I'm afraid of my answering machine!

Good letter. I agree that they'll likely just call you again and then you have them on a FDCPA violation.

Then they're yours.


I specifically pointed out not to send a full C&D with the validation request because the previous post by Bill was too vague. New people might send a full C&D with validation and screw themselves.

Modified contact is fine, of course. We just need to be careful how we phrase these things so someone doesn't pick up on what we're saying and do the wrong thing. I was just clarifying

 

I have a question on this. You send them the letter but they foolishly call you again and again. What is to say that they will deny every calling you again? How does one prove that they've been called, short of taping a phone conversation?

Just curious.

 

Yes, Marie, and it's good that you did.
Thank you

 

I don't think there is a way to prove it unless you tape them. That's why I have recommended on many occasions that one needs to have a tape recorder and phone recorder controller connected at all times.

The little phone recorder is about $29.99 at Radio Shack for the best model they have. It's the only one I've found so far that does not load down the line making conversation more difficult.

They also have a recorder made specifically for that purpose. It's a grey or silver colored box and costs about $50. I have two of them exactly alike.

And no, I'm not a radio shack salesman.
LOL

 

Erica:
With respect to any poster my words happen to disagree with, youâ??re getting SOME good advice; providing the SOL is truly stale (run out). My references obtained from collection industry sources, however, indicate that the SOL in New York is six (6) years for: WRITTEN/ORAL contracts, and OPEN accounts. Acting inappropriately while the debt is still within statute is risky.

Pursuant to Title 18 USC for example, eavesdropping by use of electronic devices unless under color of law is a serious offense. Although many states equally forbid â??tape recordingâ? a conversation, without consent or objection of the other party (such as California Penal Code §632) â?? as does the Federal Code. Violating one such provision could end up costing you upwards of $10,000 in fines, excluding costs and attorney fees!

Sending a C&D is also not recommended, because all that will do is push the issue (maybe into court). Although technically uncertain whether permissible, NY Civil Procedure §60 may allow a collection agent to take right of assignment and sue under itâ??s own name. Validate the debt, certainly, but leave all reference to demand of cease & desist out of the equation.

Lastly, two collections calls in one day shouldnâ??t be construed as harassment or a violation of FDCPA. A simple defense is that you couldnâ??t be reached on the first call, so a second was made. Four or five calls is another matter, but most predictive dialers (used by many collection agents) prevent this number.

My overall point is that the subject debt is great enough that if you donâ??t act with caution, you may get yourself into the trip-bag. So tread lightly until youâ??re absolutely certain you can afford to be stronger.

 

I think that if you start logging the calls for that specific purpose, it would be accepted as proof. I know you can do that with anumbe rof things. I keep notes on my business conversations routinely. That sort of record is acceptable in court.

Recording laws are that in many states both parites have to agree, is all. If you have them on the line, turn the tape on, call them by name, refer to the name of their company, and then ask them if it's okay if you tape the conversation. They will hang up, and you will have a recording of it. Then they probably won't call you anymore anyway.

breeze

Anthony, where's my money?

 

Breeze:

On top of what you just stated, if you do not play the tape or reveal it's presence to any third party with the sole exception of your attorney, then all that legal mumbo-jumbo don't mean much. No law prevents you from taping your own conversations with anybody. What the law does specifically prohibit is playing or allowing others to be privy to what is on those tapes.

If your attorney is the only 3rd party privy to the tape(s) then he cannot reveal their existance to anyone else if such revelations would violate any state or federal law or regulation.

But then such things are not normally spread all over the community anyway except maybe by some kid.

Common sense needs to be considered in some of these discussions too.
But then I didn't have to tell you that, did I? (LOL)

 

On another thread "Terry" posted that all call centers monitor and record calls. Why is it legal for them to do this and not the consumer?

I had a call from CA who was very abusive. I asked her to send me information in the mail and not to call me. She proceeds to tell me that as a third party debt collector under the FDCPA rules she call can me anytime at her discretion. I told her I thought this was not correct and she had to stop calling if I asked her to stop. She was ranting on and on and telling me I had better read FDCPA Laws or get an attorney to explain them to me. I couldn't help my self and told her I thought I was right and btw the call is being recorded so she should make sure of what she was saying. She starting ranting about it being against the law and that I wouldn't be able to use it in court etc., I told her if she would stop screaming at me she would hear the "Beep". She said well the judge won't hear the tape, have a good day Click.

It is legal in my state to record my phone calls but now I am wondering if I have broken Federal Laws?

Anyway, this really shook her up and I can only hope that the next person on her call list was treated with at least some courtesy.

Why are they allowed to record conversations and we are not?
tml

 

Breeze:
Actually, not likely the collector will go away that easily â?? but then it depends on the situation. (Speaking strictly from personal experience.) Iâ??ve had literally hundreds of tape recording attempts against me, as well as collectors Iâ??ve trained. If the collector expressly objects to the recording, the event is not only inadmissible in court but could be construed a criminal offense (remember Linda Tripp?).

Let me put is another wayâ?¦ Iâ??d BLOW OUT (fire, terminate, archive, kaput) any collector who hung up after being advised of a recording attempt! (Yeah, I can be a hardass sometimes.) They are soooo easy to defeat, that any collector working for me that was weak enough to â??hang upâ? deserves to get bounced.

As far as a lawyer hearing the taped conversation and no one else, fat chance! Discovery rules (especially in criminal cases) require reciprocal disclosure of pertinent details and material. If the collector knew of the tape and court action ensued, the attorney-client privilege is thwarted. The consumerâ??s lawyer would be obligated to acknowledge the existence of the illegally obtained tape recording.

BTW, your check is in the mailâ?¦ Reallyâ?¦ I mailed it yesterday!

