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Please help with my situation


wildflower
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Hi all,

I'm about $12,000 in credit card debt. I've been sick for two years and haven't worked in that time. About six months ago I ran out of money and stopped making CC payments. I'm absolutely broke right now--no savings, assets, etc.

As far as I can tell my accounts are still with my OC's ~ I still receive statements and phone calls from them. Yet the last few weeks I've been receiving calls from a collection agency. I've been hanging up on them when they get me on the phone. Today they left a message in reference to my "case file", and they claim the matter is urgent and I'm going to be served next week. They won't say which credit card they're with...no specifics.

I feel that this is a bogus scare tactic to frighten me into paying, but I'm a little scared. I don't want to call them back. I've received nothing in the mail threatening to sue me or claiming that I am going to be sued. In fact, one of my cards has already offered to settle with me for 40%, and I can't even afford to do that! I am completely BROKE with NO ASSETS, so would one of my OC's be trying to sue me only after six months of no payments??

How should I handle this? Should I deal with the collection agency? Should I just wait and see if they actually serve me? Do CA's often lie about things like this--should I take this threat seriously?

Thanks for any advice... I'm completely new to all this!

Wildflower

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Depending on how many thousands per card, yes, they may possibly send to a collection agency to sue you within six months. The best thing to do is to handle everything within the letter of the law, so that you can get a foothold if they slip up and break the law.

You haven't told them to stop calling, so they can continue until you do so. Follow the advice above and get something in writing. Also, be prepared (in the case that you do end up in court) to show the court that you've been sick and unemployed for months and are not able to pay.

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First, relax. CA's are supposed to get you excited and make you think the world is going to end if you don't get them x dollars by 4PM Wednesday. They are trained to believe that all debtors are just deadbeats who prey on poor, innocent credit card companies, who also have thousands of dollars laying around and we don't want to pay creditors because it isn't important enough for us and defaulting on debts makes us feel good.

People don't get sick, lose their jobs, etc... at least not in a collector's world.

Dive is right, you don't have to and for the most part shouldn't talk to a CA on the phone. CA's lie all the time, reage debts, make verbal agreements, then break them, settle for part of a debt, then sell the rest to another JDB. You simply can't trust them, and most of the time shouldn't deal with them, unless it is on your terms.

If you are broke with no assets, then guess what? They can't TAKE anything from you. You are judgement proof. They can get a judgement, but you have nothing for them to go after.

FYI, I'd start recording phone calls, and definately would hold on to that message, because if they DON'T serve you next week, then you have a FDCA violation, and could wind up with the CA paying you.

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Thanks everyone for the replies ~ I feel a little better. I've received absolutely no mail/written correspondence from this CA ~ I don't even know who they are, or what card they're representing. Most likely Bank One/First Usa/Chase, which has apx. $9,000 of my debt. If I tell them to quit calling they will stop? Is this the law? Believe me, I've heard all the horror stories about CAs and how dishonest and abusive they are. So I'm not about to get into it with any of them over the phone. In writing only!!! I'm easily intimidated and I know I'd end up saying something I shouldn't.

I'm going to let this go and see what happens...if they call again I'll tell them to send something in writing and quit calling. Hopefully it's just a threat... I still think its pretty rare for a creditor to go after someone this soon who obviously has NO MONEY. And this is the first I've heard about being sued.

And yes, I saved the message!

Thanks again for the replies!

Wildflower

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If this is in fact a CA then within 5 days of first contact they must send you a notice of rights. If they do not that is violation number one. start recording the voice mails they leave you, taking very good note, etc. Read lots of stuff here.

Even if you do not think you want to sue them, having details of violations can give you lots of ammo to reduce what you owe or make them go completely away.

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wildflower,

The idea is to try and stay sick and broke at least until the Statute of Limitations expires! Then, you will never have to worry about paying if you are ever sued. Creditors assume people recover and unemployment is only temporary and that is why they attempt to go after people with judgments. Of course if you're sick, broke, disabled or elderly, it can be a real bugaboo! It's an actuarial fact lots of people will go to the grave with credit card debt.

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It looks like I have a few violations going already! It will be interesting to see if I receive anything in writing this week.

I do intend to pay off my debts and I really AM sick... I just don't want to have a judgment held over my head while I am broke, or be forced into BK. I plan to negotiate and settle with them once I am back on my feet, which hopefully will be soon.

Looking through the article on Debt Validation on this site, this is the only thing that concerns me:

One loophole: Some contracts have the wording "debtor agrees to be responsible for payment of this debt to creditor OR ITS ASSIGNS." This IS a contract between you and the debt collector as well as the creditor and if they can provide you with a copy of a contract that states this, you are pretty much stuck and need to negotiate.

