3rd party disclosure question

[AISLE4]

I know CAs can only talk with third parties to get contact info on a debtor, but what about OCs? Can an OC communicate to a third party that they are trying to collect a delinquent debt? I was surprised to learn today that a woman from BOA called my mother (different address and different state--an address and state where I have never lived) and identified herself as Laurel from BOA. Said she has been trying to contact me about two accounts that are seven months delinquent and that there is a pressing matter that must be addressed by the end of the week or something could happen that I won't like. Laurel is a talker. She even said in the message that I have been doing biz with BOA for eight years. It's a message on mom's answering machine. I had her save the message. I was thinking about calling Laurel and playing the message she left on mom's machine and pointing out to her that she has violated...something, but I thought it best to find out if she has overstepped. Kosher practice or not?

[MadinKS]

If you have the proof, here is what you need to take care of Laurel. I don't see anywhere that it distinguishes between OC and CA. It always helps to read it for yourself. Good luck

http://www.ftc.gov/os/statutes/fdcpa/fdcpact.htm#805

FDCPA

§ 805. Communication in connection with debt collection [15 USC 1692c]:

( COMMUNICATION WITH THIRD PARTIES. Except as provided in section 804, without the prior consent of the consumer given directly to the debt collector, or the express permission of a court of competent jurisdiction, or as reasonably necessary to effectuate a postjudgment judicial remedy, a debt collector may not communicate, in connection with the collection of any debt, with any person other than a consumer, his attorney, a consumer reporting agency if otherwise permitted by law, the creditor, the attorney of the creditor, or the attorney of the debt collector.

[IHateCAs]

If you have the proof, here is what you need to take care of Laurel. I don't see anywhere that it distinguishes between OC and CA.

It always helps to read it for yourself.

With that in mind, perhaps you should read the definitions section and see what a debt collector is.

[qtptute]

NO!

You don't have anything against Laurel with BOA. BOA is the original creditor, right? Therefore, they can call you, your mother, your bother, whomever and find out where you are. Please see definitions:

1692a(4) The term "creditor" means any person who offers or extends credit creating a debt or to whom a debt is owed, but such term does not include any person to the extent that he receives an assignment or transfer of a debt in default solely for the purpose of facilitating collection of such debt for another.

1692a(6) The term "debt collector" means any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another. Notwithstanding the exclusion provided by clause (F) of the last sentence of this paragraph, the term includes any creditor who, in the process of collecting his own debts, uses any name other than his own which would indicate that a third person is collecting or attempting to collect such debts. For the purpose of section 808(6), such term also includes any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the enforcement of security interests. The term does not include --

(A) any officer or employee of a creditor while, in the name of the creditor, collecting debts for such creditor;

(any person while acting as a debt collector for another person, both of whom are related by common ownership or affiliated by corporate control, if the person acting as a debt collector does so only for persons to whom it is so related or affiliated and if the principal business of such person is not the collection of debts;

© any officer or employee of the United States or any State to the extent that collecting or attempting to collect any debt is in the performance of his official duties;

(D) any person while serving or attempting to serve legal process on any other person in connection with the judicial enforcement of any debt;

(E) any nonprofit organization which, at the request of consumers, performs bona fide consumer credit counseling and assists consumers in the liquidation of their debts by receiving payments from such consumers and distributing such amounts to creditors; and

(F) any person collecting or attempting to collect any debt owed or due or asserted to be owed or due another to the extent such activity (i) is incidental to a bona fide fiduciary obligation or a bona fide escrow arrangement; (ii) concerns a debt which was originated by such person; (iii) concerns a debt which was not in default at the time it was obtained by such person; or (iv) concerns a debt obtained by such person as a secured party in a commercial credit transaction involving the creditor.

1692a(7) The term "location information" means a consumer's place of abode and his telephone number at such place, or his place of employment.

Now, UNLESS, your card was someone else OTHER than BOA before BOA took over AND you were delinquent, then BOA is NOT the OC, they are the CA and then and only then does the FDCPA apply.

However, since you have not divulged this information, then I would have to assume that BOA is the OC and that the FDCPA DOES NOT APPLY AT ALL.

[Robert Nashville/Savannah]

Actually, there is a significant difference in the law between an original creditor and a debt collector; unless you live in a state which has expended the FDCPA and/or its own laws to apply to OCs, then the FDCPA does NOT apply to the original creditor.

