Lizardking, Marie, Whyspers help

Wow...great letters, gilliner! This wouldn't happen to be the one located in Ohio, would it? I just checked at the BBB and if its the same one...they have a *horrible* record (which I've taken the liberty of cutting and pasting below). I don't know if they would be considered a debt collector. You would know a lot more about that than I since I have never researched anything along those lines. I didn't think they would be, since they are a successor of the original creditor...but I just don't know. Anyway...good luck with it!


L


Original Business
Start Date: 1/1/1929
Principal: Audrey Fricks, DIRECTOR OF CUSTOMER RELATIONS
Local Phone Number: (330)668-5000
Fax Number: (330)668-5188
TOB Classification: Jewelry


The information in this report has either been provided by the company, or has been compiled by the Bureau from other sources.

Customer Experience


Sterling, Incorporated owns and operates a number of
jewelry stores across the country. Locally, it operates JARED, THE GALLERIA OF JEWELRY and KAY JEWELERS.

Consumer complaints allege difficulty in resolving credit or billing disputes, mishandling of consumer credit accounts, and harassing credit collection policies. Complaints also allege dissatisfaction with repairs performed by the company. The
company has been responsive to all complaints brought to its attention by the Better Business Bureau. In most instances, the company adjusted the complaint; however, in some instances, the
company stated its position as to why an adjustment was not warranted.

When evaluating complaint information, please consider the company's size and volume of business. The number of complaints filed against the company may not be as important as the type of complaints and how the company handled them.

Closed Complaints
Number of complaints processed by the BBB in last 36 Months: 87
Number of complaints processed by the BBB in last 12 months: 49


Complaints Concerned
Sales Issues: 6
Outcome of all complaints -
Resolved: 4; Unresolved: 1; Company made every
reasonable effort to Resolve: 1

Delivery Issues: 1
Outcome of the complaint -
Resolved: 1

Repair or Service Issues: 10
Outcome of all complaints -
Resolved: 6; Company made every reasonable effort to
Resolve: 3; Unpursuable: 1

Guarantee or Warranty Issues: 2
Outcome of all complaints -
Delayed Resolution: 1; Company made every reasonable
effort to Resolve: 1

Product Quality Issues: 12
Outcome of all complaints -
Resolved: 6; Unresolved: 2; Company made every
reasonable effort to Resolve: 4

Refund or Exchange Issues: 5
Outcome of all complaints -
Resolved: 2; Company made every reasonable effort to
Resolve: 3

Contract Issues: 1
Outcome of the complaint -
Company made every reasonable effort to Resolve: 1

Customer Service Issues: 21
Outcome of all complaints -
Resolved: 19; Unresolved: 1; Company made every
reasonable effort to Resolve: 1

Credit or Billing Issues: 29
Outcome of all complaints -
Resolved: 23; Unresolved: 1; Company made every
reasonable effort to Resolve: 5




Additional Business Names


This company also does business as AMERICAN BROKERS INSURANCE GROUP
BELDEN JEWELERS
BLACK, STARR & FROST
FRIEDLANDER'S
GOODMAN JEWELERS
HUDSON GOODMAN JEWELERS
J.B. ROBINSON
JARED - THE GALLERIA OF JEWELRY
KARAT GOLD
KAY JEWELERS
LEROYS JEWELRY
MARCUS
OSTERMAN
ROGERS JEWELERS
SHAW'S and WEISFIELD JEWELERS.


Additional Telephone Numbers


Additional phone numbers for this company include (330) 633-1494
(330) 665-1994
(330) 668-5000
(330) 668-5293
(330) 668-5531
(330) 668-5580
(330) 668-5635 and (800) 877-3616.


