how bad is my situation?

Re: Re: how bad is my situation?

BofA is liable for the violations of the CA which they employ arent they (im asking, not sure)?

press the OC using the CA's violation if the CA won't budge and has built up any violations.

I've seen posts about this before out there.

 

Re: Re: how bad is my situation?

Yes, the original creditor can be held liable (actually, has been held liable) for violations committed by the collection agency that has the account.

 

Re: Re: how bad is my situation?

Jerseyboy, I have both the book and the workbook. For what it's worth, I think they're both excellent. Moreover, the workbook may be even a bit better than the book in some hands-on respects (example letters, etc.). I would get both.

Doc

 

Re: Re: how bad is my situation?

If you pay NCO 100 you've admitted the debt is yours and you make the validation process moot. They've done a nice job intimidating you... now step back, take a deep breath, and relax. If you send a validation letter and they do sue you (let's take the worst case scenario you're imagining right now)... then if they haven't sent you validation and haven't ammended your reports, you can countersue for fdcpa and fcra violations and possibly come out with money As to why they're pushing so hard to get a 100 out of you...

They're trying to get you to both agree that
1. the debt is yours
2. the amount is correct
3. they have the right to collect on it


You basically agree to all of that if you make a payment to nco, regardless of how small or large the payment is.

Now all are issues that can be disputed in a court of law... I remember the underlying panic I felt when collection agencies said they were going to sue me.. and so I do understand you wanting to pay them a 100 to "prevent that".. but realistically

1. they likely haven't had the account enough time to sue
2. the account would actually go back to BofA and then sent to an atty to sue
3. NCO won't sue you, BofA would (and then NCO wouldn't get their commission)
4. Collection agencies work on accounts, sometimes for years, before the account is turned over for a lawsuit
5. The odds are, NCO is completely lying to you (and in fact, if you could get it on tape that they're threatening to sue you and then they don't, it's actually a fair debt collection practices act violation).

So, I realize the harder thing to do it to take a quick break from NCO, learn your rights, formulate a good strategy, send a few letters, try to gain leverage in this situation, and then make a move.

So it's up to you. If you pay NCO a dime or talk with them and agree to pay them, then you have lost most of any leverage you could gain in the future. It's up to you how to proceed.. but I'd chance it that they aren't about to sue you.

Remember: their only weapons are the black marks on your credit report, letters repeatedly coming in your mail box, and then the harassing calls... really, they can't break your legs, burn down your house, steal your spouse... pretty weak collection tactics if you put this into perspective

Use your money to salvage the accounts you can, get the settlement offer in writing from the other account and take care of it, and use the time to get some leverage on NCO.

btw: if your money only allows you to take care and make current the accounts you can salvage, do that first. It really is the utmost priority. You can pay Chase later if you have to.. but you will only have a certain window of opportunity to try and save your current accounts (and even if they do decide to close them.. you can always request they be reopened later and you have a fair shot at it)...

Also, and this is true, Sears and Discover will make your life a living hell in collections (NCO are wimps in comparison).

trust us, we've been there...

 

Re: Re: how bad is my situation?

Marie, while most of your post is excellent and right on target as usual I would like to comment on a couple of things and ask you a couple of questions as well.

I tend to disagree with you here. The reason is that one never loses the right to demand a full accounting of the debt even years after it has been paid or a judgment settled. I hasten to agree that while one may have the right the exercising of it very well might be more expensive than it is worth. To illustrate the point, I might very well pay them for a while and then suddenly wake up and realize that there is some charge which I would like to investigate the validity of before paying more money. So I think that I can demand validation at any time regardless of the fact that I may only have a couple of bucks or whatever left to pay. That is my reasoning.

While what you say here is quite true, I've seen many cases where knowledgeable people did just that. They had all their paperwork and points of law down pat. Beautifully prepared cases with valid points of law and solid arguments that could not be refuted yet their countersuits were dismissed and judgment against them granted. Why? Because the countersuit was basically off topic. It had no bearing on the case at hand which was did the debtor owe the debt or did he not owe the debt.

The courts have ruled many times that it makes no difference whatever how many violations the plaintiff might have committed nor how grevious they might have been, the debt is still owed and the question of their violations needs to come before the court in a totally seperate suit.

If one is to bring countersuit then that countersuit needs to be about an issue that deals with a wrongful action directly dealing with the case at hand. A for instance might be motion to dismiss or strike for failure to state a claim upon which relief can be granted then a countersuit for filing a false and frivolous lawsuit. Both issues would deal directly with the matter at hand but would not raise new issues in the case. As everyone here should know I am no attorney so my examples may or may not be appropriate but I do hope the point is made at any rate.

 

Re: Re: how bad is my situation?

Well Bill, I don't have a lot of time this week to discuss a lot of theory with you I am only responding to this so the original poster understands that everything I posted is valid and true to the best of my and several atty's knowledge. We can all find cases where a judge made an illogical decision that was then taken up in appeal. Just b/c you MIGHT not win, doesn't mean you don't assert your rights. B/c after all, if your case is well presented you have a very good chance of winning. I am concerned that your posts are derailing the poster and so I want to make sure to let them know that the course of action I outlined tends to be thought of as the best way to deal with a collection agency if you haven't yet paid them. (this isn't just my idea.. but is well published).

