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Neo9 last won the day on January 12

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About Neo9

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    Los Angeles, CA
  1. @BV80 I'll try to post statutes from the California law tomorrow when time permits. There is one in particular which actually requires any specific cancellation terms or conditions to be clearly and prominently displayed during the point of sale, among other key tenets of the transaction. So, without further research, on the surface I think there's an argument to be made that any such requirements can't just be buried inside 7 pages of legal jargon and fine print. We'll see, I could be wrong.
  2. @BV80 Thanks for sharing more information on the topic, it's appreciated as you've raised some more interesting points. After a quick look, I have been unable to locate a court ruling on the issue. It will require further research. >> Will do the same and report back anything of value. Here’s my take. The first line of 1692g of the FDCPA states “Within five days after the initial communication with a consumer in connection with the collection of any debt...” Courts have ruled that an initial communication must be directly with a consumer. That’s why an entry on one’s credit report is not considered a initial communication that triggers one’s right to request validation. It’s not a communication WITH the consumer. The FDCPA has differentiated between a “communication” and an “initial communication”. >> Understood. This seems reasonable when dealing in written correspondence via post. It would seem to me that an email could constitute an initial communication. >> Yes. I really agree with the above poster in that it probably will be come the norm in the future. In regard to proof of delivery, courts have relied upon the “mailbox rule” and a collection agency’s procedures. >> Agreed. I feel like the "mailbox" rule needs to be reconsidered and, as it currently stands, is creating lots of room for argument from the standpoint of the consumer for now which could be of interest for those corresponding with CAs using e-mail methods. When we give a physical address to a creditor, it is understood that it is the address to which credit card states will be sent. If we change our address, it upon us to inform the creditor of that change. We can’t blame the creditor if we receive statements because we didn’t provide a change of address. >> Of course. But, a collection agency or JDB attempting to collect on an old debt should have a reasonable burden of responsibility to ensure they are sending correspondence to the correct address, at the very least, the most recent residential address included on the consumer's credit report. Debt collectors only have the information that has been provided by the creditor. They can perform “skip tracing” to locate consumers who have changed addresses. However, sometimes there may be no record of a move. Credit card statements and collection letters may not have been returned to the senders as “undeliverable”. As a result, debt collectors can have a bona tide defense whe facing an FDCPA claim.  >> I don't think skip tracing is necessary in most cases. All they have to do is at least verify that the address they have is the most recent address on file for the consumer with CRAs. Especially as it pertains to debts that are a few years old.  The same could be applied to an email. But that would be dependent upon circumstances. >> These circumstances vary since e-mail addresses are an entirely different animal than residential location. A debt collector who sends a collection letter via email is taking his chances that the address is still valid. Whether or not a consumer would have an issue to present to a court would depend upon the circumstances. >> My point exactly. I think it's an interesting opening in the law. If the consumer received the email and acknowledges receipt, there is no question that the address is valid. >> Of course. But if the e-mail is getting caught in spam/junk filters, or the inbox is no longer being accessed by the consumer, among many other potential reasons..... interesting arguments and scenarios could unfold.
  3. ROSCA ... most states, including CA, also have varying laws governing recur bill transactions. I'll dig a little deeper and share what I find.
  4. Again: the FDCPA does not require that the collector prove that the consumer received the notice. EVERY email is coded with a time stamp as to when it was sent and when it reached the inbox it was sent to. In the digital world it is VERY easy to prove receipt.  >> It's really not true, and ignores a lot of other variables and factors involved in mass e-mail marketing/outbound messaging. I suspect that regardless of how many email addresses a consumer uses a collector would only have to prove it is an email address they do use and belongs to them. No different than a consumer who has more than one home therefore more than one address. >> Perhaps. Or would it be considered any different than a collector sending written correspondence to a second or third home .... or sewer serving someone on purpose at an address that no longer belongs to them. How do they prove that this person is even still the current owner of that e-mail address, or that the inbox is active? Surely collectors and JDBs won't be able to start sending collection letters on 2,3, 4, 5 year old accounts they bought to random e-mail addresses used by the consumer at the time they did business with an OC?
