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‘I Will Not Fashion an Argument Out of Whole Cloth’

court scale with bookA Connecticut judge dismissed the majority of a pro se consumer’s claims against a debt collection agency, but the case is worth reviewing to understand the misinformation about the debt collection process circulating among consumers.

11/17/2023 2:10 P.M.

11 minute read

There are thousands of videos on TikTok and YouTube posted by people who advise viewers how to file complaints or disputes to “get rid” of their legally owed debt or to have debts removed from their credit report. Often, this information is wildly incorrect.

Unfortunately, these videos are reaching millions of people who may use the information to guide their responses to collection letters and calls.

For example, the allegations in a recent case, Rivera v. Zwicker & Associates, P.C., mirror many of the “tips” these self-appointed debt collection experts are sharing on social media. In this case, Wilfred Rivera Jr., proceeding pro se, filed a lawsuit against Zwicker & Associates P.C., a debt collection agency, alleging violations of multiple federal regulations—many of which either have no private right of action or don’t apply to debt collectors.

While a clerical error will create liability on one of the Fair Debt Collection Practices Act claims, U.S. District Court of Connecticut Judge Michael P. Shea dismissed all the other claims, noting that pro se litigants are required to state a plausible claim for relief. The consumer, for the most part, did not do this.

The Case
At various times throughout late 2022 and early 2023, Zwicker sent debt collection notices to Rivera. The notices informed Rivera that “Zwicker & Associates, P.C. is a debt collector” and that it was “trying to collect a debt you owe to American Express.” The notices also included information about the credit card account at issue, including the account number and the amount owed, as well as information on how to dispute the debt and request verification.

Rivera requested Zwicker validate the alleged debts for each of the four American Express accounts at issue. The debt collector sent the statements for each account—although for one of the accounts it allegedly attached the wrong credit card statements, instead attaching statements for another account of Rivera’s.

Rivera then sent Zwicker a “Notice of Violations Under the FDCPA & Federal Laws Under Tit[]le 18,” in which he outlined his belief that Zwicker’s collection attempts were in violation of various provisions of the FDCPA as well as several other federal laws. He demanded $40,000 to settle his claims.

He alleged that Zwicker violated several provisions of the FDCPA, including:

  • Engaging in prohibited communications concerning his debt under 15 U.S.C. Section 1692b,
  • Failing to get prior consent to contact him under 15 U.S.C. Section 1692c,
  • Using “obscene” language in collection attempts under Section 1692d,
  • Making false or misleading statements under Section 1692e,
  • Not providing sufficient validation of his debt under Section 1692g,
  • Not being authorized to bring a suit against him under Section 1692i, and
  • Furnishing deceptive forms under Section 1692j.

Zwicker filed a motion to dismiss, arguing that Rivera failed to plausibly plead any of his claims. Generally speaking, the judge agreed.

Here’s how the judge responded to Rivera’s FDPCA claims:

Section 1692b

Section 1692b prohibits certain types of communications between a debt collector and “any person other than the consumer,” including communication indicating that the “consumer owes any debt.” But the statute does not cover a letter from a debt collector addressed to the consumer himself. Rivera does not allege that Zwicker communicated with a third party concerning his debt. Therefore, the judge dismissed his Section 1692b(2) claim.

Section 1692c(a)

Rivera seems to misconstrue Section 1692c(a) to prohibit a debt collector from communicating with him under any circumstance unless either he or a court gives the debt collector prior permission to do so. But Rivera does not make any allegation that Zwicker attempted to communicate with him during one of the three specific circumstances covered by Section 1692c(a), such as at an unusual time or place, so his Section 1692c(a) claims failed.

Section 1692d(2)

Rivera alleged that Zwicker violated 15 U.S.C. Section 1692d(2) by using what he called “obscene” language in its communications with him. Section 1692d(2) prohibits debt collectors from using “obscene or profane language” in connection with the collection of a debt. Rivera alleged that the sentence “is an attempt to collect a debt” is obscene. The judge disagreed.

“The complained-of language plainly does not qualify as profane or obscene. In fact,” the judge noted, “the FDCPA mandates the use of this language, and it is unclear how Zwicker or any other debt collector could collect a debt in accordance with the FDCPA without informing a debtor that it is ‘attempt[ing] to collect a debt.’” This claim was dismissed.

