It's my turn....violation of the FDCPA

[Anonymous]

I doing some minor clean up work on my credit report. I pulled my credit report a few months ago and found that I had 2 unpaid medical collection accounts for 1998. So I called the collection agency voluntarily and told them I wanted to make payments to settle my dept with them. The first person I talked to was very rude, harassed me, threatened me and threatened to garnish my wages if I did not pay the way he wanted me to. I was getting no where with this guy so I demanded to speak with the boss. The boss got on the phone. She was very cool and helpfull about the situation. I told them I would make a big payment to show that I have good intentions. I sent a money order for $800 with return receipt along with a letter of my intentions to pay off the dept. So I’ve been making payments every 2 weeks for the last 4 months. My last payment I made was for $25, it wasn’t that much because of Christmas and all. So a few days ago I called the boss and wanted to know my balance, $512 (original dept was for $2000). So she proceeds to tell me that my last payment of $25 dollars was rejected because it did not meet the arranged payment amount of $200. So I got a little pissed but was calm enough to carry on a civil conversation. First off, I never agreed to make any set payment amount and she firmly insisted that I did. Nope, no I didn’t, ever… The payment before the $25 was for $150 and they cashed it. How can they cash the $150 check but not the $25 check when they are both clearly not the set payment amount of $200. So she made another threat by saying if I don’t pay $200 by Dec 31st their going to sue me. I laughed! I told her I was going to send her another $25 payment that day and hung up the phone. Personally I would love for them to sue me. They have no ground to walk on. I have all my records from dealing with them. I have copies of all the checks, letters and certified return receipts. No judge in the US will agree with them! They are ridiculous!

As you can see above the have violated the FDCPA a few times. Each offence is $1000 fine. I want to nail the company to the wall! So far, after reading through the FDCPA I’ve found the violations.

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

806. Harassment or abuse (15 USC 1692d)

(1) The use or threat of use of violence or other criminal

means to harm the physical person, reputation, or property of any person.

(5) Causing a telephone to ring or engaging any person

in telephone conversation repeatedly or continuously

with intent to annoy, abuse, or harass any

person at the called number.

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

807. False or misleading representations (15 USC 1692e)

4) The representation or implication that nonpayment

of any debt will result in the arrest or imprisonment

of any person or the seizure, garnishment, attachment,

or sale of any property or wages of any person

unless such action is lawful and the debt collector or

creditor intends to take such action.

(5) The threat to take any action that cannot legally be

taken or that is not intended to be taken.

(7) The false representation or implication that the

consumer committed any crime or other conduct in

order to disgrace the consumer.

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

808. Unfair practices (15 USC 1692f)

(3) The solicitation by a debt collector of any postdated

check or other postdated payment instrument

for the purpose of threatening or instituting criminal

prosecution.

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

So, my question is what do the experts here think? How do I prove the violations? Can I request recorded phone call conversations from the collection agency? How? Do I take this to small claims court or how do I go about filing a suit? They company is in a different city then mine, do I file it in there county or mine?

Thanks,

Corey

[Edit by corey on Wednesday, December 18, 2002 @ 12:00 PM]

[adtripho]

As a relatively new member, but one that has used debt validation successfully, I think your first problem was calling on the phone. All of this should have been done via mail. An agreement and the terms set out on a letter from the CA!

Now that you have paid some on this debt you, yourself have "re-aged" the account. Not a good thing to do.

From this point on I would suggest (I am by no means an expert so get other input) that you 1) request them to validate the debt. If they can't do that, the rest is a cake-walk. 2) If they can do that, make clear you won't be making any further payments unless you have in written material from them that after your final payment they will delete any and all reference to this account from your credit report. If they want they money they can do it.

And, do this all IN WRITING, CERTIFIED MAIL....don't call them anymore and also send them a letter to cease and desist from calling you!

[Edit by adtripho on Friday, December 20, 2002 @ 01:25 AM]

[Anonymous]

<blockquote>Originally posted by adtripho

As a relatively new member, but one that has used debt validation successfully, I think your first problem was calling on the phone. All of this should have been done via mail. An agreement and the terms set out on a letter from the CA!

Now that you have paid some on this debt you, yourself have "re-aged" the account. Not a good thing to do.

From this point on I would suggest (I am by no means an expert so get other input) that you 1) request them to validate the debt. If they can't do that, the rest is a cake-walk. 2) If they can do that, make clear you won't be making any further payments unless you have in written material from them that after your final payment they will delete any and all reference to this account from your credit report. If they want they money they can do it.

