hopelessinghana

How do I stop the calls?

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Well, Ive tried to help. The OP wanted to stop the calls.

News flash…the OP hasn’t been on the forum since June 6th at 9:30PM so the OP hasn’t seen a single post in reply to his/her question.

Without getting nasty, lets cut the crap, 99% of collectors "phone calls" are not nice pleasent Hi how are you, they are instead deliberate confrontations to evoke a response from the alleged debtor...ie: PAY UP. With the hundreds nay thousands of consumers who have come to this site seeking help dealing with collection, we've all read the perpetual story of abusive calls, abusive language, hey deadbeat why dont you pay your bills, etc, etc.

Telephone calls from collectors are a TOOL of collection, manned by personel trained professionally to skirt the letter of the law in abuse and "gitmo" a payment out of the alleged debtor. Given the fact it is industry standard practice, I'd have to assume IT WORKs or they would move onto something else more effective.

Let me get out my violin. :waah:

The FDCPA clearly recognizes telephone contact as a legitimate and legal tool for collectors to use to contact consumers about the accounts they are collecting. The FDCPA was not enacted to give consumers a way to avoid their obligations nor to allow consumers to avoid all telephone contact.

Had it intended otherwise, there would be no need for us to be arguing about whether a consumer could merely "claim" all telephone contact was ‘inconvenient” and therefore be precluded by the act…the act would have said so in plain language.

No one ever said collectors can’t be abusive or that their phone calls are pleasant experiences or that collectors don’t use the telephone as a tool to manipulate debtors into paying the accounts they are collecting. However, if anyone (and that includes collectors) are truly harassing people (as defined by their local and/or Federal statutes) then the consumer needs to be talking with their local police, telephone provider and/or the FCC and probably the BBB and their state’s AG as well.

For all the calls that don’t meet the qualification of being legally harassing, all they have to do to stop the calls is not answer the stupid phone…it works every single time and it doesn’t require years of litigation to enforce.

In the specific case I cited, Clark v Capital…

You seem to be very selective in the portions of the case you “quote”. In any case, repeating your interpretation of the case doesn’t make your conclusion any more correct.

Frankly, the 9th Circuit got it wrong…they obviously can’t tell the difference between an attempted and specific restriction placed IAW Section 805(a) of the act and an order to cease all communication pursuant to Section 805© and I’m beginning to wonder if you can tell the difference???

The language in Section805© is very clear...it is the right of the consumer to cease ALL communication; no right is given under that section to limit the type or location for communication nor an exception granted for one form of communication over another; exemptions are granted only on the basis of what can be communicated after a cease communication order has been issued by the consumer. Under Section 805©, ALL communication, in any form, is to stop except for the three specifc exceptions stated in the act.

The only posibility that a consumer has to limit one or more "forms" of communication or places for communication would have to be made under Section 805(a) - the language of the Clark's letter would clearly indicate that section as the basis for their request; yet the 9th cicruit decided insted to view it as a section 805© reauest for reasons known only to them!

If this decision is appealed, I fully expect the 9th circuit to be overturned (a situation they are very familiar with). In any case, outside of the 9th circuit’s sphere of influence, the case is meaningless.

It's also worth noting I think that this case is from three or more years ago...I would say that if it was going to have any sort of significant impact on the concept of the right of the consumer to limit ALL telehpone contact (but only telehpone contact), it's had time to do so yet I've see no evidence that other courts have given this case any significant cosideration.

If you want to IGNORE me for stating my case and argument for consumer rights, feel free.

I have no plans to ignore you if for no other reason than to make sure that posters looking for help understand that your interpretations of the FDCPA are just that, your interpretations and not to be taken as fact.

And just because people disagree with you doesn’t mean they are any less concerned with “consumer rights” than you.

I applaud you for finding one case that somewhat deals with the issue but it doesn’t even make a very good argument and is hardly enough to justify presenting an opinion as anything more than an opinion.

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News flash…the OP hasn’t been on the forum since June 6th at 9:30PM so the OP hasn’t seen a single post in reply to his/her question.