Section 1692e

Rivera alleged that Zwicker violated provisions of Section 1692e by stating in communications that it is a law firm. While it is true that Zwicker notified Rivera that it is a law firm in its responses to his requests for debt validation, Rivera didn’t make any allegation that these representations were false or misleading. He didn’t, for example, allege that Zwicker is not a law firm.

Section 1692e(10) prohibits “[t]he use of any false representation or deceptive means to collect or attempt to collect any debt or to obtain information concerning a consumer.” Though Rivera’s allegations under this provision are not entirely clear, he suggested that one of Zwicker’s notices was misleading because the amount of the debt is stated as a “positive balance,” as opposed to a negative balance, “lead[ing him] to believe [that he would be] paid.” This interpretation is, the judge noted, “bizarre” and “idiosyncratic” given the clear language in Zwicker’s communications that it was “trying to collect a debt that you owe …”

Section 1692e(12) prohibits “[t]he false representation or implication that accounts have been turned over to innocent purchasers for value.” Rivera alleged that Zwicker has violated this provision “because [Zwicker] purchased the debt or [is] partnered with the alleged original creditor.” But the judge pointed out that debt collectors do not violate Section 1692e(12) by “partner[ing]” with creditors to collect debts on their behalf—that is simply what debt collectors do.

Section 1692e(14) prohibits “[t]he use of any business, company, or organization name other than the true name of the debt collector’s business, company, or organization.” Rivera did not allege that Zwicker & Associates, P.C. is not the defendant’s “true name.” Instead, he suggested that Zwicker violated Section 1692e(14) by stating that Rivera owed money to American Express. But Section 1692e(14) does not prohibit debt collectors from stating the identity of the original creditor. In fact, 15 U.S.C. Section 1692g(a)(2) requires creditors to provide debtors with “the name of the creditor to whom the debt is owed.”

These claims were dismissed.

Section 1692g

Rivera alleged that Zwicker’s debt validations and verifications were not sufficient under Section 1692g, but the notice attached to his complaint contains all the required information as stated under the FDCPA. The claim was dismissed.

Section 1692i

Rivera alleged that Zwicker violated Section 1692i(a)(2) because he did not give Zwicker prior authority to sue him. But Section 1692i(a)(2) does not require anything of the sort. Section 1692i is the venue provision of the FDCPA, and Section 1692i(a)(2) merely explains the venue requirements for any suit brought by a debt collector against a consumer for collection actions that do not involve interests in real property. Rivera did not allege that Zwicker sued him, much less that it sued him in the wrong venue. The claim was dismissed.

Section 1692j

Rivera argued that Zwicker violated Section1692j, which provides that:

“It is unlawful to design, compile, and furnish any form knowing that such form would be used to create the false belief in a consumer that a person other than the creditor of such consumer is participating in the collection of or in an attempt to collect a debt such consumer allegedly owes such creditor, when in fact such person is not so participating.”

Rivera did not plead any facts that Zwicker provided American Express with dunning letters; in fact, his complaint asserted that Zwicker itself, not American Express, sent the letters. The claim was dismissed.

Section 1692g(b)

Rivera did, however, state a plausible claim under Section 1692g(b) as to one of the accounts at issue. Section 1692g(b) requires, in relevant part, that if a consumer disputes the debt, “the debt collector shall cease collection of the debt, or any disputed portion thereof, until the debt collector obtains verification of the debt or a copy of a judgment, or the name and address of the original creditor, and a copy of such verification or judgment, or name and address of the original creditor, is mailed to the consumer by the debt collector.”

Rivera asked Zwicker to verify the alleged debts for each of the American Express accounts at issue. For three of the accounts, Zwicker validated the debts by sending credit card statements associated with them.

But Zwicker did not, however, validly verify the debt associated with account 32009. That is because Zwicker allegedly attached the wrong credit card statements to its verification letter as to this account, instead attaching statements for another of Rivera’s American Express accounts ending in account number 01004. Because Zwicker allegedly attached the wrong credit card statements to its verification letter, it would be impossible for Rivera to be sure that the debt associated with account 32009 is not one that he had already paid. This claim survived.

