Dark04 Posted August 9, 2003 Report Share Posted August 9, 2003 good morning everyone! it's me again but with a new question. Here's the link to my background story and how far I've gotten so far:http://www.debt-consolidation-credit-repair-service.com/phpBB2/viewtopic.php?t=146now my questions- 1. is the lawyer who sent the summons the same as a ca? or is the lawyer the same as the OC? I'm confused about the assigned/sold debt thing. I've sent dv twice now and called once, his office has not responded at all.2. What are my options for getting this lawyer to at least talk to DH and I? WE do NOT want to go to court if at all possible but we are also not dumb enough to have sent any communications which could be taken as refusal to pay or an admission of guilt. on the other hand we have something we would like to offer which would accomplish about the same thing without the court involvement. we live in a teeney tiny little town and do not want our names in the paper or see the same judge that married us so many years ago!3. since we have tried three different times to open lines of communication isn't the lawyer in violation of "something"???? seems to me the lawyer is being frivalous(sp?) if he would rather take up the courts/judges time with something the plaintiffs are willing to discuss? thanks guys! as you can see I'm still learning! Link to comment Share on other sites More sharing options...
sisflomi Posted August 9, 2003 Report Share Posted August 9, 2003 good morning everyone! it's me again but with a new question. Here's the link to my background story and how far I've gotten so far:http://www.debt-consolidation-credit-repair-service.com/phpBB2/viewtopic.php?t=146now my questions- 1. is the lawyer who sent the summons the same as a ca? or is the lawyer the same as the OC? I'm confused about the assigned/sold debt thing. I've sent dv twice now and called once, his office has not responded at all.The ca prob bought the debt, and now the attorney has been hired by them to sue you. It should have the name of the oc or the ca someplace on the summons2. What are my options for getting this lawyer to at least talk to DH and I? WE do NOT want to go to court if at all possible but we are also not dumb enough to have sent any communications which could be taken as refusal to pay or an admission of guilt. on the other hand we have something we would like to offer which would accomplish about the same thing without the court involvement. we live in a teeney tiny little town and do not want our names in the paper or see the same judge that married us so many years ago!Did you have your lawyer try and talk to them? That might be the key to getting this done. If you don't want to do that, you might just have to wait until you go to court. They will usually offer a settlement before you go in to see the judge. Keep all you send them as proof that you did try and settle this.3. since we have tried three different times to open lines of communication isn't the lawyer in violation of "something"???? seems to me the lawyer is being frivalous(sp?) if he would rather take up the courts/judges time with something the plaintiffs are willing to discuss? This I am not sure of. It would prob not be friv or anything. They would prob come back and say, hey, we tried to contact these folks, the oc tried, we mad all efforts to get this settled before we took it to court. We felt there were no other means but to sue to get our clients money.Of course, you and I know about cccs and the situation, but have you been able at all to let the oc or ca or atty know about it? I dont recall if you had or not. If you are trying to do that now and they won't talk with you, then you might have something. JMHO thanks guys! as you can see I'm still learning! Link to comment Share on other sites More sharing options...
Dark04 Posted August 9, 2003 Author Report Share Posted August 9, 2003 just read this after posting in the other thread! *sheesh* but yeah I tried talking with the OC and they bounced me right back to the attorney. I just sent them CMRRR explaining the changes in the account notification (Homeland) and once again trying for verification. seems like they are ignoring me? if they plan on meeting me in the hall on the day of court and trying for settlement...should I even bother? they didn't! maybe I should just show the judge the proof of trying to talk to the lawyer? I have two reciepts of CMRRR and my phone bill showing long distance charges to his office. no response from anything! and I have the print out of the fax of verification letter to them in early June. I dunno....I don't want them to "go away"....but I do want them to respect me and at least play the game by the rules! at this point...it almost seems like they WANT to go into court instead of communicating with me? I don't think I'm THAT scary....*L* Link to comment Share on other sites More sharing options...
sisflomi Posted August 9, 2003 Report Share Posted August 9, 2003 I just read the other post after I posted here. I think you should by all means try and settle with them before seeing the judge. I have read it is better to do this, because then you don't end up gettin a judgment on record. Is the lawyer going to court with you? Link to comment Share on other sites More sharing options...
jam Posted August 9, 2003 Report Share Posted August 9, 2003 A lawyer is only a 'CA' if they do 'collection activity', i.e. sending notices, etc; *OR* if the lawyer represents someone other than the OC. If the lawyer represents the OC, and only filed the summons, then the OC exemption in the FDCPA applies to the attorney.Masters Opinionhttp://www.ftc.gov/os/statutes/fdcpa/letters/masters.htmNants Opinionhttp://www.ftc.gov/os/statutes/fdcpa/letters/nants.htmFDCPA Commentaryhttp://www.ftc.gov/os/statutes/fdcpa/commentary.htm#803Section 803(6) defines "debt collector" as a party "who uses any instrumentality of interstate commerce or the mails in . . . collection of . . . debts owed . . . another."1. Examples. The term includes:An attorney or law firm whose efforts to collect consumer debts on behalf of its clients regularly include activities traditionally associated with debt collection, such as sending demand letters (dunning notices) or making collection telephone calls to the consumer. However, an attorney is not considered to be a debt collector simply because he responds to an inquiry from the consumer following the filing of a lawsuit. 2. Exclusions. The term does not include:An attorney whose practice is limited to legal activities (e.g., the filing and prosecution of lawsuits to reduce debts to judgment). Link to comment Share on other sites More sharing options...