And, do this all IN WRITING, CERTIFIED MAIL....don't call them anymore and also send them a letter to cease and desist from calling you!

[Edit by adtripho on Friday, December 20, 2002 @ 01:25 AM]

</blockquote>

I don't need to validate anything. I know I owe the money and it is my dept. I'm not trying to get out of not paying them. These people will not delete it off my record, period. They're a bunch of aholes. I'm just tired of being treated like a pieace of dirt when I call them. They've caused me stress, depression and ruined many of my days. I'm fed-up with it and am not going to put up with it anymore.

[admin]

Corey, I'd follow the advice you've been given - even if you agree to pay the debt, sometimes debt validation is the only way to get it off of your report....

[Anonymous]

I guess I didn't explan the situation very well. I want to sue them because they violated the FDCPA 4 times.

I guess more details about a validation letter wouldn't hurt. where too next?

[adtripho]

<blockquote>

I don't need to validate anything. I know I owe the money and it is my dept.

</blockquote>

Before you can sue you need to do the validate thing. Then when they can't validate it you give them time to clear it up. After that, go to court!

[adtripho]

<blockquote>Originally posted by corey

I guess I didn't explan the situation very well. I want to sue them because they violated the FDCPA 4 times.

I guess more details about a validation letter wouldn't hurt. where too next?

</blockquote>

Corey I agree with you that they have violated the FDCPA. But you have a potential problem in small claims court. As you have probably read, not all small claims judges are familiar with it. So the burden of "convincing" a judge who isn't well-versed on all this is placed on you, and given that you have made payments on this already, you're likelyhood of prevailing (with such a judge) doesn't look promising.

If you really want to sue, I'd suggest that this is a case for a lawyer to get involved in. Given the four violations you stand a good chance of someone taking it on a "contingency" basis. Hopefully, by doing that, you would end up settling out of court. Try looking at www.naca.net to find a lawyer in your area.

Otherwise, if you don't want all that headache, and simply your report cleaned up, go the validation route. Makes no difference that you have paid some or not, if they can't validate it you'll get the end result, albeit without any cash.

I'm dealing with two items with NCO Financial Systems, which according to this site and others, are notorious for not being able to validate, and then you HAVE to sue them only to have it settled out of court once that's done. NCO figures it's economically sounder for them to pay the FEW that do know their rights and use them, rather than the majority that don't. I'd like the 2K from this, but I'll also be happy if they'll just do the right thing in the first place.

[Edit by adtripho on Saturday, December 21, 2002 @ 08:54 PM]

[Anonymous]

<blockquote>

Corey I agree with you that they have violated the FDCPA. But you have a potential problem in small claims court. As you have probably read, not all small claims judges are familiar with it. So the burden of "convincing" a judge who isn't well-versed on all this is placed on you, and given that you have made payments on this already, you're likelyhood of prevailing (with such a judge) doesn't look promising.

If you really want to sue, I'd suggest that this is a case for a lawyer to get involved in. Given the four violations you stand a good chance of someone taking it on a "contingency" basis. Hopefully, by doing that, you would end up settling out of court. Try looking at www.naca.net to find a lawyer in your area.

Otherwise, if you don't want all that headache, and simply your report cleaned up, go the validation route. Makes no difference that you have paid some or not, if they can't validate it you'll get the end result, albeit without any cash.

I'm dealing with two items with NCO Financial Systems, which according to this site and others, are notorious for not being able to validate, and then you HAVE to sue them only to have it settled out of court once that's done. NCO figures it's economically sounder for them to pay the FEW that do know their rights and use them, rather than the majority that don't. I'd like the 2K from this, but I'll also be happy if they'll just do the right thing in the first place.

</blockquote>

Thanks for the helpful info!

I've found two attorneys that will take my case, they practice Consumer Credit Rights. I don’t really want to win thousands of dollars. I just want to prove a point that they should not get away with treating people like this. I will most likely donate the money to a local charity, or a non-for-profit consumer credit service. I had one of the attorneys already tell me that if I can prove the threats on the recorded phone calls, then there will be no problem wining the case. The only thing he has told me to do is, keep making my payments and send them a cease communications letter. He said he will file a lawsuit after the first of the year. I will keep you all updated.

[Edit by corey on Sunday, December 22, 2002 @ 09:17 AM]

[adtripho]

Great to hear and please do let us know the outcome!

