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Ta Dahhhh! CA vilolation! Now what?


rodney0126
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Ok. Portfolio Recovery Associates.....

Got a phone call last week from them, told the collection agent I was going to send them a cease and desist on telephone communications letter and denied knowing about a debt. He told me a p.o. box to send it too. I also included in the letter a debt validation request.

Well, being an over cautious person and leaving as little to "chance" as I can, I sent out 2 letters. One by UPS with signature required to their main office and the other one by certified mail with signature required (because you can't send stuff by ups to a p.o. box.) to the p.o. box the agent told me about.

It shows they received and signed for the UPS on 9-12-08 at 946am. The one by US mail was received today (and I assumed signed for...I haven't gotten the card back yet) at 1002am. From the US post office website it looks like they delivered it to the P.O. Box, but since they couldn't get a signature there, they sent it to the main office where the letter via UPS was sent.

Well....they called today about 2pm or so. All it said on the caller ID was "toll free call", I didn't pick up. They are getting slicker because they called from a toll free number. I looked up the number and it said "not assigned", but when I called it they had the Portfolio Recovery automated answering system on.

This is a blatant violation, yes?

As someone pointed out on another thread of mine...did they also violate the law or something by calling (fishing) a number I never gave them or the original creditor. This number is only 6 months old and is under my wife's name. This is the first time a creditor has contacted me by phone in many many years. I can't remember if I put the number on the national do not call list or not, so I did it again the other day.

Is it common that winning a suit against a ca results in them having to pay your attorney's fees also? I'm hoping that the ca's attorney will offer to pay the "alleged debt" and the attorney's fees in exchange for dropping the suit. In this case the alleged debt is for about $350 and the fine I believe is $1000 (plus attorney fees if it's common for the judge to award them).

I'm also going to buy something to record my telephone conversations and let them know as soon as I pick up the phone that the conversation is recorded...let them say their spill and then remind them that I've already sent them a cease and desist letter and they are in another violation of it.

Speaking of that....aren't they in violation of "collection activities" before they give me any info about the debt after I've asked for it, IF the info that they send me (if any) isn't postmarked before today's date?

I've already read and read before asking these questions. I just want to confirm and verify what I've read.

Turns out my "what if's" are paying off after all. :lol:xdancex

(I think. :lol:)

I guess my next step is to hire a consumer lawyer, is that correct? I'm also going to file a complaint with the BBB and the state attorney general's office after speaking to a lawyer. I just wanted to know if their are any other suggestions? Does anyone know for a fact that I might as well expect to get a free ride on a space shuttle to the moon rather than collect on a violation suit from a ca?

Correct me if I'm wrong....but there can only be ONE violation per debt account, yes? I mean...if they continue to call..it's not $1,000 per call right? If it is just a flat $1,000 no matter how many calls....do they also lump other violations of a different nature (when committed) all in the same $1,000?

It looks like they are trying to play poker here. So....I'm trying to get my ducks in a row in case they bluff me all the way into court.

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You don't really have anything on them.

One phone call they day they receive a letter (and one business day after) isn't even worth doing anything with. Just because someone signed for a letter doesn't mean it was opened yet or given to the appropriate department yet.

Also, if you're request was to "cease and desist" telephone communications, that's a sort of worthless request. It's all or nothing. A full C&D is pretty much a horrible idea if there is any chance the debt is yours.

If you really want to catch them on violations (and if you do, and go after them, you're award could be as little as $1, so don't look at is as a money making machine), then get the recorder, answer your phone and talk to them. Just be careful what you say if you really plan on using the tapes in court.

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Has anyone read of an actual case where the ca was in violation and the judge awarded only $1? What about the attorney fees if the consumer wins the case on the violation?

If I don't have anything on them...then why are dates and signatures so important in court? Why send anything certified with signature required? (Not being sarcastic.)

