Need help with this - Unusual Situation

[Dave77]

Hello to all! I am new to this board

I was involved in a fire incident in my apartment, for which the complex spent almost 50 grand to renovate. THe fire incident stated that I misused equipment and that was the cause of fire. To make it short, the apartment complex submitted the case to a collection agency which is not licensed in my state (NC) and they wrote me a dunning letter on Jun 25th, demanding to pay almost 50 grand. I immediately sent them dispute letter, asking them to provide me with proof that i owe this money, and how did they come up with that figure. They have not replied since August...

I see the collection on EQ, and TU as "disputed by consumer" My scores dropped from around 750 to mid 600s. Not a biggie, but still bad.

I am planning to report them to state officials for investigation for operating unlicensed collection busines sin my state, which is considered Felony.

I have also disputed with EQ and TU.

Is there anything specifically I should do other than this?

Should I send the CA a ITS letter, citing FDCPA violations, specifically not verifying debt and still reporting? False accusations maybe. Should I also go after apartment complex?

One thing I know is that the apartment complex's lawyer recommended them NOT to sue me, since NC has no garnishment laws, and pretty much they would be throwing good money after bad.

Can this be somehow used in my advantage.?the fact that they dont want to spend a dollar more on this case, and are making a CA go after me, which is a cheap and convenient way

(As validation of this, i supposed the apt. complex has the itemized bill of repairs done, copy of the lease, and the fire dep'ts report) - I wonder whther this is sufficient in this case, without having obtained judgment...

Since they have not replied to my validation, do I have a sufficient grounds to sue on FDCAP violations?

Any advice would be greatly appreciated.

thanks

[Guest jeeptravel]

Sue them for damages. Get a lawyer for this one.

jt

[Dave77]

Sue who for damages? what kind of damages?

I am looking for a lawyer, dont know what kind should i get

But i dont have much money to spend on lawyers, unless someone takes this for free and get money after i settle

[Dave77]

I wrote this but have not sent them yet. COmments appreciated

This letter is a follow-up on my first letter sent to you Aug 6th, 2004 and received by your office on August 11, 2004 (Attached is a copy of the letter, as well as a copy of evidence that the letter was received by your office.)

You have failed to provide validation of this claim as I have requested in my first letter and it has come to my attention that you have reported this unsubstantiated claim to one or more credit reporting agencies, which is adversely affecting my credit reputation.

You have violated:

· FDCPA 15 U.S.C. § 1692g( by failing to provide verification of the debt and continuing your debt collection efforts after I had disputed the debt in writing within thirty days of receiving the 15 U.S.C. § 1692g(a) “initial communication”. Please be advised that reporting this unsubstantiated debt is considered a "collection activity" and prohibited by § 1692g( (See FDCPA Staff Opinion: LeFevre-Cass)

· FDCPA 15 U.S.C. § 1692e(2)(A) by reporting false and harmful information to one or more consumer reporting agencies. No proof of such obligation exists; yet, it is falsely reported as valid debt on consumer reports, ruining my reputation.

· FDCPA 15 U.S.C. § 1692f(1) by attempting to collect the amount when such amount has not been expressly authorized by the agreement between myself and your client

· NCGS (North Carolina General Statutes) § 75-51(3) and NCGS § 58-70-95(3) by making false accusations to credit reporting agencies that I have not paid, or have willfully refused to pay just debt.

· NCGS § 58-70 by engaging in the business of collecting debts and by attempting to collect an alleged debt from me without a valid permit. Please, be aware, that this is Class I felony.

Attached are the copies of relevant provisions from §NCGS 58-70. I have verified with the NC Department Of Insurance that you have no license to conduct a collection business in this state, and I have filed a complaint with the appropriate authorities by forwarding a copy of your collection letter, as well as evidence that you have reported this false debt to reporting agencies, and have asked them to investigate your firm and prosecute you appropriately. (Attached, is a copy of my complaint and a copy of a similar case where a collection agency was fined $25,000 by the N.C. Department of Insurance for doing collection business without proper licensing and bonding).

I urge you to remove this false, inaccurate and unsubstantiated information from my credit files from all reporting agencies that are currently showing this information. You have 15(fifteen) business days to do so. Otherwise, I will IMMEDIATELY file a lawsuit for actual and statutory damages pursuant to 15 U.S.C. § 1692k, statutory damages pursuant to NCGS § 58-70-130 and punitive damages pursuant to NCGS § 1D-15, as well as costs and reasonable attorney’s fees. Please, be advised that I will also be in full compliance with whatever it takes for the N.C. Insurance Department to prosecute you for your illegal activities.

