Pay for delete, enough for court?

[Jess1120]

Hey guys,

I have a collection I still owe $200.00 on. I dv'd, disputed...the whole 9 yards. They verified, but not really up to par I don't think. I sent them a pay for delete request along with a letter to sign and send back to me. They didn't send the letter back, but sent another bill, and at the bottom of it it reads (handwritten and signed)

"As a courtesy, Grant Mercentile will delete the above account if full payment is received by Novemebr 13th, 2006."

Is this enough to hold up in court if they don't delete after the payment is made? They didn't say when they'd delete it, afterall. But it is on a dated copy of a bill, and I do have the orignial pay for delete letter I sent to them. Any advice? I don't want to miss this opportunity since this is the only unpaid collection on my reports (and it's on all three of them)

Thanks!

Jessica

[Recovering Attorney]

Best you can do is take them at their word. Maybe call the, get a name and get teh person to affirm that they will delete.

[Jess1120]

I have her first name, since she wrote and signed it. I guess I'll just take the chance. I can always figure out a lawsuit later if they don't comply. I'll just write a note with the payment with all my gratitude and maybe I'll get somebody halfway decent that will just delete it for me

Thanks again

[PolarBearnCO]

Hey guys,

I have a collection I still owe $200.00 on. I dv'd, disputed...the whole 9 yards. They verified, but not really up to par I don't think. I sent them a pay for delete request along with a letter to sign and send back to me. They didn't send the letter back, but sent another bill, and at the bottom of it it reads (handwritten and signed)

"As a courtesy, Grant Mercentile will delete the above account if full payment is received by Novemebr 13th, 2006."

Is this enough to hold up in court if they don't delete after the payment is made? They didn't say when they'd delete it, afterall. But it is on a dated copy of a bill, and I do have the orignial pay for delete letter I sent to them. Any advice? I don't want to miss this opportunity since this is the only unpaid collection on my reports (and it's on all three of them)

Thanks!

Jessica

Umm, working for the government, I'm in CYA mode all the time. No, I'm not saying goodbye, I'm saying "cover your @$$." "Delete your account" doesn't suggest in any way they'll delete your negative tradeline. They'll simply "delete your account." That could mean a lot of things. I wouldn't take it for granted. I'd ask that they make it clear that they'll "remove all negative information from all 3 major credit bureaus permanently."

Sure, they could delete the information from your CRs, but then they could readd it.. hahaha. They didn't promise it would be forever.

[divemedic]

I think you could make a good case there. Take it. At worst, if they don't, you have an FDCPA violation for false or misleading info, plus you have a contract.

[PolarBearnCO]

I think you could make a good case there. Take it. At worst, if they don't, you have an FDCPA violation for false or misleading info, plus you have a contract.

Not really. He has a contract that they'll delete his account. Maybe that simply means they'll simply delete his "MS Excel Accounting Worksheet." An "account" can be a lot of things. They misled him in no way by saying they'd delete his account. Maybe they set up a free XBox Live account for him. Maybe they went to King Soopers and set up a King Sooper discount card for him. Maybe they went to QDoba (fast food mexican grill) and got a free frequent diner club card for him and they'll shred the card in order to "delete his account."

I'm no expert, but there's nothing there that would suggest an FDCPA violation for misleading. He's the one that may be interpreting this incorrectly. Of course, maybe they'll delete the TL in good faith and caution is simply just that...

[divemedic]

No, the standard here is what would be misleading to the "least sophisticated consumer" There is TONS of case law on this.

I think it is safe.

Heintz v. Jenkins, 514 U.S. 291, 115 S. Ct. 1489, 131 L. Ed. 2d 395 (1995). ‘‘The Fair Debt Collection Practices Act prohibits ‘debt collectors’ from making false or misleading representations and from engaging in various abusive and unfair practices.’’

Lewis v. ACB Bus. Servs., Inc., 135 F.3d 389 (6th Cir. 1998). Courts apply the objective test based on the understanding of the ‘‘least sophisticated consumer.’’

Chaudhry v. Gallerizzo, 174 F.3d 394 (4th Cir. 1999). Jury instruction on least sophisticated consumer upheld: ‘‘When I refer to a person unsophisticated in matters of law or finance, I am referring to a person of reasonable intelligence who has a basic understanding and has a willingness to listen to what is being said with care. I am not referring to a person who places an unrealistic or irrational interpretation upon what was said.’’

Schweizer v. Trans Union Corp., 136 F.3d 233 (2d Cir. 1998). The ‘‘least sophisticated consumer’’ standard was applied in evaluating FDCPA claims.

Russell v. Equifax A.R.S., 74 F.3d 30 (2d Cir. 1996). The ‘‘least sophisticated consumer’’ lacks the astuteness of an attorney and even the sophistication of the average consumer. The court stated, ‘‘in the general context of consumer protection—of which the Fair Debt Collection Practices Act is a part—it does not seem ‘unfair to require that one who deliberately goes perilously close to an area of proscribed conduct shall take the risk that he may cross the line.’

[Jess1120]

Thanks for all the info Dive! I hope I don't need to use it..but good to have just in case.

Also... I left out an important part of her note... she wrote as a courtesy, Grant Mercentile will delete the above account from your credit file if payment is made in full by November 13th.

So she did say it will be removed from my credit file, and not just their database.

At any rate.. I sent the payment and they received it on the 10th. So we'll see what happens!

[Jess1120]

Quick update on this:

I sent them a check (along with a copy of their signed agreement to clear the account from my credit) certified mail and they cashed it on the 13th. I also wrote an endorsment on the check "in accordance with agreement signed 11/8/06" or something to that effect for added value. They then reported/updated to both EX and EQ that I still owe $147.00 on the 14th!

First, this is absolutely wrong since the account was paid in full... at the very worst it should be a paid collection. Second... I still have their original signed statement to delete the account after full payment is made.

I'm hoping this was just a mistake on their part since they didn't list it as a paid collection, so I sent them another certified letter on Friday telling them I know they updated and they better delete it asap (within 5 days of the notice) or I would immediately file a lawsuit on FDCPA violations (inaccurate reporting and false/ misleading info) I didn't tell them the actual violations though since I don't want to give them any chance to try and fix it.

So, they should be getting the letter today since they are here in Cali... and I'll update this later!

[Robert Nashville/Savannah]

First: Good luck with this...I think you are going to need it.

Second: "Updates" don't just happem at the drop of a hat (or the receipt of a letter)...even if they plan to do what you hope they promised to do that doesn't mean they will do so (or that they even can mechanically do so) in a matter of a few days.

[Jess1120]

I realize things take awhile... I'm upset because they DID update... and it was after they received the payment and copy of the letter. If they can update and report to the CRA's that I made the final payment... then they can just as easily hold up to their end of the bargain and delete it. Ot at the very least... report it correctly as a paid collection. Updating it still unpaid like that dropped my fico 41 points!

[hipsociety]

If the account was already in collections, and listed as so on your report, updating that you made a payment toward the balance would not lower your credit score. The basic information stayed the same; only the balance changed (for the better).