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Pay Day Loans Under FDCPA?


artistic
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It hasn't gone to a collection agency yet. This is just the folks at the PayDay Loan place. They are harrassing me at work, calling six-eight times per day and now they've started calling friends and relatives. Friday they even showed up at my work.

I just wanted to know if they were covered under FDCPA since they are a creditor and they are trying to collect.

Thanks.

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Those Payday loan people are very aggressive when they want their money. A customer of mine runs one of those places. They will harrass you till they turn blue in the face. They will follow you to the end of the earth.

If you dont pay, they will cash the check, it will be returned, now they have a right to turn the check over to the County Attorney and he will collect it for them. If you dont pay the County Attorney , they will swear out a warrant for your arrest, and you will be jailed for not making a bad check good.

pay them...and dont do that anymore....its really hard to get away from the local legal loan shark.

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I copied this from Debtorboards, where it appears. It originally appeared on Art of Credit. I am the author of the reply to Mickes.

Originally Posted by mickes on ArtofCredit:

I took out a payday loan in May 2005, defaulted, blah blah the whole common story. The total amount due was $621.57. I made payment arragements via email (still have all emails saved) to make $100.00 payments every pay via western union. Then after making 3 $100.00 payments I get an email from the lady saying they wanted the remaining $321.57 due in full. When I told her I couldn't make the payment she said that they were turning me over to a collection agency and to make no more payments via western union.

Last night I get a call around 10:00pm. Some guy was like I am with a collection agency (didn't say a name) trying to collect an outstanding payday loan from (blah company), I am calling to get payment arragements.

I told him I wasn't giving out any of my personal information over the phone and he was like well we will be contacting your employer to garnish your wages, have a nice day and hung up.

What do you think? What can they legally do?

Thanks!

I see posts like this very often always saying the same thing, and that boils down to "I have a loan witha payday Loan company that I didn't pay back and now they are making themselves a pain in the butt, calling me a hundred times a day, yelling at me, threatening to garnish my paycheck, take my home, car and birthday and refusing to allow me to work the problem out. What can I do and what can they do?"

The very nature and tone of the question makes me believe that the Payday Loan Company (PLC) has somehow convinced you that (a) they are above the law, (B) you have to accept that status, © that you are powerless and (d) they intend to immediately carry out their threats. Sorry to bust the bubble, but none of the above is true.

1. No business is above the law. While FDCPA does not apply to Original Creditors (OC's), it is important to know when the PLC has "crossed the line" and has placed itself under FDCPA. Once they cross that line, they cannot retreat back. (see FDCPA Section 803(6)) That line is crossed when they try to make themselves appear to be an entity that they are not. A typical example of this would be when Ripoff Payday Loans starts calling and saying they are now Usurious Collections, even though it is still really Ripoff Payday Loans. At that time they "crossed the line" and placed themselves subject to FDCPA. That said, even if they don't cross the line, before they can take anything away from you there is a legal nicety called "suing" that they have to go through. Sorry, but you can't take anything you don't have a specific lien on without a Court Judgment.

2. No consumer has to accept the status that PLC's try to assign to them - powerless and without any recourse. There is plenty you can do to stop a PLC from ruining you, and believe me, they will try. One of the common tricks a PLC will try to do is to attempt to turn your check into an electronic debit, and hit your account early and often. If they get paid, someone else doesn't. If they do it and don't get paid, you get a pile of NSF charges. How do you stop this? The answer depends on when you are going to take the steps to protect yourself. If you act before you take out the loan, just notify your bank in writing (preferable directly to a bank officer) that they are NOT to permit any electronic debits to your account that are not initiated by you. In other words, all electronic debits must have a PIN number of your choosing to validate them. If you take this step after the fact, then (especially if the PLC has tried the debit already) you have the Routing Transit Number and Account Number of the PLC - instruct your banker to refuse ANY debit from that source. If the banker won't do this, close the accoumnt immediately.

3. Now that you see you are not powerless, you need to understand the reality of the situation. You do this by understanding some of the legalities of the transaction. Here is one of the most common collection lies the PLC will use:

Your check bounced, the sheriff is on his way over to arrest you. This lie finds its ounce of truth in the statement that bouncing a check can be a crime. Notice I didn't say "is" - because there are a couple of elements of the crime that must be proven before a District Attorney will take an interest in the case. The first comes to 'criminal intent". The nature of the Payday loan industry is that it anticipates that the borrower will have a certain amount of money in a particular account on a particular day. If your bank statement shows that to be the case, then the prima facie evidence is lack of a criminal intent. If not, then the reason why would be important. Other checks go there first? You cannot control which checks arrive first, particularly with Check21 laws in effect.

Here in Pima County, Arizona, the District attorney has a NSF Check program. There are specific rules for submitting a check to them, and being a Payday Loan company will eliminate them from the program (one of the rejection criteria is "Checks that are predated/postdated or or where an agreement was made to hold the check for a later date"). This eliminates PLC's AND CA's from the DA's program and therefore "the sheriff is on the way" is a lie. Check your county's or city's District Attorney's Bounced Check Reovery program for similar criteria.