[Guest jeeptravel]

2 simple suggestions

#1 Rely on Simple Law Principles:

"Bad mark on CR=Sue the company that left mark"

#2 Lawyer Conundrum:

"Consultations are free in most cities. Here in San Bernardino County it's the biggest section of the yellow pages and every ad reads:

FREE CONSULTATION"

Let us know what happens. If this is a frivolous thing on their part, there could be money to be made for how it's TANKED your credit and ability to rent SHELTER, FOOD, OTHER CREDIT, who knows what else you can dream up as damages.

If you still don't want to see a lawyer (or you can't afford it) get on the phone and raise HOLY He^& with that company. That might even be be a better first choice. You have to be serious with these people, or don't waste time just pay the 50K they say you "owe."

You have more power than you know.

jt

[luckyduck]

Have they gotten a judgment? Did you agree in writing to pay this? If no to both questions, you don't have to pay a dime, yet.

Was the fire your fault? Do you know this? Do they know this for sure? Can you fight it when they take you to court, cause if you sue them, they will.

I personally would let this one go. If you take them to court, and the fire was your fault, they are going to respond with full fledged court action that you may find overwhelming.

Problem they have is they can't just bill you without proving that you caused the fire. I mean they have to take you to court, give a trial by a jury of your peers, and you have to be found by a preponderance of the evidence to be liable for the fire.

That's really hot water they are treading on trying to bill you for something without taking you to court first, and even moreso sending a collection agency after you to collect on a debt they have no lawful right to collect. But taking them to court would also be really hot water. Talk to a lawyer. Your situation is unique in that you could burn yourself by fighting, oops excuse the pun. You may just want to keep your mouth shut, move, but not out of state, and let that one go til the statute runs out (I mean the statute regarding the damage you caused to the apartment building, if in fact you did it?). Don't move out of state unless you plan on staying out of state permanently. It will toll the SOL.

Was it negligent, knowing, willful. Depending on how it happened, what they actually could get out of you could vary. This is not so much of a credit issue as it is a legal tort issue. I'm glad I ain't you.

[Dave77]

Have they gotten a judgment? Did you agree in writing to pay this? If no to both questions, you don't have to pay a dime, yet.

Was the fire your fault? Do you know this? Do they know this for sure? Can you fight it when they take you to court, cause if you sue them, they will.

I personally would let this one go. If you take them to court, and the fire was your fault, they are going to respond with full fledged court action that you may find overwhelming.

Problem they have is they can't just bill you without proving that you caused the fire. I mean they have to take you to court, give a trial by a jury of your peers, and you have to be found by a preponderance of the evidence to be liable for the fire.

That's really hot water they are treading on trying to bill you for something without taking you to court first, and even moreso sending a collection agency after you to collect on a debt they have no lawful right to collect. But taking them to court would also be really hot water. Talk to a lawyer. Your situation is unique in that you could burn yourself by fighting, oops excuse the pun. You may just want to keep your mouth shut, move, but not out of state, and let that one go til the statute runs out (I mean the statute regarding the damage you caused to the apartment building, if in fact you did it?). Don't move out of state unless you plan on staying out of state permanently. It will toll the SOL.

Was it negligent, knowing, willful. Depending on how it happened, what they actually could get out of you could vary. This is not so much of a credit issue as it is a legal tort issue. I'm glad I ain't you.

LuckyDuck -

They have not gotten a judgment. I have not agreed to pay

Fire was caused by a track lighting, that ignited my shirt, which turned on the sprinkler system. It was DETERMINED by fire department marshall, that MISUSE was the cause of fire. So, you are right, if they could get all the EVIDENCE, including testimony of the marshall, they would win....Although, the jury may not be sympathetic of the big bad landlord whose insurance on the property had a 100,000 deductible, thats why they went after me.

I had a lawyer who tried to negotiate with them 2K, but they would not accept less than 25K, so after my lawyer spent 1 hour on the phone with theirs, their lawyer made it clear they were not going to sue, but simply refer this matter to the CA.

As mentioned above, the decision was based on multiple factors, including the fact that my state does not allow wage garnishment, I did not own real estate, and have a leased car, so I guess they just decided it was not worth it.

You are right about the hot water thing. I am afraid to push this back to the point where someone might just decide to sue me, but at the sametime I realize that reporting this debt is not right, since no obligation has been established in court.

THe CA has not replied to my verification request, so I was going to go ahead and send an ITS to the CA, not the apartment complex. But the problem is, even if this CA removes this negative, the damn apt. complex will find another CA i Bet. as far as suing me, I dont think they will sue me, cause they probably realized that it will cost them money, with no hope of recovering a dime at all.

You mentioned they are risking by billing me for smething i have not been found liable for. Do you think they have right to do so? Is this something that can be reported on credit reports? My lawyer told me it was not worth any more money to pursue this further, but I cant just leave this alone......