...Unless the OP browsed the forum without logging in. He/she would only need to sign in to post.

DH

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Yeah, we can't assume the OP isn't reading.

To me, it's simple. Collectors can feel free to use the telephone. Consumers have the right to cease those calls if they choose. That doesn't mean they are "skirting" the debt. They just choose to deal with it in a different medium.

My C&D states that the CA can feel free to contact me by USPS because I may decide to settle this debt in the future. However, I would like to excercise my right to cease and desist any phone communication as it is inconvenient to my family. Done.

So, thank you for the long discourse on what may or may not happen if and when we choose to take our collectors to court. Very interesting.

What I think we should be discussing is a simple question:

If I C&D my collector, will they stop calling or will they sue?

It'd be great if someone wanted to discuss.

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If I C&D my collector, will they stop calling or will they sue?

It'd be great if someone wanted to discuss.

Depends on your collector...depends on the amount you owe...depends of the phase of the moon.

I haven't seen any of the long time posters here ever suggest a C&D letter before the SOL has hit. Take that for what you will.

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Yeah, we can't assume the OP isn't reading.

To me, it's simple. Collectors can feel free to use the telephone. Consumers have the right to cease those calls if they choose. That doesn't mean they are "skirting" the debt. They just choose to deal with it in a different medium.

My C&D states that the CA can feel free to contact me by USPS because I may decide to settle this debt in the future. However, I would like to excercise my right to cease and desist any phone communication as it is inconvenient to my family. Done.

All very simple, yes...only problem is, the law doesn't agree with you.

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All very simple, yes...only problem is, the law doesn't agree with you.

yes. A "cease comm", "C&D", whatever you want to call it is all or nothing. No gray areas...and "don't call me, but you can write to me" is a gray area.

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Yeah, we can't assume the OP isn't reading.

That is quite true. However, we also have no reason to assume that the OP is reading and since we know he/she hasn’t logged on, it’s probably more likely than not that he/she hasn’t been back.

What I think we should be discussing is a simple question:

If I C&D my collector, will they stop calling or will they sue?

It'd be great if someone wanted to discuss.

First of all, while it’s a small matter; there is no such language as “cease and desist” in the FDCPA. The proper term is to “cease communication”; a right granted/protected by Section 805©.

Moving on, are you talking about attempting to restrict communication as part of a Debt Validation letter or a true cease communication letter (in which you demand they cease all communication)?

If it’s the latter (a “cease communication” demand) then about the best anyone can say is that “some will and some wont” sue after receiving such a demand – it is ALWAYS 100% dependent on the specific circumstances surrounding the alleged debt. If a creditor feels going to court is the best step for them to take, than they will and I would say they will whether you decide to cease communications or not. As a general rule, however, it is dangerous/risky to send a cease communication demand to a creditor/CA if the alleged debt is still within the SOL and/or otherwise actionable.

If you are talking about the former situation; again, it’s impossible to say. However, I would say it’s much more likely that they will continue to call/communicate in whatever means they wish (of course, if a DV request is timely then they are supposed to suspend all collection activity unless/until they validate).

What I have always done and have always suggested when writing a DV letter is, in the last or near to last paragraph, using language like this…

...

Please be aware that it is my personal policy to NOT discuss financial issues over the telephone especially in an adversarial situation. As such, I request that all future communication between about this matter be in writing and sent by United States Postal Service mail. Be advised that if you choose to ignore this request, any telephone calls from your company will be ignored; or, if inadvertently answered, will be recorded.

From this point on; the best way to “enforce” your request to limit communication to the mail is to not answer any calls they do make and DO record any calls you decide to take (and actually, recording is something you should be doing even if you want to talk to them on the phone).

Despite opinions to the contrary, hoping that you can impose a demand, as an FDCPA violation, to cease all telephone communication as “inconvenient” without specific circumstances to support such a claim is extremely unlikely at best – the law simply doesn’t support that opinion (in my always humble opinion).

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I read the Clark case at length. I conclude that wack is reading into it what she wants to read -- just as she is reading into the FDCPA what she wants to read.

