Dyck O’Neal is a “debt collector”

August 23, 2015

As a defedant in dozens of lawsuits in Florida filed under the FDCPA, Dyck O’Neal regularly disputes that it is a “debt collector.”  Establishing that Dyck O’Neal is a “debt collector” is a requirement for the plaintiff to obtain a judgment under the FDCPA.

Dyck O’Neal is a “Debt Collector” as defined by the FDCPA. “Debt collectors” are defined by the FDCPA as “any person who uses any instrumentality of interstate commerce in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another.” 15 U.S.C § 1692a(6). Because the instrumentalities of interstate commerce include telephone and the mails, virtually all commercial collection activities fall within the realm of the FDCPA.
Dyck O’Neal is the holder of a License as a Consumer Collection Agency issued by the Florida Office of Financial Regulation effective December 31, 2014 and originally issued on November 23, 1994. Florida Statutes §559.55(4) defines the license holder as:
(3) “Consumer collection agency” means any debt collector or business entity engaged in the business of soliciting consumer debts for collection or of collecting consumer debts, which debt collector or business is not expressly exempted as set forth in s. 559.553(3).

This definition is strikingly close to the definition found in the FDCPA:

(6) The term “debt collector” means any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another.

The web coding on all of the pages on Dyck O’Nea’s webpage describes it as “The Leading Nationwide Purchaser, Collector and Servicer of Real Estate Loans.”

Action for Deficiency Judgment by Dyck O’Neal Dismissed

August 20, 2015

A Circuit Judge in Orlando, Florida, dismissed an action for a deficiency judgment, with prejudice, filed by Dyck O’Neal.  The defendant resided in California and purchased property in Florida for personal use.  Falling on hard times, the defendant was unable to make the mortgage payments and a foreclosure judgement was entered against him and the property was sold at auction.  Thereafter, 6 years later, Dyck O’Neal filed the action for a deficiency judgment seeking $203,000.   In its order, the Court reasoned that the while the defendant, at one time, had minimum contacts with the State of Florida by owning real estate sufficient to subject him to Florida Courts, he no longer owned the property after the original foreclosure action.    Dyck O’Neal v. Larry Rojas, Case No. 2014-CA-1369.

Student Loan Debt Wiped Out

May 3, 2015

Student Loan Debt Wiped Out

A Circuit Judge from Highlands County, Florida, granted the consumers’ motion for summary judgment on the grounds that the plaintiff, National Collegiate Student Loan Trust, had failed to provide notice to them of the assignment of the student loan.

Consumers/borrowers took out student loans with Bank of America, but, they were sued by National Collegiate Student Loan Trust – a stranger to them.  Section 559.715 of the Florida Statutes requires that a 30 day notice be provided to consumers of the assignment of the debt to a debt buyer prior to filing suit.  The Student Loan debt that were wiped out as a result of this Summary Judgment totalled over $60,000.

Case No. 2013-CA-694 National Collegiate Student Loan Trust v. Laforce. National Collegiate Student Loan Trust was represented by Pollack & Rosen, P.A.

Collection Calls from Unifund CCR Partners

May 28, 2014

Unifund CCR Partners was founded in 1986 and was one of the first companies to purchase defaulted consumer receivables. Unifund‘s founder and chief executive officer, David G. Rosenberg, founded Unifund to purchase and collect returned checks. In 1989, Unifund began buying distressed loan portfolios on a national scale from small banks and retailers. One year later, the company began purchasing portfolios from large financial institutions. Unifund CCR is headquartered in Cincinnati, Ohio, and it is one of the largest buyers and operators of consumer debt in the nation.