I mean...if anything and everything is virtual worthless for the consumer...then why all the websites with forums, advice, form letters, laws, statutes, FCRA, FDCPA, ect? All of this doesn't make sense if the majority of the consumers are repeatedly getting the shaft in court. Not to disrespect anyone's advice or any websites...but I'd think the standard answer to just about any and all questions asked would be...."just negotiate and pay the debt no matter how many violations the collection agencies violate and no matter how old the debt is." Seems like a complete waste of time doesn't it?

I'm not being sarcastic, I'm sincerely wondering. I mean...there are pages and pages and pages of questions and advice here. The laws are explained, the violations are explained, statutes, methods ect...are all explained. If the outcome, quite frequently, is only $1 and no attorney fees are paid for the consumer then I'd think there would be just one sticky on every website to every question...."if contacted by a ca, negotiate and pay the debt asap. The collection agencies are virtually untouchable and all laws and statutes protecting consumer rights are virtually worthless."

I don't have any dealings personally with courts of law, so I can't speak from personal, first hand experience, but am I naive to think that judges have common sense when looking at the laws, statutes and direct blatant violations? Are the appeals courts just as indifferent to the consumer?

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The idea is that to have a strong case, you must be able to illustrate willful noncompliance. A single incident based on the 1-2 punch may be looked at by some judges as a frivolous attempt to "catch" a CA (even though that CA is violating the letter of the law).

Even Divemedic, the original guru I learned the "system" from, says in his primer (which Amerikaner has re-posted here), that you don't march off to court with one violation. You need to establish the pattern. That's what VeVe is saying here.

You write to them again and point out the error of their ways and let them know you are entitled to a deletion, etc., and see what they say. If they ignore or update again, then you've got the makings of a pattern of noncompliance.

There are plenty of people at CIC who have been successful in collecting from CAs for noncompliance - but very rarely on a single violation or one that's based on something that happened in a one day window (unless they go in front of a very pro-consumer judge). Make sense?

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The thing is that most people spend months building a case, have a paper trail of provable violations, recordings, etc. You're saying you have one phone call the same day they received you're supposed "cease and desist" (which again, you didn't really request anyway).

The award is up to $1000. That doesn't mean you would get $1000. You could be awarded $1, $100, whatever. But in any case, you likely need some rock solid and documented violations.

If you went into court and showed your letter and a snapshot of your caller ID with PRA's phone number on it, you'd have nothing more than an aggravated judge.

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Yeah, makes perfect sense.

I'm hoping not to go to court. It's always good to be the one with the most leverage and the one to call the shots though.

My mother, who is an ex collection agent, told me (about 30 years ago) when she was in her prime...that her manager had this student loan account. At the time, when students took out student loans they had their picture taken, according to her. Well, her manager calls this girl or lady and at some point in the conversation says..."from the looks of your picture it looks like you should lay off the twinkies." My mother said the woman filed a complaint ( I don't know to who and I don't know if she filed suit) and my mother's collection agency ended up paying off the woman's student loan to avoid any bad publicity for the violation.

She used to bring home some of the recordings. They were extremely hilarious. Both sides yelling and cursing and insulting. You'd be amazed.

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VeVe,

Why do you say I didn't request a cease and desist? Also...I know about the $1, but has anyone read an actual case about a $1 judgement?

I'm not saying I'm going to court tomorrow. I was asking for further suggestions.

So, send another letter and build a case....at least until this gets to court, if ever. Yes?

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VeVe,

Why do you say I didn't request a cease and desist?

You can't request a "cease and desist" just for telephone contact. It has to be for all contact, so that means no mail either.

And you certainly can't request a C&D but also in the same letter request that they provide you with proof of the debt. It's a conflicting request.

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Telling someone to cease and desist all telephone communications with me and any future communications must be written communications is a conflicting request?

I didn't say contact, I said communications. "contact" would be conflicting requests.

So.....are you saying that everything I've read concerning how to stop telephone communications from a ca is a lie? Is this correct?

I must specify contact and not communications? Yes?

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Contact, communications, whatever.

Bottom line is that you either tell them to stop contacting you all together or you don't bother. The only exception is if they're calling you at work, at home at a time that is a burden (i.e. you work third shift and they call you at 10am when you are sleeping), etc. You can request that all future contact be written only, but that's not a cease and desist and they don't have to honor it.