Clark's husband did indeed send to the CA a "limited C&D" -- no calls and mail only. While there is no discussion in the court decision, it appears that the CA treated that instruction as a full C&D -- or technically, as Robert puts it, "cease communication".

We know that some DBs and CAs treat a limited C&D as a full C&D and some ignore the durn thing entirely.

In the case of Clark, there is nothing in the case to tell us the C&D had any impact on the decision to sue Clark. But, there is nothing to tell us it did not. There is just no way to tell. This is my constant mantra for why these things are dangerous to a consumer who is litigation adverse.

The key issue in the Clark case was whether or not the consumer could revoke a C&D. Clark called the attorney for the CA to ask questions and an employee of the CA returned the call. Clark sued for a violation of the FDCPA in that the CA ignored the cease communication instruction.

Go figure.

The court agonized over the parsing of words in the FDCPA and found that the consumer could indeed revoke the instruction and that the return call from the CA was not violative.

There were other allegations of violations of FDCPA and, after more parsing, the court determined some in favor of the consumer and some in favor of the CA -- that the CA was entitled to rely upon the records of the OC for accuracy -- but ironically that the CA had misrepresented the status of the debt in that they knew the OC's records were infamously in error.

Another go figure.

The court also remanded the case back to the district court to rehear issues of discovery.

Clark makes perfect sense. And it really plows little new ground. No where in the decision does the court even discuss the concept of a limited cease and desist -- let alone establish such as the "law of the land".

If there is any stretch for a "new idea" to draw from Clark, it is that this particular court seems inclined to treat a limited C&D as a full C&D and it is not clear they know or care the difference. To me, this says that the potential is increased that DBs and CAs will likely move toward a universal adoption of a policy for viewing a limited C&D as a full C&D. One very large DB has had that policy for a while now. Others may follow.

As Robert said, there are safer ways to avoid annoying phone calls.

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All I know is that you can consider me officially "scared off" from any C&D language unless the debt is out of SOL.

You've explained 3 possibilities from a C&D. They sue, they ignore, they honor it. I don't like my chances when only one option is favorable.

I'm litigation adverse. My debts went neg about 2 years ago. I only have one collection on my CR, but many different collectors calling for my OC's. I'll DV the CA, but I'll wait 2 more years in PA before taking any action on the OC's. By then I'm sure to have more CA's to DV.

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That is indeed the only "safe" way. If you are out of SOL and you KNOW you are out of SOL, then when you send your C&D letter, it's also a little added help to you if you add in there that the alleged debt is out of SOL and therefore please cease all contact...

Any other case and I wouldn't even consider sending a C&D letter cause you are just asking for getting a suit slapped on ya.

Just IMHO

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Just keep in mind that it's really tough for a collection agency to win a lawsuit against you in court. Also, a DV letter throws up the same flames of aggravation as a C&D letter.

Up to you. I'd do a combo DV and C&D letter against these crums.

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I'm not gonna waste my breath on the argument beyond this...

The Clark court DID NOT rule: "that the return call from the CA was not violative."

They found the exact opposite, that the Collection Agency employee Brumley VIOLATED 805c. The court found that Mrs Clark had WAIVED the communications prohibition for the Collection Attorney ONLY, not for the other parties... OC Doctor or Collection Agency Capital (and thier employee Brumley).

The court sent the case back to the district court to deal with discovery issues they wrongly ignored originally AND to adjudicate the FDCPA claims.... 805c as well as false/misleading and unconscienable/harrasment violations alleged in the CONTENT of the call Brumley made. We will hopefully find out the final outcome once this case is adjudicated and a final decision by the District court is made.

Go figure.

The Collector Brumley did not just call back Mrs Clark with the information she had asked the collection attorney for, no the collector then opened up both barrels of the usual collector harrasment and literally drove a KNOWN MENTALLY DISTURBED person over the edge. Known, as the bill they were collecting on was for her mental health treatment.

Go Figure.

