help needed asap

What is the statute of limitations in your state? (you may have just reactivated that by calling..) Has the CA sent you a debt validation letter at all? Did they send you proof that they have been assigned to this debt?
Interesting that they 'waited' years to sue you .. If you want to play hard ball, you'd have to stop payment on that check, and start disputing the debt, ask for proof that you owe that money and that they sent a validation letter to you by certified mail, etc... it won't be easy, tough choice. Not sure if that amount is worth fighting for you..

 

Was the amount they demanded, and the amount you paid, correct? Did they coerce payment for amounts that you did not owe?

 

"I did say that I didn't want to pay until I got validation, but she kept on pressing that if I didn't make arrangements that day they would file a lawsuit on monday."

You asked for validation. By making their threat, they failed to honor your right to do so, and failed to notify you that you had to do so in writing, in violation of FDCPA. This placed you at a disadvantage in determining whether the debt was yours, or whether the amount was correct. It was clearly the intent of their threat to deny you your right to dispute the debt or request validation under FDCPA, and they succeeded in using it for that purpose.

"The check is for the full amount of the balance they have on file."

It may be, but without validation based on the original creditor's records, how do you know that amount is accurate? The purpose of requesting validation is to make sure that the debt collector is collecting the right amount from the correct consumer. The purpose of requiring the debt collector to notify the consumer that he has these rights is to allow the consumer to do so.

Succeeding at threatening the consumer to not exercise rights that FDCPA specifically grants is exactly what the FDCPA prohibitions against using deception to collect or making threats to take actions that were not intended, were designed to stop. The fact that it worked, does not make it legal.

Do you have any basis to believe the amount is about right, or based on your credit reports and the amount reported by the OC, is it inflated? Did the debt collector succeed at using an illegal threat to collect amounts that were not actually due? For example, if you contacted the OC directly, what balance do they say is due?


Contact FTC and your state AG, and discuss this matter with them. They may want you to file a complaint against the debt collector. The law was designed to ensure that consumers are not abused, or disadvantaged by collection tactics into paying amounts not owed.

Their actions were probably illegal, regardless of whether you paid, or whether the amount you paid was owed. The success of their tactic in extracting payment does not make an illegal act legal. There have been settlements by both state AGs and FTC against a number of debt collectors who have engaged in this exact behavior.

 

Will it work? I guess you will find out if you try it. More likely they will have already run it thru, or will tell you they have, which is why they like to do phone checks anyway.

If you really don't want it to go thru, send a fax to the CA revoking any authority to debit your account, dispute the debt, and request validation. You might also include that you requested validation in your phone call to them on xx/xx/xx, to establish their legal obligation to notify you of your rights, which you are already exercising, and to establish that your request for validation preceded any legal action they might take. Follow up by sending the same letter, CRRR, to their address. You might contact your bank and see if they can put a block on any transfers for that amount, or by that company.

Your legal basis for blocking it is their illegal collection tactics, threatening suit after you had requested validation. Their phone check "authorization" was obtained by deception thru duress. I don't know if your bank can successfully stop the transfer from going thru.

They might, for example, then put thru a transfer for a different amount from what you have blocked, which would not even be what you originally authorized. They might try putting thru successively smaller amounts until it goes, racking up NSF charges with each failure.

If this blocks it, the CA will probably claim all sorts of things, such as that you criminally wrote a bad check, engaged in theft or fraud, etc. That is why you should talk to your state AG immediately. You may find that stopping payment on a check where no specific goods were obtained in exchange is not even covered under your state's bad check laws, and is probably not a crime. Theatening to arrest you or charge you with a crime for doing so may, however, be an FDCPA violation on their part. You need to know where you stand.

In any case, you might find yourself stuck with some NSF or overdraft charges. That is why you should never authorize a phone check, and just like with a regular check, never for any amount not covered, regardless of what they say they are going to do. As things are, they will probably end up trashing your checking account, and bouncing checks to other creditors, whether they get their payment or not.

If it turns out the collection amount is grossly erroneous, your case may be stronger, should this go to court. It is not that what they did is any less illegal if you only paid what you owed, but that some judges might look at their actions more severely if they were able to illegally profit by acting illegally.

