“Pocket Dials” – Senders and Receivers Beware

By now, we all know the phenomenon of the “pocket dial” (also referred to as the “butt dial”). But (no pun intended) we are now more aware of the potential ramifications to both the sender and receiver.

James Huff was on a business trip in Italy. He phoned a subordinate (Carol Spaw) to have her make certain reservations for Huff. After terminating the call, Huff placed the phone in his pocket, unaware that the phone had re-dialed Spaw. Spaw said “Hello” several times into the phone, but got no response. Soon, Spaw realized that Huff and a colleague were discussing business, part of which was the possible replacement of Spaw’s superior. Later, Spaw and a co-worker listened to a conversation between Huff and his wife, part of which involved Huff relating to his wife parts of his conversation with his colleague. Spaw took handwritten notes and recorded pat of the phone call.

Huff and his wife later learned of the open phone call, which lasted approximately 80 minutes. Huff and his wife sued Spaw for violation of the Federal law that prohibits intercepting and disseminating electronic communications. On appeal, the Circuit Court held that Huff had no claim, since he did not avail himself of the easiest and most effective prevention (turning off the phone). By failing to take that simple measure, Huff had no “reasonable expectation of privacy”, something the Federal law requires as a prerequisite to relief. Huff’s wife, however, did have a reasonable expectation of privacy, that was not affected by her husband’s lapse in judgment. Therefore she is permitted to proceed against Spaw.

The lesson here is “beware the butt dial”, and it applies to both the sender and receiver.

Find more information at the Oklahoma Law Website

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7th Circuit Says Promise Not to Sue on Time-Barred Debt May be Violation of Federal Law

The 7th Circuit Court of Appeals, which includes the States of Illinois, Indiana and Wisconsin, has issued a decision which conflicts with at least one other Circuit.  The 7th Circuit has ruled that a debt collector that promises not to sue on a time-barred debt is engaging in an “unfair collection practice” under the Fair Debt Collections Practices Act.

Debts that are based on contract (credit cards, personal loans, etc) are subject to a Statute of Limitations. (In Oklahoma the deadline for bringing an action on such a debt is three years if verbal and five years if written).  Once the deadline is passed, the debt becomes unenforceable.   However the debt can still be made enforceable if “acknowledged” or “ratified” by the person that owes the debt.  When a creditor files an action on a debt that is beyond the Statute of Limitations, the debtor has an “affirmative defense”, meaning the debtor must assert the defense at the beginning of the suit.  If the debtor fails to assert the defense of “Statute of Limitations”, and proceeds to defend the suit, the defense is lost, and the debtor cannot assert it later.

The 7th Circuit has now held that if a creditor offers to settle an outdated debt in exchange for not filing a lawsuit on the debt, the creditor is misleading the debtor into believing that the claim is still legally viable, even though the litigation would be dismissed upon assertion of the defense.

When dealing with debt collectors, ALWAYS demand the verification of the debt from the original creditor, and always determine the date of the first alleged breach (the date of the first missed payment).  The date of first breach is usually the beginning of the Statute of Limitations period.

Find more information at the Oklahoma Law Website

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New Law Enforcement Responses to Driving Without Insurance

Beginning November 1, 2013, Oklahoma Law Enforcement Officers have a new weapon to use against those driving without insurance.  In addition to a citation, and impoundment of the vehicle, the officer can confiscate the license plate and issue temporary insurance on the vehicle.

The license plates confiscated would be turned over to the County Sheriff.  The owner of the vehicle can retrieve the tag by paying the fines and costs, and providing proof of insurance.  The citation itself acts as proof of insurance while the citation is pending.  If the vehicle owner does not comply by getting insurance on the vehicle, then the vehicle itself becomes subject to impoundment.

Find more information at the Oklahoma Law Website

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