Dark04 Posted August 9, 2003 Author Report Share Posted August 9, 2003 according to the summons they are the lawyer for the OC. but when I looked up their web site they are listed as practicing "almost exclusively in the creditors rights area of Commercial and Consumer Collections" doesn't this make them a CA under the Ohio definition of lawyers who have a certain amount of their practice devoted to collections? also when I contacted the OC I was told they no longer handle the account and had to talk to the attorney listed on the summons. and the attorney did one more thing than just the summons....they also sent the letter I think you guys call a dunning letter? (mini miranda/total owed/how to contact/ ect) I edited this post to add the following site and quote from the edcombs web site LAWYERS AS "DEBT COLLECTORS" Lawyers were originally excluded from the definition of "debt collector." In 1986, Congress removed the attorney exemption. Now, the "FDCPA does apply to a lawyer . . . with a general practice including a minor but regular practice in debt collection." The legislative history of the amendment states that collection attorneys were not being effectively policed by the legal profession and courts, and that the removal of the exemption was necessary to "put a stop to the abusive and harassing tactics of attorney debt collectors." In Heintz v. Jenkins, the United States Supreme Court held that litigation conduct of attorneys in collecting consumer debts is not exempt from the FDCPA, rejecting the arguments of the collection bar to the contrary. Unlawful conduct by collection attorneys in court proceedings is now covered. However, some judges are nevertheless still reluctant to find violations based on the contents of pleadings. The amount of collection activity necessary to make a lawyer a "debt collector" -- one who "regularly" collects consumer debts -- is minimal. A law firm's debt collection work which amounted to less than 4% of its total business brought it within the definition. "While the ratio of debt collection to other efforts may be small, the actual volume is sufficient to bring defendant under the Act's definition of 'debt collector.'" An attorney who represented four collection agencies, filed over 150 collection suits in a two-year period, and sent one particular collection letter over 125 times in a 14-month period was a debt collector even though debt collection was merely incidental to his primary law practice. Another decision holds that sending 60 collection letters during a period of several weeks is sufficient. On the other hand, an attorney who collected less than 20 consumer debts in a 10-year period was not a debt collector. In two questionable decisions, courts held that a nascent collection lawyer who sent out about two dozen or three dozen letters at one time was not engaged in regular debt collection. A lawyer should be classified as a "debt collector" if either a volume threshold or a percentage-of-time threshold is met, or if the lawyer holds himself out as engaging in consumer debt collection. A volume threshold is necessary because a law firm that handles a modest number of consumer collection matters as part of providing a full range of services to its clients should be required to comply with the FDCPA. One court has held that "It is the volume of the attorney's debt collection efforts that is dispositive, not the percentage such efforts amount to in the attorney's practice." The Fifth Circuit has held that a law firm that sent out 600 demand letters was a "debt collector" notwithstanding the fact that only a small fraction of its time was spent in that activity. http://www.edcombs.com/CM/News/news7.aspam I reading this right then? Link to comment Share on other sites More sharing options...
Dark04 Posted August 11, 2003 Author Report Share Posted August 11, 2003 *BUMP* am I reading this right? Link to comment Share on other sites More sharing options...
calawyer Posted August 19, 2003 Report Share Posted August 19, 2003 Assuming that the firm's statements on its website are accurate, they probably engage in enough collections activities to constitute being labeled as a debt collector under the FDCPA. Link to comment Share on other sites More sharing options...
Capepuffin Posted August 20, 2003 Report Share Posted August 20, 2003 Assuming that the firm's statements on its website are accurate, they probably engage in enough collections activities to constitute being labeled as a debt collector under the FDCPA.I agree with calawyer. The attorneys I am dealing with are considered 'debt collectors' because the majority of their work is collecting debts!Also remember that you have proof of calling and writing to them. The CA has to have proof that they contacted you as well. I am sure that the CA never sent anything to you certified other than a summons.The Judge by all means will listen to you. If you tell him that you have tried to contact these people and negotiate a settlement, he will definately want you guys to try and settle. If the CA has not validated the debt, then by all means the judge will tell the CA's that the burden of proof is on them, not you! Link to comment Share on other sites More sharing options...
Dark04 Posted August 20, 2003 Author Report Share Posted August 20, 2003 well they finally contacted me...BUT....he wants DH and I to sign a "consent judgement" and I said nope, no way, nada, not gonna happen. might as well not show up to court if I sign that one. then he offered a couple options which all involved a bit more money than I have. (wouldn't be summonsed to court if I had the stupid money) but I do have an asset that I offered to put a voluntary lein on. (not my house but already up for sale) He said he can't put a lien on in another state. is this correct? what's the point of judgement if you can't go after whatever the defendant owns? (confused) also the court date looks like it is going to be moved. he is already commited to another court in another area on the original day so I do have a little bit of breathing room. so, in recap: no verification still, offer of lein refused, court date continuance, and I'm still in limbo and starting to feel like I'm not getting anywhere! any and all advice would be welcome! oh, and I have not told the lawyer directly that he violated the FDCPA yet. should I? Link to comment Share on other sites More sharing options...
calawyer Posted August 20, 2003 Report Share Posted August 20, 2003 What is the violation you would threaten with?Here is another approach to consider or tweak as you wish. You agree to settlement terms that involve payment over time. You also agree that, if you fail to make any of the settlement payments when due, then plaintiff may file a consent judgment for the settlement amount. You can try for (but probably won't receive) a penalty provision if they file the consent judgment improperly. They agree that if all payments are made, they will report to CRAs that acount is paid in full.Puts pressure on you to make the payments but, if you do, it could turn out pretty well. Link to comment Share on other sites More sharing options...
Dark04 Posted August 20, 2003 Author Report Share Posted August 20, 2003 the violation I'm speaking of is the lawsuit was filed AFTER the verification was faxed the first time! verification faxed 6/3/03....Suit filed by attorney 7/8/03. we answered summons 7/29/03 WITH another request of verification. then requested verification yet again on 8/13/03. thanks Link to comment Share on other sites More sharing options...
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