Additional Addresses


Additional addresses for this company include 2000 BRITTAIN RD CHAPEL HILL MALL, AKRON, OH 44310

2400 ROMIG RD ROLLING ACRES MALL, AKRON, OH 44320

270 SUMMIT MALL 3265 WEST MARKET ST., AKRON, OH 44313

3265 W MARKET ST SUMMIT MALL, AKRON, OH 44333

3900 MEDINA ROAD, AKRON, OH 44333 and 867 N COURT MEDINA SHOPPING CENTER, MEDINA, OH 44256.



Report as of: 5/28/2002

Copyright: 2002 BBB of Akron

As a matter of policy, the Better Business Bureau does not endorse any product, service, or company. BBB reports generally cover a three-year reporting period, and are provided solely to assist you in exercising your own best judgment. Information contained in this report is believed reliable but not guaranteed as to accuracy. Reports are subject to change at any time.

The Better Business Bureau reports on members and non-members. Membership in the BBB is voluntary, and members must meet and maintain BBB standards. If a company is a member of the BBB, it is stated in this report.

 

Regardless of the fdcpa issue, reaging is a fcra violation in and of itself. Both a ca and the original creditor can be held liable.

Use the fcra issue as leverage. Reaging is a serious offense. You already know to have real damages

 

Gilliner...the only thing that concerns me is that it is unlikely they acquired this debt for the purposes of collecting. More likely, they acquired *all* of the assets of the previous store, and this account was somehow included. Because they would be a successor, they would not be considered a debt collector. I'll see what I can find on this.

I think Marie is right on target, though...I would focus on what she said about the FCRA.


L

 

"This is the history... A friedmans Jewelers account opened in 95 . the company was sold while account was in good standing to Marks and Morgan. Then 5 yeas after the account was charged off, Signet bought Marks and Morgan in a private purchase not a merger. This charged off debt, along with others I am sure, was then assigned with good accounts to Sterling Jewelers who took it upon themselves to report that I had a charged off account with Kay Jewelers with a balance. They also left the line for Marks & Morgan. "

Gillner,

I'm going to go out on a limb here, and sorry I've not figured out the quote thing yet, but as you relayed the history, pasted above, it seems to me your problem is similar to loan serving where the FDCPA is concerned.

The key appears to be that the account was charged off when purchased no matter the intent of the purchase.

Here's what I found snooping around for a similar problem I have with loan servicing, seems the cautions and interpretations can be applied even though the accounts are different -- jewelry vs a house.

They are trying to get the laws changed but it hasn't happened yet -- something to think about anyway.

Sassy

From: http://www.usfn.org/cgi-local/library.cgi?article=204

Fair Debt Collection Practices Act (Jan. '02)
Pending Legislation Stalled

by Adam L. Bendett
Reiner, Reiner & Bendett, PC
USFN Member (CT)
Chair, USFN Legal Issues Committee

------------------------------------------------------------
The two latest legislative attempts to modify the Fair Debt Collection Practices Act, (15 U.S.C. 1601 et seq.) (the "Act"), to provide relief to mortgage servicers are presently stalled in the House of Representatives Subcommittee on Financial Institutions and Consumer Credit. The Houseâ??s Financial Services Committee referred both pieces of legislation, H.R. 163, Mortgage Servicing Clarification Act, and H.R. 2014, Fair Debt Collection Improvement Act of 2001, in March and June 2001, respectively. However, in the wake of the terrorist attacks of September 11, Congress is currently focusing on more pressing matters of national security and, accordingly, the prospects for this pending legislation are uncertain.

Who is a Debt Collector?

The initial purpose of the Act was to eliminate abusive collection practices by "debt collectors" as defined in the Act. Mortgage servicers are not deemed debt collectors under the Act if they service their own loans, or loans originated by them and transferred to an investor, or even loans for which servicing rights were acquired that were not in default at the time of acquisition. However, mortgage servicers are considered debt collectors under the Act with respect to any loans serviced for which the servicing rights were acquired while the loan was in default. Being deemed a debt collector under the Act has enormous ramifications in that it subjects the entity to potential liability for class actions brought under the Act, which have potential damages of $500,000. This is in addition to plaintiffsâ?? attorneysâ?? fees, which are generally quite substantial.

