Frightened Into Making Payments.... HELP Please!

TN has a 3 year SOL on open accounts and 6 years on written contracts. Unless they can provide the signed contract they must use the 3 year SOL, which would have made the account out of stat's in 2004. By you making payments, and signing and faxing a notice back, you have more than likely renewed the SOL on the account. TN is a wage garnishable state and they can sue you (husband) obtain judgment then submit the writ of execution for a wage garnishment. However, since this account was a time barred debt for legal recourse, at the time they contacted you before setting up payments, they are not allowed to mention any legal threats as they are unable to follow through with that action. They can not touch your IRS refund, and saying that is a violation of FDCPA, and you should file the proper complaints with the TN AG and their state's AG, and the FTC.

-- There is no statement giving me ANY rights to validate or dispute.
(I was told I Could NOT validate or dispute this)

That statement is only required on the agencies first notice to the debtor. However, you can always have them validate the debt and dispute, but must be in writing to the agency, and most effect within 30 days of the first notice to the debtor.

-- "This law firm is a debt collector attempting to collect a debt for our client"
(says nothing about owning the debt themselves)

They are not required to notify you they own the debt or are collecting for someone.

You might want to consult with an attorney that specializes in collections and debtor rights. They have violated the FDCPA and you may be able to bring suit against them for their actions. www.naca.net for an attorney in your area.

 

As Collectman stated, unfortunately you may have locked yourself back into this debt legally. However, you should try to bring some legal action against the firm for their practices.

But, describing your situation, I'm sure you are worried that you do not have the monies for a lawyer. Try the TN bar association, the TN Attorney General's Office, and your local government for free legal aid. It is out there, and you need an attorney to help you out of this now.

Your best shot is an offset due to damages from their practices. In short, scare them back down. To the educated, it is obvious the "caller" knew what he was doing, I would doubt that the actual caller was an attorney.

Search for legal help, that is what you need right now. To get out of this you will need to bring legal suits, and do not try to do it by yourself.

We feel for you, best of luck.

 

"My husband felt awful about this old debt that he was unaware of. "

Are you even sure this is HIS debt, or that the alleged amount is accurate? Does he believe he already settled this debt with another CA, perhaps for less than full payment?

Also note, the credit report entry you show does not show this account as having been sold to anyone. If it did, it would also show a $0 balance.


Although they are only required to send you notice of your rights to dispute and request validation in their first letter to you, they cannot falsely claim that you have no such rights, as they apparently did verbally. That is a violation of FDCPA for use of deception to collect a debt (as is much of the rest).

They also cannot claim that they are NOT debt collectors, and not subject to FDCPA, when they clearly are. In fact they would have to specifically notify you, even on the phone, that they ARE debt collectors, and their claim that none of that applies "because they own the debt" overshadows any such notification they gave you. Additional violations.

The claim that "they own the debt" is an attempt to claim that they are the original creditor, and somehow not a "debt collector" subject to FDCPA and thus required to comply with the law with respect to not engaging in abusive, deceptive, and harassing collection, as well as validation. That is also deceptive, and violates FDCPA.

FDPCA applies to debt collectors defined as those who collect on debts originally owed to another party, received when already in delinquency. It thus applies to them.

Threatening garnishment, which implies suing, if on a time barred debt, may also be a violation for threatening to do something they cannot legally do.

"If I dont recieve a good faith payment during this phone call, I have the power to garnish your husbands wages and seize your income tax return. I also see you have a Dodge Grand Caravan..."

That implies they can garnish immediately, without even using legal action. It also implies they can repo your car, immediately, and "seize your income tax return", immediately. Both false and deceptive. (Presumably, they would want your refund, not your return, but who worries about the finer points of bullying?)


They are practically going down a checklist of all the things they are prohibited from doing, but are likely to get away with. Clearly "experienced", even though the BBB report shows they have been in business less than a year.

Your "agreement" was obtained under duress, using illegal threats of "garnishment" (implying that they could just do it, with no mention that they have to sue and win first) to coerce agreement and payment of a time-barred debt. That may be grounds to invalidate it.

Regarding SOL, be aware that in some states, revolving accounts (CC debt) are not "written contract" even if there is some generic "contract" in writing. You want the SOL applicable to CC debt.