Here's Pima County's: http://www.pcao.pima.gov/Docs/Bad%2...uide%202005.pdf

Now that the facts have been reduced to the fact that a PLC is no better than any other creditor and its debt enjoys no particular "privileged status", you can act accordingly.

4. Now that we have reduced the PLC to just another creditor, I recommend you read "Understanding the Collection Department", "Understanding the Collection Agency" and "They have an Attorney, Now the Fun Starts" in the Flyingifr Method (here's the link: http://debtorboards.com/smf/index.php). Their refusal to "accept" payments in line with your ability to pay is just positioning. My advice - send them a money order, and see if they cash it or return it. It doesn't make a difference that they told you not to send it - just send it. Sending certified funds back to the debtor over a small debt like a Payday Loan looks awful bad in Court, especially if the payment arrangement you proposed would have paid the debt off before trial date. Nothing looks worse to a Judge than a debtor/defendant appearing in Court, placing enough money orders on the judge's desk to pay the debt in full along with letters from the Plaintiff that they are refusing the payments, and then they sued for the debt. Just watch the expression of anger on the Judge's face when he asks the plaintiff's attorney "why are you wasting the Court's time with this?"

Just remember - playing "hardball" is part of the positioning. In collections, the squeaky wheel gets the grease. PLC's hire the most aggressive collectors they can because an APR of 400% just can't generate enough profits for them.

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I'm not sure what you mean. The consumers right pamphlet produced by the state was what I read and it specifically says that "The lender must conform to the Fair Debt Collections Practices Act".

I'd like to read that.

Businesses who extend credit are generally exempt from the FDCPA. There are certain deceptive acts a creditor can take, that suddenly place them under the FDCPA but... generally the FDCPA is out the window.

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I have many other issues with them besides just the collection thing. They were supposed to debit my account on payday and they did it two days early and caused several checks to bounce. I'm also fairly certain that they are the source of an identity theft issue related to some online payday loans that were taken out in my name. It's still being investigated. Actually at this stage, I just would like them to leave me alone at work. All the other can be taken care of later.

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From what I can gather, there are FDCPA elements available to Oklahoma residents via the Deferred Deposit Lending Act which covers... whatever it covers in Oklahoma.

They are still exempt from the FDCPA, but there may be mirror Oklahoma statutes which include lenders of that type.

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I don't understand what you mean. How can you say "From what I can gather, there are FDCPA elements available to Oklahoma residents via the Deferred Deposit Lending Act which covers... whatever it covers in Oklahoma.

They are still exempt from the FDCPA, but there may be mirror Oklahoma statutes which include lenders of that type." ?? The link I posted goes to a pamphlet which specifcally says that they are covered by the FDCPA. This pamphlet was put together by the state.

Is the Deferred Deposit Lending Act a Federal or State law? I'd love to find some Oklahoma statutes on anything.... goggle searches just really aren't helping me at this stage.

You also posted this "3107 - Manner of Collection For Past-Due Accounts

1. A lender shall collect past-due accounts in a professional, fair and lawful manner, in accordance with the federal Fair Debt Collection Practices Act.

Neato." What is this? Where did it come from?

And finally......"I don't see a private right of action here anyway." What do you mean by this?

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Deferred Deposit Lending Act is an Oklahoma law that covers businesses like pay day loan places.

In that STATE law, it says when collecting on accounts, they must follow the FDCPA. This does not make them subject to the federal law, just places the federal law into a state law. You could not sue them for violations of the FDCPA.

I looked up the DDLA which is where that quoted text came from.

Private right of action means your ability to sue them in a civil action. Since it looks like the DDLA can only be enforced by a state department, you could not sue them for violations of the DDLA (although you could document their violations thoroughly and report them).

So you can't sue them under the FDCPA or DDLA.

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What about that quote #3107? Is that from the DDLA too?

Did you read the DDLA online, if so do you have a weblink? I've searched for it on Google and gotten nowhere.

Private action --- surely they have to be held responsible at some point?? I mean she cussed at me on the phone at work!

I have every intention of paying the damn thing but because of their behavior, I'm almost to the point that I hope they do sue me just so I can play that answering machine tape for the judge!

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What about that quote #3107? Is that from the DDLA too?

Did you read the DDLA online, if so do you have a weblink? I've searched for it on Google and gotten nowhere.

I googled deferred deposit lending act and it was the first hit.

http://www.okdocc.state.ok.us/TITLE59/chapter47ddl.php

Private action --- surely they have to be held responsible at some point?? I mean she cussed at me on the phone at work!

They can be held responsible by "the administrator of consumer credit". I have no idea how seriously OK takes these matters. In MN, it would be taken seriously.

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Well dang... I goggled too but I added "Oklahoma"... must have confused it?

I don't know how seriously they take it either, I guess I will just file my complaints and find out.

One thing I noticed was the part about taking post-dated checks. The check I wrote them was post dated almost three weeks? Surely they wouldn't be so stupid?

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