I'm sure you all don't want to hear our sob story of why we stopped paying some credit card bills, so long story short - medical issues, something had to go, we tried to work out lower payment arrangements with our creditors when the medical thing happened, some were jerks, some were nice. We kept paying everyone that was nice full amounts and on time (car, mortgage, some credit cards, student loans etc.) So some creditors love us, some hate us. Now for the long part-Our problem right now is with Discover. We sent a letter to them in June 2001 saying basically "we can't pay what you want every month. we can pay you XX (enclosed check for that amount). If you cash the enclosed check, you agree to these terms: no phone calls, no interest, no negative credit reporting. As long as you abide by the terms, we will send you XX on XX date each month until the balance is paid in full. If you cash the check and do not abide by the terms, we will stop paying and owe you nothing. If you choose not to accept these terms, send the uncashed check back to us with a letter outlining terms that you would agree to." We had not sent them full payment amounts for several months prior to this. It was worth a shot Anyway- They cashed the check, and 2 more over the next 2 months, but did not abide by the terms, so wesent a letter saying "By cashing our check you agreed to the terms set forth in that letter, since you have not fulfilled your end of the agreement, we are stopping payment", and we stopped paying them. In Jan 2001 they charged-off the acct. In June 2001 we heard from the 1st collection agency, We sent them a "we dispute the balance/validation/don't call us letter", they disappeared. But every couple of months we'd get a letter from a new one and go thru the same thing and they would disappear. 2 days ago, we got a letter from a new one saying they had "purchased" the account, pay them amount in full, etc etc. We are in the process of sending a certified C&D/dispute/validate letter to them. That same day, my husband got a call at work where he simply told the lady "I don't know you, I know nothing about your company, send me a letter and never call me again." (He didn't know the letter had arrived at our house. Yesterday a man called him at work at about 2pm our time and left a message on his work cell phone that said (we wrote it down word for word) "If I do not [get a return phone call from my husband that day] I will contact your office tomorrow in-with regards to garnishment information." Then yesterday, the same man started calling our house...all the calls were on the caller ID or on my husband's work cell phone. He called hour home at 4:11pm, 5:02, 5:12, 5:13, 5:41 - no messages. At 5:50, he called our home and my husband answered the phone and told him not to call anymore, only communicate in writing, and the man said something about "we are a first-line creditor" so the rules do not apply to us." (!??!) So my husband just repeated, don't call, do it in writing - and the man said he would call my husband's office to start garnishment proceedings. My husband said "don't you have to sue me first" and the man said yes, but he could call his office to tell them he was going to sue him and garnish his wages. He also said a cease and desist letter has to be from a lawyer or they don't have to do it. And that if he wanted to he could follow my husband to the grocery store or to work or anywhere he wanted and talk to him or telephone him about the account unless he hears from our lawyer. My husband hung up on him after that one. Then he called back alterbately between home # and work cell number constantly for the next half hour, 5:53 home, then cell, then 5:54 home, then cell, then 5:57 home, then cell, we got online to make the line busy after that. At 6:15 he started to just call the cell number, my husband answered and said "Do not call this number again, this is a work phone owned by my employer and paid for by my employer" and hung up. The jerk called again at 6:16 (the work cell phone), my husband said "I told you this is a work phone, I am not going to talkto you. Goodbye." At 6:17 the cell phone rang again, my husband said "Let me talk to your supervisor [he wouldn't give him to a supervisor], this is harassment, stop calling or I will call the police." Then his cell rang again at 6:19, 6:20, and 6:22 (we just let it ring) before he finally gave up or his work day ended I guess because the calls stopped. So he called us 19 times in a less than 2 hour span. Does that qualify as harassment? If so, what can we do. The guy did call my husband's office this morning. Then he called here and left a message at home that said "we have been in touch with your office in regarding - and the corporate office in Seattle - regarding the garnishment information as I informed you last night. It is very important that you try to give me a call and resolve on a voluntary and out of court basis." My husband checked with the HR dept and he did call there and they only verified employment and address. I don't know what to do. I knew eventually one of them would probably call us on it, I was hoping it would be when we could afford to pay them all and once and say go away, but that's not the case right now. A few other questions: -We stopped sending them full payments several months before June 2001, they didn't officially charge it off till January 2002. I thought it was 180 days? Plus they jacked up the interest rate for the last 9 months so the amount was WAY higher than original. -When we first wrote them all 2 years ago and this mess started, the statute of limitations for open-ended accoutns was 3 years in my state, now it is 5. which applies? -Can we send one letter to cover "we dispute the amount AND validate this for us AND dont' call us" or should they be 3 separate letters? -Also, in my state you need both parties consent to record phone calls. WHat about answering machines...if they leave a harassing message on a machine, they know they are being recorded, so can those be used against them? Any advice is appreciated. Thank you.