In addition, in some states, once a debt passes SOL, that's it. Even paying might not reset SOL, whereas paying before SOL might. You would have to look at your state's law.


You should look into whether TN requires state licensing of debt collectors operating, or contacting consumers, in your state.

You can also file complaints with the state bar wherever they are based, as they claim to be a "law office", their debt collectors are therefore "under the direction" of someone claiming to be a licensed attorney, and state bar codes of ethics generally require adherence to collection procedures that parallel FDCPA.


Since Burak is in PA, you might also try contacting this firm, although TN law may be important here.
www.pennlawyer.com

For the amount of money at risk here, it is worth consulting an attorney.

Note: I am NOT an attorney.

 

Check into attorneys anyway, since their violations are egregious enough that it might get one interested on contingency. FDCPA allows for the court to award payment of attorney's fees if you win.

 

Current status

I'm curious, are you getting any monthly statements or receipts of payments? Are you still doing payments through a debit to your checking account? It would seem that after six months or so of payments, with the initial payments you've made, you have reached a profitable point for the law office.

So....I strongly recommend getting a good lawyer, but beyond that I would write them and tell them you are having financial difficulties and try to lower the monthly payment (while a lawyer reviews this case). Do NOT stop paying, but do what you can to cut your losses. I would try to stand a bit firm and lower the monthly payment as much as possible.

If you got a good lawyer, I think you would stand an excellent chance in court. In fact I think they would be anxious to "settle". Strong arm tactics like these are under "legal scrutiny" right now, and they are a hot political topic.

In fact, another idea may to be write your local Congressman and ask for help.

 

You need to disavow this debt immediately and...

sue the CA/"attorney" for fraud, civil rights violations, fraud, FDCPOA violations and whatever else you can think of.

Yes, by making payments you can be said to have revived an OOS debt, but in most cases you must be knowingly and willingly doing so. You were intimidated by egregious misrepresentations into doing what you did.

If I came to your home, broke in, held a gun to your head and said "pay me 4100 on this ancient debt you owe me - I don't have to prove you owe it or give you any time to reflect, seek advice or determine the truth of what I say - and if you don't pay the 4100 I will shoot you" - do you think any Court in the land would uphold my suit against you when you defaulted once you determined the facts?

It's called duress.

In your first post I could not believe the egregiousness and frequency of the violations of law committed against you.

1. You were not given the opportunity to verofy the idfentity of the person calling you. It could have been a phisher trying to shake you down.
2. You asked for validation of the claim and you were refused.
3. You were told you had no right to dispute the debt.
4. You were threatened with suit over an out of Statute debt
5. You were lied to. No common bill collector has the power to sieze a tax refund - only the IRS and States can do that, and only for certain debts - taxes, child support, debts owed to the Government.
6. You were lied to again when you were told the collector had the power to immediately garnish. He has to get a Judgment first, and with an OOS debt that may be a bit easier said than done if you choose to fight it.
7. You were lied to again whan you were told the only way they could accept payment was electronically.


Now..

The fact that this "Law Office" (and I put it in quotes for a reason) is inb PA and you are in TN leads me to believe that suit is not as quick or certain as you were led to believe. To sue you teh attorney in that office would ahve to be admitted to practice in your state. he probably is not. Therefore, you just got a call from a Junk Debt Buyer, and their goal is to simply scare the cr*p out of you to get a payment to bring the OOS bdebt abck into Statute so they CAN eventually sue you.

You need to discuss this with a lawyer in Tennessee - and the bad news is that since all this happened over the telephone (which I bet you were not tape recording) they will deny it all - instead claiming that in a fit of conscience, after not paying a dime for 6 years, you suddently got a fit of guilt and paid $100 out of the blue. The fraud, intimidation, threats and coercion simply did not occur - in their recollection.

Maybe the TN lawyer can help you draft a letter repudiating the debt and putting the fraud and coercion on the record so that you can use it as a defense in any suit that may come up.

 

HAD to jump in here on this one.

I haven't been around for a long time. I hope all my old friends are doing well.

As stated the payment which was extorted from you, may have restarted the SOL.