PS: Did you know the saying, â??the check is in the mailâ? is one of the three most common lies? But what are the other two? [;-)

 

Erica:
Yes Iâ??ve read your intended validation letter, and (not meaning to be harsh) I find it a bit too legalistic. Drop references to the law, and make it a bit softer (the same affect is still achieved). Also the collection agent is NOT obligated to provide the materials you demand, only what is prescribed by FDCPA â?? nothing more. Yeah you could request additional material, but if they refuse to provide it youâ??ve no substantive grounds for a formal redress. I suggest simply requesting the validation, and advise them of your preference for BMO (By Mail Only) contact.

As far as business records being subject to Subpoena Dues Tecum? That depends on the case issues, and limitations of discovery. So itâ??s difficult to answer the question unless one gets into specifics, and even then itâ??s a heady deal. Put it this way, you can try to Subpoena certain business records (under a 50/50 chance of obtaining them).

 

Erica:
Yes it makes a difference that the collection agent purchased the debt, making it an Acquisition Creditor (collection-speak for one whom buys debt). If the paper (debt) was bought after default then the recovery falls under FDCPA guidelines. Correspondingly, FDCPA only requires certain info to be provided which doesnâ??t include some items you specified.

Now donâ??t fret too much about not obtaining certain material, youâ??re on the right track by validating. Frankly, because the debt was acquired (bought), presumably after default, the likelihood of a lawsuit for recovery is somewhat diminished. Yet you certainly wouldnâ??t want to push the issue, by mistake.

As mentioned before NY State law is unclear as to whether or not a third party agent can sue for recovery, in itâ??s own name! While NY law allows for joinder of up to five accounts, itâ??s uncertain whether or not an acquisition creditor could sue in place of the original creditor. Since Discover (the original creditor) isnâ??t liable to buy back the account, the current creditor (Midland) may be stuck with nonlitigious collection efforts. Midland, however, could at least try to sue â?? but prevailing is another matter.

Stick with only validating for now, and wait to see what comes back. In essence, donâ??t pull any triggers by being too harsh or causing Midland to get defensive (and consequently, offensive). An uncertain dog is better dealt with gingerly, until one knows his/her tendencies to use teeth.

 

Anthony,

Please give me the check number (I have never figured that one out, LOL. If you are lying, you can certainly make up a number.)

I know what the other two excuses are. I ain't touching on it here, though. :X

About the recording - you're right about it depending on the situation. I have used taping in a number of sticky situations as an agent, and it has it's effects. I had a policyholder who was accusing me of wrongdoing behind my back to another agent. I went to her house, went through the niceties, and pulled out my microcassette, turned it on and set it in the middle of the table, and asked her what the problem was. She started to object, and I said, "Why wouldn't you want it recorded? If what you're saying is true, it's no big deal. And you can be sure I am being truthful because I am on it too." End of problem.

I've done the same thing on the phone. They either behave or they hang up.

The average sleazeball, bottom-feeding collector will react totally differently than an ethical, knowledgable collector. (Yes, I even know some personally, hehe)

breeze

 

Breeze:

Strange thing happened today. Just can't imagine how it could be that taping a conversation and playing it to a third party could end up getting one in trouble for illegally taping a caller without informing the caller that one is taping.

Here is the story. I was late getting into the office today and when I did, I was told a story about how one of the ladies received a call at work from her ex troll in which he threatened to kill her. Used all kinds of abusive language towards her.

I immediately called the FBI and it was not long before 2 agents showed up at the office. I told them the story and how the conversation had been taped as are all conversations coming into or going out of the office.

Neither of the two agents said one word about the taping. They used another recorder of theirs to retape the conversation for their purposes and asked that if we received any more conversations of any illegal nature to let them know about it.

The reason I called in the FBI rather than local police was because the caller said he was in Wichita, Kansas and would "fix" her tonight.

 

I saw a Judge Judy where taped phone calls were even admissable in court...the tap-er did NOT get arrested, flogged with a hickory switch, or even yelled at. I don't know about you but I trust the Jude-Meister.

I think to follow the letter of the law, you need to state that the call may be recorded. It is a State law and it changes from State to State, but remember Maryland has strict laws about recording phone calls...is Linda Tripp in jail? Fined? Is she even in trouble...I think they dropped it.

-Peace, Dave

 

Breeze:
LOL, why thanks, I take the last (including parenthetical) part of your statement as a compliment! As for obtaining check numbers? Yes (folks, did I NOT say she has the aptitude), there is sometimes a good reason for asking what the sent check number is. The consumerâ??s promise/statement can be compared with aging reports, determining how truthful they are â?? hence, offering more slack down the road if need be.

BTW, I wouldnâ??t touch one of the other two lies either! [;-)

 

You crack me up! <grin>Judge Judy, Dave? Ahhh, yes, that bastion of legal principles where justice can be yoursâ?¦ In 30 minutes or less! [;-)

Seriously though, in all my years in the asset recovery biz (and out of all the threats to record conversations), itâ??s never done the consumer any good. Hay the Honorable Judge Shineburg, notwithstanding, but there is a stark contrast between what is played out on TV, and what matters in the real world.

Oh as far as Linda Tripp? I believe she was let off (probably for political reasons) but not before paying some hefty fines and attorney fees, along with losing a well paying job! Is recording a collector worth the risk? Well I suppose that depends on how lucky one is in Vegas. But I can assure you of thisâ?¦ If a consumer ever tried to use an unauthorized tape recording against me by action? Iâ??d waste â??um like a cheep suit on rumble night! (And there are LOTS more like me, still active in the business.)

 

It's Sheindlin

Can I QUOTE you on that? Hahahahaha

-Peace, Dave

PS Stop suing everybody Anthony! LOL