"Least sophisticated debter" doctrine

[demoncasterouter]

Of course, I'm always looking for a reason to nail a CA, but I might be reading too much into this one......

But this looks like (a little) intimidation to me:

"This is to inform you that the creditor(s) named below has placed your account with this agency with the full intention of settling this debt.

You may not have intentionally neglected this obligation, but it is seriously past due and demands your attention!

If you would like our cooperation then:

1. Remit payment in full to this office or,

2. Contact this office in person or by telephone and arrange settlement.

IMPORTANT NOTIFICATION:

Unles you notify blah blah blah.........this is an attempt blah blah blah (normal requirements.....)"

Could what I have itlaicized be taken as intimidation under the old "...least sophisticated debter..." doctrine, established unofficially by the FTC? Or am I jut looking for a fight....? (Which is always the case anyway, hahahaha!)

[willingtocope]

Ahhhhh....maybe....but I think you'd have a hard time winning in court with just that.

On the other hand, if they are that arrogant, perhaps you can bait them into doing something really stupid. Maybe give them a call, and record their threats (make sure its allowed in your state)....

[sizax]

Ive had one of those before and it went no where it was just bought by a jdb a year later. if you really read into it it says

"with the full intention of settling this debt". It says nothing about paying full price

[demoncasterouter]

The more I think about it, the more I think this is deceptive. I mean they're basically saying:

"Here are your options: 1. pay, or 2. pay over time. Otherwise, we are not cooperating."

That ain't right. They can't imply that I have to do one of those two things, or else they won't cooperate....?

[willingtocope]

Like I said, the letter by itself would be tough to hang a suit on...but...it seems to indicate that they are likely commit further violations as you continue to deal with them. I give them as many opportunities as possible to make defendants of themselves.

[Methuss]

Three definate violations.

First is overshadowing. In making the statement of demanding payment during the validation period they violate the FDCPA. The way they worded it implies immediate payment to an unsophisticated person. They can make no statements that contradict the validation rights in even the slightest sense. "A notice is overshadowing or contradictory if it would make the least sophisticated consumer uncertain as to her rights. It is not enough for a debt collection agency simply to include the proper debt validation notice in a mailing to a consumer -- Congress intended that such notice be clearly conveyed." See Swanson v. Southern Or. Credit Serv., Inc., 869 F. 2d 1222, 1225 (9th Cir. 1988)

Second is in asking for contact by telephone or in person. "Requests that the consumer telephone the debt collector induce the consumer to waive his right to verification by failing to make the request in writing, as required." Miller v. Payco-General American Credits, Inc., supra, 943 F.2d 482 (4th Cir. 1991); Woolfolk v. Van Ru Credit Corp., 783 F. Supp. 724, 726 (D. Conn. 1990); Flowers v. Accelerated Bureau of Collections, 96 C 4003, 1997 U.S.Dist. LEXIS 3354, 1997 WL 136313 (N.D.Ill. Mar 19, 1997).

The third violation occurs by implying that if you do not follow their demands they will not cooperate in handling the account amicably. The way they word this implies that if you do anything other than remit payment or call them they will not be responsive. That violates the FDCPA on its face by threatening an action they cannot legally do. They are required by law to follow the FDCPA any any implication that they don't have to or that doing so is conditional upon payment is misleading and false.

[demoncasterouter]

WOW! Very good Methuss! I couldn't have worded it any better!

These must be newer cases (within the past 3 years or so), I've been out of the mix that long.

Based on what you just said, I think I might go ahead and just file suit. I may go ahead and send them a DVL first. But with 3 violations, that's enough to file suit right there. I've dealt with these poeple before, and they violated on separate accounts several years ago.

When I file, I'm gonna do it in state court this time instead of Federal. I'm not even gonna mess with small claims.....

[Methuss]

Actually, they are all pretty old, established cases from 1988 through 1997.

It's suprising more people don't use the ones about phone calls more often. It has been upheld as a published standard three times.

[Recovering Attorney]

Read the cases, not just the squibs. Courts make the distinction between a demand for payment and a demand for communication. As the letter does not say when payment must be made ( e.g., "NOW!". "IMMEDIATELY". "in 10 days") , nor does it threaten anything if you don't pay, I would hesitate to sue. Now, if you call them or they call you and you are told you must pay in 48 hours or the sheriff will come knocking rosome such rot, then you are getting soemwhere.