I can't find any kind of loophole like this on my contracts, but some OCs have switched hands so many times I don't know if I have a current contract. My accounts are with Discover, Citicards, and First Usa/Bank One/Chase. Has anyone had problems with this and the major credit card companies?

Wildflower

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Alrighty... looking through my contracts more carefully, there are two that have me worried. The First Usa/Bank One/Chase card says that they can assign my account to anyone for any reason, and that they can also assign their rights to them. The Discover card just says they can assign my account to anyone without my consent, but says nothing about rights.

So does this mean assigned creditors to these OCs would not fall under the FDCPA regulations? And are there no laws to regulate debt collection by OCs, or CAs like in the contracts above?

If so that really SUCKS.

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Assignment doesn't give the person assigned any extra rights. If the account is in default when it is "assigned" to someone else, then the person who gets it is STILL a collector under the definition of the law. Don't be sweatin that...the FDCPA still applies even to people who buy debts that are in default. Only the original creditor or a purchaser of a non-default debt has any immunity to the FDCPA.

Now, for the phone calls...

The FDCPA says you can tell a collector to stop calling at any time, even if you do not dispute the debt. All you have to do is tell them. If you tell them on the phone, record it (if your State allows such). But the best way is to tell them by mail. It's preferable that you send the letter certified, but USPS proof of mailing will do in a pinch. If you tell them to stop calling in a letter also include a sentance telling them you will record all future phone calls you get from them. This last part gets you off the legal hook with regards to recording the calls without having to tell them verbally on the phone and makes it both legal, and admissible in court as evidence. 90% of the time the threat of being recorded scares the collectors away from using the phone to contact you. :-)

Now that said, once they get your letter each and every call they make to you is a violation of the law. Because your situation is exacerbated by an illness, you should have your doctor know that you are being put under stress by these collection calls. Build your case so that if you do need to have a lawyer help defend your rights, you will have sufficient documentation to show the physical and/or mental harm that they caused if they should break the law. I've seen some people get $500,000 for metal anguish against collectors depending upon just how bad the collector behaved (your milage will vary). Also keep a notebook near the phone and jot down notes with date/time, names, and descriptions of every call or message. Keep a file on each collector so you have this info when you need it.

Just so you understand, the FDCPA is a law that has only one purpose: To regulate the behavior of collectors. The FDCPA has absolutely nothing to do with if you owe a debt or not. It's just to protect you from abusive tactics commonly used by collection agents.

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wildflower, have you tried running their phone number through Google? Sometimes you can come up with an address that way. Try using any form that it may appear on a web site (i.e. (123)456-7890, 123-456-7890, 123.456.7890, etc)

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The FDCPA says you can tell a collector to stop calling at any time, even if you do not dispute the debt. All you have to do is tell them. If you tell them on the phone, record it (if your State allows such). But the best way is to tell them by mail. It's preferable that you send the letter certified, but USPS proof of mailing will do in a pinch. If you tell them to stop calling in a letter also include a sentance telling them you will record all future phone calls you get from them. This last part gets you off the legal hook with regards to recording the calls without having to tell them verbally on the phone and makes it both legal, and admissible in court as evidence. 90% of the time the threat of being recorded scares the collectors away from using the phone to contact you. :-)

Got any case law to back this up? It would be good to add such case law to our arsenal. :)

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Update ~

I just received a written notice from a CA. I can't tell if it's the same one that has been calling since the phone #'s don't match. I googled the voice mail # and came up with nothing... bummer. Still haven't been served.

Anyway, I am going to DV them and include a limited C&D. I'm unemployed, so should I mention not to call at my future place of employment? Also, I'm confused as to whether I should sign this letter... I've seen good arguments from both sides on the forum. Was a final consensus ever reached about letter signing?

And... how do I find out if it's legal to record phone calls in my state? I'm in Idaho.

Thanks :D

Wildflower

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Idaho Code § 18-6702: Although legislation criminalizes the interception and disclosure of wire or oral communications, it specifically allows interception when one of the parties has given prior consent. Punishment for the felony of an illegal interception or disclosure can include up to five years in prison and as much as $5,000 in fines. Anyone whose communications are unlawfully intercepted can sue for recovery of actual damages, $100 a day per day of violation or $1,000 — whichever is more. Punitive damages, litigation costs and attorney fees also can be recovered. Idaho Code § 18-6709.

Okay... does this mean I can tape if I tell them I'm going to :?:

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The prevailing opinion here is that you can include a statement in your DV letters/future correspondenct that you will record all telephone calls. If they call you or respond to you when you call them, you could argue intelligently that they consented within state law.

As far as future employment, simply stating that all calls to your place of employment are prohibited should do the trick. When you get a job in the future, you're still covered.

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