Additional Claims Made

The FDCPA was just the beginning in this suit.

Rivera also claimed Zwicker violated the Gramm-Leach-Bliley Act, which failed because the GLBA does not provide for a private right of action.

Rivera brought several claims under various provisions of the Truth in Lending Act (TILA), but Zwicker is not subject to TILA’s requirements because “TILA only regulates creditors.”

Rivera alleged that Zwicker also committed racketeering in violation of the Racketeer Influenced and Corrupt Organizations (RICO) Act. The judge noted that “even if one were to liberally read Rivera’s complaint to allege that Zwicker committed fraud as a RICO predicate, and even if one assumes his allegations of fraud meet the heightened pleading standards of Rule 9(b), he does not make any allegation as to what might constitute the RICO enterprise here.”

Next, Rivera brought a passing claim under 12 C.F.R. Section 1002, which is Regulation B of the Equal Credit Opportunity Act. The judge stated: “His allegations under this regulation are sparse. He does not explain what specific provisions of the regulation Zwicker has allegedly violated, nor does he explain how Zwicker’s actions ran afoul of the regulation. Though courts in this circuit read pro se submissions liberally, ‘we do not create arguments out of whole cloth.’”

Rivera also alleged that Zwicker violated 16 C.F.R. Section 433.3. This regulation is an exemption to the Federal Trade Commission’s Holder Rule. Section 433.3 exempts sellers “who ha[ve] taken or received an open end consumer credit contract before [Nov.] 1, 1977.” The judge stated: “Rivera does not provide any explanation as to how the Holder Rule or the exemption to it apply here. Again, I will not fashion an argument for Rivera out of whole cloth. As such, I dismiss this claim.

Rivera appeared to allege that Zwicker had no right to collect the debts at issue in the case because, according to him, “all debt is the obligation of the United States.” In support of this argument, he cited 18 U.S.C. Section 8, 28 U.S.C. Section 3002(1)(B), and House Joint Resolution 192 of 1933, which “was adopted by Congress to prohibit contracts that demand payment in gold” following the abandonment of the gold standard.

The judge stated: “Rivera, stringing these laws together, asserts that the U.S. has assumed all consumer debts and that Zwicker ‘has no authority on behalf of the United [S]tates to collect …’ As I have recently explained in a similar case brought by Rivera, ‘[t]hese claims are legally and factually meritless.’”

Finally, Rivera alleged that Zwicker failed to register as a debt collector in Connecticut. The Connecticut statute that requires debt collectors to obtain the appropriate business license is the CCAA. However, because no private right of action exists under the CCAA—and that enforcement lies with the Banking Commissioner—the claim was dismissed.

On Sept. 18, 2023, the judge granted in part Zwicker’s motion to dismiss, except Rivera’s claim that Zwicker failed to sufficiently verify the debt associated with account 32009.

ACA’s Take

Scattershot—and largely frivolous—lawsuits against debt collection agencies are certainly not new. While we may never know if the plaintiff in Rivera v. Zwicker & Associates, P.C. used social media advice to craft his suit, consumers seem to be flocking to these amateur financial advice videos that deliver misleading guidance.

According to a study by Personal Capital, more than half of TikTok users get financial advice on the platform, yet only 41% fact-check that advice.

This is dangerous, as an analysis found that 1 in 7 videos posted by TikTok’s finance influencers is misleading.

For example, this CNet article cites a TikTok posted by an influencer explaining the timeframe you have to respond to a collection lawsuit.

“However, response windows vary by state, and the risks mentioned don’t apply in all states. For instance, wages are not garnished for collection cases in Texas, South Carolina and a few other states,” the article states.

CNet notes that another TikTok influencer suggests using the “statute of limitations” defense if a collection agency sues you.

“This general legal tactic is common advice on TikTok, but it’s also misleading,” the article says.

Here are other examples of videos from YouTube that offer broad and often incorrect advice, each with more than 10 million views: “Debt Collection Laws How To Mark Up Your Collection Letters” and “How to Delete Any Collection Using the FDCPA Act.”