Not only should you find an attorney, yesterday, you should REVERSE this payment, by disputing it with your CC co., as fraudulently obtained.

Follow this up with a retraction of your signature, if indeed you signed this faxed agreement, by faxing your notice to the same fax number.

Then SUE THEIR ASSES TILL THE COWS COME HOME.

: )

 

Another tactic/idea!

The more I think about this problem, and how they treated you, the more it makes me think.

Threaten "true" legal action; I don't think the CA/;aw office will be scared by a lawsuit (as an attorney's office I'm sure they feel they can handle that!)

But....considering the details of using both the phone AND electronic debit for your account, threaten to turn them over to the FBI for investigation. A "criminal" charge threatens the attorney's license, and theor ability to do business. Use of the interstate communications pushes an illegal civil action into a criminal category.

Time to play hardball with these guys!

 

First off let me say how sorry I am to hear about your situation! My true condolences. However, from what research I've done for myself, they have violated pretty much every law in the book. By federal law, you may sue for emotional distress and damages, provided that you can prove that they caused the damage. However that is where it gets tricky. You must be able to prove that they indeed caused it, and without a recording or transcript of the conversation in question, it will be hard. However, if they recorded it, my GUESS would be that if you can find a lawyer to take your case, they may be able to subpoena it. Depending on what was recorded, you may or may not be able to use that. My guess is though that they probably recorded the entire conversation. As far as legal counsel goes, call your State Attorney General's Office. Many states have associations that offer free legal counsel depending on your financial status and income level. If this is from a debt that your hubby did originally owe, find out who the original creditor is. At this point it may not help but you may be able to get the creditor to pull the account from the attorney. Dealing directly with an original creditor is far easier than with a CA. Also make them aware of the CA's tactics. That might prevent them from using this CA to collect from someone else, and save someone else some heartache. Be sure though to never admit to ownership!!! That can be used against you in court. If your husband did originally owe the debt, find a copy of the terms and conditions of the debt. Some of them state that contract is considered to be signed and thus under the jurisdiction of the state in which the creditor is based. Therefore, you will need to make yourself familiar with the laws in that state. However, if the state in which the agreement was entered into is more favorable to you, then you may be able to fight it from that angle. Also if the terms and conditions of the original agreement state that the contract falls under the jurisprudence of another state and that states laws are more in your favor than TN's you may want to explore legal counsel in that state instead.

Also the other poster that said that the contract may be voidable is correct. If you can prove that it was signed under duress that is (again the difficult part). Also, I would consider disputing it with the CRA that is reporting it. By law collection activity must cease until it is validated. Under most circumstances, violating that is a fairly egregious violation. And since you will have record of this violation, it might prove to be more helpful in a legal situation. That will also not effect your SOL SO LONG AS YOU DO NOT ADMIT TO OWNERSHIP OR LIABILITY REGARDING THE DEBT. However, I do not know how the fact that you have made payments on it will effect that, if in fact it will. That might give you some breathing room. All correspondence should be by certified mail with return receipt. Anyway you go though this is not something you can fix yourself. You must have legal representation. You may also file a complaint with the consumer protection division of the State Attorney General's office. While they won't act as an attorney, they will investigate it, and that may scare off that "lawyer."

As to your other question, I don't believe that they have violated a rule by operating under two different names. More than likely they are two different legal entities and thus operate independently of each other.

Also if you can LEGALLY delay making payments, I might consider that. Anything you can do to pause the clock is a good thing. However, being that you have paid on it, hopes of this may be dim. More than likely the SOL has restarted. However, all is not lost. In some states, it does not restart completely, it may only restart from the remaining time that was on the original sol clock when the first payment was made. Federally though, I'm pretty sure they will be able to report it for another seven years.

You have many options and much work to do. I am not a lawyer, so there could be some inaccuracy in my post, however, I have done extensive research as well as legal investigation. In my own situations, I have contacted the Iowa Att. Gen's office (since that is where I live) and much of this information is directly from them. While it may not apply directly to you , there may be similar statues in effect in TN that you can use.

BEST OF LUCK!!!