Alternatively, if you think the amount is probably correct, you might try to cover it, and get even thru complaints.

There are things worse than going to court, and at least in court you may get a fair hearing and be able to get validation of the debt.

I am not an attorney. You need to talk to one, or to someone in your state AGs office.
You might try finding an attorney in your state who handles consumer FDCPA issues here:
www.naca.net

 

You may be able to push them back, but you need to also look thru to the endgame. Is it worth it or not? If it is not worth it, it is probably not worth it to even start down that path, and then back off. If it is worth it, you may have to proceed with regulatory complaints and lawsuits, and hope you win, to get any net benefit over just moving on.

If the debt is in fact legitimate, and they do sue, will they likely win? Will obtaining validation result in you paying the same amount anyway? Or will you proceed in suing over their violations, and how would that play out, given that their violations were over the phone and not recorded? Or are there no circumstances under which this is likely to end up in court, or be decided in court to your advantage?

That is why I asked if there were existing settlements with them, that could be used as leverage. Alone, you have "he said, she said" on a phone call. If they already got caught doing this to others, settled and agreed to stop doing it, you might have a big brother on your side.

 

In the future you won't be bullied when you can't pay. In the mean time, it looks like your choices are between trying to raise enough to cover it, or trying to block it, and base your actions on their threat and refusal to validate.

If you can choose the first choice, you can still file complaints. You may or may not actually have this choice.

If you choose the second choice, be prepared to follow thru, and realize it may cost you anyway.

If there is no possiblity of covering it, you may have no choice except the second.

 

What do you know about this debt collector?
Have you searched sites like ripoffreport.com, bbb.org, ftc.gov, etc?

 

This is how it appears to me:

1) They cannot squeeze blood out of a turnip, and neither can you.

2) You have a valid reason to block the payment, if you can do so, due to their refusal to provide validation, and responding to your request with their threat. If any validation request could be answered simply with a threat, with no consequence, FDCPA would be rendered meaningless.

3) If the check charge cannot go thru, you have an obligation to notify them not to do it. If they try to run it thru, and it bounces, or they try to run it thru after you revoking authorization, you are no worse off for revoking that authorization. Whatever they threaten, this mess is a direct result of their own deception and threats. Should they now sue, your answer is "Your honor, I contacted them to find out how much was owed, I requested validation, and their action was to refuse to validate and threaten to sue. They never even notified me of my right to dispute as required by FDCPA."

4) You have still not received validation. You have a clear legal right to request it, unless you have paid the debt. They might claim your payment cancels their FDCPA obligation to notify you of your rights, but if payment bounces, that no longer applies. Their duty to notify you within 5 days returns, as does your right to request validation/dispute within 30 days.

5) You can file complaints regardless, and there is no reason to delay doing so. Their actions were illegal on their face, and there is no reason not to file complaints, whether you pay now or later, or not. Not filing complaints, but instead threatening to do so, will not assist you in any negotiating in this matter. In fact, you are more likely to get validation and a settlement on a fair basis by filing complaints than not.

6) Blocking a previously authorized payment is probably not illegal (check with an attorney, or call your state AG), since you have not obtained anything of value from them for your earlier authorization that you still retain after the debit fails. They might have a claim to compensation for any bank charges you cost them, however, but to counter, you might have an FDCPA claim that the authorization was made under duress from illegal threats.

Of course, I don't have to make any choices. You do.

 

"Then finally my last stop is to call NES themselves, firmly request to stop payment based on sections 806 and 807 of the FDCPA. Also since the payment was set up on Friday the 6th postdated to the 20th, that's six business days and a violation of section 808-2 of the FDCPA as well."

Calling and talking on the phone may be pointless, unless you want to have your attorney do it. In fact, it only invites further abuse, threats, and the likely result that they will not follow your directions anyway, and may claim you never made them. They might even claim you moved up your post-dated authorization, and send it thru to see if it will go. Frankly, it might be worth it to have an attorney represent you in your dealings with them, provided he knows how to recognize and use their likely FDCPA violations against them.