Also, in the state court matter, the Clarks WON, they prevailed because the retired doctor that actually treated Mrs Clark and originally did the billing had screwed up and they didn't actually owe a balance on the debt.... and they proved it in state court. I can only assume here, but thier attorney decided to not counterclaim the FDCPA violations instate court, and save them for Federal court after the underlying debt issue was adjudicated in state court.

One last effort on the point. The TELEPHONIC COMMUNICATIONS PROHIBITION Mr Clark engaged did not prohibit WRITTEN communications, and in fact the collection agency, Mr Clark, and the collections attorney (brought in at some point when negotiations over the debt they DIDNT OWE broke down) all communicated over the course of months were IN WRITING. There was no "cease communications" order in place, simply a telephonic prohibition as provided for in MY reading of 805c.

If there was a FULL C+D in effect, then surely the continued negotiation and further dealings IN WRITING with the collection agency and collection attorney on the part of Mr Clark would have ALSO been a trigger for a WAIVER of the FULL C+D (the FUll C+D as alleged by the experts here on CiC).

And yet, that appears not to be the case. Neither the court nor the defendant collection agency mentions Mr Clark's written communications during the ongoing collections matter as a predicate for waiving the alleged mythical full C+D. Funny how the Clarks, Capital, and the collection attorney all seem to be on the same page on all matters and interacting in writing, until.... Mrs Clark makes a phone call.

So the 9th circuit DID make new law, which is to recognize the logical requirement that a consumer CAN waive a right.... and tacitly acknowledge THAT RIGHT in the implication that you can waive it.

For the bleachers... you cannot WAIVE a RIGHT you do NOT have. So therefore, ergo, and viola... you must actually HAVE that RIGHT in the first place.

My reading of the case leads me to believe the court tacitly IMPLIED that the concept of a TELEPHONIC PROHIBITION is indeed lawful and in conformance with 805c. They didn't say this outright, but IMPLIED it in thier ruling that said right was waived by Mrs Clark calling (telephonically) the collection attorney previously prohibited by Mr Clark. They ruled the collection attorney, given a WAIVER by Mrs Clark, was now legally authorized to contact the Clarks telephonically.

They also ruled, the waiver DID NOT transfer to any other party. So the collection agency Capital and thier employee Brumley VIOLATED 805c by telephonicaly contacting the Clarks.

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...They also ruled, the waiver DID NOT transfer to any other party. So the collection agency Capital and thier employee Brumley VIOLATED 805c by telephonicaly contacting the Clarks.

Which is just one of the many reasons it is obvious that these "esteemed" justices on the 9th circuit are idiots as there is absolutely no wording in section 805© that would allow anyone but an idiot to construe that "ceasing communication", as elaborated in that sub-section is anything other than an all or nothing proposition.

"Ceasing communication" means exactly that, ceasing communication. The sub-section doesn't say ceasing communication except by U.S. Mail or except by smoke signals. There is no language in 805© that grants a consumer the right to cease only telephone communication while not restricting other forms nor does it say anything about "inconvenience".

As I mentioned before, you seem to have trouble distinguishing between 805(a) and 805© as well.

You've maintained that a consumer has the right to restrict telephone contact simply by claiming such contact is "inconvenient"; language used only in 805(a). Now you hold up this case as supporting your position even though it reached this decision based on 805©. xheadscratchx

As they like to say here in Tennessee, "that dog won't hunt".

Were you willing to be intellectually honest, I think you would need to acknowledge that this case does nothing to advance the assertion that a consumer has the right to restrict a CA from contacting them by phone, while allowing written contact, at any place or any time simply by the mere claim that such telephone contact is inconvenient - the assertion is a ridiculous one that is neither supported by the plain language of the FDCPA nor by case law (at least not competent case law).

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The Clark court DID NOT rule: "that the return call from the CA was not violative."

Wack,

You are correct. I discombobulated the answer. The court said that a return call from Capital's attorney would not have been violative. The fact that the return call came from an employee of Capital was violative. I confess that I do not understand the court's thinking.

I apologize for my inadvertent misrepresentation.

However, I reaffirm my statements that this case was about everything except the nature of a limited cease and desist. The other issues are interesting. But, that is all they are: Interesting. There is essentially nothing new to discuss.