If they dont have the right to bill me for this, does not reporting this to CRAs violate either FDCPA, FCRA or both? I mean I understand when people dont pay for credit cards, but this is clearly a TORT issue, so how does this fit into the reporting/collection world? I am so pissed at these morons, that if I have enough cause, I will not hesitate to sue them and make them spend more money on this, even if it means for me to borrow money to pay the lawyer.

Oh and the SOL for damages is3 years. it happened 8 months ago. SO what do you think I can do after SOL is up? WIll I have any advantage in 3 years? I know, they wont be able to sue me, but do you think it will be easier to have this removed from CRs?

Basically, I am not worried about losing any money on this, since I know they wont get any, even if they sue me, I just want this off my reports. There is gotta be a way to have these removed.

thanks for reading

[luckyduck]

I think that is the funniest thing I've ever read. no garnishment so you can make all the money in the world and they can never take it, and no property. HA HA HA HA HA. yeah, go after them like crazy. You should get a couple bucks out of the deal, and if you do borrow money to hire an attorney, you will get attorney's fees as well. On top of that, they are going to be paying over $50,000 between you and all the agencies they get to deal with. This is a clear winner already.

I'll cite the laws below, but here is what you do.

They already violated by attempting to collect a debt they have no right to collect because 1 - the debt is nonexistent and 2. the CA doesn't have a license. Idiots.

1. Make sure you retain all writings and never speak to anyone on the phone. Pay specific attention to wording in the letters. Did they tell you your FDCPA rights? Did they say this is a ONE TIME OFFER. Anything unfair, untrue, or misleading is a violation.

2. Make sure you have a copy of your credit report right now, from all three bureaus showing that they are/aren't on the report(s)

3. If you DV'd the CA I hope you did it CCRR. If not, do it again, but send it CCRR. The exact same letter. They can't validate because there is no judgment, no contract. They do not have to validate, but cannot continue ANY collection activities.

4. 5 days after you you get the greencard back, get another copy of your CR. Just call the numbers (you can find them in this board) and say you were denied credit and you can get it free. Check to see if this debt was marked as disputed. If not, there's another violation. (oops I see it's already disputed, well if that ever changes, you can get them on that) The CA has to update the report when they receive a dispute.

5. When you get your credit report back, if they have verified, it is another violation. It is a collection activity to verify information. After dispute is received, and before validation (which they will never have), they cannot perform any collection activities.

6. Get something certified from your state department showing that this CA is not licensed bonded, and copy the statutes showing that CAs are required to have a license/bond.

7. Establish actual damages. Apply for credit. Go to your local bank, and apply for a mortgage. If you get declined, then YAY. If you get approved but for a higher rate than you otherwise would have (which you definitely will) get a certified letter/affidavit from the bank personnel stating the rate you would have received if the information wasn't there, and the rate you were offered, and specifically stating the reason why your application was not approved, or why you could not get a better rate.

8. File a complaint with the Federal Trade Commission. Tell them that the OC has made themselves judge and jury in a civil dispute, and is alleging that you owe them money. Tell them that there is no contract, and that there has been no legal action or finding that you owe them money. Tell them CA is attempting to collect this nonexistent debt without a license in a state that requires a license. Tell them that this CA has received a dispute letter, and has not validated, but has continued to report this alleged debt, has failed in reporting the debt as disputed, and has verified the debt when you disputed through the CRAs. Specify which CRs this is reported on. Give them whatever details they need. Send the report in writing and include copies of all credit reports, and all writings between you and CA, and copies of all greencards. Explain that this is damaging to your credit and that you would like them to look into this agency and take whatever administrative steps are necessary to assure that this company does not continue to violate the laws.

Repeat step 8 with your state attorney general, CAs state attorney general (if in a different state), you local prosecuting attorney, as i think extortion is a crime, and anyone else you can think of who would oversee these types of activities.

Borrow the money, hire a Consumer Protection/Commercial Law lawyer, and file suit against the CA for violating the FDCPA, the FCRA, and any state laws you have. Because of the nature of this, you may be able to go after the OC as well because they intentionally took actions into their own hands, disregarding the legal process, and are the root of this damage. I am sure there are state laws which would assist you. Your attorney would be able to help you out.

Now, you are ready to sue the CA and OC if applicable, but you better make sure it's for more than they will come back on you.

Ok, here are the laws:

FDCPA http://www.ftc.gov/os/statutes/fdcpa/fdcpact.htm

§ 807. False or misleading representations [15 USC 1692e]

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:

(2) The false representation of --

(A) the character, amount, or legal status of any debt (they misrepresented all of these when they made the debt up and sent you a bill, and when they reported it to the CRAs)

(10) The use of any false representation or deceptive means to collect or attempt to collect any debt or to obtain information concerning a consumer. (They falsely represented themselves as CAs in order to report you to a CRA, and did they check your credit. OOH, that' a FCRA violation there.)

