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Calls from CA after notice to communicate in writing


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Mercantile Adjustments had been calling me for a debt for which I never received an original collection notice (they claimed they sent it to an old address). I called them back to apprise them of my correct address, the fact that I did not ever receive a collection notice, and an oral request that they discontinue telephonic communication and direct all communication in writing. I know that that request must be in writing, but I hoped that they would act in good faith (silly, I know) and stop calling me. The lady on the phone flatly refused and was a real jerk about it. I promptly DV'd them (before I even received the collection notice in the mail), directing them in the letter to cease all telephone communication immediately upon receipt of the letter and I confirmed delivery last Tuesday. I have continued to receive telephone calls from their automated system up to today (4 total), all of which I have saved. I would really, really, REALLY love to sue the hell out of them right now. At what point does their contact trigger remedies under FDCPA section 806? What would be my likelihood of success and expected recovery right now if I took them to court?

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I thought a "Do not call, mail only" letter was considered a Limited C&D?

While I agree that a Limited C&D holds no weight in court if you subscribe to telephone service, I beleive the DV the OP has sent should make the CA stop all communictions until they mail their response. The letter of the law does not list the telephone as the only way to communicate to a consumer.

Am I correct in how I have read the original post?

If so, daheata, then by all means log all phone in attempts to you. By law they must respond to your DV before they can contact you again - UNLESS their next communication is to tell you what their next move is: sue or drop it and send it back to OC/JDB. Their next call, prior to mailing you a DV response, would be in violation if it were a standard collections call. I would personally take 4 calls a day, after receipt of the proof of delivery, to be harassment.

StressPot :)++

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No such thing as a limited C&D....per the FDCPA

(1) at any unusual time or place or a time or place known or which should be known to be inconvenient to the consumer. In the absence of knowledge of circumstances to the contrary, a debt collector shall assume that the convenient time for communicating with a consumer is after 8 o'clock antimeridian and before 9 o'clock postmeridian, local time at the consumer's location;

(2) if the debt collector knows the consumer is represented by an attorney with respect to such debt and has knowledge of, or can readily ascertain, such attorney's name and address, unless the attorney fails to respond within a reasonable period of time to a communication from the debt collector or unless the attorney consents to direct communication with the consumer; or

(3) at the consumer's place of employment if the debt collector knows or has reason to know that the consumer's employer prohibits the consumer from receiving such communication.

© CEASING COMMUNICATION. If a consumer notifies a debt collector in writing that the consumer refuses to pay a debt or that the consumer wishes the debt collector to cease further communication with the consumer, the debt collector shall not communicate further with the consumer with respect to such debt, except --

(1) to advise the consumer that the debt collector's further efforts are being terminated;

(2) to notify the consumer that the debt collector or creditor may invoke specified remedies which are ordinarily invoked by such debt collector or creditor; or

(3) where applicable, to notify the consumer that the debt collector or creditor intends to invoke a specified remedy.

If such notice from the consumer is made by mail, notification shall be complete upon receipt.

You can send a letter claiming that it is inconvient for them to call you at work or even requesting that they not call you at home, but, they are not required by law to abide by that.
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OP did not C&D, from the way I'm understanding.

From the OP:

...and an oral request that they discontinue telephonic communication and direct all communication in writing. I know that that request must be in writing, but I hoped that they would act in good faith (silly, I know) and stop calling me. The lady on the phone flatly refused and was a real jerk about it. I promptly DV'd them (before I even received the collection notice in the mail), directing them in the letter to cease all telephone communication immediately upon receipt of the letter and I confirmed delivery last Tuesday

That's NOT a full C&D. Willing is right - Cand D is all or nothing. Since OP didn't do "all", the result is "nothing".

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I agree with the both of you. I stated:

While I agree that a Limited C&D holds no weight in court if you subscribe to telephone service, I beleive the DV the OP has sent should make the CA stop all communictions until they mail their response.
By law they must respond to your DV before they can contact you again - UNLESS their next communication is to tell you what their next move is: sue or drop it and send it back to OC/JDB. Their next call, prior to mailing you a DV response, would be in violation if it were a standard collections call.

You did confirm though that I did read the OP correctlY :D Thanks!