[Anonymous]

One of the people I depend on daily from the hospital told me about how the CA has gone after him. They have only had the debt for 3 weeks and have been really harrasing him. Unfortunately, he is not very educated on his rights and was easily intimidated. They convinced him to send a post dated check without the required warning or they would send a summons to the hospital to get him fired, garnish his wages - SC doesn't allow it for consumer debt, and threatening to get a judgement immediately as soon as he disputed the account.

Because of this I have written the following letter for him that I will give him tommorow night unless I hear back with any suggested changes. Please let me know if you can think of an improvement.

Ron

RE: Account #

You have committed the following violations of the Fair Debt Collection Practices Act (FDCPA).

1. Threatening to sue when you do not have the legal right or intent to do so. At this point you have neither the intent nor legal right to sue. You have not validated the debt which is required by law. I also do not believe that you have obtained the permission required by the original creditor.

§ 807. False or misleading representations [15 USC 1962e]

A debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section:

(5) The threat to take any action that cannot legally be taken or that is not intended to be taken.

2. Threatening to garnish wages.

§ 807. False or misleading representations [15 USC 1962e]

A debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section:

(4) The representation or implication that nonpayment of any debt will result in the arrest or imprisonment of any person or the seizure, garnishment, attachment, or sale of any property or wages of any person unless such action is lawful and the debt collector or creditor intends to take such action.

Also since South Carolina does not allow garnishment to pay consumer debt.

(5) The threat to take any action that cannot legally be taken or that is not intended to be taken.

3. Threatening to send a summons at my place of work. This is a threat to harm my professional reputation.

§ 806. Harassment or abuse [15 USC 1692d]

A debt collector may not engage in any conduct the natural consequence of which is to harass, oppress, or abuse any person in connection with the collection of a debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section:

(1) The use or threat of use of violence or other criminal means to harm the physical person, reputation, or property of any person.

4. Soliciting a post dated check that is more than five days in the future without giving the required notice in writing.

§ 808. Unfair practices [15 USC 1692f]

A debt collector may not use unfair or unconscionable means to collect or attempt to collect any debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section:

(2) The acceptance by a debt collector from any person of a check or other payment instrument postdated by more than five days unless such person is notified in writing of the debt collector's intent to deposit such check or instrument not more than ten nor less than three business days prior to such deposit.

5. Threatened to seek and obtain a judgment before the 30 validation period was over. Be aware that the courts and the FTC have held that at any time, I can require validation and that you must provide it before taking any collection activity, including reporting to the credit bureaus. They have also held that my not requesting validation in the past can not prevent requiring in the future and that my rights under can Fair Debt Collection Practices Act (FDCPA) can not be waived.

§ 807. False or misleading representations [15 USC 1962e]

A debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section:

(5) The threat to take any action that cannot legally be taken or that is not intended to be taken.

This is at least 4 violations (or the court may grant all 6 because of the 2 repeated violations) of the Fair Debt Collection Practices Act (FDCPA) so far. Each violation is at a minimum of $1,000 plus court costs. This in addition to actual damages which the FTC and case law have provided for damage by defamation, emotional distress, and costs of higher interest rates to name a few. Finally, if you are judged to have acted in bad faith for the purpose of harassment then you are additionally liable for reasonable attorney fees.

§ 813. Civil liability [15 USC 1692k]

(a) Except as otherwise provided by this section, any debt collector who fails to comply with any provision of this title with respect to any person is liable to such person in an amount equal to the sum of --

(1) any actual damage sustained by such person as a result of such failure;

(2) (A) in the case of any action by an individual, such additional damages as the court may allow, but not exceeding $1,000; or

( in the case of a class action, (i) such amount for each named plaintiff as could be recovered under subparagraph (A), and (ii) such amount as the court may allow for all other class members, without regard to a minimum individual recovery, not to exceed the lesser of $500,000 or 1 per centum of the net worth of the debt collector; and

(3) in the case of any successful action to enforce the foregoing liability, the costs of the action, together with a reasonable attorney's fee as determined by the court. On a finding by the court that an action under this section was brought in bad faith and for the purpose of harassment, the court may award to the defendant attorney's fees reasonable in relation to the work expended and costs.

At this point I have sent you a request for validation of the debt, dated 12/20/02. If you make any attempt to collect the debt before completely validating, including reporting to any credit bureau, you will be in violation of the Fair Debt Collection Practices Act (FDCPA) again. At that point I will have no choice but to bring the matter to the courts.

However, if you are able to completely validate the debt, we can discuss settlement of the debt and the violations at the same time.

Sincerely,

[Edit by ronpurvis on Sunday, December 22, 2002 @ 09:42 PM]