows: “Hello. This message is for Elsa Anchondo. This is not a sales call. You have an important matter with our company that deserves your immediate attention. Please call me back as soon as possible at the following number: 866-400-3550. When returning this call, please refer to reference number 423635. If you wish to speak to someone now regarding your account, press zero. Thank you.†Anchondo, at 1280.

 

Download PDF file of Anchondo v. Anderson, Crenshaw & Associates,

[MarvBear]

ttt

[centex]

While it may bear watching, it is NOT precedential because of the fact that the case is still pending. Surviving an MTD does not infer that the underlying claim will ultimately prevail...

[pressman0523]

While it may bear watching, it is NOT precedential because of the fact that the case is still pending. Surviving an MTD does not infer that the underlying claim will ultimately prevail...

 

True, but it is still encouraging to see cases get past the initial defensive posturing. We'll definitely keep an eye on this one as I've got an answering machine full of these messages. Of course, I've also got a machine full of messages identifying clearly who the debt collector is and the fact that they are attempting to collect a debt. The good ol' double-jeopardy that the CA's have been battling for a few years, now, with regards to voicemail.

 

I feel so bad that the CA's are in a lose-lose situation....

 

nyuk, nyuk

[NeverQuietHere]

I agree, however, my lawyer does state that when they don't say WHO they are that that is how he gets alot of them to settle outside of court.

 

I had TONS of these types of messages on my machine.

 

I am hoping this case will turn out well. Thought it was something we should pay attention to though!

[Niteraven]

I am hoping this case will turn out well. Thought it was something we should pay attention to though!

 

Im sure you are ---

 

You're really keeping yourself busy aren't you ...

[NeverQuietHere]

A little too busy. I liked it better when things were QUIET and DULL. lol.

 

I also liked it when my credit report was cleaner....HAHA!

[Niteraven]

Quiet .. Dull ... Uneventful ... Clean credit ... yes those days .. but a distant memory for most of here

 

 

But then *WE* wouldnt have met and had the pleasure of being up all night fighting the fight ...

[NeverQuietHere]

hahaha! Sooo true, so true... I had a quiet time for a while...then "life" happened again. *sigh*

 

I am happy to say though, Brachfeld and flowers*s got my letter Thursday regarding their non-permissible HARD pull since they never validated. Let's hope I get a good response from them. I think my lawyer has enough going on right now...haha

[Niteraven]

Keep me posted on that response .... And there are alot of attys that are quite busy as of late -- especially in NY .. Hopefully *I* will be benifitting from some of that soon