That said, that does not mean that a company has the right to disclose whatever they know abut you to a third party (whether that perosn is your Mother of a starnger).

Depending on how far you want to take it, consider talking with an attorney.

[MadinKS]

See. Read it for yourself. Sorry for the bogus info. I'm learning too.

[qtptute]

Funny thing about laws, you have to read all of it not just a part of it.

[MadinKS]

I understand the OC can call whoever they want to find out where you are but I can't imagine it would allow an OC to blab about your debts to just anyone. What would cover that? There has got to be a law against that. A little help for next time?

[qtptute]

Nope, the OC can even threaten to send Guido over to break your knees, but if they actually come to your door with the baseball bat with Guido, there in lies the problem. Battery, Assault, Maime, Harassment, etc. But if they are running at the mouth, the person that they are running their mouth to needs to be on the offensive and see EXACTLY who they are working for. What is the company name, phone number, address, etc.

Unfortunately, the OC's are covered and can do whatever they'd like. It's the JDB's and CA's that have to follow the rules.

But, like I said, if your credit card company changed hands (eg. went from Chase to BOA in a merger) AND you were delinquent in your payments, THEN BOA would be held as a CA and not the OC.

We've actually had a case where one card changed hands to another and the client was delinquent before the change over. The new CC then became the CA and failed to do ANY FDCPA in anything it sent. It was fun suing them. They hadn't a clue what hit them.

[MadinKS]

Interesting. I'll keep this in mind. Thanks for the info.

[AISLE4]

Hmm, well there are two accounts. Laurel was referencing one account that has always been BOA and a second account that was MBNA before MBNA was bought by BOA--now that MBNA account is a BOA account. The MBNA account was delinquent when it became BOA.

I was aware that the creditor could call third parties to look for contact info, but I had no idea that an OC could reveal detailed info about the account to a third party. And, by the way, they have my correct contact info. I think they were getting irritated that I haven't been returning their calls.

I just got off the phone with Laurel. She gave me the hard sell on hardship programs, and when that didn't work out too well for her she jumped to settlement talk. Two accounts with a combined balance of about 26 thousand. I talked with BOA a couple months ago about why my accounts were delinquent. Laurel had my whole story right there in front of her. She offered a 9 thousand settlement. No thanks. 8 thousand settlement. No thanks. 7 thousand settlement. No thanks. Then she jumped to a 5 thousand settlement. We talked about it. I didn't like the terms. No thanks. 4 thousand settlement. We talked about it. Told her I needed to do some math and I'd call her back tomorrow. I think I'll turn it down and offer $2500 to see what she does. I know large MBNA accounts could be negotiated for a 10% settlement before MBNA became BOA. And BOA had a pre-charge off settlement policy of 50%. Maybe BOA is adopting the MBNA settlement policy? The $4000 offer is about 15% of the total debt.

I've been researching the settlement policies of my various creditors for months. I'm surprised BOA is willing (almost eager) to go so low. The accounts, according to Laurel, will charge off at the end of this month. I am at 6 months since my first payment missed.

If you have a delinquent BOA account that you are looking to settle, this could be pertinent info for you.

[AISLE4]

qtptute, since my MBNA account was delinquent before the account became a BOA account, and BOA has sent mail to me about this former MBNA account without the miranda and divulged the delinquency status and other info to a third party, have they violated the FDCPA?

...ah, the nuances

[CarolinaBlueEyes]

qtptute, since my MBNA account was delinquent before the account became a BOA account, and BOA has sent mail to me about this former MBNA account without the miranda and divulged the delinquency status and other info to a third party, have they violated the FDCPA?

...ah, the nuances

just an FYI.. MBNA are arbitration happy! Beware of that and DONT sign any certifieds you dont recognize.. this avoids proof of service and can keep you out of arb hell

[rella5]

well let me just jump on this bandwagon! I've got MBNAs that are now BOA's, some that were MBNAs that didn't make it to BOA and have been sold to ecast and some BOAs that started out as BOAs and are still. Hah! this is more confusing than the chain of Abraham's begats. I think I'll just sell it all, pay off all the bloodsuckers and go get me a margarita stand in Key West. OK you're right, its late and I had wine with dinner. But I am interested in how this BOA/MBNA thing goes down. Keep us posted Aisle 4.