Exemptions to "Mini-Miranda Warning"

One of the many requirements of the Act is that a debt collector set forth in all communication with the consumer what is known as the "Mini-Miranda Warning." This outlines that the debt collector is attempting to collect a debt and any information will be used for that purpose. HR 163 exempts from this requirement â?? in connection with the collection of any federally related mortgage loan secured by a first lien â?? any servicer of federally related mortgage loans secured by first liens for which collection of delinquent debts is incidental to its primary function of servicing current, federally related mortgage loans.

The definition of a federally related mortgage loan is so broad, however, that virtually any typical servicer of first mortgage loans, other than a servicer concentrating solely in defaulted loans, would be exempted from the Mini-Miranda Warning requirement under HR 163. A federally related mortgage loan is defined as any loan secured by a one- to four-family dwelling: (1) made by any lender whose deposits are insured by any agency of the federal government; (2) insured or guaranteed by any agency of the federal government; (3) intended to be sold to Fannie Mae, Freddie Mac or Ginnie Mae; or (4) which is made by an entity that makes or invests in residential real estate loans aggregating more than $1 million a year.

Validation Requirements

HR 2014 is far more encompassing in the greater potential relief from liability it offers under the Act than does HR 163. The first amendment contained in HR 2014 resolves any ambiguity regarding whether collection actions can continue after a debt collector provides the initial "Debt Validation Notice" absent any written communication from the consumer.

As required under the Act, the debt collector must send to the consumer within five days after an initial communication, either oral or written, a notice stating: (1) the amount of the debt; (2) the name of the creditor; (3) a statement that unless the debtor disputes the validity of the debt within 30 days after receipt of the notice, it will be assumed by the creditor to be valid; (4) a statement that if the consumer notifies the debt collector in writing within the 30-day period that any portion of the debt is disputed, the debt collector will obtain verification of the debt and will mail it to the consumer; and (5) a statement that if requested in writing within that 30-day period, the debt collector will provide the consumer with the name and address of the original creditor.

The Act further provides that if the consumer requests debt validation or original creditor information in writing, debt collection activities must cease until this information is provided. The Act is silent as to whether collection activities may continue during these thirty days if no communication is received from the consumer. Several federal courts have held that if no request for debt verification or information concerning the original creditor is received within the 30-day period, collection actions by the debt collector may continue within that period. This provision codifies those holdings, and follows the recommendation of the Federal Trade Commission, by removing any doubt and stating affirmatively that a creditor can take action to collect its debt within this 30-day period absent receiving a written debt validation request or an original creditor request from the consumer.

Limitations on Excessive Awards and Fees

HR 2014 also contains several provisions that would limit potential awards in class action lawsuits brought under the Act. The first provision makes it clear that the maximum class action liability applies not only to each class action, but also to any series of class actions arising out of the identical violations by the same debt collector. Put simply, this amendment would insulate a debt collector from duplicate awards for the same alleged class action violation, solely because the claim is raised in separate suits.

The second term limits awards of attorneysâ?? fees in class actions brought under the Act to an amount not to exceed the actual judgment amount. Attorneysâ?? fees are a driving force for much of the present class action litigation, and these suits are prevalent today. This provision would most likely dissuade class action lawsuits founded on inconsequential, unintentional and/or infrequent violations of the Act, where attorneysâ?? fees constitute the majority of the recovery for the plaintiffs.

The last provision states that if an offer of judgment is made by a debt collector under the Federal Rules of Civil Procedure, and a consumer or class of consumers does not accept it, and the amount of the final judgment is less than the offer, the attorneysâ?? fees awarded shall not include any fees incurred after the offer of judgment was rejected. This provision should also dissuade class action suits for which a substantial amount of the likely recovery would be for attorneysâ?? fees, as well as provide incentive for plaintiffs to consider reasonable settlement offers.

Debt Collector Liability Relief

The final amendment to the Act contained in HR 2014 provides relief to attorneys as well as mortgage servicers by clarifying that a debt collector cannot be held liable under the Act if acting in good faith in accordance with the rules of federal or state civil procedure, or when conducting a non-judicial foreclosure. This amendment would put an end to those unfortunate decisions where courts have imposed liability on parties for following the laws of their state in prosecuting foreclosure actions or sales.