The conflict in your request is that you sent them a "cease and desist" AND asked them to prove the debt. You can't tell them to stop contacting you, but in the same letter ask them to contact you

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I don't understand something. Please help!

Are the links at the top of the website, BS (which would also mean bad advice in real world situations)? If so, then why are very knowledgeable people even posting here? It's almost like...the owners are giving links that are in direct conflict with the advice of the gurus here. To me...that's like being a Muslim on a Christian website talking about Christianity from a Christian's point of view. Doesn't make sense.

Don't get me wrong...I'm not trying to be a smart a** and I sincerely hope no one takes it that way. But I would think the guru's would have a public outcry against the owners of the site to remove what (to them) is obviously useless and (more importantly) bad advice links.

Ex. In the sample letters, "Request to a collection agency to validate a debt".....http://www.creditinfocenter.com/forms/sampleletter9.shtml

This would be, according to you, very useless, conflicting, worthless and even bad advice if I threaten to file suit against anything other than written communications. If so....where's the petition, outrage and protests?

I'm not trying to be a "wisenhymer"....it just seem really comical to me. The website is promoting one thing and on the engine that keeps this site lively and running we have the gurus who seem to give advice contrary to the meaning behind the links. I guess I don't understand why knowledgeable people would post on and help perpetuate a website that has links to and promotes bogus, worthless and useless information to the very people it claims to try to help. Is the owner really in cahoots with the Collection Agencies? :lol:

This, of course, is coming from a very "green" newbie. Am I missing something?

Talk about conflicting. :lol::lol::lol::lol::lol:

BTO, save one of those beers for me you had last night. :lol: I'm going to need it.

I'm definitely NOT shooting down anyone's advice or opinions. So don't think that. I apologize if it comes off that way. It's totally unintentional. I'm just making an observation....one that I think is a legitimate (and comical) observation to inquire about. So...please don't get bent out of shape about it.

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First: There is no such thing as a partial C&D. It is just a myth. It does not work. Yes you can try it, but the CA will more then likely ignore the limited C&D and keep calling. Is there a violation? I don't think so.

Second: There are a few ways to get them to stop calling. Your best option, in my opinion, is to send them a timely DV. This accomplishes 2 things. They do have to stop all communication until they send you the minimally required information required by federal law IF your DV is timely. If it is your debt, and within SOL then you may get proof mailed to you.

Other options would include a full C&D, which should stop them contacting you at all. You could unplug your phone. You could hire an attorney and inform the CA they must now work through him/her. If you know this is your debt, you could try to work with them to get it paid (please don't boo or hiss, I tried and still sued the last CA I dealt with for their violations).

Hope this helps, and good luck!

StressPot :)++

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Rodney,

Combining a cease communication instruction and a demand for validation in the same letter is issuing conflicting instructions or instructions that cancel each other out. Think about it -- on the one hand you are saying "don't contact me" and on the other hand you say saying "contact me to provide validation". It is enough to make your head hurt.

Now, as to the question of "cease communication" or what some people refer to as a "cease and desist" -- the FDCPA allows a consumer to issue an instruction to cease communication. That is defined as only one further contact in certain very limited situations.

The act does not provide for what is commonly referred to as a limited C&D. In other words, an instruction that says "don't call me -- send mail only". There are no court decisions to support such a thing and the Act simply does not provide for it. The act does not prohibit it -- just does not provide for it.

As a practical matter, the recipient must take that limited C&D and decide what to so. Some CA/DBs treat it as a full C&D. A few might try to honor the limited C&D. Some will just ignore the whole thing.

There are two dangers with a limited C&D. The first is it confuses you. Collector calls and you say "gotcha" and trot off to court. The chances you would prevail on such a lawsuit are very remote. The real danger here is that the judge gets annoyed and awards the collector their attorney fees -- that means you pay their attorney. Ouch.

