mahni

I just got served - CAP1

Recommended Posts

Joey,

Debt guy sounds like the opposite of a collector to me - he has given many posters solid advice for winning against a collection agency in post after post. But thanks for a lively debate.

Link to post
Share on other sites
Joey,

Debt guy sounds like the opposite of a collector to me - he has given many posters solid advice for winning against a collection agency in post after post. But thanks for a lively debate.

Well I am just a poor half educated hillbilly, but the one thing I have learned is you pick your fights carefully. Cap 1 keeps excellent records! I say make them provide the information and if they can, SETTLE!!! QUICKLY!!!!

While sometimes I disagree with Debt, he does provide what he thinks is the best advice, as you do, as I do. We all have our opinions and they are all worth the same.

Bottom line is pick the court fights you can win, or expect to pay a heavy price for wasteing everyone's time.

Link to post
Share on other sites

You are correct If I tried to argue in court I would would be destroyed.

That is why sheep have a Shepard's xangelx

Goats get slaughtered too goat curry yum :D

I for one hate court even with my shepard but will use it when violated and show up when sued.

If I can avoid it I will.So far 5 case's that were started have all ended with settlements with out going to court so I think the OC's and JDB agree court is not a sure thing.

I think a standard for reporting is what is needed first.

In my opinion 1 TL for good account 1 TL for bad account equal weight.

Also all data fields must be reported as with DOFMD and the exact date the TL will be off the report. If any required data field is not reported then the CRA must delete.If the CRA deletes a TL it can never return for the OC JDB or CA Any DF's violate the standard. Make the fines $5,000.00 for each violation.

Link to post
Share on other sites

My apologies to Debtguy.

My advice to everyone out there, do your homework and do what is best for your situation. Even the ones that have been in an industry do not have all the answers.

Fatherof3

PS. you still sound like a debt collector,maybe because you have been in the banking industry. :p:hmm:

I too liked the debate. xbeer2)

Link to post
Share on other sites

As I pointed out to you DGuy, the consumer's RIGHT to have the collectors refrain from telephone communications is written in stone in section 805 of the FDCPA and is well established in the caselaw. All the consumer must do is inform the collector that it is "inconveneint" to contact the consumer by telephone at any time and any place. Period.

And I still say you are flat wrong. I've asked several times now and am still waiting for you to puke up some of that case law that supports the premise of a "limited cease communication -- anytime is inconvenient to call". Don't bring me a bunch of cases for a general cease & desist -- as did the last wingnut I had this debate with. Be specific.

Prove me wrong and you will have my abject apology and appreciation. Until then, you are just blowing wishful smoke and doing a disservice to people who don't know better.

Link to post
Share on other sites

That last post borders on the personal attack side, DebtGuy.

And I don't agree with the OP. I say still fight it. Just because Cap 1 keeps good records doesn't mean they will win. I've seen too many instances where the suit says "Original Creditor vs John Q. Public" but it was still a third party law firm suing (meaning they are a debt collector). Even if the law firm presents records from the OC, you can have them thrown out as hearsay.

I say keep fighting.

Link to post
Share on other sites

I'm working on getting you caselaw examples:

Very interesting one, Clark v. Capital Credit Oregon, 9th Cir Court of Appeals

in which the 9th circuit clearly agrees with my assertion, and further discusses how later contacting the collector may constitute a waiver of the restriction. The case includes some other very interesting FDCPA issues.

As a response to your concern over what a CA might do... regard this as a cease and desist. Well, that's on the collector. Clearly WRITTEN communication is not prohibited, and if the collector wants a shot at getting a settlement, they should pursue same. The only reason a CA would take a "no phone calls" demand as a preclusion of thier ability to collect, is if they are hooked on the phone harrassment tactics as thier principle means to coerse the alleged debtor, and having this stopped makes it not worth thier time to pursue further.

GUERRERO v. RJM ACQUISITIONS LLC in the 9th circuit also discusses the communications issue.

DONALD CHIVERTON and ROSE COLLIER, Plaintiffs, v. FEDERAL

FINANCIAL GROUP, INC., Defendant. CASE NO. 3:00CV1654 (RNC)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT

2005 U.S. Dist. LEXIS 26315 this case also gets into the law surrounding the ability to phone when told not to.

PITTMAN v. J.J. MAC INTYRE CO. OF NEVADA

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEVADA

969 F. Supp. 609; 1997 U.S. Dist. LEXIS 15826

also discusses the issue and how the language I used adheres to the statute and makes it easy for a court to nail offending collectors.

I can find more, but I hope these examples will cement the concept that debt collectors DO NOT have any right to harrass consumers over the phone, and once the consumer makes it known that calls are "inconvenient" that precludes the telephone.

If the collector is not satisfied with written communications, thats too friggin bad, as rule number one in any of this debt collection issues is.... get it IN WRITING.

Link to post
Share on other sites

Sorry Admin, it was posted in response to post #30.... though the Clark case actually includes some excellent FDCPA information and how the court deals with these issues. It is also a very recent case... this year... and includes some issues handled by the court for the first time ever.

Link to post
Share on other sites
Sorry Admin, it was posted in response to post #30.... though the Clark case actually includes some excellent FDCPA information and how the court deals with these issues. It is also a very recent case... this year... and includes some issues handled by the court for the first time ever.

Which case is that? I'd love to see it.

Link to post
Share on other sites

That last post borders on the personal attack side, DebtGuy.

I disagree. But, okay. I think I have established my knowledge bona fides and I do get steamed to see someone spouting as fact statements that they cannot or will not support.

Perhaps my words are not artful, I was challenging wack to back up his statements that the consumer has the right to a limited cease communication instruction -- literally, "no phone - mail only". By implication, s/he is saying such instruction is enforceable in court.