(11) § 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. (they didn't actually collect any money, but the principal is here. They are attempting to collect a debt that doesn't even exist)

§ 809. Validation of debts [15 USC 1692g]

(a) Within five days after the initial communication with a consumer in connection with the collection of any debt, a debt collector shall, unless the following information is contained in the initial communication or the consumer has paid the debt, send the consumer a written notice containing --

(the mini-miranda)

( If the consumer notifies the debt collector in writing within the thirty-day period described in subsection (a) that the debt, or any portion thereof, is disputed, or that the consumer requests the name and address of the original creditor, the debt collector shall cease collection of the debt, or any disputed portion thereof, until the debt collector obtains verification of the debt or any copy of a judgment, or the name and address of the original creditor, and a copy of such verification or judgment, or name and address of the original creditor, is mailed to the consumer by the debt collector.

§ 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; (this is where the mortgage denial comes in)

(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

(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.

( In determining the amount of liability in any action under subsection (a), the court shall consider, among other relevant factors --

(1) in any individual action under subsection (a)(2)(A), the frequency and persistence of noncompliance by the debt collector, the nature of such noncompliance, and the extent to which such noncompliance was intentional

Ok, this is real broken up, but you get the picture.

FCRA - rather than going into detail here's the link: http://www.ftc.gov/os/statutes/fcra.htm

Some of these things in FCRA, only state and federal agencies can go after. If he checked your credit though, ha ha, you got a good one there $1000 minimum for each time. Go through it and I'm sure you'll find more violations you can get em for there. If you really feel like it, go through your state statutes. Or if you got a lawyer in mind, just go ask a lawyer. Saves time that way, but saves upfront costs if you go in with everything you need to start with.

And if they hire another CA, guess what, you can do it again, and again, and again, until they get the picture, or until they obtain a judgment.

Also find out what type of insurance that landlord was legally bound to carry, and if it was even legal for him to have a 100K deductible. I don't really think that's legal. And that may be why they said they aren't going to sue you. Find out what liability the apartment owner has. Get the dirt, cause there's gotta be a reason. For that much money if they weren't at fault, they would never decline to sue you. maybe they had faulty wiring, you never know. Most likely your chances of winning against them are stronger than their's against you. What they did is documented. What happened to the building could have been a combination of factors. It could have been faulty wiring, a bad track light, and how the heck did you catch yourself on fire. Were you drunk?? Anyway, find out how much of the fire was their fault, and do whatever you can without paying for it, cause investigations for a tort claim are VERY expensive.

The problem you face is that yes, you have a case, and you can slam them good. But, with as good as your case is, and as much as you could win, even though they can't get the money from your check or your property, they can file a separate suit, and in the end you may be even. you don't pay them, they don't pay you. make sure your case is worth more than theirs. If they were willing to settle on 25K for 50K damage, they must have some fault in the entire thing.

Oh, and you only have one year vs. their three.

But if you want to wait three years, do step 1-3 now, and then start with 4 in about 2.5 yrs. By the time their 3 years is up, you'll either have it off your report, or will have a hefty little lawsuit with absolutely no recourse. For you it's one year from the date of violation, so if they verify, send you a letter, anything, you've got one year. You only burned a building down once, and they can't change that date. They can violate and start a new time limit at any time in the future. Problem with this though, is mostly that you may lose some of the violations you have now, like if the CA drops it completely.

You got the upper hand. If they ever do file suit, make sure you cross claim. In other words, try to get at least one violation per year.

Hope all that detail and hard work helps you out. Your heading is absolutely right. Unusual indeed.

Oh, and if the apt complex keeps hiring CA after CA, then sue them for harrassment. That's clearly what they are doing.

You know, thinking about it, the costs of suing you in addition to the risk of not obtaining judgment may actually cause them not to go after you. You start throwing the discovery process in and there attorney fees on that alone could run upward of $100K, but so could yours. You may stand a better chance than one may think. They might want to cross file if you sue them, but at the same time, even if you both won, they may realize that the costs of their suit will far outweigh the relief, and that they would be better off just going through yours. I personally would settle on no less than $10K, only because they are placing themselves above the law, and judges HATE that, so if it went to court, it could be a lot more. Oh so many factors here.

[luckyduck]

I know that was a lot of information, but here's some more. If you want a lot of free legal advice, use the internet, or use free consultations. Don't use up all the good lawyers for consultations. Go to some general practitioners first. Each time you go to a new lawyer, don't tell them you spoke to previous lawyers, or they'll probably know what you're doing. Plus the more lawyers you go to, the less they have to choose from. That's so unethical, but once you talk to someone they can never work for the opposing party. I know they're already lawyered up, but they may need more help on this one.