Jeremy

 

Also, be sure to take everything you read here with a grain of salt. Validate as much of it as you can with reputable sources. I have found that generally if several different sources agree, they are probably right. Check out your local Barnes and Noble's personal finance section as well. They have many books on credit repair. Take a day, plop the kids in the kids section, and read read read read read. Many Barnes and Noble stores have great kids activities that the store organizes, like story times, etc. That might give you some time to yourself.

 

A DV at this point in the game is almost pointless, get an attorney and SUE THEM and make them prove it in court.

It's very odd that over the phone they state the bought/own the account. But in the letter they state they will recommend to their client, meaning the do not own the account, they are collecting on behalf of the client.

Since they are a law firm, call and ask to speak with the attorney on the letter head, pursuant to the FDCPA, the attorney must make himself available to take calls from debtors directly. Advise him you are recording the call and ask him to provide to you a chain of title of the account. Just see what his response to that is. If he states there is none, they do not own the account and are only collecting on behalf of the client, and you should contact the client and inform them of the possible deceptive practices of their attorney.

 

Stating they bought/own the account is a position taken by some debt collectors who claim they don't have to comply with FDCPA, since "by owning the debt, we are now the original creditor not covered by FDCPA". It is a bogus argument, contrary to the FDCPA definition of debt collector, usually made to attempt to evade a consumer's request to disputre and request validation.

It depends on their experience in knowing that most consumers are unsophisticated, and will not know what their rights are, and will not recognize the illegality of their actions. They have not sent any FDCPA notification, and if they get payment first, they can argue they aren't even required to.

Telling the consumer that they cannot dispute or request validation is the goal, and is effective, as we can see in this case, but deceptive.

"Recommending to their client" is part of the trappings of theatening legal action, while ensuring that they can plausibly claim that they did not threaten legal action. Operating what is primarily a debt collection business, that may even never sue, under a name including "Law Office", is part of creating this perception. Threatening legal action without intending to carry it out, or when knowing they cannot legally carry it out (past SOL, or maybe they even know it is not your debt), would be a violation of FDCPA.

By phrasing it as "recommending to their client" they have still made the threat, but they can deny making it. The (non-existent) "client" would have to make that "decision". Note that at the point they are making these implied threats, they probably know they have no legal basis to sue you, on an out of statute debt, so they instead make their threats indirectly and carefully, fully aware of FDCPA prohibitions. The goal: To get you to sign an agreement, and make a payment, to claim you have reset SOL and confirmed the debt.

Get an attorney.

 

Any more updates on your situation?

 

You are dealing with people who make a living off lying and deceiving.Good luck trying to prove your case.Your situation is a perfect example of why you never discuss anything over the phone with a ca.If you must deal with a ca tell them you will only deal with them by us mail,period.

 

Or on a recorded telephone line.

 

Oracle does raise a good point here that some on this board overlook on occasion. That is not intentional mind you, its just that most people don't truly understand the value of a recorded phone conversation.

As it applies to the situation at hand, the OP is going to have a difficult time offsetting this debt. Since this is a debt purchase situation, they may be able to if they file a Complaint first. This is assuming the owner of the firm is a reasonable person, the chain of ownership is sparse, they retain adequate counsel, etc., etc. They could however, be countered (if improperly filed in state court (which isn't necessarily a bad thing but is here)) or face a Complaint against them (filed in state court if they file in Federal). This is a rather large debt just to throw aside and I don't think the FDCPA will force their hand. Remember, the FDCPA is a per action framework thus, they can violate it until kingdom come and it will still be only $1k. Sure, it provides for fees and those can mount but, still, this large debt is looming on the horizon.

This brings me back to my point. In TN, the OP is going to have a difficult time finding an attorney to touch this on a contingency. It is a loser from the side of the attorney in that context because there will likely be no monetary gain for them (before we demonize all attorney's, they do have to eat too). However, with a taped recording that whole dynamic begins to change.

Recordings are played before Congressional hearings. As such, they can bring down the house in terms of settlements under the abuse and harassment provisions of the FDCPA. No debt collector wants the FTC on them after NCO and CAMCO and as such, they are willing to settle for substantial settlements.

So . . . talking on the phone isn't always a bad thing. That is, if you don't bait them. It has to be a real exchange.