In Unifund CCR Partners vs. Youngman, the court reversed a lower court order granting Unifund CCR Partner’s motion for summary judgment. Unifund CCR alleged that it was the assignee of Chase Bank, and sued the consumer for breach of contract and account stated, seeking to recover attorneys’ fees and the balance owed on a credit card issued to the consumer. The lower court granted Unifund CCR’s motion for summary judgment, but the appellate court held that the consumer’s cross motion for summary judgment should have been granted instead. The Appellate Court concluded that, to establish standing, Unifund CCR was required to “submit evidence in admissible form establishing that Chase had assigned its interest in [the consumer’s] debt to [Unifund CCR],” but it failed to do so. Unifund CCR submitted an affidavit of its agent, a “Legal Liaison” employed by Unifund CCR rather than Chase, as well as credit card statements and account balance documents. The Court found that Unifund CCR did not submit the “requisite business records to establish its standing.” The “Legal Liaison” employed by Unifund CCR did not establish personal knowledge of Chase’s business practices or procedures, and failed to establish “when, how, or by whom the credit card statements and account balance documents were made and kept.” Because Unifund CCR did not establish a proper foundation for the admission of the credit card statements and account balance documents under the business record exception to the hearsay rule, the appellate court held that Unifund CCR did not establish its standing as assignee of Chase Bank. Thus, the consumer’s motion for summary judgment against Unifund CCR was granted.

Collection Calls and Voicemails from Weltman, Weinberg & Reis

May 26, 2014

Weltman Weinberg and Reis, LPA is a debt collection law firm based in Cleveland, Ohio, that files and litigates debt collection suits throughout the United States.The firm was founded 1930 and has roughly 950 employees in nine offices throughout the United States. Weltman Weinberg & Reis, LPA specializes in bankruptcy, real estate default, consumer and commercial collection agency services.  Weltman Weinberg and Reis, LPA claims to be the largest creditors’ rights firm in the country.  Weltman Weinberg & Reis, LPA represents clients on retail, real estate default, commercial and collection matters involving bankruptcy, foreclosure, evictions, probate, compliance & defense litigation, collection recovery, collection litigation & post-judgment executions, complex collections & litigation, contract review, real estate title and closing services, insurance subrogation, and corporate & financial services.

Weltman Weinberg and Reis, LPA has nine offices located in Brooklyn Heights, OH; Chicago, IL; Cincinnati, OH; Cleveland, OH; Columbus, OH; Detroit, MI; Fort Lauderdale, FL; Philadelphia, PA; and Pittsburgh, PA, WWR attorneys licensed to practice in Florida, New York, Illinois, Indiana, Kentucky, Michigan, New Jersey, Ohio and Pennsylvania.

In Monty v. Weltman Weinberg & Reis Co., LPA, 2013 U.S. Dist. LEXIS 174011 (S.D. Fla. Dec. 11, 2013), the consumer alleged that beginning in approximately early 2013 and continuing through at least July 2013, he received multiple telephone calls per week on his home telephone at phone number from the law offices of Weltman, Weinberg & Reis with regard to an alleged debt that the law firm was trying to collect from him. The telephone calls resulted in numerous messages being left on Monty’s home answering machine and he contended that Weltman, Weinberg & Reis called him at least 200 calls between January 2013 and July 2013. During this same time period, Weltman, Weinberg & Reis repeatedly called an acquaintance of Monty’s and left, and left 15 voice messages on the acquaintance’s answering machine. Weltman, Weinberg & Reis did not have the prior consent to communicate with Monty’s acquaintance concerning the alleged debt.

Weltman, Weinberg & Reis moved to dismiss the Complaint on the basis that the Complaint failed to identify properly the acquaintance or state the acquaintance was an improper third party under the FDCPA. In addition, Weltman Weinberg & Reis Co., LPA contended that the Complaint did not allege that the telephone calls were harassing to constitute a valid claim under the FCCPA. The District Judge denied the motion ruling that based on the allegations in the Complaint, Monty had established a valid claim under the FDCPA.

Deficiency Judgments in Florida

May 10, 2014

In Florida, a mortgage foreclosure action will not automatically result in a deficiency judgment. In other words, just because you lose property in foreclosure does not mean you will remain personally liable for money owed to the lender. To obtain a deficiency judgment against the borrower after the foreclosure sale, the mortgage lender must file a motion for a deficiency and allege the property’s value and the amount of the deficiency. The homeowner can defend the motion and can contest the lender’s valuation. If the homeowner files a defense the court must hold a separate hearing on the lender’s request for deficiency liability.