It is clear that you see it differently. That is OK as you have the right to be wrong.

My objection to your advice has been and remains that you are dangerous.

I remember a football coach explaining why he did not pass often. He said that of the three things that could happen, two were bad. He said that the did not like those odds very much.

Someone earlier in the thread essentially said the same thing -- of the three things that can happen, one is bad, one is meaningless and one happens so seldom as to be useless for practical purposes. I concur with the poster's conclusion.

If you truly believe in the accuracy of your position regarding the limited C&D -- and given that no one except yourself sees Clark as supportive of your position -- why don't you go create some new case law that clarifies the matter once and for all? You seem bright enough to engineer the situation. You seem motivated.

Personally, I would be delighted to see you do that and put this whole matter to rest for once and for all.

Until then I can only advise posters to ignore your advice unless they fully understand the implications.

Good luck.

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The Clark court DID NOT rule: "that the return call from the CA was not violative."

Wack,

You are correct. I discombobulated the answer. The court said that a return call from Capital's attorney would not have been violative. The fact that the return call came from an employee of Capital was violative. I confess that I do not understand the court's thinking.

I apologize for my inadvertent misrepresentation.

However, I reaffirm my statements that this case was about everything except the nature of a limited cease and desist. The other issues are interesting. But, that is all they are: Interesting. There is essentially nothing new to discuss.

It is clear that you see it differently. That is OK as you have the right to be wrong.

My objection to your advice has been and remains that you are dangerous.

I remember a football coach explaining why he did not pass often. He said that of the three things that could happen, two were bad. He said that the did not like those odds very much.

Someone earlier in the thread essentially said the same thing -- of the three things that can happen, one is bad, one is meaningless and one happens so seldom as to be useless for practical purposes. I concur with the poster's conclusion.

If you truly believe in the accuracy of your position regarding the limited C&D -- and given that no one except yourself sees Clark as supportive of your position -- why don't you go create some new case law that clarifies the matter once and for all? You seem bright enough to engineer the situation. You seem motivated.

Personally, I would be delighted to see you do that and put this whole matter to rest for once and for all.

Until then I can only advise posters to ignore your advice unless they fully understand the implications.

Good luck.

I believe I second that motion! Or did I first that motion? Whatever I concur!!

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The FDCPA clearly recognizes telephone contact as a legitimate and legal tool for collectors to use to contact consumers about the accounts they are collecting. The FDCPA was not enacted to give consumers a way to avoid their obligations nor to allow consumers to avoid all telephone contact.

I see one flaw in your argument, above. Surely the FDCPA or congress would also recognize the US mail or any other communication media to be legitimate and legal for collections, but apparently all of these can be excluded iff ALL of them are excluded via the general C&D letter. Since it allows that how much importance or protection is given to any of these tools?

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I see one flaw in your argument, above. Surely the FDCPA or congress would also recognize the US mail or any other communication media to be legitimate and legal for collections, but apparently all of these can be excluded iff ALL of them are excluded via the general C&D letter. Since it allows that how much importance or protection is given to any of these tools?

No one said nor is one form of communication more or less important than another and it has nothing to do with specifically protecting a collector’s telephone use. However, underlying the act is the recognition that there is a legitimate societal need for creditors (thorough their collection agents) to collect debts and the telephone is a legitimate tool for them to use in that effort. The intent of the act was to quell the abusive tactics collectors used (and still use when they fell they can get away/don’t care about the law) in their attempt to collect debts.

The act places some specific restrictions on the use of the telephone and in addition, the consumer can place reasonable restrictions on how/when a collector may contact them that are specific to their circumstances (there is of course an underlying assumption that the consumer can support/substantiate those restrictions). However, the consumer does not have a blanket right to dictate to a collector what form of communication the collector can use unless, of course, the consumer wants to stop all communication in any form.

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Hi All!

I am new to this so please bear with me. Where do I begin? NCO and 800 service call me constantly. I have never spoken to them on the telephone. How do I begin?