  5. Thanks for responding. I find this a very interesting point of discussion. Under the FDCPA and collection laws NO collector is required to have proof of DELIVERY or RECEIPT by the consumer. >> Of course. But they are required to properly deliver notice per the FDCPA. If a consumer disputes receiving the notice, and swears under oath via affidavit with compelling arguments, the collector is required to respond and defend their position. When it comes to standard written correspondence, this is very easy to do, and I understand courts will often allow collectors facing consumers with weak legal arguments to simply show a generated copy of a letter because: (a) They have faith and confidence in the underlying internal outbound processes involved; (b) Employees of the company can swear via affidavit as to handling the account personally or individually... or as to the mass outbound letter procedures; (c) They can prove that the consumer resides at the current residential address as it was indicated in the letter. This is not so easy or simply when it comes to electronic e-mail communications in world where people utilize multiple different inboxes with no real legal expectation or requirement for them to expect digital-only communications, especially if they are used to corresponding via paper with the OC. There is plenty of case law that demonstrates that merely having a copy of a letter they state they sent to the consumer is sufficient proof of having complied with the collection laws on dunning. As for proof of delivery: it is VERY easy to prove an email was sent and delivered with a tracking bot. Most recipients would not even know it was there. It can be added to notify the sender when the recipient opens the email. Some can even require acknowledgement of receiving the email. >> Not so simply with e-mail marketing. This all depends on the type of outbound mass e-mail software the collector is using. Especially if this becomes the norm and collectors with cheaper software aren't investing the funds necessary to get that granular with individual e-mail recipient tracking. Further to that point, even legitimate senders get blocked by spam/junk filters these days. It's actually a huge problem. If a consumer claims they never received an e-mail, it could be very difficult for a collector to prove otherwise in the face of compelling arguments. The FDCPA and most state laws were written prior to the internet and email becoming common place. Absent a consumer challenging the email as not being communication (which I doubt the courts would agree with) an email is a written communication with a consumer even if the delivery method is not by USPS. >> This would have to be true for correspondence sent to the collector than. We can all start sending DV requests and FCRA disputes electronically and via e-mail? It would be interesting to see the amount of case law surrounding CRAs and collection agencies that weren't held accountable for violations because the consumer was filing digital disputes using the online tools provided by the CRA or sending e-mails to a debt collector. Isn't there a reason everyone goes overboard with certified mail and paper return receipts through the post? Very interesting stuff.
  6. I thought the same thing when I saw this. Especially when I noticed the CA was in San Francisco. That being said, I wonder how these communications are handled via the letter of the law given that there isn't the same ability to prove that e-mail correspondence was actually received by the intended recipient. Especially given that so many people use different e-mail addresses. Technically speaking, it seems as though there is lots of room for error and new arguments to be made as to whether proper collections procedures were followed as required by law when the process is automated, digital, and only being sent to inboxes versus being delivered by the postal service to residential locations.
  7. Understood. Thanks for sharing your insight on this. I've noticed a trend recently where, although there isn't a servicer (such as Navient or as is common with other student loans), some companies will utilize third-parties to engage in collection efforts when theirs have gone unacknowledged, while the account is still in-house with the OC. I imagine these third-parties also fall under FDCPA jurisdiction?
  8. There's an interesting collection comapany based in San Francisco called True Accord which only sends collection letters via e-mail. Does anyone have experience with respect to our e-mails are considered as initial and ongoing written communication from a debt collector under the FDCPA and state laws? Are they legally valid without proof of delivery? I've never seen a collector do this before. They never execute traditional written correspondence. All collection attempts made via e-mail.
