OK, here is where I am at. I have been having an ongoing dispute with NCO for about 2 months. I finally sent them a cease communication letter last month along with 3 post dated checks. Since I sent them the Cease communication letter, they have phoned me 26 times, and after I told them not to cash one of the post dated checks, they did it. I even stopped the check at the bank, but somehow it got through. I have all 26 calls documented as far as times and days go. I never ever recieved the 5 day letter for the checks and I told them not to cash them. What is the next step???? Can I sue them, and if so, is this too big a violation for small claims court????
You can sue them for (a) violating the C&D, (b) failure to notify to deposit. You can't stop them from depositing your post-dated checks. They aren't going to be nice and take your phone call to not cash it. You might be able to get the bank to credit you for failing to catch your stopped check. If you put a proper stop-pay order in before the check was deposited, then it is the bank's fault the check was cleared. Raise hell at the bank for honoring a stop-pay check. This is risky. If your post-dated check is dishonored, NCO might be able to purse criminal bad-check charges. Personally, I'd take that chance before I let them get my money. You would have been better off telling the bank that your checkbook was stolen and to close the account. Can you tell us why you have decided not to honor your post dated checks? Is it because NCO has violated the C&D? Is it because you don't have the funds to cover the checks?
Ok, here is the story. NCO had purchased this debt from MBNA. The balance on the account was 23000.00. I had been perfect on payments till I lost my job. I fell behind 210 days, so it was charged off and purchased by NCO. They had called me beginning of October to tell me they need me to pay the balance in full or they are going to pursue legal action. I told them I can only afford 400.00 a month, they turned it down, then came to me with a 14,000.00 settlement offer, which I still could not afford. So they still would not accept any plan from me. So they then called me 3-5 times a day to tell me I have to accept this offer. I told them my offer and that is all I can do. So we were deadlocked. So the calls were getting real bad, so I figured I would send them a cease communication lettter with 3 post dated checks. THere was a disclaimer on the letter I sent that stated that if 1 of these checks were cashed, that constitutes there acceptance of my offer. So they deposited the checks and I figured that was it, we were in a deal. I than receive a call from the agent, a Mr. WIlliam North, that those checks and the letter don't mean anything and it is ONLY a payment, it does not mean they accept the deal and they are still gonna pursue legal action. At that point I told him not to cash the next post dated checks and too send them back to me. THey never sent them back so I stopped payment on them. So after I sent the letter with the checks, he still kept calling and calling. I kept a log of how many times and when he called and it came out to 26 times. I then found out there is supposed to be a notification of deposit letter that is supposed to be sent to me 5 days before they deposit the check. I never received it. I looked in my account today, and the check I sent them went through,even though I stopped it with the bank. Now, how do I go about pursuing this legally, and is it 1000.00 per violation, if so, then they owe ME money. that would be 27 violations, meaning I would sue for 27,000.00 What should I do at this point?? How do I pursue legal action??
A few comments, but mostly a [bump] because I hate NCO. 1) They cannot pursue "bad check" (criminal) legal action for 3 reasons: a) stop payment is not a "bad check", unless you intended to stop payment at the time you wrote the check. Prove that. b) bad check laws only apply for checks used to purchase goods, not pay pre-existing debts. A bad check given for a pre-existing debt is merely a continuance of not paying a debt. The merchant is out nothing additional. c) Post-dated checks cannot come under bad check prosecution, as they are a promise to pay in the future. See FTC opinion letters for more information. ------- You can complain to the FTC and your state's Atty General. Ftc will only prosecute class-action lawsuits. Your AG may be more helpful. Bottom line is usually YOU have to do the enforcement of the FDCPA. Many posts here about suing for similar problems. I've had good luck informing NCO that I am recording the call. That seems to work better than the C&D letter that they routinely ignore. ------- Depending on what state you are in, restrictive/conditional endorsement agreements may be strictly enforced. I'd send them a letter reminding them of your agreement, stating that if the terms are not acceptable, they must refund your money/checks. You've given them another chance to comply or back out before you sue. Radi8
just my .02 I used to work at a bank and post-dating checks made NO difference whatsoever.... if it's signed - it can be pushed through.... the date meant nothing...
LK, Is it permissable to sue them multiple times: a.) for multiple infractions of the same kind? b.) for infractions of different FDCPA sections? Thanks, 0
If I were settling out of court I would of course be discussing all the violations and realize they would most likely (but I wouldn't force them if they didn't want to) have some sort of clause in the agreement barring further actions. What I was wondering was if seperate actions can be brought for each violation or possibly each kind of violation; a) to maximize leverage during negotiations. b) maybe they'll be more amenable to negotiations after the first one. c) to maximize returns if they don't negotiate at all. Thanks, 0
DSB, I would also suggest that you close the account from which you wrote the post-dated checks to NCO and open another checking account. Frankly, you can't trust NCO to protect the ACH routing code and account number at the bottom of the check. :X As Bud Hibbs has said about NCO at his web site, "NEVER give them any information on your bank/credit accounts, or post-dated checks. YOU WILL REGRET IT!!" Bud has other nice (NOT!) things to say about this company. The link to that article is http://www.budhibbs.com/agencydetails.asp?ID=81 HTH, John
It is too late I discovered Bud Hibbs to late. I would of never let it get to this. At this point, I am going to file 29 different claims in small claims court against NCO. I am going to see how that works. I actually emailed Bud Hibbs and he never got back to me.
If you file in small claims it's your word against theirs. In federal court there is discovery and you can get copies of their phone bills/logs. Just something to think about. My 0 cents worth.
<I used to work at a bank and post-dating checks made NO difference whatsoever.... if it's signed - it can be pushed through.... the date meant nothing...> This is true. However, it is a violation of the FDCPA for a CA to prematurly deposit a post-dated check. The bank is not liable for honoring it before the date. The problem with post-dated checks, IMHO, is that I don't see where the FDCPA forces the CA to refund the money. The CA can be fined up to $1000 for cashing it early, but that takes a lawsuit. No where does it say that the CA has to put the money back. Even if you convince a judge to also tell them to return the money, it will take months before you see it. This is one of reasons I STRONGLY argue against a post-dated checks. Look at it this way. Let's say you are a low-level CA employee who is not having a good month. You have not met your collection numbers and you will get fired at the end of the month unless you produce. In your desk are 3 post dated check from a debtor. The CA has nothing to loose. He cashes the checks and make his budget numbers. He knows that it will be months before the debtor can win a $1000 judgement, if they even know they can sue, and they manage to succeed in court. The CA doesn't have to refund the money anyhow. And, even if the CA is fined, the CA company will be fined, not him personally, he will be fired either way, so he doesn't give a damn.