[Methuss]

The cases regarding phone communication demands were cited by Daniel Edelman. I've yet to read the full text of those three cases, but I doubt he made a mistake in referencing it.

[demoncasterouter]

Yeah, I think that the implications in the beginning of the letter are enough to make someone think that they better pay or the Maxwell's silver hammer will come down upon their heads. Even the language of the rights is "we'll do this but......." type of language. There's nothing in there that would let soemone know of their rights.

[Recovering Attorney]

Edelman knows what he is doing, and Flowers had a verbal demand element as well. My point is this language doesn't, in my mind, contradict the mini-miranda that follows at the bottom of the letter.

[demoncasterouter]

Didn't DV yet. So here's what I got in the mail from them recently:

"WARNING

In an emergency---or when you need credit---will you be able to get it?

Or, will you be turned down because of past due accounts?

This is something for you to think about. Don't let your credit record suffer---protect it! Mail or bring your payment in full to our office---today!

This is an attempt to collect a debt by a debt collector and any information obtained will be used for that purpose."

This is the second letter from them. Pretty taunting, huh? I just DV'ed them. We'll see what else happens......

[demoncasterouter]

I really wanted to get a second opinion from yall on that last one....?

[willingtocope]

Looks like further "overshadowing" to me. This alone would probably not be enough to sue over, but I'm sure they'll commit other mistakes...

[LadynRed]

First is overshadowing. In making the statement of demanding payment during the validation period they violate the FDCPA.

I respectfully disagree here. There is NO demand for payment by a specific date or even within a specific period - ie. the 30-day validation period. If the letter had said 'pay up within 10 days' or gave a concrete date within the 30 day period, THAT would be overshadowing. All this letter says is that if payment isn't received they'll pursue collection - a normal dunning letter. It doesn't technically overshadow the 30-day dispute period at all.

Overshadowing has been determined when there is an absolute demand for immediate payment despite the included 30 day notice. It has also been determined if the notice is on the BACK of a dunning letter or if the demand is in a different typeface - huge and bold for instance - to imply more weight or urgency to their demand. While the italics is meant for emphasis, it is probably not a bigger font or bold screaming in your face.

The third violation occurs by implying that if you do not follow their demands they will not cooperate in handling the account amicably. The way they word this implies that if you do anything other than remit payment or call them they will not be responsive

Maybe, maybe not. ALL collection agencies imply by their verbage that the ONLY solution is for the debtor to pay up 'or else' .. something. That something could just be further collection activity, and NONE of them want to negotiate, they have the right to demand payment in full and due immediately - AFTER the 30 day validation period ends of course. There is nothing in the FDCPA that says they have to be AMICABLE, but they DO have to follow the law. The 'spirit' in the FDCPA is the legal and FAIR collection of debts, that in no way means it has to be on 'friendly' terms. There is nothing in the law that says they HAVE to even deal with you if you choose not to pay. Don't start reading into the law, its a plain language statute.

They can't imply that I have to do one of those two things, or else they won't cooperate....?

Of course they can ! Its a collection tactic to create a sense of urgency, to create angst on the part of the debtor - 'oh gee if I don't pay they won't play nice'.. c'mon.. get real here. Since when does ANY CA 'play nice' if you don't pay up on their terms ??? NEVER !!

AS for the 2nd letter, what's the date on it ? Is it within the 30-day dispute period ? They gave you the required verbage in their first letter. You haven't responded yet, so what's to stop them from sending the 2nd ? I've gotten many, many similar letters - they mean very little really, its their continued tactics - trying to make it sound like they're doing you a favor and protecting your credit if you'll just pay what you owe.

I have to agree with RA here.. I don't see any overshadowing. If you file suit, your case is going to be extremely thin.

[Recovering Attorney]

The odds are better with the 2nd letter. Pull your credit reports. Are they on it? If not, it is a deceit/mislead case, not an overshadow, but quite possibly actionable.

If this 2nd letter came or was dated within the 30 days, it may be overshadowing in that it induces fear of ruined credit vs. enforcement of your rights.

[demoncasterouter]

Well, I Dv'd them, and they responded.

They did have a printout of the account, which ended with:

"Total of sub-charges: $14,435.45"

Then, at the bottom of the page it reads: "Pay this amount: $0.00".

Then, someone HANDWROTE: "Balance due: $875"

I could handwrite anything........

I don't know about this being validation or not....? I'll post in the validation section.