  9. Does an automobile lease payment qualify as a consumer debt? I'm referring to the payments due on the vehicle lease itself, which technically constitutes a rental. I am not referring to any actions taken to repossess a leased vehicle, but rather, just telephone collection efforts by an original finance company or a third-party collector soliciting payments on said auto lease. I do understand that vehicle *purchases* constitute a secured debt. I can't find much information upon cursory search in this forum or via Google as to whether auto lease payments qualify as a consumer debt and fall under the protections afforded by FDCPA and state collection laws when applied to collection efforts made to solicit payment on the contract *without* involving repossession efforts. Sincerely, Neo9
  10. I'm in full agreement with your stance and am of the opinion your advice was solid. But due to certain circumstances with this particular issue, I had framed my question to seek any possible guidance on these particular statutes from an attorney as I've found CIC forums to be invaluable in that regard in times past. Especially since state and federal regulations governing recur-billing situations are a bit more obscure than the typical FDCPA, FCRA, and TCPA claims the forum sees. I thought it would be interesting to find out if there were any attorneys in this subsection of the forum with experience in that arena. Not very much talked about on the internet, and usually only in super-egregious class action cases. I've successfully represented myself Pro Se as both a Plaintiff and Defendant in civil court again some big players with respect to some of the various issues people typically encounter with consumer collections, once with the help of an old member here named "Downto0", who I wonder is still around these days. I guess, from my experience, if a clause in the TOS is at odds with federal or state law, it's not valid and therefore you have no legal obligation to show any attempt at following it. The service provider, however, has a legal obligation to adhere to state and federal laws and not try to dissuade consumers away from their rights under said laws simply by crafting TOS that are at odds with them. As a matter of curiosity, sometimes I take a different approach and have found varying degrees of success. This particular issue is of nominal monetary value the means of which potential Defendant won't be interested in defending. Hopefully I can learn more about the recur billing statutes and will contribute my findings to the forum soon. Thanks again for all your time and consideration. Sincerely, Neo9
  11. Thanks for taking the time to reply, Harry. I posted in the "Is There a Lawyer in the House" section of the forum because there are certain statutes (one in particular in California state) which require recur billing arrangements to include "clear and prominent" display of various things, including cancellation policies (can't be buried deep within TOS that generally accepted forms of legal communication, like written letters, won't constitute a valid cancellation). Moreover, some statutes, including the one referenced above, typically allow consumers to to cancel through any accepted means of communication.... and TOS designed to deliberately stifle that right (state or federal) aren't legally binding because they contradict with said statutes. There are a variety of Federal statutes specifically governing recur-billing consumer transactions, which I haven't been able to dive into yet, and so I thought someone with specific experience in these laws might be active in the forum. Perhaps I should just try Avvo. Thanks guys.
  12. Is it legal for a company to refuse to cancel a monthly recur billing agreement when requested in writing via e-mail? The particular company I'm dealing with responds to written requests to cancel a membership to tell me they can only cancel memberships by calling into the support line, during which time a support agent wastes your time by incessantly trying to overcome your cancellation request. I imagine from the perspective of federal and/or state statutes governing these type of consumer transactions, written notification of cancellation is legally sufficient, regardless of whether a company includes language to the contrary in their TOS. Any insight the good members of the forum can offer is genuinely appreciated.
  13. Thanks nobk4me, I think North Carolina also has state level consumer protection statutes as well, which I am looking into. Does anyone have any experience or info regarding state-level statutes in NC?
  14. Thanks for taking the time to offer this insight because I realize I could do the research myself. Unfortunately, I'm so bogged down with other issues I thought the forum would be a good place for some quick answers. I have a unique living situation which has created the possibility of bringing actions under these different jurisdictions. I suspected as much regarding AZ, and will stop considering it based on your recommendation.
  15. Do the members of this forum have any opinion(s) as to which of the following states (CA, AZ, or NC) provide the most consumer friendly state laws governing collections? I am assuming it's CA but wanted to inquire to the members of this forum based on their own experiences in invoking state law violations against collectors, OCs, and/or CRAs. Your time and consideration is appreciated in advance. Sincerely, Neo9