Remember, subscribe to ACA Daily and Member Alerts under your My ACA profile when logged in to acainternational.org to receive updates on the ACA Huddle.

If you have executive leadership updates or other member news to share with ACA, contact our communications department at [email protected]. View our publications page for more information and our news submission guidelines here.

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Although the Website may be accessible worldwide, ACA makes no representation that materials on the Website are appropriate or available for use in locations outside the United States and accessing them from territories where their contents are illegal is prohibited. Users who access the Website from other locations do so on their own initiative and are responsible for compliance with local laws. Any offer for any product, services and/or information made in connection with this Website is void where prohibited.

Termination of Use

User agrees that ACA may, in ACA’s sole discretion, terminate or suspend User’s access to all or part of the Website with or without notice and for any reason, including, without limitation, breach of the Terms of Use. Any suspected fraudulent, abusive or illegal activity may be grounds for terminating User’s relationship and may be referred to appropriate law enforcement authorities. Upon termination or suspension, regardless of the reasons therefore, User’s right to use the ACA Content available on the Website immediately ceases and User acknowledges and agrees that ACA may immediately deactivate or delete User’s account and all related information and files in User’s account and/or bar any further access to such files or the Website. ACA is not liable to User or any third party for any claims or damages arising out of any termination or suspension or any other actions taken by ACA in connection therewith.

Assignment

The Terms of Use may be automatically assigned by ACA in its sole discretion. User may not resell, assign or transfer any of its rights or obligations under the Terms of Use, in whole or in part, without ACA’s prior written consent and any attempt to so resell, assign or transfer will be null and void.

Attorneys’ Fees

In any action, formal or informal, initiated by ACA to enforce the Terms of Use, ACA will be entitled to costs and attorneys’ fees.

Interpretation

If a court finds any provision of the Terms of Use invalid or unenforceable, the remainder of the Terms of Use shall be interpreted so as to best affect the intent of the parties or the parties agree that the maximum period or scope legally permissible under such circumstances will be substituted for the period or scope stated herein.

Amendment

The Terms of Use may be amended at any time by ACA without specific notice to User. The latest Terms of Use will be posted on the Website, and User takes sole responsibility to periodically review the Terms of Use prior to using the Website.

Applicable Law

By using the Website, User agrees that the laws of the state of Minnesota, without regard to principles of conflict of laws, will govern these Terms of Use and any disputes relating in any way to ACA or to products or services sold or distributed by ACA and both ACA and User submit to the exclusive personal jurisdiction and venue of the state or federal court in Hennepin County, Minnesota.

Payment of Fees

Fees due by User for using certain services or purchasing products are either set out in a separate agreement or described elsewhere in the Website and are the sole responsibility of User (“Fee”). Any such agreement is incorporated by reference. If User incurs a Fee, User agrees to pay all Fees. ACA will bill all Fees to User’s credit card or other automatic payment option available and provided to ACA by User. User agrees to provide ACA with accurate and complete billing information, including valid credit card information, User’s name, address and telephone number and to provide ACA with any changes in such information within five (5) calendar days of the change. If, for any reason, User’s credit card company refuses to pay the Fee, User agrees that ACA may require User to pay any unpaid amount due upon demand (“Default”) by other means acceptable to ACA. If legal action is necessary to collect any Fees due, User agrees to reimburse ACA for all expenses incurred to recover Fees due, including collection fees, attorney’s fees and other expenses.

Registration Data

In order to access some of the services on the Website, User will require an account, password and/or other information and data provided to ACA in connection with the use of the Website (“Registration Data”). By providing Registration Data, User agrees that all information provided in the Registration Data is true and accurate, User is at least eighteen (18) years of age and that User will maintain and update this information as required to keep it current, complete and accurate. User grants ACA the right to disclose to third parties certain Registration Data about User in accordance with its Privacy Policy. Registration Data is considered “Personal Information” within the Privacy Policy. ACA shall act in accordance with the terms of its Privacy Policy when handling the Registration Data. User is also responsible for maintaining the confidentiality of the Registration Data, and for any and all statements made, and acts or omissions that occur by use of the account associated with the Registration Data (“Account”). User must take steps to ensure that no third-party can utilize the Registration Data or the Account. User may not transfer or share User’s Account with anyone, and ACA reserves the right to immediately terminate User’s Account in the event of any unauthorized transfer or sharing. Each Account is personal to a single User.

