Can oc's call and harrass

Send them a cease and desist letter informing them that they are only to contact you at a certain number and only once to confirm that they can contact you at that number and in the future, only to inform you of them either dropping the matter or escalating it to the courts.

While you are typing your letter, make slightly different versions for your family and friends who are being bothered and have them send it, iforming the OC that you cannot be reached at their home and that if they contact them again, they will be in violation of the FDCPA. I forget the exact section of the code they will be inviolation of, but we had this problem a few months back and from my research, I remember that once the OC has been informed that you cannot be reached at a certain location, they cannot continue calling said person/location.

 

Since this is an oc,Fdcpa does not apply at all.You would need to look into your local laws as to what constitutes harassment or unfair practices by a creditor.Contact your local state Attorney general and also your state department of Banking or Finance.Get these offices on board to assist you.If it is true they have violated your state harassment laws,call them once to inform of your intentions to bring police into this matter.If they continue,file a police report and get them involved.

 

If a CA has already called and harrased my, my work, and my family- but I have already paid them...Is there any payback I can get from them?

 

This is not true, if the Original Creditor (OC) is acting as their own "CA", then they are subject to the laws of the FDCPA. If the debt has already been paid, and the OC/CA is still calling family members, this is a violation based upon continued collection activity.

Also, make sure this IS the OC, and not a scam!

 

The only time a oc is subject to Fdcpa is if they are attempting to deceive consumer into believing they are someone other than oc. I read that from caselaw and the statute,but I may be wrong.

 

Blurb from ACA,

Are original creditors subject to the Fair Debt Collection Practices Act (FDCPA)?
Published: Thursday, August 31, 2006
Generally they are not. Although creditors collecting their own debt in their own name are typically excluded from the definition of debt collector, a creditor, â??who, in the process of collecting his own debts, uses any name other than his own which would indicate that a third person is collecting or attempting to collect such debts,â? is considered a debt collector for the purposes of the FDCPA.

Section 803(6)(A) of the FDCPA specifically excludes from the definition of a debt collector, officers and employees of a creditor using the true name of the creditor while collecting or attempting to collect debts owed to the creditor. For example, an individual employed by the creditor as an inâ??house collector is exempt from the FDCPA provided she acts in the name of the creditor and notifies the consumer that she is collecting the debt as an employee of the creditor.

 

Yet there must be a reason that OCs choose NOT to violate FDCPA even though they are not legally subject to it. Otherwise, we would be seeing OCs, such as pay day lenders, engaged in any practices that might force payment that they believed they could get away with. There would be no reason to use CAs if the OC had means to bring more pressure.

For example, if NOT subject to FDCPA, what is to prevent an OC's collection department from :
1) Threatening arrest.
2) Threatening to, or actually, contacting family members, neighbors, etc. and telling them about the debt.
3) Threatening to, or actually, publishing lists of delinquent debtors in the local paper.
4) Sending collection letters, with the OC's return address and name, blazoned on the outside with disclosure of the delinquent debt.
5) Calling repeatedly for purposes of harassment, and engaging in shouting, swearing, etc. or other abusive or denegrating language.

All of the above would be expressly prohibited by FDCPA if the party doing it was a debt collector. Yet OCs seldom engage in this, and probably engage in it to a lesser extent than CAs covered by FDCPA.

What might the reasons be?

 

One thing left out of this discussion thread, which is of critical importance is the "definition" of "debt". We generally think of "debt" (in these situations) as a "Charged Off debt". This plays a critical role in the definition of a "debt collector. As per the definition of "charged off" (accounting terms), the debt is "transferred" to another area. The main aspect here being that the debt has been defoulted on.

When I speak of an "OC" being held to the FDCPA, I am basing that upon an "internal transfer" to a "collections department", where the principal business activity is the collection of debts. It would be a travesty of the FDCPA to read it that OCs had the legal right to act in illegal manners. This is a violation of the "spirit of the law", and not the intent of the FDCPA.

Again, the definition of "debt" in a scenario such as this one, is a main point. There is a difference between an OC call for a "past due", as opposed to a default, and hence "debt". I believe the critical point here is buried in the terms and conditions of the account agreement for the credit agreement.

As you stated Ontrack, it would not make any sense that an OC could blatantly violate the FDCPA, which they don't as a rule. The obvious reasons to "exclude" an OC from (some) FDCPA requirements would be the validation requirements, where there is a sensible assumption that YOU are the correct person, and the OC is familiar completely with the debt, so that they do not have to prove they have not "mistaken" you.

 

And that is probably where the OC would get bitten, for what might be violations of FDCPA if it applied.

Harassing behavior would, in the absense of FDCPA, also be actionable under tort law, most clearly if the OC were repeatedly contacting the wrong party. FDCPA is primarily a convenience, usable if the other party happens to be a debt collector.

FDCPA primarily gives the consumer some advantages over pursuing the other party under conventional state tort law, in that suit can be filed in the consumer's jurisdiction, and need not be filed in the jurisdiction of the OC. In addition, it specifically allows for awarding of attorneys fees, where normally each party would likely pay their own costs. This lowers the barrier to access to the courts, in favor of the consumer.

Since it specifically applies to "debt collectors", as it defines them, it does NOT place restrictions on the actions of parties it does NOT cover, only on what the consumer should do to use their rights under FDCPA in the case of covered "debt collectors". It obligates debt collectors to provide certain notifications, cease collection until validation is sent, etc., allowing suit by the consumer of even procedural violations by the debt collector independent of the validity of the debt.

In effect, the consumer has added protections under FDCPA compared to without it, and the debt collectors covered by the law have added obligations.

By contrast, the FCRA specifically exempts data furnishers (typically OCs and CAs), and CRAs, from being sued for defamation or other torts, provided they meet their obligations as spelled out, maintaining accuracy, responding to disputes, correcting errors, etc. It actually places restrictions on what consumers can sue for, even superceding state law, even as it also specifically allows consumers to sue under FCRA, following disputing thru the CRAs. Although it also allows for attorney's fees, and allows the consumer to sue in his own jurisdiction, it replaces the recourse he might have had, with an alternative.

However, note the combination of claims here, under both FDCPA, FCRA, and state laws. Although in this case the defendent is a debt collector, the claims are NOT restricted to FDCPA claims. Some of them might be equally applicable if the defendent had been an OC.
http://www.alabamaconsumer.com/CM/Custom/wesley v afni complaint 070302-0001.pdf

 

If an oc is bothering you,don't forget to look at your state unfair/deceptive trade practices law.