Texas Commercial Law Firm

It should be noted that the U.S. Supreme Court denied certiorari in the one case appealed on this issue where the Circuit Court held that the "Miranda Warning" is required in all communications. The sole case found which did not require the "Miranda Warning" in each communication, (Pressley v. Capital Credit & Collection Service, Inc., 760 F.2d 922 (9th Cir. 1985) has been criticized by two other circuit courts. See: Carroll v. Wolpoff & Abramson, 961 F.2d 459 (4th Cir. 1992); Pipiles v. Credit Bureau of Lockport, Inc., 886 F.2d 22,27 (2d Cir. 1989). Under the current state of the law, therefore, a debt collector who does not give the "Miranda Warning" in every communication is in apparent violation of the FDCPA as interpreted by the Second, Fourth and Sixth Circuits.

Thirty-Day Debt Validation Notice

Section 1692g requires, among other things, that a statement be included in the initial communication with a consumer (or within 5 days of the initial communication) by the debt collector that:

(a)(3)...unless the consumer, within thirty days after receipt of the notice, disputes the validity of the debt, or any portion of thereof, the debt will be assumed to be valid by the debt collector;... (a)(4) a statement that if the consumer notifies the debt collector in writing within the thirtyday 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

(b) If the consumer notifies the debt collector in writing within the thirty-day period described in subsection (a) of this section that the debt, or any portion thereof is disputed, or that the consumer requests the name and address of the original creditor, 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, is mailed to the consumer by the debt collector.

FDCPA Penalty Provisions

The FDCPA was drafted with the intent that it be primarily "self-enforcing." S.Report No. 95-382, 95th Cong., 1st Sess., reprinted in 1977 U.S. Code Cong. & Admin. News 1695, 1699. That is, the act provides for civil remedies to allow consumers subjected to collection abuses to bring civil actions. 15 U.S.C.A. Sec.1692k

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