As you learn more, and prepare more, start going to better lawyers, you will have a better understanding and advice of what to do. Once you know your plans, and your ready to hire a lawyer, start hitting up the best lawyers in town, and consult with them more on a "do I want to hire you" basis. Don't hire anyone who has any question of whether you will win. lawyers can't question you or tell you what you want to do. I hate that, and most people do, but a lot of em do it anyway. Let me tell you something. If a lawyer tells you "you don't want to do that", and you know for a fact that you do, then they probably aren't in tune with you and your entire case will fail.

A case like this should easily come on contingency. it's a 100% win on your end, and a 50% win on theirs. I can't see a lawyer passing this one up over inability to obtain a retainer.

Just be ready for the fight of your life if it comes down to it. Sometimes though, we just have to stand up for what's right regardless of the emotional damage it causes. In the end, it's usually worth it.

Ya never know, maybe the fire was their fault, and they will owe you money for the damage it caused to your personal belongings. Wouldn't that just kick butt!!

[Guest jeeptravel]

I always must revert to the appeal to simplicty. Sue to get them off your back, not to make money. BUT THAT'S JUST ME.

Wouldn't simply getting the mark off your credit be a good payout?

good luck.

jt

[luckyduck]

the problem is the backlash he's looking at. he messes with these guys and he may be in for a huge battle. It's not making money, it's having enough of a suit to cover his behind if they come back after him.

Talk to a lawyer. It is a risky situation, but at the same time, as it's been stated over and over, they can't get away with this.

If you sue them for little, and they sue you for a lot, you will have a legitimate huge judgment on your CR. They may not be able to get it out of you, but if you don't pay it, it could be there for 20 years. If your suit covers theres, then you have negotiating power to yes, #1, get them off your back and get this off the CR and #2 make them pay for trying to take the law into their own hands. Nobody can make themselves judge and jury and just slap someone with a 50K bill, and say you owe this now pay me. You don't sue people just to fix your own problems, you do it to teach wrongdoers a lesson, and you do it to help prevent less knowledgeable, more gullible people from becoming defenseless victims.

[Dave77]

Wow, thanks for all the good advice.

Sounds like a good plan, not sure if I can follow through all these steps, looks like it might be a part time job on the side.

It does appear I need a good lawyer to makes this happen.

It seems, after reading your replies, that the apt. complex is clearly doing something unethical, if not illegal, by reporting this NON EXISTENT debt.

I am just worried that If i start throwing bricks at them, they will start using their big guns and it will become a mess.

I am looking for the law that says that the apt.complex violated something by not obtainingi judgment and YET having the CA collect on this...

Are there any cases out there or examples where such tort claims CANT be reported as valid debt on credit reports....

If i can get this ammo, i think i will proceed...

[Dave77]

I always must revert to the appeal to simplicty. Sue to get them off your back, not to make money. BUT THAT'S JUST ME.

Wouldn't simply getting the mark off your credit be a good payout?

good luck.

jt

Yes, I would be happy with having this mark removed from there, but would like to threaten a CA or even OC and convince the OC that pursuing thir further wont recover any money for them, but possibly open them to a lawsuit.

THe reason the bastards from the apt. complex submitted this to a CA is becayse they honeslty think they can get more than 2K that i offered.

otherwise, i find it hard to believe that they are being SIMPLY VINDICTIVE

I want to write up a letter that outlines all this and draws a picture for them (basuically summarizing what luckyduck told me that I could do. Maybe if someone thinks about it, they might accept my 2K, or just leave me alone

[luckyduck]

I will look into that. You may want to contact your state's attorney general and see what help they can be, if they can at least lead you in the right direction. If the OC isn't reporting anything, they haven't violated the FCRA and the FDCPA doesn't apply to the OC. But they are harrassing you, and they are the cause of this.

They are using a CA to keep the heat off themselves, which is something I thought about. If you go after the CA, then the OC may not recourse, because you aren't taking them for a ride. You're taking their hired gun for a ride, and it does them no damage, and apparently, covering their own behinds is all they are concerned with.

There's nothing the CA can recourse with, because the CA has absolutely nothing to hang over your head. So, you might be safe just going after the CA. Likely, one phone call to the attorney general and/or secretary of state (whoever oversees the CA policies/bonds) will solve the entire problem with this CA, and your credit report. Doesn't solve the problem for good though, cause they'll just hire someone else, and it'll start over again.

Think about it this. If you break someone's front door, and they send you a bill for the damage, they aren't breaking the law. But you have no obligation to pay until they take you to court.

Difference hear though is that they hired someone to actively and wholeheartedly pursue you, knowing that it would damage your credit, and cause you difficulties.

Now, while someone can send you a bill for damage to their front door, and that isn't against the law, turning around and keying your car because you won't pay instead of taking you to court, would be against the law.

They crossed that line. Instead of taking the proper legal recourse, they in essence turned around and hired someone else to key your car (put a bad mark on your credit). It's the same principle but on a much higher level, because they paid someone else to do their dirty work for them, and because the damage they did lasts for up to seven years.

