Account assigned to collections by OC 12/96 CA first reported collection on CR 1/97 Suit filed by OC 12/97 CA still reporting unpaid collection on CR Judgment satisfied OC paid in full 9/98 CA reports paid collection on CR 9/98 Both paid judgment and paid collection on CR If an OC charges off an account and assigns to collection agency doesn't the OC have to take the account back from the CA before filing suit? Can the OC AND the CA both be actively collecting on the same account?
Good question Kathy. To answer the question would be iffy in either direction. Some courts have suggested filing a suit is collection activity and some have not. Notice all the hoopla about whether or not the mini miranda should be on lawsuits. Some courts say yeah, some no. I think it would depend on our state interpretation. But the real question is: Is this something that happened in 98 - 99? You only have a 1 year SOL on pursuing the case. Also, why is anyone trying to collect on a settled judgement?
I guess what I'm confused about is once the OC sends an account to collections and the collector begins the collection process then the OC is pretty much out of the picture right as far as the consumer is concerned because he now has his middle-man to do the collectiong and payment processing etc. right? So, this means then that both the OC and CA can not attempt to collect at the same time. If the OC decides to take the account back so that he can pursue a lawsuit against the consumer then doesn't he have to cancel/sever his assignment of the debt with the CA? In the case I mentioned, both the OC AND the CA were active at the same time in collecting the debt. The OC didn't really take the account back from the CA because the CA kept reporting and attempting to collect. The lawsuit filed by the OC occured during the collection process by the CA. When the judgment was paid the CA then reported the collection account paid. Now on the CR I have a satisfied judgment AND a paid collection account for the same account. Does this make sense? -OR- The CA actually initiated the lawsuit/judgment and did so in the name of the OC which in Ohio is a no-no. The attorney and the CA are in Toledo but the OC is in Westerville...wonder why the OC would use an out of town attorney??? Unless the attorney is really the CA's attorney? This is confusing!
Up to a point. I will explain as we go. The answer to that depends more on the actions of each than anything else. That hardly ever happens. They usually allow the collector to handle it all including who to pick as the attorney to pursue the matter if it must go to court. Remember I said "usually" because it can make a difference whether or not the account has been assigned or sold. That is often the case and at times multiple 3rd party collectors are employed at the same time. That practice seems to be getting more prevalent. That is a bit strange but the creditor does have the right to dispose of or collect his asset in any legal way he sees fit. Sounds like the appropriate thing to do. Not at all unusual. It does to them and I know of nothing illegal about it.
That's a bit strange to me. Of course, I am not familiar with Ohio law so you would have to show me why it is a no-no. I must agree that it sounds a bit confusing to me too. Maybe all the facts are not yet known.
Maybe I'm reading it wrong or understanding it wrong....maybe I'm just having a bad brain day This is from the Ohio Revised Code.... § 1319.12 Collection agency may take assignments of debts and bring action in its own name. Text of Statute (A)(1) As used in this section, "collection agency" means any person who, for compensation, contingent or otherwise, or for other valuable consideration, offers services to collect an alleged debt asserted to be owed to another. (B) A collection agency with a place of business in this state may take assignment of another person's accounts, bills, or other evidences of indebtedness in its own name for the purpose of billing, collecting, or filing suit in its own name as the real party in interest. (C) No collection agency shall commence litigation for the collection of an assigned account, bill, or other evidence of indebtedness unless it has taken the assignment in accordance with all of the following requirements: (1) The assignment was voluntary, properly executed, and acknowledged by the person transferring title to the collection agency. (2) The collection agency did not require the assignment as a condition to listing the account, bill, or other evidence of indebtedness with the collection agency for collection. (3) The assignment was manifested by a written agreement separate from and in addition to any document intended for the purpose of listing the account, bill, or other evidence of indebtedness with the collection agency. The written agreement shall state the effective date of the assignment and the consideration paid or given, if any, for the assignment, and shall expressly authorize the collection agency to refer the assigned account, bill, or other evidence of indebtedness to an attorney admitted to the practice of law in this state for the commencement of litigation. The written agreement also shall disclose that the collection agency may consolidate, for purposes of filing an action, the assigned account, bill, or other evidence of indebtedness with those of other creditors against an individual debtor or co-debtors. (4) Upon the effective date of the assignment to the collection agency, the creditor's account maintained by the collection agency in connection with the assigned account, bill, or other evidence of indebtedness was canceled. (D) A collection agency shall commence litigation for the collection of an assigned account, bill, or other evidence of indebtedness in a court of competent jurisdiction located in the county in which the debtor resides, or in the case of co-debtors, a county in which at least one of the co-debtors resides. (E) No collection agency shall commence any litigation authorized by this section unless the agency appears by an attorney admitted to the practice of law in this state. (F) This section does not affect the powers and duties of any person described in division (A)(2) of this section. (G) Nothing in this section relieves a collection agency from complying with the "Fair Debt Collection Practices Act," 91 Stat. 874 (1977), 15 U.S.C. 1692, as amended, or deprives any debtor of the right to assert defenses as provided in section 1317.031 [1317.03.1] of the Revised Code and 16 C.F.R. 433, as amended. (H) For purposes of filing an action, a collection agency that has taken an assignment or assignments pursuant to this section may consolidate the assigned accounts, bills, or other evidences of indebtedness of one or more creditors against an individual debtor or co-debtors. Each separate assigned account, bill, or evidence of indebtedness must be separately identified and pled in any consolidated action authorized by this section. If a debtor or co-debtor raises a good faith dispute concerning any account, bill, or other evidence of indebtedness, the court shall separate each disputed account, bill, or other evidence of indebtedness from the action and hear the disputed account, bill, or other evidence of indebtedness on its own merits in a separate action. The court shall charge the filing fee of the separate action to the losing party.
Thanks for your responses Bill and Butch..... Maybe it all seems quite usual on the surface but my gut instincts tell me something isn't right......I just can't put my finger on it. It just seems like it's a way for the CA to dodge FDCPA compliance if they can still continue to collect and have the OC step in that way and swoop it out of the CA's hand but yet the CA maintains an active role.....