It is sad that no one can come here and get a straight answer to your question after 5 pages of mostly deadlocked argumentative commentary from two points of view.:cry:

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It is sad that no one can come here and get a straight answer to your question after 5 pages of mostly deadlocked argumentative commentary from two points of view.:cry:

What's sad is that someone would come into a ten month old thread just to be a flamethrower. :complainer:

The issue of "unwanted phone calls" is not something that can be answered in one line or one post and is wholly dependent on a consumer's specific circumstances.

However, if you think you have THE answer for the OP (who by the way hasn't logged into his/her account since making his/her one post) then by all means, please feel free to enlighten us all.

Or are you just resorting to attacking the other posters in this thread because you have nothing substantive of your own to offer??? :hmm:

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What's wrong with what I said in post #3?

DH

There is nothing wrong with doing what you suggest, as long as it works for you. But I don't think it will work for most people. Most people have a phone because they have friends whom they would like to be able to reach them, or they have medical issues and want to get lab results of a critical nature from their doctors. As has been suggested if they don't want to receive phone calls they simply can cancel their phone service or change to an unlisted number which might work for a while or place a message that they will not answer between 8am and 9pm but will check for messages, that way their friends can call outside those hours but the collection agency cannot. Also not a good solution for some. Or you can get a magic jack for friends which only works on a running PC I think but still takes voice mail so it can be checked periodically and you can get rid of the other line.

Or use a cell phone or get caller-id at some expense to know who is calling so that even if the collectors get the number, they probably will, right, then you can monitor when they call and not answer. All of the ideas I have suggested are ideas that may work for some people but may not work for someone who wants to just pick up the phone when it rings to talk to their friends instead of being abused by a collector and they are abusive. It is all very well to say you can give them no information but that does not change the fact that the calls are abusive. For some that is easiere than others.

Recall that this case is about someone who did not want to bew called on the phone so he wrote what he thought was a limited C&D letter not to be called on the phone. Remember the debtor is presumed to be unsophisticated so the court could have decided this was an unlimited C&D letter but neither party asked the court to rule on the basis of written communication, they were both happy with that arrangement so the court was silent as to whether the C&D was limited or not. The plaintiff claimed the defendant had violated his letter by making a phone call and the defendant argued that he had waived his right by a phone call his wife made, and the court saw a loophole, that the defendant's call was made by a person other than the person the plaintiff's wife called and did not have the right to use the waiver, and so ruled. If someone calls you then you should be able to call them back, to reply, but that principle does not give you the right to have someone else call them back, according to the court.

Also your suggestion does not tell anyone how to answer the initial collection letter. Are you suggesting one ignore the initial letter to respond in 30 days or the debt is imputed to be valid?

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…..

xdeadhorsex Why do you continue to rant about someone else's ten month old post when the OP hasn’t even bothered to log back into his/her account since making that one and only post and likely has not seen a single answer to the question he/she posed? A question, by the way, which had nothing to do with limited C&Ds or court cases or answering machines or voice mail or changing numbers or and of the other stuff you seem so interested in. Do you just have nothing better to do???

The OP was given the exact right answer to his/her question and from your long and pointless post above; it’s very obvious that you either haven’t read or have read but failed to understand what the OP’s problem even was.

If you want to discuss the finer points of section 805 (or any other section) of the FDCPA then perhaps you should start your own thread.

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Well, Robert beat me to the punch and already said some of what I going to say, in particular, that the Original Poster's question was not about a limited C&D, but what to do about messages being left on his answering machine. And although a lengthy debate did develop, I object to your characterization, richinsea, that "no one can come here and get a straight answer", because I feel I provided a straight answer. I told the OP he could ignore it, or answer the phone and get a little more information.

You end by saying:

Also your suggestion does not tell anyone how to answer the initial collection letter. Are you suggesting one ignore the initial letter to respond in 30 days or the debt is imputed to be valid?

In my post I said:

"Once you have received a letter from them (which should advise you of your right to dispute the debt and ask for validation), you can send them a Debt Validation letter, CRRR. They are now required by law to stop calling until they have sent you validation."

I think that was pretty straightforward as well.

DH

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