HR 2014, and to a lesser extent HR 163, contain, among other things, much needed clarifications to the Act, as well as relief from the draconian awarding of attorneysâ?? fees in class action lawsuits brought pursuant to the Act. Currently, however, due to the understandable focus of Congress on other matters, action on either bill does not appear to be imminent.

© Copyright 2002 USFN

 

One more, this summarizes the case the provided the distinction in being a debt collector.

Sassy

Legal Issues Update: Does the FDCPA Apply to Mortgage Service Companies? (Mar. '00)

by Adam Bendett
Reiner, Reiner & Bendett â?? USFN Member (CT)

------------------------------------------------------------
A party found in violation of the Fair Debt Collection Practices Act ("FDCPA") may be subject to significant damages. Although an individual may only recover penalties (in addition to actual damages) not exceeding $1,000 and attorneysâ?? fees and costs, the penalties in a class action suit can be much more severe. In addition to a large award for attorneysâ?? fees, class action plaintiffs may also request a sum not to exceed the lesser of $500,000 or one percent of the net worth of the debt collector (FDCPA Section 1692k). With the potential damages in a class action lawsuit so high, it is important to understand whether a mortgage servicer is in fact subject to the FDCPA.

The parties subject to penalties under the FDCPA are debt collectors. A "debt collector" is defined in the FDCPA as:

"Any person who uses any instrumentality of interstate commerce

or the mails in any business the principal purpose of which is the

collection of any debts, or who regularly collects or attempts to

collect, directly or indirectly, debts owed or due or asserted to be

owed or due another." (FDCPA Section 1692(a))

Importantly, excluded from this definition are persons collecting a debt, which was "originated by such personâ?¦[or] concerns a debt which was not in default at the time it was obtained by such person." (FDCPA Section 1692(a)(F))

Based on this exclusion to the definition of a "debt collector," it is clear that a mortgage servicer handling a loan it originated and subsequently transferred to an investor, but for which it retained servicing, is not subject to the FDCPA. This, in fact, was a circuit courtâ??s ruling in Perry v. Stewart Title Co., 756 F.2d 1197 (5th Cir.1985).

More complicated, however, is the situation where a mortgage service company has acquired a loan in its portfolio that it has not originated, but that has been service released to it. It seems clear that if the loan was not in default at the time it was acquired, the servicer would not be subject to the FDCPA. This was the Courtâ??s holding in Bailey v. Security National Servicing Corporation, 154 F.3d 384 (7th Cir.1998). The defendant in Bailey was held not subject to the FDCPA in part because when it acquired the package of loans in issue to service from an investor, the loans were not in default under recently negotiated forbearance agreements. The holding in Bailey makes it clear, however, that if a loan acquired for servicing is in default at the time acquired, the mortgage servicing company will be subject to the FDCPA with respect to that loan and any liabilities associated with it.

In todayâ??s servicing climate, with the servicing of loans being transferred so frequently, and the probability that at least some of these transferred loans are in default at the time transferred, it is likely that a mortgage service company of any size would have some loans in

its portfolio which would make it subject to the FDCPA. Accordingly, even though a small percentage of loans serviced by a mortgage service company may make it subject to the provisions of the FDCPA, because of the enormous penalties that may result from a class action suit for violation, it is recommended that all mortgage service companies develop and implement procedures and form notices that are in compliance with the FDCPA.

