A Florida federal court just awarded Nelson and Joyce Coniglio $1.051 million to be paid by Bank of America (BOA). In a complaint filed in July, the couple had been receiving hundreds of phone calls from the bank in a “pattern of outrageous, abusive and harassing conduct”. The complaint alleges BOA engaged in conduct in violation of the Telephone Consumer Protection Act (TCPA), Fair Debt Collection Practices Act* (FDCPA) and Florida Consumer Collection Practices Act (FCCPA) and constituted intentional harassment and abuse of the Coniglios.
Like many Americans, the Coniglio’s had gotten a mortgage from Countrywide during the peak of the housing bubble. The Tampa couple had trouble making their loan payments that had doubled after Bank of America acquired the Countrywide loan.
In the spring of 2009, BOA began robocalling collection calls to the couple’s home phone and cell phones. During that summer, the Coniglio’s hired a third-party mitigation service to obtain a loan modification for the couple. The third-party sent BOA a letter requesting the bank cease all contact with the homeowners and deal instead with them. BOA replied they had received the letter, but continued the calls.
The couple finally hired an attorney who sent cease-and-desist letters to BOA asking the bank to stop calling the Coniglio’s and deal directly with the attorney. The bank responded they had received the request. The calls, sometimes up to five a day continued and the calls were far from being polite. In all, over a period of four years, the couple received 700 collection calls to their cell phones and another 350 calls to their home phone. They also received “threatening collection letters asserting false and misleading information”.
BOA asked the court to set aside the default judgment citing the statute of limitations had passed. The bank argued they only made calls between August 2007 and September 2009 making the 4-year statute of limitations expiration date. The judge pointed out the couple continued to receive multiple calls per month through the summer of 2014.
BOA argued the husband had given his consent for calls to his cell phone by using it on mortgage documents. The judge ruled the consent was taken away by the multiple cease-and-desist letters sent to BOA.
BOA claimed its automated phone dialing system as described in the TCPA didn’t fall within the definition of “automated telephone dialing system” because the calls weren’t random but used a specific list of numbers for calling. The judge maintained a machine isn’t exempted from TCPA regulations just because the numbers are programmed into it.
The judge also ruled that BOA failed to provide any support why the continued robocalls should be excused for being a bona fide error. The judge ruled that defense was without merit and the couple was awarded $1.051 million.
BOA has filed a stay execution of judgment pending appeal, so it may be awhile before the Coniglio’s see their money. This isn’t the first time BOA has been accused of harassment. In 2010, BOA hired a collection agency in Texas that used profane, racist and pressure tactics. One couple in California claim they received over 2,000 calls from BOA, another couple in Indiana received over 600 calls.
*In an amended complaint, the FDCPA was deleted because the FDCPA only applies to third-party debt collectors and not to businesses attempting to collect a debt that is owed directly to them.
If you are been receiving harassing debt collection phone calls, or are facing foreclosure, contact consumer rights and foreclosure defense attorney Keith Gantenbein.
Denver, Colorado foreclosure defense attorney Keith Gantenbein is a premier foreclosure attorney, serving all of Colorado. The Gantenbein Law Firm is the only Colorado foreclosure defense law firm to have an in-house loan modification specialist. Our loan mod specialist- whose work experience includes SPS loan mod servicing- works with the attorney on your case to maximize your home retention options. Contact Gantenbein Law Firm for a one-hour consultation to discuss your foreclosure or post-foreclosure issues: 303-618-2122.
Keith Gantenbein, of The Gantenbein Law Firm, Colorado foreclosure defense practice includes: debt collection and FDCPA violations, mortgage negotiations, foreclosure settlements, post-foreclosure deficiencies, mortgage lawsuits, loan mods, Rule 120 Foreclosure Hearings, post-foreclosure litigation, foreclosure prevention, Colorado foreclosure help, foreclosure help in Denver, cash for keys, judicial foreclosure, HOA foreclosures, evictions, foreclosure settlement, foreclosure settlement, foreclosure assistance, short sale assistance, foreclosure assistance, loan modifications, foreclosure set-aside, and all other foreclosure defense legal help.
His real estate practice includes real estate litigation, contract and contract disputes, title issues, real estate contracts, quiet title actions, lien issues, evictions, real estate closings, lender liability, and landlord/tenant. Keith Gantenbein also practices HOA defense– including helping homeowners with defense against wrongful covenant enforcement, HOA lawsuits, foreclosures, and HOA liens.
Gantenbein Law Firm practice includes Colorado and Federal Tax Law, Colorado Foreclosure Defense, Colorado Real Estate Law, Colorado Business Law, Credit Dispute and Credit Repair, and Colorado Wills & Trusts. For more information, visit our website: www.gantenbeinlaw.com