At a hearing on a motion for deficiency judgment, the mortgage lender has to show the court evidence that the property’s value on the sale date was less than balance owed on the note. Evidence of value requires the lender to produce an expert value witness. However, the homeowner/borrower can base her/his own value upon his/her own appraisal, or, use the local government’s tax assessed value as evidence of value. The borrower can bring to the hearing his own valuation expert. If the court finds that the foreclosed property was worth more than note balance on sale date the court will not give the mortgage lender a deficiency judgment against the borrower.  A 2013 Florida statute gives the mortgage lender one year to file a motion for deficiency. Under the old law a lender could file a new and separate claim for deficiency up to five years after the foreclosure sale date.

If you have been served in a lawsuit recently by Dyck-O’Neal, you are not alone. This debt collector has purchased rights to older claims and is filing suit to establish a deficiency judgment from the lender that previously foreclosed and are trying to collect pennies on the dollar. The public records show that they are serving individuals throughout the state of Florida in order to obtain deficiency judgments against consumers. Dyck-O’Neal is being represented in many of these cases by The Law Offices of Daniel C. Consuegra.

What is a deficiency judgment

For those individuals who have had a foreclose judgment entered against them before July of 2013, the foreclosing lender had five (5) years to seek a deficiency judgment. However, the statutes were amended to reflect that all foreclosure judgment creditors have until July 2014 to enforce the deficiency judgment. 

Florida homeowners that had faced foreclosure, and perhaps lost or simply did not defend their suit, are now in a panic. After being served, it is hard to make an informed decision regarding this matter. Sure, you may now be doing much better than you were at the time the judgment was entered. This is what Dyck O’Neal is counting on. While you can see from my other posts, there are defenses to foreclosure cases, and there are also defenses to deficiency judgments, but to put it succinctly fighting a deficiency in court adds to the amount the bank will seek against you. If they do get a judgment, they will then try to garnish your wages or attach liens against your personal property or garnish wages. It is important that you understand that a settlement, and not a final hearing, may be in your best interest.

An attorney can help in a settlement negotiation on lawsuits for a deficiency judgment. If you have recently been served with a lawsuit filed by Dyck-O’Neal and would like to know your options, please contact my office at 888-877-5103 or email me to set up a consultation.

Validation Notice Attached to Foreclosure Action Results in FDCPA Class Action

January 24, 2014


The Fair Debt Collection Practices Act (FDCPA) mandates that as part of noticing a debt, a debt collector must send the consumer a written notice containing — along with other information – “the name of the creditor to whom the debt is owed.” This requirement is sometimes referred to as the “Debt Validation Notice.” In addition, the Act prohibits a “debt collector” from using “any false, deceptive, or misleading representation or means in connection with the collection of any debt.”

Surprisingly, many well established law firms have a fundamental misunderstanding of the application of this statutory requirement. A random survey of foreclosure actions filed throughout the State of Florida would reveal that a 1692(g) Validation Notice is routinely attached to mortgage foreclosure complaints. However, a “pleading,” such as a complaint in a lawsuit, can never be an “initial communication” that triggers the notice requirement under 1692(g). Moreover, sending such a notice can be deceptive and misleading to the “least sophisticated consumer.”

A recent case filed in United States District Court in Orlando, Florida, alleges that Shapiro, Fishman & Gache, LLP, acting as counsel for PHH Mortgage Corporation, filed a complaint in Seminole County, Florida, to foreclose on Linda Karp’s mortgage and to enforce a promissory note. Attached to the state court complaint and summons was a document entitled “Notice Required by the FDCPA, 15 U.S.C. Section 1692g.” The Notice was presumably served to inform Linda Karp of her rights concerning validation of the debt and provide her with 30 days to request validation of the debt. The summons issued by the court along with the foreclosure complaint informed Karp that she had 20 days to file a response with the court. Karp sued Shapiro, Fishman & Gache, LLP under the FDCPA alleging that the firm violated the Act because the Notice attached to the state court Complaint was deceptive and misleading to the “least sophisticated consumer.” The lawsuit alleges that the “least sophisticated consumer” could be deceived or confused when the summons sets out a 20-day deadline to respond to the lawsuit and the attached notice provides for a 30-day deadline to request validation of the debt. Karp further alleged that hundreds of other consumers received the identical notice in connection with their mortgage foreclosure lawsuit.

Karp v. Shapiro, Fishman & Gache, LLP, Case Number: 6-14-Civ-Orl-000046-28TB