You want to send it in writing, FAX for immediate deliver, with FAX report to show they got it, and mailed CRRR, to send it by mail, and again show they got it.

Whether they follow it is their choice. The purpose of your written notification is to be able to show in court if necessary, that you revoked your authorization, that they received that revokation, and when.

If you want to talk on the phone, call your state AG, or FTC.

 

It is not your job to educate them on their compliance obligations. It is, however, your right to assert your rights to dispute or request validation.

Keep it short and direct, perhaps something like this:

Reference your call on xx/xx/xx to Ms. xxxx
Reference the debt by account number and original creditor
Reference the "debit authorization number"

Indicate in your letter that you are disputing the debt and requesting validation. Include that your call to them on xx/xx/xx was your first contact with them regarding this matter.

Request the name and address of the original creditor, the original amount of the debt when it went delinquent, and statements and accounting from the original creditor in support of the amount they claim is due.

Notify them that you immediately revoke all authorization to access or transfer money from your account, in any amount.

Indicate clearly that when you called on xx/xx/xx to obtain validation on this debt, their employee, Ms. xxx, obtained your bank account number by falsely and deceptively claiming that you had no right to request validation, that they had no obligation to validate, refused to validate, and engaged in repeated abuse and threats to sue "on Monday". (If you can do this today, you may want to include that you discussed Ms. xxx's actions with the XXXX Attorney General's office, who informed you that those actions are illegal and violate both state and federal law.)

Add that it is inconvenient for you to accept further abuse and deception by phone, so they should restrict all further contact to U.S. Mail at your address above.

Send 1 copy by FAX, keep the FAX confirmation.
Send 1 copy by normal 1st Class mail. They might not sign for CRRR mail, but courts might assume they got 1st Class mail within 5 days.
Send 1 copy by mail, CRRR, and keep copies of the usps web site verification of delivery and the green card.

File complaints in writing, with both your state AG, and FTC.


They may take one of several paths:

They may call and continue to abuse and harass you. They may threaten you, claiming that revoking debit authorization is somehow criminal. Any continued abuse will provide additional support for your claim that their original actions were abusive. Contact an attorney.

They may put their threats in writing. That would be stupid. Contact an attorney.

They may reply with a letter to cover their a$$es. It should be a normal first notification letter, sent within what they claim was 5 days, notifying you of your right to dispute and request validation, which you have already done. They might pretend they never received your letter, but still act as if they did.

They may, or may not, actually validate in response to your request.
They may, or may not, actually mark the account as "disputed by consumer" on your reports.

They might try to rush thru the debit, while claiming that they just couldn't stop it. If they do, they may also be doing it sooner than your original authorization permitted. You have your records to show authorization was blocked, and when they were notified of that. Either your bank reverses it, or contact an attorney. In the mean time, check with your bank now to see how you can block debits from them.

They might send you a letter denying any abusive action occurred. They may even claim to have reviewed the recording (Was it even legal for them to record? Did they give any notice required?), in which case you know the level of deceit they will stoop to, since you know what was said. In any case, it is on the record that they were notified of the abuse, and if it continues, contact an attorney.

They may send you collection letters. If they have not yet provided validation, these may be FDCPA violations.

They may sue. This will take time, and if they sue before they have provided validation, they may be again violating FDCPA. In addition, you will probably be dealing with an attorney, not this person. It takes time to do all the legally required notifications, and schedule a court date, and you may be able to reach a settlement. You may also want to contact an attorney, both to deal with any FDCPA violations, and to negotiate a settlement.

They may just sell the debt to someone else, to reduce their exposure to liability.


Keep in mind your goal:

There is nothing wrong with paying and fully settling an outstanding debt, but the law allows you to request validation to be sure you are paying an amount actually owed. It is illegal to engage in abuse and deceit in order to coerce payment, including doing so to avoid providing validation when requested.

If your simple call to find out about a debt resulted in this behavior, it is unlikely to be accidental, nor did their employee just wake up today and decide to do it to you.

There may even be some problem obtaining validation on this debt, such as that the debt has already been sold off, and this CA no longer has access to the OC's records, or the right to collect.