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About buzz-saw

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    Impressive 100+ postings


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    Writing, public speaking, outdoors, train travel, musician, etc., etc.
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    Ensuring that Debt Collectors Follow the Law

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    Nashville, TN
  1. I'm not a lawyer, but I have been dealing with this for a long time. Here's an unofficial answer to the discovery/appeals question: An appeal may be heard in the traditional sense, or as a brand new trial (de novo), depending on your court system's rules of procedure. Two big things take place at a trial: 1) determination of material facts (done by judge or jury), and 2) interpretation and application of the law (done by judge. In most "small" cases, the judge is both the trier of fact AND applies the law. In bigger cases, the jury is the trier of fact (but not law). A traditional appeal deals with issues of law, and not material fact. Hence, it is not usually necessary to bring in witnesses, evidence, etc. for an appeal. The goal of the person appealing is to persuade the Appeals Court to reverse and/or remand (send back) a decision in which the trial judge made an error in his/her interpretation and/or application of the law. It could be an error of not following legal precedent, or simply a decision in which the judge misconstrued a term that's ripe for picking apart. A traditional appeal could also be the result of how the judge handled an objection or motion dealing with a key point. For example, the judge decided to admit something into evidence that case-law regarding procedural matters says is NOT admissible. Issues of material fact (dates, signatures, witnesses, etc.) are not 'generally' taken up on appeal. By contrast, a trial de novo is a new trial and therefore restarts the fact-finding (witnesses, discovery, etc.) and judicial interpretation. In other words, you're doing it all over again, the whole trial in most cases. In your particular case, I'd say your first step is to ascertain whether they are doing a traditional appeal, or the matter will be heard all over again (trial de novo). If de novo, pull out your discovery whip, etc. If a traditional appeal, start researching the legal points of the other party's appeal -- or save yourself some headaches and hire a lawyer. Appeals can get VERY complicated. Been there, done that, and got the t-shirt (and a win!).
  2. Leaving out the mini-miranda and not sending it within five days is a violation, but keep in mind all they have to say is "we have a process in place to do this, and we sent the mini-miranda (lie)," and they have successfully defended it with the "bona fide error" defense. It happened to me and was thrown out (that particular count, but not all counts). As for overshadowing, the five-day demand would overshadow your 30-day dispute rights listed on the SAME correspondence. However, they never advised you of your dispute rights -- on that correspondence or any other. I would think the violation re: no mini-miranda would take care of the "overshadowing" issue; i.e., not only failing to advise you of your rights, but also pretending that you have no rights to begin with. I would DV them first, then rack up a few more violations. I don't usually wait around to sue, but in this case I feel that your establishing a "pattern" of violations will help you to prevail.
  3. If they sent it certified mail, it is either a) validation - and they want to prove that they validated, or serving you with a summons. It could be something else, but those are the first things that come to mind. If it were me, I would get the letter immediately -- but "sign" for it with my initials.
  4. Instead of an "appeal," what they are really doing is getting a "trial de novo" in Circuit Court. You'll need to either study up on the TN Rules of Procedure (and also, the Rules of the Circuit Court), or hire an attorney to represent you. If it were me, I would immediately send an inquiry to the Tennessee Bar Association regarding the attorney's membership status. Request that their response be on official letterhead, and send them a SASE to facilitate an easy response. If their response says he is NOT a member, then just save it for the court. As for dismissing a suit you've already won (although on appeal), and re-filing in Federal, I just don't know. Will they (Federal) allow you to do that? Under what circumstances?
  5. Correct. If it is not an in-house attorney, and the alleged debt is in default at the time it was assigned to him/her for collection, then he attorney is a "debt collector" for the purposes of the FDCPA. If the attorney was not the same party who was making the illegal calls, then all the defendant can do at this point is request validation. This places an automatic stay on all collection activity until such time that the requested validation is provided. A lawsuit is "collection activity;" however, its forward motion wouldn't trigger a violation, I would think, unless the case were about to be heard and the attorney still had not provided the validation. As for the CA, assuming it was a person different from the attorney, I see several violations: 1) Failing to provide the debtor with "mini miranda" notice within five days of initial communication. 2) Failing to cease contacting the debtor at her place of employment after being told not to do so. But, if I'm not mistaken, such requests must be in writing (sorry, I'm too tired to look it up right now). 