Exclusive Member Content

Users that are ACA members (“Members”) and in the event the Member is an entity, their properly authorized individual users, will be provided online access to valuable information relevant to the credit and collection industry on the Website and hub.acainternational.org (“Hub”), which is exclusive to Members, much of which is specifically designated as members-only content and requires User specific Registration Data and Account (“Member Content”). Members hereby acknowledge Member Content is the sole property of ACA and is included as ACA Content. Entity Members may authorize individual employee user access to Member Content, wherein each user identified in the ACA user roster will be assigned unique Registration Data. Entity Members are responsible for the conduct of their employees that use the Website and/or the Hub. Entity Member’s responsibility for employee conduct does not absolve the employee of their personal responsibility to comply with Terms of Use. Additions, deletions, and modifications to a Member’s information, and employee roster, must be made by the Member’s designated contact. Members are required to maintain an up-to-date and accurate roster. Rosters must timely reflect changes regarding inactive email addresses and Users who have separated from employment. Only those employees physically located at the approved Member geographical location may be provided access. In no event may any entity Member add a non-employee to its user roster, or otherwise allow non-employees access to Member Content through the Member’s Account. Hub use must comply with ACA’s Hub Terms of Access as they may be amended from time to time, which is incorporated herein by reference. If the Member learns a User identified in the Member’s user roster, or otherwise through the Member’s Account, has improperly accessed or disseminated information originating from ACA or violated the Terms of Use, the Member must report the event to ACA immediately and take appropriate corrective action, which shall include, but not exclusively: (a) preventing further unauthorized access; (b) issuing notice to all known and suspected unauthorized recipients of the breach; (c) providing to ACA a disclosure of all known recipients of Member Content; (d) destroying or returning all information improperly retrieved or disseminated; and (e) cooperating with ACA in such a manner as ACA may determine appropriate under the circumstances to avoid further harm.

Delivery

Unless in downloadable format, most product orders placed with ACA are delivered via FedEx, UPS and USPS, within four (4) business days to two (2) weeks of ordering the product. Back orders can take up to six (6) weeks depending on the type of product ordered. User will pay all shipping charges for ordered and returned items. Shipping charges are subject to change without prior notification to User.

Limitation of Liability

ACA Content is presented for educational, general reference and informational purposes only and is not intended to serve as legal or other advice. ACA does not represent or warrant that ACA Content is accurate, complete or current for any specific or particular purpose or application. ACA Content is not intended to be a full and exhaustive explanation of the law in any area, nor should it be used to replace the advice of your own legal counsel.

ACA CONTENT IS PROVIDED “AS IS.” ACA MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND AS TO ACA CONTENT, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE, UNLESS OTHERWISE SPECIFIED BY ACA IN WRITING. BY USING ACA CONTENT IN ANY WAY, WHETHER OR NOT AUTHORIZED, USER ASSUMES ALL RISK AND HEREBY RELEASES ACA FROM ANY LIABILITY ASSOCIATED WITH ACA CONTENT, UNLESS SEPARATELY PROVIDED IN WRITING BY ACA IN A SEPARATE CONTRACT.

Risk of Loss

All items purchased from ACA are made pursuant to a shipment contract. This means that the risk of loss and title for such items pass to User upon our delivery to the carrier.

FURTHER, ACA SHALL NOT BE LIABLE IN ANY WAY FOR THIRD PARTY GOODS AND SERVICES OFFERED THROUGH THE WEBSITE OR FOR ASSISTANCE IN CONDUCTING COMMERCIAL TRANSACTIONS THROUGH THIS WEBSITE INCLUDING, WITHOUT LIMITATION, THE PROCESSING OF ORDERS.

Updated 3/1/2019

 

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The content on this site is presented for educational, general reference, and informational purposes only; is not intended to serve as legal or other advice; is not intended to be a full and exhaustive explanation of the law in any area; and should not replace the advice of your own legal counsel. By continuing to use our site, you are agreeing to the legal disclaimers in our Terms of Use. Review our Terms of Use for more information.

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