It's called extortion, and it is a crime. Anytime a crime is committed against you, they can not only be held criminally responsible, they can also be held civilly responsible.

§ 14-118. Blackmailing.

If any person shall knowingly send or deliver any letter

or writing demanding of any other person, with menaces and

without any reasonable or probable cause, any chattel, money or

valuable security; or if any person shall accuse, or threaten to

accuse, or shall knowingly send or deliver any letter or writing

accusing or threatening to accuse any other person of any crime

punishable by law with death or by imprisonment in the State's

prison, with the intent to extort or gain from such person any

chattel, money or valuable security, every such offender shall

be guilty of a Class 1 misdemeanor. (R.C., c. 34, s. 110; Code,

s. 989; Rev., s. 3428; C.S., s. 4291; 1993, c. 539, s. 61; 1994,

Ex. Sess., c. 24, s. 14©.)

Sending the letter may or may not have been considered blackmail. problem there is that they do have reasonable cause, so really just sending a bill wouldn't likely be considered blackmail.

§ 14-118.4. Extortion.

Any person who threatens or communicates a threat or

threats to another with the intention thereby wrongfully to

obtain anything of value or any acquittance, advantage, or

immunity is guilty of extortion and such person shall be

punished as a Class F felon.

Extortion in general is threatening to cause you harm, or threatening to take something from you, or holding something over your head, in order to scare you into doing what they want, without first obtaining a lien/judgment. By threatening to keep sending CAs after you, they are extorting you.

I'm still trying to find one for when they actually do something.

When they marked your credit report, they in essence took from you your good credit standing and are using that as an advantage over you in order to try to get you to pay them what they say you owe them. This is against the law both criminally and civilly. The proper way to settle something is not to extort or damage someone but to go through court, and these laws are in place so that people can't just take the law into their own hands. They crossed the line between attempting to settle something civilly and actually taking the law into their own hands.

I'll look into finding any examples later, and pinpointing exactly which crime they committed in NC, but for now, hopefully, this will shed some light.

[Dave77]

THanks lucky duck.

SO you are saying that if they decided not to sue me, they cant simply report me to a collection agency. I hear all the time landlords report tenants who dont pay rent to collection agencies. Is my case different here?

SO you saying that if i damaged someones car, or house, they cant WITHOUT OBTAINING JUDGMENT just try to put that on my credit reports?

If they have committed some crime already, that might tarnish their reputation, even if they can sue me successfully for damages, so it could be used as a tool to make them back off

thanks for help

[luckyduck]

here's a fun fact NC, your state laws say that the CRAs have to separate joint accounts from sole accounts if married people ask them to. Talk about saving your credit in a divorce.

[luckyduck]

You don't owe them anything unless there is a contract agreeing to payment which you signed, or a judgment obtained saying that you owe them.

Oh, cripes. Did you sign a lease agreement that said you would be reponsible for damages you caused to the apartment. If so, yikes. that might change everything. Because then you have a contract.

There's still that question of whether they can bill you for "this type" of damage where there is actually a question of fault.

Maybe you should just fight the CA on their violations, which there are plenty of, and go from there.

http://www.aoc.state.nc.us/www/public/html/opinions.htm

there's where you can research case law for NC. The search page isn't working. I just emailed them and informed them about it, so hopefully, they'll have that resolved soon enough.

[Dave77]

You don't owe them anything unless there is a contract agreeing to payment which you signed, or a judgment obtained saying that you owe them.

Oh, cripes. Did you sign a lease agreement that said you would be reponsible for damages you caused to the apartment. If so, yikes. that might change everything. Because then you have a contract.

There's still that question of whether they can bill you for "this type" of damage where there is actually a question of fault.

Maybe you should just fight the CA on their violations, which there are plenty of, and go from there.

http://www.aoc.state.nc.us/www/public/html/opinions.htm

there's where you can research case law for NC. The search page isn't working. I just emailed them and informed them about it, so hopefully, they'll have that resolved soon enough.

Well, of course, there is a lease, where a tenant agrees to pay for damages caused by negligence. But again, it has not been established in the court of law, that MY NEGLIGENCE caused this.

I still hope that whatever they are doing, even if i have signed the lease, is still violating some laws, as they are trying to damage my reputation in exchange of payment for which they have not gotten a judgment.

Are you sure what they are doing is extortion?

[luckyduck]

it's certainly extortion if they do not have a legal claim to this money by way of the contract.

So, what you need to find out, and you probably can't find it here, is whether they have a legitimate bona fide unquestionable legal claim to the damages.

Several things to take into consideration:

1. The contract says you are responsible for damage that YOU cause. It has been determined, but not proven that you caused this damage. Question: because of the nature of the damage, and the possibility that they are contributors to the problem, do they have a right to just assume that you are at fault. It would be different if you threw a beer mug at a mirror and shattered it. No question you are responsible. But this includes a question on their end. Was the wiring faulty?? With that questionability, do they have a right to assume this debt is yours and bill you without first going through a trial to prove that it is? I can't answer that. You will have to talk to a lawyer.

