Could someone please give me a thread that deals with this since I could not find one or at least tell me why this paragraph is correct or incorrect in English minus too much legalese? This is on the bottom of the collection letters: "This is an attempt to collect a debt. Any information obtained will be used for that purpose. This communication is from a professional debt collector. This debt is not subject to provisions of the Federal Fair Debt Colleaction Practices Act (FDCPA). See Bloom v. I.C. Systems, 972 F2d 1076 (9th Cir., 1992).
What type of a 'debt' is it? Bloom v. I.C. Systems apparently involved a "Commercial Debt", of some type, so my guess is that the account is (at least in their mind) considered to be a commercial debt. As best as a could tell, friend B loaned friend A some $, even though the loan was informal, and for personal reasons between the two friends, didn't qualify the loan as a personal loan under the FDCPA. I wasn't able to find the complete case through googling it (and it is 5 years too old to try to get it off of LexisOne) so I am relying on a summary of it that I was able to pull up on google.
I just found this footnote on a FTC amicus brief. http://www.ftc.gov/ogc/briefs/duffy.htm It lays out a general rule, if there is no 'transaction' or no 'consumer' relationship, it may not qualify as a personal debt, subject to the FDCPA.
Thanks Jam, I was just curious. I have handled this already (I hope) this thread is in reference to this CA : http://consumers.creditnet.com/straighttalk/board/showthread.php?s=&postid=423480#post423480 I had never seen this before and wanted to know why this particular CA could put that there. For CAwatchdog, Jam and LB, what this case is was I worked for an insurance agency for a brief period who would give a draw against your commission and direct deposited funds. When I decided not to stay with the company I left and had about $900.00 owed to me from a policy that my trainer and I had written up. I told my company to take the money I owed them from a previous cancellation that they had already paid me on out of that and to give the rest to my trainer; I did nothing except be present when he wrote it up and he had to split it with me and I felt bad about taking his commission esp. since I did not stay. I quit in May and I heard nothing from the company until September when I got a letter saying I owed them money. Turns out the woman did not pass her physical exam and I needed to pay them back for the draw and the cancellation I mentioned before. Only problem was was that they wanted about 200 more dollars than what I knew I owed and I had the bank statements and all the paperwork to prove it. Their reconciliation dept. was a joke and we kept going around and around. They had sent some paperwork showing what I now know is some sort of validation. But if you have ever seen paperwork from an insurance company, you know it is a bunch of gibberish that you need 3 interpretators to explain it to each other then to you. No matter how I looked at it, their numbers were wrong and their explanantions vague on how they had come up with this amount I owed them. They finally sent me to a CA and I paid them since I freaked out after finding out they had put me on all 3 CRA's. There were a ton of errors on my part in this but again it was all before I had found CN and I happy that I got parts here and there correct! So I am guessing because it was a loan of sorts, that is why they are not subject to the FDCPA?
I think because it was compensation for work (like a salary would be if you were salaried), it wouldn't be subject to the FDCPA because it isn't a consumer debt, it's employment related. Just my take, I'm not a lawyer and I don't play one on TV!
I can't believe I forgot this... The ruling in their disclaimer isn't 100% cut-and-dry... (It may be in this situation, but not always.) Federal Trade Commission v. Leasecomm Corporation http://www.ftc.gov/ro/leasecomm/ Although Leasecomm was financing 'business leases' the FTC now is forcing them to comply with the FDCPA (dispite the fact that they tried to consider themselves the OC). There are a whole lot of caveats about this case #1) the financing typically obscured their involvement #2) in many cases they didn't 'accept' the 'lease' until long after the account was defaulted (even though they were charging the consumer for the period that the lease wasn't accepted). #3) in many cases the 'lease' was for untangible items/services (and in some cases, downright vaporware/scams/pyramid schemes) which don't qualify for leasing under the UCC.
the nature of the alleged debt Ice, please clarify a couple points: (1) "...I worked for an insurance agency for a brief period who would give a draw against your commission and direct deposited funds." This sounds like the employer loans the employee money. In order to be repaid, the employer withholds direct deposited funds and/or commissions earned by the employee. The employer's understanding is that the money loaned will be used for the same purposes that the employee's salary is used. (personal, family, household purposes) (2) Did the CA misrepresent the case citatiion or was that a typo? Online sources are not always accurate, but I show the cite as 972 F2d 1067. The CA citing case law in a collection letter, now that creates immediate suspicion. Usually, the citation is a broad one, "federal law." Unsurprisingly, the CA did not provide a jump cite to the part of the decision that supports their (seemingly false) legal conclusion.