With regards to many collection agencies and credit bureaus, in Atlanta there's not one case filed in small claims court against Equifax that went to trial. Not one. They were all settled out of court. I've personally research this and seen the files myself.

With regards to paying the 100 to keep from "getting taken to court".. it's my informed opinion that this is b.s.. and that they're threatening without any intention to take him there. In fact, once you pay a collection agency you do agree to the assignment of the debt (and we've discussed this ad nauseum a year ago) so I'm not rehashing the same old arguments again...

While there are some instances, certainly, where I'd agree with you that you can later request accountings of accounts after payment, it's difficult, time consuming, and sometimes time-barred. For example, in a currently active account with an origianal creditor the Fair Credit Billing Act specifically gives you a time frame within which to dispute charges. But we're talking CA here.

What has also previously been discussed is that there is NOT a 30 day window when the CA sends you a first letter within which you must request validation or lose your right to request it. You may request validation at any time... whether or not they've sent you 1 notice or 50... But, to the issue of paying on a debt then validating... if you look to the principle of validation, it's a request for a proof that the debt is yours, and a request for an accounting of the debt amount, and a request for proof that the company trying to collect it actually has authorization to do so, and a request that they're legally operating in your state, etc etc.

In fact, if you paid then sent validation, how could the CA send you a bill showing the payment and reduction of the amount (as would be customary) b/c you've requested validation so they can't continue to collect..

and honestly, if they can't continue collection activity until providing proper validation why in the world would you want to pay anyway?????

Now, let's use your real world again: if you took a case before a jury and in the real world, paid on a debt for some time and then requested validation.. in essence you are saying that the debt is yours but you're not sure how they've arrived at the amount demanded. That's very different from an initial validation request that you make if you've never made a payment to a collection agency b/c within that request is a specific issue of proving that the debt even is yours...

Now ethics aside, if they can not legally prove the debt is yours at all, regardless of the amount, you have great leverage for discharging the debt and getting the associated trade lines removed. I will specifically refer to the Lizardking posts as he had a few accounts that could not produce the required validation and the accounts, the tradelines etc were removed and he did receive money for the associated violations (and he did that out of court in settlements)

But I guess where I'm a bit confused at your posts is you seem to be advocating that the poster just pay the 100.. and in the real world, what does that accomplish?

It would say he can be bullied into paying and collection efforts would be stepped up (if he doesn't request validation but instead sends 100)

If he sends 100 and a validation request, he looks ignorant of the law and of his rights b/c his actions are conflicting. The 100 says "it's my debt so I'm paying" but the request for validation requests proof the debt is his. In essence, in the best case scenario, you've boxed him into just getting an accounting of the debt which he might or might not agree with...and it gives NCO 100 of his money that can right now be better spent on other debts.

but lets also say they give him an accouting of the debt, it's wrong, they can't come up with a contract.. but he's paid 100 already...

how would this look to a jury? like he does owe the debt, has agreed to the NCO assignment, and it would hamper his ability to fight them in court b/c via payment he's already admit the debt is his...

If he requests validation and they actually give it to him, it's still likely that he'll catch them on fdcpa and fcra violations in that timeframe.. so he still has leverage even if they come up with a contract and a real accounting of the debt...

It gets murky if he pays and requests validation... and frankly, he'll have more leverage in or out of court if he doesn't pay but instead papers them with validation and demand letters...

So in the real world, I think these posts may be confusing the original poster so I'm going to make this my last one on this subject. He's gotten good, specific advice on how to handle NCO. Up to him to decide and take action.

I guess I also used to like to discuss more theory, and I'm just too busy now... and I've seen how this stuff plays out personally and I know these strategies work so I don't like to muddle the issues with conjecture anymore. It's about proof, leverage, and a bit of chutzpah... sometimes you have to push it to filing, sometimes a good demand letter and a nice understanding of your rights will take care of you.. but regardless of the outcome... taking action on this will be better than rolling over to NCO and letting them not only take him financially but also let them ruin his report for years...

and if what you're saying is that you can fight this and still lose, well, the world isn't fair and that does occasionally happen.. but if that worst case scenario happened at least NCO had to work for the money!

 

Re: Re: how bad is my situation?

Yes, quite confused. (LOL)

I advocate that one never pay them a crying dime no matter what once an account goes to collections.

Even though I do take such a hard stance on the matter I do realize that there are times when practical matters demand differently. An example may well be why fight a bill much under say $100? In most cases you would spend that much time, postage and what have you than that.
Better to use a contractual agreement and certified check to pay with and see if they won't go for that.

Another matter that might easily change the perspective is an upcoming mortgage for a home. Lender demands so what to do? Again use the contractual agreement and hope for the best.

 

Re: Re: how bad is my situation?

And I see that you still missed the point of my arguement which was very simple. Regardless of whether one pays the debt or not he can demand validation (proof of the debt) at any time even extending to long past paid judgments.

That was my sole point. Not how practical or impracticable it may or may not be.