The second danger is if the CA/DB treats it as a full C&D. A full C&D says either roll over and die or sue me. If the debt is within SOL or you are litigation adverse, a C&D is a very dangerous thing.

So, you can send that limited C&D. It just will not accomplish what you are looking for.

As to the $1 award for an FDCPA violation. Yes, it happens. Not a lot but it is entirely within the discretion of the judge. Why? Perhaps the consumer offended the judge in some manner. Or the judge felt that the consumer "baited" the collector into a violation. In that latter case, baited or not, a violation is a violation. But, the judge might feel that it was just not right. Award $1 or some smaller number.

As to attorney fees. Yes, the FDCPA specifically provides that the collector shall pay the attorney fees of the consumer if the consumer prevails in the lawsuit. That sounds easy but can actually be more difficult. First, you need to find a lawyer who knows what s/he is doing -- most lawyers do not and your best bet is naca.net. Second, even a NACA lawyer is cautious what cases they take. They generally don't want to mess with long shots or weak cases as doing so has a tendency to taint their reputation and relationship with the judge. Third, there is the matter of money -- just because the Act provides for an award of your attorney fees, that does not mean the attorney does not want a retainer and an hourly fee paid in advance -- not many will take a case on contingency even if it is a no-brainer.

Does this help you understand?

PS - sorry SP - you and I were typing at the same time.

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It's not that the advice on here is bad info. The keep all communications to writing is simply a request. They may or may not follow it.

You can inform them that it's not allowable that they contact you at work. That's per the law.

You can also affect a full cease and desist, where nothing is allowable.

That's also per the FDCPA.

You can also let them know that no time is convenient for them to call you.

That's also per the FDCPA.

But here's the catch on that one, it has to be explicit. If you just say don't call, then can't just assume it's an inconvenience, they can only assume it's a request. They don't know why you're requesting it. So, per the actual text, use the word convenience.

The letter here is usually enough to make most collectors give up. Or if they're a really bad JDB, then they move directly to file suit. It's a chance you take when you send one of these letters.

Also, this kind of letter is known as a form letter. While a direct copy and paste can work, chances are it's been out long enough for the collectors to start catching on.

I've taken to the Flyingifr approach to these letters, which basically says the same thing in four simple sentences.

1.) I dispute this debt.

2.) I demand validation

3.) No time is convenient to call me on any phone line

4.) I will uphold my rights under the law.

You can get more specific after you get the "validation" they'll most likely lazily print off and send to you, if they send anything at all.

I'm not trying to be a "wisenhymer"....it just seem really comical to me. The website is promoting one thing and on the engine that keeps this site lively and running we have the gurus who seem to give advice contrary to the meaning behind the links. I guess I don't understand why knowledgeable people would post on and help perpetuate a website that has links to and promotes bogus, worthless and useless information to the very people it claims to try to help. Is the owner really in cahoots with the Collection Agencies?

Perhaps the replies you've received should allow you to concentrate and slow your roll on this lawsuit thing. You do need to develop a pattern of noncompliance here. You only need one violation to have actionable cause, but before you go off and try to file suit on a weak case like them calling you on the phone because you said in a letter that you wouldn't correspond with them on the phone, is likely to get you laughed out of court.

I suggest you begin reading the FDCPA, FCRA, FCBA, CROA, and all the other relevant acts before you charge headlong into a lawsuit.

Sure, we can guide you, but it does take a little homework on your part too.

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Just my opinion, but I don't think this would work.

Yes you can name inconvenient times, i.e. "Please don't call before 5pm because I am at work." I think "Please don't call me all next week because I am out of town on business" would work as well.

But...

Would a judge really believe that a CA cannot call the consumer because there is no time that is convenient to call? If calling the OP is so inconvenient, then why does the OP even subscribe to telephone service?

Again this is just my opinion. Use the law, don't stretch it as most judges can see things for what they are.

You can also let them know that no time is convenient for them to call you.

That's also per the FDCPA.

But here's the catch on that one, it has to be explicit. If you just say don't call, then can't just assume it's an inconvenience, they can only assume it's a request. They don't know why you're requesting it. So, per the actual text, use the word convenience.

