As you may know, I sent a ITS letter to a CA because they discussed my other debts that they are collecting on to a third party, namely the law firm. Originally this law firm sent this CA a debt they claimed I owed. This CA then discussed other debts that they are collecting on to the law firm. Debts which have nothing to do with the law firms debt. When I inquired about this apparent FDCPA violation, the CA guy said that he can discuss with the law firm because the law firm is his attorney. Curiously, I thought that this could not be possible because of an apparent conflict of interest. I then received this letter today from the attorney representing the CA (this attorney works in the same office that had me as a client a year ago) Re: Your letter of September 24, 2003, to Accounts Receivables Solutions, Inc. ("ARS") Dear SnakeMan Your letter stating your intent to file suit against ARS for violation of the FDCPA has been referred to me as its general counsel. I have acted as their general counsel since the inception of their business. In addition, on request, my firm acts as collection counsel for ARS and its clients. Your claim of violation of the FDCPA is not well founded, but obviously you may file suit if you believe otherwise. Since you appear to be litigious by nature, you should be advised that your suit will be vigorously contested. If you do file, we will seek an award for attorneys fees and costs from you for asserting a frivolous claim since the communication of which you complain is clearly covered by FDCPA section 805b. In addition, your prior correspondence dated Sept 9, 2003, specifically suggested that ARS consult with its counsel. Further, in regard to your claim of defamation, you should research the law more carefully before proceeding since you may only assert a claim for actual damages for defamation without first demanding a retraction and, in any event, the truth of the alleged defamatory communication is a complete defense. Your letter threatening suit specifically requested an acknowledgment. This letter is the requested acknowledgment and our response. If you choose to proceed, I have been authorized to accept service of process. This letter is from a debt collector but is not sent for the purpose of collection of a debt. Any communications for such purpose will be specifically directed to that purpose and will contain the appropriate disclosures and warnings as required by the FDCPA. If you have any questions please call. -------------------------------------------------------- O.k., he says if I sue that I can direct the suit to him. Only problem with that is I'm suing in small claims! I need some expert help here! SnakeMan
The attorney is not saying for you to sue him, simply that he is acting on behalf of ARS. That probably means that when you file suit, he is indicating that he will act as the agent of record for purposes of serving the written papers advising the other party of said suit! Although his letter sounds like an attempt to bully you into submission, he has raised several points which merit research on your part prior to filing suit! Michael
I hate to say this: (b) COMMUNICATION WITH THIRD PARTIES. Except as provided in section 804, without the prior consent of the consumer given directly to the debt collector, or the express permission of a court of competent jurisdiction, or as reasonably necessary to effectuate a postjudgment judicial remedy, a debt collector may not communicate, in connection with the collection of any debt, with any person other than a consumer, his attorney, a consumer reporting agency if otherwise permitted by law, the creditor, the attorney of the creditor, or the attorney of the debt collector.
However, it is interesting that the lawyer for the CA is also a client of the CA on another account, if I remember from the previous thread, that is how he was advised of the third-party communication; he contacted the lawyers office and was told that THEIR CA had said that he has other accounts besides the account which was regarding that lawyers office. (That phrasing being the important part, the person whom he spoke of didn't say that this firm acts as the CA's attorney, and because of that lawyer client relationship their CA had said that there were other accounts at the CA's offices.) I would believe that if such a two way relationship exists, then when that relationship causes a potential conflict of interest, that that conflict of interest may preclude them from considering that lawyer that lheir lawyer for the purposes of that proceedings.