© Copyright 2000 USFN

 

In-house collection agency violates FDCPA. A creditor's in-house collection agency, which sent a collection letter without explicitly mentioning the creditor's name, can be sued under the Fair Debt Collection Practices Act (FDCPA). A bank tried to collect a credit card debt by sending a letter from its in-house collection agency which is part of its retail services division. The letter, without giving the name of the bank, said it was from a unit of "CRS". The bank argued that it was exempt because the letter had been sent by the in-house division. The FDCPA exempts creditors and their in-house agencies as long as the creditors "true business name" is used. However, the court said that "an unsophisticated debtor might be unaware that the collection letter was from the bank and not from an outside collection agency, because the cryptic reference to `CRS' was buried in the body of the letter's text". The triggering of the FDCPA does not depend on whether third parties-in-fact are involved in the collection of a debt, but rather "whether a least sophisticated consumer would have the false impression that a third party was collecting the debt," ruled the U.S. Court of Appeals, Second Circuit.

http://legalsurvival.com/topics/NewsletterLAS/3.2debt.htm

 

gilliner,

Here's a revised FDCPA staff opinion letter, as of May 2002, I thought of you when I read it.

Sassy

http://www.ftc.gov/os/statutes/fdcpa/letters/demayo.htm

May 23, 2002


Richard T. de Mayo, Esq.
President and Chief Executive Officer
TSYS Total Debt Management, Inc.
P.O. Box 6700
Norcross, Georgia 30091-6700

Re: Section 803(6) of the Fair Debt Collection Practices Act

Dear Mr. de Mayo:

This responds to your request for a staff opinion regarding the Fair Debt Collection Practices Act ("FDCPA"). We first issued an opinion letter in response to the request on May 1, 2000. Following discussions with members of the collection industry since that date and further consideration of the issue, we have decided to withdraw that letter and issue this revised one. The revised letter alters significantly two sections of the May 2000 letter: (1) the discussion concerning when an account goes into default, and (2) the discussion concerning when a collection agency's employees become the creditor's de facto employees.

You ask whether employees of a collection agency are covered by the FDCPA when they attempt to collect debts by contacting consumers under the following circumstances. The collection agency begins to collect the accounts when they are two, three, or four payments past due, but when the creditor has not yet charged the accounts off. The collection agency's employees ("agency employees") use the name of the creditor, rather than the name of the agency, when calling or writing to consumers about the accounts. The agency employees are located at the office of the agency, and the agency controls the practices and procedures that the agency's employees follow in collecting the accounts. You ask whether the FDCPA covers such agency employees (a) when the accounts being collected are "delinquent and not considered in default" by the creditor; and (b) when the accounts "are considered in default by the creditor."

Generally, the FDCPA applies only to "debt collectors." The core portion of the FDCPA's Section 803(6), 15 U.S.C. § 1692a(6), defines "debt collector" as "any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another." (Emphasis added.) A person is a "debt collector" if he meets either of these two prongs. The agency employees described in your letter meet both. They have as their principal purpose the collection of debts and they "regularly collect[] or attempt[] to collect . . . debts owed . . . or asserted to be owed . . . another." Thus, unless they fall under one of the exceptions to the definition of "debt collector" found in a different portion of Section 803(6), they are "debt collectors" and must comply with the entire FDCPA.

The exceptions to the definition of "debt collector" are assembled in Sections 803(6)(A)-(F). In determining whether the agency employees are exempt, we first look to Section 803(6)(F)(iii), which excludes

any person collecting or attempting to collect any debt owed or due or asserted to be owed or due another to the extent such activity . . . (iii) concerns a debt which was not in default at the time it was obtained by such person.

Thus, if agency employees are collecting debts that were not "in default" when the agency for which they work obtained them, they are not "debt collectors." The FDCPA does not define the term "in default," but whether a debt is in default is generally controlled by the terms of the contract creating the indebtedness and applicable state or federal law. See, e.g., Skerry v. Mass. Higher Educ. Asst. Corp., 73 F. Supp. 2d 47, 53-54 (D. Mass. 1999) (applying definition of "default" in Federal Family Education Loan Program regulations to construe Section 803(6)(F)(iii)); Jones v. InTuition, Inc., 12 F. Supp. 2d 775, 779 (W.D. Tenn. 1998) (same).