StressPot :)++

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All the messages they have left have been automated messages, so it seems pretty clear to me that none of the communications were for the purpose of telling me they were going to sue me. Should I call them back, tape the conversation and just ask them why they were calling?

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All the messages they have left have been automated messages, so it seems pretty clear to me that none of the communications were for the purpose of telling me they were going to sue me. Should I call them back, tape the conversation and just ask them why they were calling?

There is no such thing in the law as a “limited C&D” – that is only a concept proposed by some well-intentioned people but with no case law to back it up

A consumer can put reasonable restrictions on how and when telephone contact may be made but the concept of saying all telephone contact at any time to any number can be banned (per FDCPA) because it’s “inconvenient’ is just not in the statute nor has any case I’ve ever herd of supported the concept (court decisions in the consumer’s favor has been filled with extenuating circumstances).

Also understand that while you may not have gotten their initial dunning letter that doesn’t mean they didn’t send one meaning that while you have the right to dispute and request validation, they do not have to stop their collection actions until they validate; or at least that is there position. You position should be that the contact you were responding to WAS the first contact and, therefore, their collection activity should stop until they validate.

Which bring us to my real point – whether this CA is or isn’t violating the law can only be determined by a judge meaning that to enforce any rights you feel have been violated, you would have to sue them.

Whether you do eventually sue them (or they you) or not, in the meantime, you should not call them or take their phone calls but instead, stick to the DV process…make them prove their case to you (I would also suggest that if they prove their case, be prepared to pay the debt).

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Actually there is a provision that applies in this case since these are automated calls. That is the TCPA (Telephone Communication Privacy Act). Usually because the CA can establish an Existing Business Relationship, the TCPA would not be invoked. However in Charvat v. Dispatch Consumer Serv., Inc. , 95 Ohio St.3d 505, 2002-Ohio-2838 the court found you can terminate an EBR for the purposes of the TCPA by telling them not to call you. Live calls would not be covered because the language is looser around those and only applies to telemarketing. However automated calls are forbidden after notification. I think you could also find the arguements within that case helpful in argueing in court that the FDCPA would allow you to set limits within the bounds of a limited C & D. The plaintiff argued some very good points where the Statute was silent, however legislative intent may have been there.

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Actually there is a provision that applies in this case since these are automated calls. That is the TCPA (Telephone Communication Privacy Act). Usually because the CA can establish an Existing Business Relationship, the TCPA would not be invoked. However in Charvat v. Dispatch Consumer Serv., Inc. , 95 Ohio St.3d 505, 2002-Ohio-2838 the court found you can terminate an EBR for the purposes of the TCPA by telling them not to call you. Live calls would not be covered because the language is looser around those and only applies to telemarketing. However automated calls are forbidden after notification. I think you could also find the arguements within that case helpful in argueing in court that the FDCPA would allow you to set limits within the bounds of a limited C & D. The plaintiff argued some very good points where the Statute was silent, however legislative intent may have been there.

While there may be other laws (with their own remidies) that apply to these circumstances, that is not reason to conclude that the FDCPA can be used to support the concept that all telephone contact at any time can be demanded and is actionable (as a violation) just because a consumer asks them to limit contact to writing/USPS.

As I've said many, many times, if a consumer doesn't want to talk to a collector, the best thing to do is not answer the phone - it works every single time. :)

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Actually there is a provision that applies in this case since these are automated calls. That is the TCPA (Telephone Communication Privacy Act). Usually because the CA can establish an Existing Business Relationship, the TCPA would not be invoked. However in Charvat v. Dispatch Consumer Serv., Inc. , 95 Ohio St.3d 505, 2002-Ohio-2838 the court found you can terminate an EBR for the purposes of the TCPA by telling them not to call you. Live calls would not be covered because the language is looser around those and only applies to telemarketing. However automated calls are forbidden after notification. I think you could also find the arguements within that case helpful in argueing in court that the FDCPA would allow you to set limits within the bounds of a limited C & D. The plaintiff argued some very good points where the Statute was silent, however legislative intent may have been there.

if these calls were to a cell phone after consent was revoked then its a violation, recorded message or not...tcpa

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