In our second class action lawsuit, Rogers v. Capital One Services LLC, United Recovery Systems, and Capital One Bank (U.S. District Court, District of Connecticut, Case No. 310-cv-00398), we examine a letter that Capital One sent to Henry Rogers which was dated February 4, 2010. In the upper left hand corner of the letter, it displays what people generally recognize as the Capital One banking logo. In the upper right corner of the first page of the letter, it says “Pay Over Time,” “0% APR,” and “Call 1-800-258-9319 now” in large type.
The letter opens with, “We realize circumstances sometimes make it difficult to manage your finances. The good news is – there is a way to pay it off.” It goes on to say:
Your account is eligible to have the Annual Percentage Rate (“APR”) reduced to 0% provided you call 1-800-258-9319 to make arrangements for an acceptable repayment plan After you have made acceptable arrangements, your APR will be reduced to 0% within 8 days.
The letter is signed by Capital One Services, LLC. At the bottom of the page, it says, “NOTICE: SEE REVERSE SIDE FOR IMPORTANT INFORMATION.”
If you received this letter, you’d likely think that it was from your financial institution, Capital One. And, you’d assume that if you called the toll-free number listed on the front of the letter, you’d be calling Capital One. Unfortunately, you’d be wrong. The letter was actually from Capital One COLLECTIONS, and the toll-free number was automatically redirected to United Recovery Systems. In other words, if you thought you were calling your bank, you’d be in for a surprise when a debt collector from United Recovery Systems answered your call.
You’d only know differently if you read the fine print on the reverse side of the notice. There, it states that Capital One Services, LLC is a subsidiary of Capital One, NA, and then provides a list of disclosures required by various state laws. The disclosures are a variation or amplification of the statement, “This communication is from a debt collector.”
Lemberg & Associates filed the class action complaint on behalf of all consumers in Connecticut to whom this type of form letter was sent (and wasn’t returned as undeliverable) between March 12, 2009 and March 12, 2010.
We’re asserting that the letter Mr. Rogers received violates the Fair Debt Collection Practices Act in a number of ways. For example, the FDCPA says, “A debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt,” and goes on to specify that it’s illegal to falsely represent “the character, amount, or legal status of any debt.” The letter that Mr. Rogers (and untold numbers of other consumers) received falsely represented that the debt remained in the hands of Capital One Creditor when it was actually transferred to Capital One Collections and United Recovery Systems for handling.
The FDCPA also explicitly states that “false, deceptive, or misleading representation” includes “The use of any false representation or deceptive means to collect or attempt to collect any debt or to obtain information concerning a consumer.” By leading Mr. Rogers to believe that his bank was sending the letter, we believe Capital One violated this provision.
Yet another clause of the FDCPA says that “false, deceptive, or misleading representation” includes “The failure to disclose in the initial written communication with the consumer…that the debt collector is attempting to collect a debt and that any information obtained will be used for that purpose.” Although the letter had a statement on the back that complied with various state laws, we argue that Capital One did not, in a meaningful manner, identify that the letter was from a debt collector.
The FDCPA also says that “false, deceptive, or misleading representation” includes “The use of any business, company, or organization name other than the true name of the debt collector’s business, company, or organization.” Capital One Collections and United Recovery Systems used the name “Capital One Services” instead of their own names, thereby violating this provision of the FDCPA.
In addition, the FDCPA says that “A debt collector may not use unfair or unconscionable means to collect or attempt to collect any debt”; we allege that Capital One and United Recovery Systems violated this provision.
The FDCPA is very specific about its requirement that debt collectors include what’s known as a “validation notice” in their communications with consumers. Specifically, it says:
Within five days after the initial communication with a consumer in connection with the collection of any debt, a debt collector shall, unless the following information is contained in the initial communication or the consumer has paid the debt, send the consumer a written notice containing:
- the amount of the debt;
- the name of the creditor to whom the debt is owed;
- a statement that unless the consumer, within thirty days after receipt of the notice, disputes the validity of the debt, or any portion thereof, the debt will be assumed to be valid by the debt collector;
- a statement that if the consumer notifies the debt collector in writing within the thirty-day period that the debt, or any portion thereof, is disputed, the debt collector will obtain verification of the debt or a copy of a judgment against the consumer and a copy of such verification or judgment will be mailed to the consumer by the debt collector; and
- a statement that, upon the consumer’s written request within the thirty-day period, the debt collector will provide the consumer with the name and address of the original creditor, if different from the current creditor.
The notice that Mr. Rogers and other consumers received did not contain the validation notice required by law.
Our class action lawsuit also alleges violations of Connecticut’s Unfair Trade Practices Act, specifically pertaining to engaging in unfair and deceptive acts and practices and those pertaining to common law fraud.
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If a debt collector has sent you a threatening or deceptive letter, please call our offices at 855-301-8100, or complete the form to the right.