We believe that, in the absence of a contractual definition or conclusive state or federal law, a creditor's reasonable, written guidelines may be used to determine when an account is "in default." We note that, in evaluating guidelines to determine reasonableness, we would consider the entirety of the circumstances, including, but not limited to, whether the guidelines are applied consistently and whether they are designed for administering accounts, rather than for circumventing the FDCPA. For example, we would not consider a set of guidelines reasonable if, under those guidelines, the same account were deemed in default for one purpose, such as determining whether the creditor may accelerate the loan, but not in default for purposes of determining whether a third-party collector is a "debt collector" under the FDCPA.

You ask whether the FDCPA covers the agency employees described in your letter (a) when the accounts being collected are "delinquent and not considered in default" by the creditor and (b) when the accounts "are considered in default by the creditor." Implicit in your questions is whether a creditor's classification of a debt is significant for purposes of the FDCPA. As discussed above, our view is that the determination of this issue depends, first, on whether there is a contractual definition of the term "default" or conclusive state or federal law. If so, whether the creditor, through its guidelines, "considers" an account to be in default would not be relevant. If, however, there is neither a contractual definition nor definitive law on which to rely, we believe it would be appropriate to use the creditor's reasonable, written guidelines to determine whether accounts are in default.


If the accounts that the agency employees in your fact situation are attempting to collect were in default when they were obtained by the agency, the agency employees are not exempt from the definition of "debt collector" by virtue of Section 803(6)(F)(iii). They may be exempt, however, under Section 803(6)(A), which exempts from the definition of "debt collector" "any officer or employee of a creditor while, in the name of the creditor, collecting debts for such creditor." The FTC Staff Commentary on the FDCPA, 53 Fed. Reg. 50,097 (1988) (available at www.ftc.gov/os/statutes/fdcpajump.htm), stated that this exemption "includes a collection agency employee who works for a creditor to collect in the creditor's name at the creditor's office under the creditor's supervision because he has become the de facto employee of the creditor." Id. at 50,102, comment 803(6)-4(a). In an October 1, 1997 letter to Daniel P. Shapiro, Esq. (available at www.ftc.gov/os/statutes/fdcpa/letters.htm), we concluded that, because of the "extensive degree of control" that the creditor maintained over a collection agency's activities, this "de facto" employee exemption applied even to employees of the collection agency who collected in a creditor's name but did not work on the creditor's premises.

Nevertheless, in considering whether this de facto employee exemption applies, we must take heed of the plain language of Section 803(6)(A), which exempts only a creditor's "officers" and "employees." This specific language does not, therefore, encompass broader categories, such as the creditor's representatives or agents. In our view, this statutory distinction limits the de facto employee exemption to those collection agency employees who are treated essentially the same as creditor employees. The more that agency employees are treated like creditor employees, the more likely it is that we would deem them de facto employees. Whether agency employees -- working on the creditor's premises or on the agency's premises -- are treated enough like creditor employees to become de facto employees of the creditor will depend on the degree of control and supervision exercised by the creditor over the agency employees' collection activity, and how similar that control and supervision is to that exercised by the creditor over its own employees. Relevant facts will include, for example, whether the creditor directly supervises and monitors the collection activities of the agency employees and, if so, how that supervision and monitoring is carried out; whether the creditor trains the agency employees; and whether the agency employees are subject to the same rules, procedures, and disciplinary actions that govern the collection activities of creditor employees. The agency employees you describe in your letter collect in the name of their creditor clients, but, in our view, they are not covered by the Section 803(6)(A) exemption because their collection practices and procedures are controlled by the agency.

One final point: If the agency employees you describe are "debt collectors" under the above analysis, it appears that they and their collection agency would violate Section 807(14) of the FDCPA, 15 U.S.C. § 1692e(14), if they represent to consumers that they are employees of the consumers' creditors. Section 807(14) prohibits "debt collectors" from using "any business, company, or organization name other than the true name of the debt collector's business, company, or organization." If the agency is a "debt collector," it may not use the creditor's name when communicating with consumers from whom it is attempting to collect debts; it must use its own.

I hope you find this information helpful. The views expressed in this letter represent an informal staff opinion and are not binding on the Commission.

Sincerely,

Thomas E. Kane