Fair Debt Collection Practices Act (FDCPA) explained: Violations and remedies.

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Can they violate the Fair Debt Collection Practices Act?

Sep 23, 2008 by Sarena M | Posted in Law & Ethics

I posted another question about this earlier so feel free to check it. But here are more details:
In 2003 we owned our own business in Oklahoma. We wanted to place an ad in the yellow pages. So we went through the process, they sent us a fax with the ad proof, and my husband "voice verified" the proof. Neither he nor I ever signed anything regarding this ad, thus making this an oral agreement, correct? When the book came out, they had put the wrong number on the ad. We had been making the preliminary payments, but stopped paying when we knew that they screwed up the ad and told them so.
In July of 2006 we sold the business and moved to Idaho. Now, the Yellow Page book is trying to sue us for the remaining balance. We no longer have copies of the ad and cannot prove that they screwed it up.
However, the "voice verification" occurred on August 8, 2003. That would be the date we entered into the "oral agreement", correct? They filed suit, unbeknownst to us, on August 14,2006. (We did not receive any notification until Feb 28, 2008) The statute of limitations for an oral contract in Oklahoma is 3 years, which it appears they exceeded by 6 days. Also, the FDCPA states that when filing suite regarding an oral agreement, the suit must be filed in the state where the defendant lives currently. They filed in Oklahoma even though we live in Idaho.
Can we claim that they have violated the FDCPA on these two grounds? And if so, what are our chances? They have asked for Summary Judgement twice, but have not receieved it after the court received our responses.
Their own paperwork says "Voice Verified 8/8/03" on the photocopy of the ad proof.

1) Where did you live on the date that the suit was commenced?
a) If you lived in Oklahoma on the date that the lawsuit was filed, whether or not the lawsuit was filed within the Oklahoma Statute of Limitations, then venue is proper in Oklahoma.
b) If you did not live in Oklahoma on the date that the lawsuit was filed, then venue may not be proper in Oklahoma pursuant to the Fair Debt Collection Practices Act.

2) The next question to answer is whether the Fair Debt Collection Practices act even applies here for the purposes of venue. If this is a debt incurred by a corporation, limited liability company, etc, (any entity other than yourselves), then the Fair Debt Collection Practices act may not apply. The FDCPA only applies to consumer debts. Another factor to consider is that the FDCPA generally only applies to debt collection agencies. See 15 USC 1692(a)(1)(6) for a more complete definition of debt collection agencies.

3) If the FDCPA applies, then, if venue is properly in Oklahoma, we have to determine whether this is a written or an oral contract. When you signed up for the yellow page ad, you probably signed an sales agreement for the ad. This agreement for the ad is separate from approving the proof of the ad. Since I haven't evaluated your situation, I can't comment further, but its been my experience in working with the yellow pages that they don't start work on the proofs without signature of a contract agreeing to buy the advertising.

I don't know how much money is involved, but I highly suggest that you obtain the services of a competent attorney in Oklahoma to represent you on this matter. With the legal fees you pay you may save yourself paying higher fees later if you try to do it yourself and then have to hire a lawyer to do it right. (if its even possible then).

For a referral, contact the Oklahoma Bar Association. (not licensed in Oklahoma)