Re: the nature of the alleged debt Hi CAwatchdog, Yes and no...what happens is that from the time the agent writes up a policy, it takes about a month to go through underwriting, physicals on the seniors to make sure they were in good health before issuing, delivering the policy and the cancellation period that they have. To help the new agents out so it would not be a month or so before getting paid, they would give you an advance of $250.00 of your commission when you wrote the policy up for the first month you are there. One would receive rest of the money earned as soon as everything was done and in the clear, i.e. good physicals, and you had delivered the policy to the senior. But if they cancelled after looking the policy over, you had to pay the company back. So it was my money on a contingent basis. If I had ended up staying to work for them, they would had just taken back the money advanced on the 2 policys that did not go through from money earned on other policies that had. When I left, I had one policy that I had been advanced the $250 and was owed about $700 more on. I also had one cancellation that I had been paid about $400 for and needed to pay back. So when I left the company, I told them to take out the money I owed them from that policy and give the rest to the man that had trained me since it they really were his clients, but he had to share his commission with me since I was with him. Well it turns out that this woman did not pass her physical which was very surprising since she was a very spry, lovely woman of 80 with no health issues. That left me with about $650 that I needed to repay. Hope that cleared it up [/i](2) Did the CA misrepresent the case citatiion or was that a typo? Online sources are not always accurate, but I show the cite as 972 F2d 1067. [/QUOTE] Yes, thanks for pointing it out, it is indeed 1067 not 76 [/i]The CA citing case law in a collection letter, now that creates immediate suspicion. Usually, the citation is a broad one, "federal law." Unsurprisingly, the CA did not provide a jump cite to the part of the decision that supports their (seemingly false) legal conclusion. [/QUOTE] And for these last 2 entries allow me to flounder around in newbie-ness and give a blank stare and a uneloquent HUH? Is case law quoting unusual? Most of my stuff on my CRs is so old that I have not received any letters besides this one in awhile. Could you give an example of a "normal" ciatation please? Also, what is a jump cite? Feel free to make fun of my HTML I have no idea what I am doing and that was my first attempt ever...LOL!!!
Re: the nature of the alleged debt What he means by it being unusual, is usually, the CA won't provide a case to base their claims that they are not covered by the FDCPA (or not mention that fact at all.) Why they may be doing so in this case is as a CYA to prevent from getting a "False & Misleading Representation" suit, which the consumer would have a good faith reason for bringing if they didn't up front explain the how and why they aren't covered by the FDCPA. In other words, by getting the case cite out of the way now, instead of later, they keep from being sued before they explain WHY the FDCPA doesn't apply, and having to pay their own legal bills because the consumer could tell the judge that they didn't correctly represent the reasons why the FDCPA didn't apply.
Re: the nature of the alleged debt Well it turns out that this woman did not pass her physical which was very surprising since she was a very spry, lovely woman of 80 with no health issues Ice_Siren ========================== What type of policy was this for? Never read the fine print. There ain't no way you're going to like it. ><- <>- ><- <> ~~~ ><- <>- ><- <> ><- <>- ><- <> ~~~ ><- <>- ><- <>
Re: the nature of the alleged debt I think it was for a long term care policy LB. I can't remember the details of the policy as it was over a year ago. I do remember that they were already clients of the company but to be honest, I didn't pay too much attention to the business end of things. The man and his wife were just so fascinating that I spent much more time visiting and touring around their house with them than working much to the chagrin of my trainer.
Re: Re: Not subject to FDCPA I thought about being a lawyer at one time. I have had a lot of professional licenses at one time or another, and do know quite a bit of law. I try to keep informed, and have enough of a law background to understand it.
Not to jump off topic, but I've been getting more and more of a feeling that I might be interested in practicing law. In my newfound journey to increase my knowledge of the law and how NOT to be taken advantage of by CAs, I feel more and more vindicated with each victory. It may be a moot point, but at this stage in my life, I feel that I can make it through law school, and become a consumer advocate. I heard that a recent study of approx. 1,500 persons showed 43% of them had inaccuracies in their credit reports. The main problem that I feel we face, as consumers, is that dealing with the CRAs is akin to David v. Goliath. As far as your situation goes, I see it as being very similar to how a car salesman gets paid. I have worked at auto dealerships for the past 4 years, so I have an idea of their commission structure. Most salespeople are paid on a draw of their potential earnings for the pay period. Similar to your situation, the employee is given a "draw", i.e. wages, in order to pay the light bill, mortgage, etc. He sells a car, and his commission from the sale covers the draw that he was paid earlier. Any monies earned in excess of the draw are considered income as well. I would check with your states' Labor Commissioner or Labor Board, and see what the laws are concerning commission paid employees. I am certain that there are governing laws that apply to the distribution of funds when it comes to paying employees commission.
For what it's worth, I am a payroll professional. When we give employees advances against pay, for whatever reason, we have them sign an agreement that if they terminate before paying it back, we can pursue it through collections, etc. If we do not have them sign this, we cannot report/collect. I'm not sure if this is state-specific, but depending on what was signed, overpayments of wages/commissions (which this technically is) may not be collectible through any means.