3) Advising a third-party as to the existence of the alleged debt. 4) The use of profanity. If it were me, I would file an answer to the summons and complaint, just as the other posters have indicated, and request validation of the alleged debt. As for the rest of it, I would advise the utility company of their CA's unsavory tactics, including cites to each law they broke, and ask them (the utility company), in writing, why they choose to do business with a company who knowingly violates federal law. In the same letter, I would outline my plan of complaining to the BBB and some other well-known organizations about their insistence on partnering with unsavory, law-breaking collection agencies. The thought process is quite simple here... the utility company is not bound by the FDCPA; however, they ARE bound by a PUBLIC IMAGE and REPUTATION. It should be worth their possibly forgoing a little, $300 lawsuit, in favor of a partial settlement and you agreeing not to expose their dirty laundry.
  6. Yeah, it's much easier for them to win by default. It also sounds like your court is very debtor-friendly -- well, either that or the defendants were very well prepared. Based on what I've always seen around here, most of the creditor suits end in a default judgement because the defendant doesn't show up.
  7. HOLY SMOKES! I've never, EVER heard of a landlord being THAT aggressive -- he must be smoking crack. Really, though, you need to do more investigation before proceeding with a proposed resolution. What I think happened was the landlord filed suit, you paid the rent, and THEN the case went to court -- and you didn't show up with a canceled check and ask for a dismissal. Did the landlord TELL you he was going to dismiss the suits? Did he make his lawyer aware of your having paid prior to trial? Does your state's landlord and tenant act allow him to proceed with litigation without having first provided you with a final demand letter? If not, how long (by law) should he have waited before filing? A judgement on a credit report is a very serious thing, and eleven of them is, well... you know. It's hard to know from which angle to proceed until you have all the facts, but it's definitely worth pursuing. In a nutshell, it sounds like the judgements need to be vacated and copies of the applicable orders be sent to the CRAs as grounds for removal from your CR.
  8. WAY TO GO! I don't know the answer, but I would "assume" that a defendant's counter claim, by its very nature, would be against the plaintiff (Cap One, in your case) and not the plaintiff's attorney. His saying that he's not ready to proceed at this time, leads me to think he might be contacting you about an out of court settlement of the debt. You'll just have to wait and see, but you obviously got his attention by filing the counter claim -- even if it was against the wrong party. By the way, was it dismissed with or without prejudice?
  9. That's true about the plain-wording definition, but I was just wondering if any court has actually upheld it as it relates to credit reports constituting a "medium." To me, it WOULD be a medium, but courts sometimes often sway away from common sense. My specific concern, in this case, is how the following would be viewd: "...Within five days after the initial communication ***with*** a consumer..." Since the plain wording of the statute uses the word "with" (as opposed to "to") in this provision, it implies that a dialog has taken/must take place. If they had said "to," then it would imply a one-way "transmission." The FDCPA is vague and contradictory in several places; so that's why I try and go after case law whever I can.
  10. If they knew it was paid up but still reported it as not being paid, then yes, it would most likely be a violation. But, there's a bigger picture here. It seems that your main and initial goal was to get it off your credit report, right? By doing what 200tj said, the goal would most likely be achieved! My concern is the CA said they automatically report all files - even if they know the person doesn't owe the money (my case) - In this instance I'll get fixed - but what gives them the right to constantly knowingly violate the law. If this gets fixed would I just report them to the state attorney general? If it were me and the circumstances were identical to yours, I'd report them to the Attorney General, Federal Trade Commission, and American Collectors Association. As for filing a lawsuit, I probably wouldn't do it if I were in your shoes. Instead, my goal would be to put the matter to rest (off my credit report) and have the government and ACA deal with the CA regarding the impact its practices have on other consumers.
  11. I know it constitutes collection activity but didn't know it counted as notice also. Did this come from a case or statute?
  12. If they knew it was paid up but still reported it as not being paid, then yes, it would most likely be a violation. But, there's a bigger picture here. It seems that your main and initial goal was to get it off your credit report, right? By doing what 200tj said, the goal would most likely be achieved!
  13. Just remain calm and DOCUMENT, PRESERVE, DOCUMENT and PRESERVE. Ca's are notorious for trying to scare people or make them mad in hopes of getting them to "snap" and suddenly pay off the balance. What you're up against is what I call a "quickshot CA." These are the ones who USUALLY don't pursue an account for long at all, but while they ARE pursuing it, they pursue it as aggressively as possible -- including breaking the law, as they have in your case. I realize this must be very hard on you, as it would be for anyone who isn't used to such crap, but just try your best to remain calm. It's probably easier said than done, but try not to let it consume all of your energy and emotions. We're all here to help!