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§ 808. Unfair practices (1) (discussion)


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§ 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:

(1) The collection of any amount (including any interest, fee, charge, or expense incidental to the principal obligation) unless such amount is expressly authorized by the agreement creating the debt or permitted by law.

scenario:

the OC makes up a bill that includes charges that are not in the contract, sends it to a CA then the CA attempts to collect.

Is that an unfair practice?

bonus question:

What if the CA are made aware the charges are not in the contract?

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From what I have read in the posts and replies and understand is that if you DV the CA they have to provied you with all the charges and interest that are part of the debt they are trying to collect on, it should include a copy of the original contract. If the contract that the CA has is different from the one you have I would get an attorney and seek legal action against the OC for billing fraud and what ever else your attorney can nail them with.

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FTC Staff Commentary says:

Section 808(1) prohibits collecting any amount unless the amount is expressly authorized by the agreement creating the debt or is permitted by law.

1. Kinds of amounts covered. For purposes of this section, "amount" includes not only the debt, but also any incidental charges, such as collection [53 Fed. Reg. 50108] charges, interest, service charges, late fees, and bad check handling charges.

2. Legality of charges. A debt collector may attempt to collect a fee or charge in addition to the debt if either (a) the charge is expressly provided for in the contract creating the debt and the charge is not prohibited by state law, or (B) the contract is silent but the charge is otherwise expressly permitted by state law. Conversely, a debt collector may not collect an additional amount if either (a) state law expressly prohibits collection of the amount or (B) the contract does not provide for collection of the amount and state law is silent.

3. Legality of fee under state law. If state law permits collection of reasonable fees, the reasonableness (and consequential legality) of these fees is determined by state law.

4. Agreement not in writing. A debt collector may establish an "agreement" without a written contract. For example, he may collect a service charge on a dishonored check based on a posted sign on the merchant's premises allowing such a charge, if he can demonstrate that the consumer knew of the charge.

and my main 'thing' is where they go into the detail of 'legality of charges' they are talking about 'in addition' to the debt and 'incidental charges'. which to me is reading that the clause is covering 'additional' charges and fees added by the CA, not the 'original' debt made by the OC.

altho on the other hand it says 'amount' includes the debt

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dloran, both CA and i have the same contract, we have gone thru it clause by clause. the charges i am disputing are not 'expressly authorized by the agreement creating the debt' the contract is silent and there is no law one way or the other on the charges. CA insists i am responsible anyway.

im just trying to figure out here what CAs responsibility on this is, and any possible arguements they will bring up if i sue them on it. so feel free to add more opinions, thoughts and ideas. thanks! :D

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In my opinion if the charges can not be validated, don't pay them. If you are looking at paying the debt, try working some sort of deal out to where you don't pay the fictitious charges. If not then let the judge and attorneys work it out.

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i have already been told i cant just pay the undisputed bits, ('it doesnt work that way' is their mantra) so they get nothing. seems stupid to me, you'd think having something would be better than having nothing, but if thats how they want to play.. :?

that said, i know this mexican standoff will not last forever, either they will give up or sue me. or i will learn enough to sue them :wink:

does anyone else have an opinion as to whether or not a CA trying to collect an amount the OC placed on the billing statement that is false comes under a 'unfair practice'?

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