As for the rest of your post I am pretty well in accord with all of it in basic principle.

You do speak of chutzpah and the need for it. That's putting it very, very mildly to say the least.

Figuratively speaking at least I recommend that one take a hand grenade over to their offices, Hop up on the CEO's desk and start jumping up and down and screaming at the top of your lungs that if he don't pay the bill out of his own pocket, get it off your credit reports, and any and all mention of the debt off his computer systems and out of his filing cabinets and destroy the entire shebang you are going to pull the pin, toss it in his lap and turn around and calmly walk out the door and wait for the explosion. Now which is it? Pay up and delete or see if you can get rid of the hand grenade before it goes off in your face.

What do you think he is going to do, sit there and say his prayers hoping you don't actually pull the pin? I don't think so.

Then, also figuratively speaking, I recommend going to the original creditor's office and doing exactly the same thing.

The "hand grenade" is, of course, an invitation to the next available session of U.S. Federal District Court.

Can I do that? Bet me I can't do just that!!!

Am I actually going to go hopping up on their desks screaming like a banshee? Hardly! As you well know, effectively written letters can save you the trip and the air fare.

 

Re: Re: how bad is my situation?

How well does it work? Tell you what I did this morning. I had a fellow come to my office and ask me what he should do about a credit card debt that was 180 days old.

He had a letter from the bank who had issued him their credit card. A rather small bank compared to any of the big ones. Maybe 30 branches or so nationwide. They had given him just 3 options.

1. Send the account to customer retention.
2. Send the account to a collection agency.
3. Send it to their attorney for litigation.

The guy was scared out of his wits. They wanted nearly $900 and he didn't have a crying chance of coming up with that much money at one time.

I took down all his information, SSN and such and told him to let me call them and see if I couldn't negotiate a settlement. The guy had $50 to offer them.

I called the bank up and talked to a lady and told her I was Mr. debtor and I wanted to talk about my credit card account. So she started yelling at me and getting all bent out of shape so I just let her rant and rave for a couple of minutes and I interrupted her and I said "Maam. Did you hear what just happened on the news? That surprised her and she calmed down a bit and I told her the joke about the Canadians offering us help with the war effort. I've posted that one on the board a while back and she started laughing. Then I told her another one and she about died laughing about that one too. Just nice cute little jokes.

And then I asked her if we might not be able to discuss this matter a bit more rationally and she agreed that maybe we could.

I said that the letter I had gave us 3 choices and I started at the bottom and asked her if she thought the bank would like to send it to their lawyer and take a chance of losing the case in court. She said they never lost one yet. And I said that is only because you never ran up against somebody who knows the law and knows how to win. "I do" I said and if you don't want to believe that then just send it to your lawyer and see how fast the both of you end up in US Federal District Court and you personally right along side of the other two. She tried to come up with some smart guff but I cut her off and went right on.

Next is your second choice, send it to a collection agency I said and if you do that you really will have problems. If you do that I guarantee you a trip to the Federal Court System and maybe several times over and then you will understand real well why I'm not afraid of you, your bank, your attorney or your collection agency.

She goes "WOW" you really do think you can win in court? Yes, I do and I'll tell you why. Both your collection agency and your attorney are 3rd party debt collectors and in today's world there is no such thing as a collection effort that does not break the law one way or another and I know them all. I don't make any mistakes.

Now then, I have successfully made car payments and one other bank card I'm paying on and 3 in store cards and I'm keeping them all up to date now. So tell me just which way you want to go. Do you want to work out a settlement plan that will lead to your re-instating my card in good standing or do you want to end up on the wrong side of a federal lawsuit for a couple of million bucks?

She settled for the $50 a month and "probable" reinstatement of the card and the guy paid his first installment immediately.

I told her flat out she would take the terms or see me in court and she apparently figured they didn't want to go to court.

You simply got to know when to hold them and how and when to fold them. There'll be time enough for countin when the dealin's done.

 

Re: Re: how bad is my situation?

Whew, you FCRA/FDCPA moguls are way over my head. But that's why I love Creditnet -- no matter what your level of understanding, there's somebody to discuss things thoroughly.

Doc

 

Re: Re: how bad is my situation?

Psych Doc

I am just hoping that Marie doesn't send out a bill for her time on that one! That was quite a thread and very enlightening from a legal standpoint.



Thanks
pb

 

Re: Re: how bad is my situation?

Don't let your eyes glaze over just yet, Doc. There is still a whole lot of things that have never been discussed on credit net or anywhere else that I use constantly, all dealing with FDCPA. Even if they have been they are scattered throughout the board or have been deleted in the revision updates that have been going on.

And it is the same with several other laws. "Everybody" knows that I am a great one for thinking outside the box so to speak.

One that I have been looking at off and on for a long time now is the civil Rico act. I think that holds a lot of possibilities and that has been discussed a bit here on creditnet but has never really been brought to fruition. Maybe it never will be. Maybe its just all hooey as far as we are concerned. I don't know but sooner or later it may be researched sufficiently to bring it to the table.

BTW, Doc. Did you get the email I sent you a few days ago?