Get a lawyer IMMEDIATELY! What he is doing is harrassment! Now, per the FDCPA, HE & HIS COMPANY are still held accountable to the FDCPA under § 803. Definitions [15 USC 1692a] (4) The term "creditor" means any person who offers or extends credit creating a debt or to whom a debt is owed, but such term does not include any person to the extent that he receives an assignment or transfer of a debt in default solely for the purpose of facilitating collection of such debt for another. (6) The term "debt collector" means 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. Now The opinion letter in regards to those who purchase debts: http://www.ftc.gov/os/statutes/fdcpa/letters/arbuckle.htm UNITED STATES OF AMERICA FEDERAL TRADE COMMISSION WASHINGTON, D.C. 20580 Division of Credit Practices Bureau of Consumer Protection ~ Clarke W. Brinckerhoff Attorney December 22, 1993 Ms. Kimberlee Arbuckle MIDLAND CREDIT MANAGEMENT 500 West First Street Post Office Box #576 Hutchinson, Kansas 67504 Dear Ms. Arbuckle: This responds to your letter dated December 2, 1993, inquiring whether Midland Credit Management, Inc. ("MCM") is a debt collector under the Fair Debt Collection Practices Act ("FDCPA" or "Act"). You report that MCM "purchases portfolios of delinquent accounts receivable for the purpose of profitable recovery, resale and cure. These accounts are owned solely by MCM . . ." Section 803(6) of the FDCPA defines the term "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." In our view, a party that purchases delinquent accounts from the party to which the debts were originally owed and attempts to collect them from the consumer debtors fits clearly within that definition. The party is attempting to collect debts that were "owed or due another" and the fact that title to the accounts is passed to the collector in no way changes that fact. In the leading case on point, involving a company whose business included the purchase of large volumes of checks that had been dishonored and subsequent collection of the checks from their makers (in the same manner as MCM buys defaulted accounts and thereafter attempts to collect from the account debtors), the court wrote persuasively that the purchaser is covered by the FDCPA. It gave short shrift to the fact that the party had actually purchased the checks in question: By use of the language "owed or due another" Congress was attempting to exclude those entities that extend credit from the effects of the Act. Congress intended to protect borrowers from "third persons who regularly collect debts for others." (Italics by court; citation omitted). (The purchaser) is a third party collecting a debt originally owed to another. . . . It cannot escape the spirit of the Act by the technicality of purchasing the debt upon default so that title technically rests in itself. Holmes v. Telecredit Service Corp., 736 F. Supp. 1289, 1293 (D. Del. 1990) The only theory for exclusion of a party such as MCM from the "debt collector" definition (and thereby from coverage under the FDCPA) is that it is a "creditor."(1) Section 803(4) defines "creditor" as "any person who offers or extends credit creating a debt or to whom a debt is owed, but such term does not include any person to the extent that he receives an assignment or trans-fer of a debt in default solely for the purpose of facilitating collection of such debt for another." Since the accounts that MCM buys are delinquent when purchased and are being transferred for the purpose of collection, we believe that MCM is within the class that the "creditor" definition expressly "does not include."(2) The words "for another" at the end of the clause excepting assignees from the definition of creditor in no way changes this result: (T)he excluding factors in the exception are that the debts are the result of an assignment or transfer and that the debts were already in default at the time of assignment or transfer. With the phrase "for another" at the end of the exception, Congress merely intended that the debts should have originally belonged to another and that the creditor was therefore in effect a third-party or independent creditor. (Italics by court) Kimber v. Federal Financial Corp., 668 F. Supp. 1480, 1485 (M.D.Ala. 1987). Accord, Holmes, supra, at 1293. In sum, it is our view that a party that obtains consumer obligations in default for the purpose of collection is a "debt collector" under the FDCPA, even if that party actually purchases the accounts from the original creditor. So SUE the he|| out of them!!!!!!!!!!!!!!!!
I usually find that when I file suit against a collection agency, the calls all of a sudden stop??? They only call I get then is from their attorney asking who do we write the check out to?? They have already violated numerous laws of the FDCPA and I'm sure state civil and criminal as well. Buy a tape recorder and record every message they have left. I have even gone so far as to buy a disposable camera and actually take a picture of my caller id display showing the date, time and their telephone number. If they call you again on your home phone, immediately after they or you hang up, enter the code for call trace for your phone company. This will leave an actual record with the phone company that the police can use to file charges. You then get the police report and any information regarding the call trace. Contact the police and file a report or possible charges. You will need this for court. Send the cease and desist out right away!! Sue these bastards immediately!! Good Luck! Tac
As for the call recording issue, if you want to record your call, just say when you answer the phone that you're recording the phone call, and the caller implies consent to being recorded if he continues to speak. Also keep in mind that it's illegal for the CA to threaten legal action unless they intend to follow through. -ingenue
This is also a great example of how to describe your situation. Writing style notwithstanding, HM did an good job at filling us in on her case. I get so tired of those who write: "I'm having trouble with a CA what should I do?" LOL
As far as I know...calls to a CELL PHONE are ILLEGAL...because you may have to pay per call...you may not have unlimited incoming...
You are being harassed. (1) He lied when he said only a lawyer can issue a C&D. Never take "legal" advice from a CA. Assume they are lying. (2) He needs to be notified in writing that you can not be called at work. (3) He broke he law by calling on a cell phone because that incurs a cost to you. You need to tell him that he is calling a cell phone incase he doesn't know. (4) Threats to starts "garnishments" with your employer are toothless. Don't bother arguing the points of law with a CA. They don't care. (5) The frequency of the calls is not unusual to me and do not warrent any concern. What is bad is calling on a cell, and then what is said once you are dumb enough to talk to them on the phone. It is normal for a CA to make this many calls when the account lands on their desk. You need to get a good quiet digital answering machine or unplug the phone for a couple of days. (6) He is wrong about the FDCPA not applying to him, as pointed out in an excellent prior response. Again. Don't take legal advice from a CA. What I do when I get an overly excited CA like yours is to give him enough rope to hang himself. That is, quietly allow him to break the law right and left, and document the hell out of it. You have up to two years after the FDCPA violation to sue. It is the careful, deliberate, quiet CA's you have to be wary of. This idiot guy will make mistakes all over the place and eventually go away. If you have the balls and cruel streak, you can have fun with idiots like this. I love jerking them around. They get so crazy and it lets me get my agression out.
How much was Discover's charge off? Is this a lot of money? You should direct all their calls to a number which can be recorded so you can document their collection abuses.