2. They had insurance. This was an insurance related claim. The only reason insurance didn't cover it was because of the high deductible. Is there a law mandating a minimum deductible on this type of dwelling?? Did they meet that requirement?

3. Did they make an insurance claim? If they turned it into an insurance claim, and paid their deductible (which was the entire thing), then they may have relieved you of any responsibility to them. Ask a lawyer. You can't go after two people for the same thing. I think the insurance company would have to go after you, but not sure. Ask.

4. If they are not in conformity with the legal requirements for that type of dwelling, and had been, would the entire thing be different? Would the insurance have covered it? 100K deductible seems very high. And I know there are regulations regarding those things.

There are a lot of factors, but the question comes down to "Do you legally owe them this money by way of the contract that you signed or do the circumstances surrounding the situation require them to obtain a judgment in order for this debt to be legally yours?"

If they do not have a legal claim (which is still questionable), then it is extortion. They are depriving you of something that is yours (good credit) to force you into submitting to their unfounded claims.

If they do have a legal claim, then they are doing nothing wrong. But you can still slam the CA hard, and get them off your back, and the listing off your report at least for a while.

In my opinion, and this is ONLY AN OPINION, because of the nature of circumstances and the question of who bears responsibility, they do not have a legal claim until they sue you for the damage and win.

Definitely talk to a lawyer. That is a very difficult question. Contract says yes, circumstances say no. If they can't prove this debt is yours, they can't report to CRA. They can't really prove it until they take you to court. Even though it was determined by a fire marshall to be your fault, it has not been proven that it indeed was solely your fault, and therefore no accurate number can be given to your indebtedness. It could have been a contributory negligence on both parts, or faulty lighting even.

If all else fails, add a statement to your report, and after three years are up, plead SOL, no legal claim, debt isn't mine, never was, and pursue legal action from there if it doesn't get removed.

[Dave77]

Speaking of SOL, thats what I was thinking about as a last resort. If i let this slide for another 2.5 years, and when the SOL runs out, they would still have a legal claim to this, wont they. What exactly will be in my advantage after SOL has run up? other than the fact that they CANT SUE ME on this. They can still CLAIM that i owe them and keep reporting..

am i right?

Looks like i need a good lawyer to answer whether they have a legal claim for this damages.

[luckyduck]

after SOL, you attempt to just dispute it off your report. They can't sue you and obtain judgment. All they have is the contract.

They have a contract that says you are liable for damages caused by your negligence, or by the negligence of others at your hand (you know if a friend breaks something). They cannot prove that the negligence was caused solely by you, and never will be able to after SOL is up, so they cannot determine an exact amount owed, if any, and cannot make an accurate and legitimate legal claim.

If you want to try to wait it out, contact your state AG or whoever oversees the CA regulations. File a complaint regarding the non licensure. They will get fined, and will have to remove from your report. Since they aren't licensed to collect, they can't report the debt because you DON'T owe the CA anything. Save the lawsuits for cross pleadings if needed.

Once the SOL is up, they have no legal claim, cannot prove this debt is yours, and if they can't prove it's yours, then they have to remove. Again, the state AG will help in this regard if needed.

[Dave77]

after SOL, you attempt to just dispute it off your report. They can't sue you and obtain judgment. All they have is the contract.

They have a contract that says you are liable for damages caused by your negligence, or by the negligence of others at your hand (you know if a friend breaks something). They cannot prove that the negligence was caused solely by you, and never will be able to after SOL is up, so they cannot determine an exact amount owed, if any, and cannot make an accurate and legitimate legal claim.

If you want to try to wait it out, contact your state AG or whoever oversees the CA regulations. File a complaint regarding the non licensure. They will get fined, and will have to remove from your report. Since they aren't licensed to collect, they can't report the debt because you DON'T owe the CA anything. Save the lawsuits for cross pleadings if needed.

Once the SOL is up, they have no legal claim, cannot prove this debt is yours, and if they can't prove it's yours, then they have to remove. Again, the state AG will help in this regard if needed.

I have already drafted a complaint letter to the NC Dept of Insurance, which considers non licensure as CLASS 1 FELONY. (They have recently fined some CA 25,000 dollars) I also wanted to write something to the apartment, not sure what to say though, something that makes them realize that i am not a stupid and i will be taking actions in return to their actions. I am hoping maybe the threats of being reported to the FTC, AG might make them realize that its not worth it.

Thanks for all the advice, though. I appreciate it

[Dave77]

Lucky Duck -

In addition to send the ITS letter to the CA and reporting them to the NC Dept of Insurance for possible prosecution/sanctions, I came up with this letter, but I think it comes of too strong, and I might be asking for trouble.