I can find all sorts of case law -- as well as the plain language in the FDCPA -- that gives the right for a consumer to cease all communication. Those are the cases wack is bringing forward. Clark is no different so far as I can tell as it deals (among other unrelated matters) with whether or not a consumer can waive (or rescind) a cease communication notice. It has absolutely nothing to do with "mail only" and those words are not used anywhere so far as I can tell*.

Those cases are fine insofar as they go -- but they are not on-point to wack's claim.

I think it is dangerous to be telling unsophisticated consumers they have the right to a limited cease and desist. It is inviting litigation as some well known DBs view those things as full C&Ds.

If the consumer wishes to send a C&D and take the risk of litigation, fine. I care not. My attitude about litigation is well known and I am unapologetic for that mindset -- and I always take pains to make sure the consumer understands.

That is all I am asking of wack. Give your advice. Then go on to explain that it is not universally accepted and that there is a significant risk of an result that may not be in the best interest of the consumer. Let the consumer decide for themselves what is in their best interest after they have all the facts for an informed decision.

But, don't do it out of ignorance and misuderstanding or because some "expert" told you to.

Now, what is unfair about that position?

*Clark had a long-running billing dispute with a medical provider. The provider turned the matter over to a collection agency. Capital sent a collection notice to Clark. Clark disputed the debt orally and in writing and apparently expressed at length past billing problems with the provider. Capital provided to Clark and her husband (it was his insurance) itemized statements and Capital claimed that the statements validated the debt. Capital's attorney continued collection activity. Clark's husband disputed the debt, demanded "proper verification" and directed Capital to not call Clark at home or work. Capital's attorney mailed to Clarks a "verification letter" and a copy of the already provided statement.

There was no collection activity for several months. Clark called the office of Capital's attorney to request information about the debt (Clark only left a message with the attorney's secretary). The secretary called Capital to relay the message. An employee of Capital called Clark. The two parties disagree on the substance of the call but apparently Clark was extremely upset.

Apparently Capital sued Clark in state court for the underlying debt. Clark sued in federal court for FDCPA violation.

Clark argued that that Capital's phone call to Clark (in response to Clark's telephonic query to Capital's attorney) constituted am FDCPA violation "precluding any phone calls". The court took note of the precise language in 1692c© "if the consumer notifies ... cease further communication ... the debt collector shall not communicate further...."

The district court said that Clark's request for information waived any objection to a return phone call to provide the information requested.

The appeals court argued with itself at length regarding the trials court's conclusion that Clark could rescind or waive a cease communication instruction. Ultimately, the appeals court agreed that the debtor could waive such instruction.

But, the court said that Clark's waiver extended only to Capital's attorney -- and not the employee of Capital who returned the call.

The Clark case does have interesting implications to FDCPA -- specifically the position of Clark that copies of the billing statements did not provide adequate verification of the debt. Both the trial court and the appeals court disagreed with Clark and said that Capital was entitled to rely on the records of the medical provider.

Clark had also claimed Capital used violated FDCPA through "false representation of the character, amount, or legal status of the debt". Capital's defense was that they relied on the records of the medical provider although there was evidence that Capital knew that the medical providers records contained serious bookkeeping errors. After more wading through murky water of statutory interpretation, the court concluded that Capital was not entitled to a bona fide error defense and thus ruled in favor of Clark on this issue.

The Court also remanded the case back to the trial court for further proceedings related to certain of Clark's requests for discovery that had been denied by the trial court.

While Clark is interesting, for purposes of this conversation Clark is about almost everything except a limited cease & desist.

http://classactiondefense.jmbm.com/clarkclassactiondefense_opn.pdf

all of the preceding came from a quick reading of Clark -- a more through study could provide more illumination -- but I think I got all the high points

Link to post
Share on other sites

Wow, you all have certainly thrown out a lot of information. Unfortunately, I am still lost. I'm not exactly sure of how to formulate and what to include in my answer - which I plan to have out of here by Thursday; and I also want to ask for discovery.

I checked the court docs and although CAP1 is the plaintiff, the address for the plaintiff is listed c/o another atty's office different from the plaintiff's atty.

I'm grasping for straws here, but the filing date in the court's system is 2007, but the filing date stamped on what I was served is 2008. Same dates, different years, and the summons date won't be here for another 6 months. Any chance in using that as a defense? lol

I have finals this week, but I will be checking back. Thanks for the lively discussion, and great info!

Link to post
Share on other sites
That last post borders on the personal attack side, DebtGuy.

And I don't agree with the OP. I say still fight it. Just because Cap 1 keeps good records doesn't mean they will win. I've seen too many instances where the suit says "Original Creditor vs John Q. Public" but it was still a third party law firm suing (meaning they are a debt collector). Even if the law firm presents records from the OC, you can have them thrown out as hearsay.

I say keep fighting.

The atty for plaintiff is a member of NARCA... and my CR from 07 shows that the amount was charged off/written off, so does that mean it was sold?

Link to post
Share on other sites
The atty for plaintiff is a member of NARCA... and my CR from 07 shows that the amount was charged off/written off, so does that mean it was sold?

Pull your CR's again. You need the most current information available to you. Year old info won't help you. You may have to pay for them if you've already pulled your free annuals from www.annualcreditreport.com

CO does not mean sold, just an accounting term to indicate an account as uncollectible so has been charged against income. Cap1 rarely sells debts that are w/in SOL.

Link to post
Share on other sites

What is the date of last activity on the account? When was the last time you made a payment that brought the account current? If it has been more than 3 years and if Georgia has a borrowing statute, you just may be able to claim SOL. Do get current reports. If you order them today, you should get them within a week. As you are unemployed you should be able to get them for free.

Link to post
Share on other sites
Guest
This topic is now closed to further replies.