Dallas, TX: A consumer fraud class action lawsuit has been filed against Genesis Financial Solutions, Inc.(GFS), NCO Portfolio Management Inc. and WebBank. The lawsuit alleges that Defendants deceptively used an offer for a pre-approved Pearl Card® Gold MasterCard® to collect or receive payment for an alleged debt, when in fact the offer was a collection letter. The lawsuit alleges multiple violations of the Fair Debt Collection Practices Act and the Texas Finance Code.
According to court documents Plaintiff Mark Myers received a mailed communication on July 12, 2010 with an offer from NCO Financial Services and GFS Financial Solutions that stated in bold print at the top, "Transfer your debt to a Pre-Approved+ MasterCard®!"The average consumer receives numerous credit card offers in the mail each month and may have perceived this offer, which was an attempt to collect a debt on behalf of the defendants, as a typical credit card application/offer, or junk mail and tossed it in the trash, and in the process, thrown away a communication that triggered specific rights under the Fair Debt Collection Practices Act.
Part and parcel of the FDCPA' rights afforded to a debtor is what is commonly referred to as the "Mini-Miranda Warning", a statement that identifies the name of the debt collector, the company they represent, and advises the debtor of his/her right to validate and dispute an alleged debt within 30 days. The Fair Debt Collection Practices Act mandates that each time a debtor is contacted by a debt collector via written communication, the "Mini-Miranda Warning"must be provided.
The complaint alleges that the communication received by Plaintiff Myers and others did not clearly display the "Mini-Miranda Warning"in its entirety where it could easily be viewed and read. This important information advising a debtor of his/her rights, appeared on the reverse side of the offer and thus could easily have been missed or overlooked and was overshadowed by the voluminous amount of fine print that has become standard in most credit card offers. A signature confirming acceptance of this new Pearl Card® Gold MasterCard® offer would validate the amount of the alleged debt and restart the clock on the statute of limitations, which may have already expired, unbeknownst to the debtor. By signing and agreeing to proceed with the credit card offer, the debtor has now waived his rights to validate and/or dispute the alleged debt.
The complaint also alleges that Defendant WebBank allowed GFS and NCO the use of its Utah banking charter for the credit card offer, though WebBank was not actually a party to the collection efforts. The communication itself states "GFS is not affiliated with WebBank .."The Utah banking charter allows GFS and NCO, through alleged partnership, the opportunity to use Utah' laws which allow for no caps on interest rates and fees for all 50 states other than what competition dictates, in the MasterCard® offer.
Plaintiff seeks to recover actual and punitive damages on behalf of class members, comprised of all those who received a correspondence similar to the mailed offer received by lead Plaintiff Mark Myers on July 12, 2010, for a period of 1 year prior to the date lawsuit was filed.