"Please be advised that the collection agency, SCUM COLLECTION, that you have engaged to collect the money you claim I owe you, has reported the unsubstantiated debt in the amount of $48,572 to one or more credit reporting agencies, damaging my credit reputation.

The collection agency has violated numerous FDCPA provisions, namely failing to provide proper validation of debt that they are trying to collect, reporting the false and misleading information to the credit reporting agencies, and, in addition, they have violated the North Carolina General Statutes, § 58-70, which regulates collection firms and their activities, and this particular collection firm is operating the collection business in North Carolina without a valid license, which is considered Class I Felony. Please, be aware that under agency law, in many circumstances, principal, the party engaging the agent, may be held vicariously liable for actions of persons/firms acting on it's behalf, including for violations of state and/or federal laws.

I have complained regarding this to the N.C. Department of Insurance and I will be contacting the Attorney General’s office as well. (Attached is a copy of my complaint.)

Moreover, you do not have a legal claim to the damages, since the liability has not been established in the court of law. You do not have the right to assume that I am liable for these damages, until you have gone through proper legal channels to establish fault. Under these circumstances, your actions may be considered extortion; you are depriving me of my good credit reputation to force me into submitting to your unfounded claims. Extortion and defamation of character are not the proper way to settle this.

I have, in good faith, attempted to settle this incident, as I do not wish to be embroiled in a lengthy and costly litigation process. Please, be advised that even in case where you obtain judgment, neither you or any of your collection agencies will be able to recover anything from me, since I am judgment proof (North Carolina does not allow wage garnishments, and I do not own significant assets.) However, pursuing this further might potentially land you in court for possible criminal and/or civil action, not to mention the legal costs associated with it.

I suggest that you make sure that this unsubstantiated debt is not reported on my credit files, otherwise, I will find it necessary to file a lawsuit for defamation of character and extortion. I will also have the Attorney General initiate investigation for possible violation of criminal law.

If would like to settle this matter for $2,000 as I had offered before, contact me as soon as possible. I hope this will be resolved peacefully and without the need of frustrating and costly litigation

"

Can you comment on this and tell me which parts I need to remove so that I dont provoke anyone, yet make it clear that if they go down the path that they have chose, they might regret it. My wording might be too provocative. Please comment

thanks

[luckyduck]

The collection agency has violated numerous FDCPA provisions, namely failing to provide proper validation of debt that they are trying to collect

They are not required by law to validate, but must cease collection efforts until validation is made. So, they can't verify information on a CR.

I have complained regarding this to the N.C. Department of Insurance and I will be contacting the Attorney General’s office as well. (Attached is a copy of my complaint.)

If you've already complained, they have no reason to bow down. Prepare complaints, and let them know that if they don't meet your demands, then you will have no choice but to file them with the appropriate authorities.

I suggest that you make sure that this unsubstantiated debt is not reported on my credit files, otherwise, I will find it necessary to file a lawsuit for defamation of character and extortion. I will also have the Attorney General initiate investigation for possible violation of criminal law.

You will file reports with the FTC, state AG, BBB, etc... regarding violations of state and federal regulations and statutes, and local prosecuting attorney, regarding criminal activities. It is your local prosecutor that you would start with regarding criminal activities.

If would like to settle this matter for $2,000 as I had offered before, contact me as soon as possible. I hope this will be resolved peacefully and without the need of frustrating and costly litigation

try something like this. You have to convince them that $2000 is a deal for them.

"Because I am sure that you understand the complexity of a possible trial, and the fact that the expenses will far outweigh any damages you could recieve, I believe that the offer I made before of $2000 is appropriate and should be considered a good faith effort on my part. This is especially considering that if you did decide to sue me, you would not be guaranteed to get one penny from me.

If you are interested in settling this matter in full, relieving yourself of potential lawsuit, and federal and state civil and criminal action, then it is advised that you accept my good faith offer of $2000, and remove all derogatory listings from my credit file. Anything short of this, will leave me no options but to begin filing complaints with the appropriate authorities at your expense and the expense of your CA."

no, not too far stretched, but they need to want to settle. Stress the cost and harm it will cause them not to.

[Ahntara]

I didn't think your wording was provocative, but it did comes across as very informative. You are not under any obligation to inform them why this debt is not collectable, reportable or anything else. You are not their legal counsel! Just tell them they cannot "yadda, yadda, yadda.." don't tell them "why".

The other issue I notice is that you keep asking if it is legal for them to report this debt on your credit prior to getting a judgment. The vast majority of derogatory data on credit reports exist without a judgment. While a judgment certainly establishes liability, it is not needed for an OC or CA to report.

You certainly would be safer if you were to wait until this debt is past SOL. But your actions might be SOL as well by then. Choice is up to you!