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Yall's posts and comments make sense.

So, in SP's post about the DV letter stopping communications until they send (I assume by the date it's postmarked and not actually in my hands) the validation of the debt required by law. It was timely, I sent it out (to both ca's) within 2 or 3 days of the letter (in one case) and the phone call (in the other.)

Well...if everyone is in agreement on that fact...does the fact that I gave a "cease all telephone communications" statement in the same letter basically void everything out? meaning....since I asked for a DV and gave a request to stop calling me in the same letter... does that mean they can ignore the fact the DV letter is suppose to stop all communications since I apparently cannot tell them "written communications only"? Does that question make sense?

Yes...one for sure is wayyyyyyy out of SOL and the other one is too, I believe...but I have no proof because I didn't keep the records. One is about 17 years old and the other is over 7. Which is why I asked about the "master credit report" or other suggestions for finding out about a real old debt in my other thread.

Court is the very last thing I want to do, but I don't want them to know that. IF I was a ca I would assume that an average person would not be very likely to keep old bad debt information after so long of a time (17 years and probably 8 years) and I would probably call the consumer's bluff. Which is why I'm here trying to mount a strategy....any strategy. Mainly for my credit report. Honestly, I'd have no problem paying a $350 debt and a $300 debt (15% of the original amount), but I don't want the added hassle of fighting to get an illegally re-aged bad entry on my credit report once I admit to and pay them off. That is actually my only concern. I have no bad entries on my report and my scores are finally getting up there and I'm doing all I can to protect that. The money is irrelevant to me.

I'm afraid if I admit to the debt, which everyone knows is past the SOL and subsequently pay both debts...then looking at it from a ca's point of view..."Why would a consumer pay a debt that is well past the SOL?" "Unless" he has no records or proof of it!" Then I'd be at their mercy if they decide to put them back on my credit reports. If I challenge the entries, I'd have no recourse but to accept them for a whole new 7 years because I have absolutely no way to fight back with proof.....unless I get cooperation from the oc's or get my hands on my master credit reports showing they were on there, but came off after 7 years.

Doesn't paying a bad debt past the SOL restart the SOL? and if it does...then that means it can be put back on your credit report as a negative mark called "paid collection"...right? or No? Then I'm screwed. So, I'm trying to play the odds, which seems to be (based on remarks here) that they probably won't do anything. I'm trying to make them back off and stop without risking my credit reports and scores.

One, from Capital Management, wrote me a letter. The standard one saying I have 30 days to dispute the debt or it's considered valid. The other has just called me and hasn't sent me anything yet. So...I had to respond to Capital's letter with a DV request or they'd win by default...even though it's past SOL, but I can't prove it.

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Just to add :-)

I am in the middle of a fight with "Portfolio". They reported ( without dunning me... ) I got a lawyer to write and send a validation letter...

They did nothing...ignored the validation letter from the lawyer and continued to report an account that is NOT mine. Plus they did not mark the tradeline "disputed". So my only option was to go the legal route because they are not responding ( thus giving the chance to get them on more violations )

So I filed in State Court ( Texas ) and are in the "serving" process of Portfolio.

45-60 days later from initial contact to Portfolio and still nothing. Now I am waiting on Portfolio's court responce.

It looks like Portfolio runs "fast & loose" and expects to get sued.. I am glad to comply :<img src=:'>

I say "go get them"... But do it when you have atleast a few "obvious" violations that a judge would see a pattern of law ignoring tactics from Portfolio that are in your favor.

I feel confident in saying that Portfolio will keep racking up violations the longer you wait them out.

PS: I never use the C&D...

Reason: If you can get them talking and writing you, they will eventually violate your rights. Many CA's are not built to stay in business if they follow the law. ( IMHO ).

I work in tech ( voice / voip ) and many times I have worked in call centers that are used for "debt" collection. While in the call center I have caught bits and pieces of one side of calls that you almost want to slap the call center person for being stupid. But it is only because they are taught to act a certain way on the phone to get the collection and not worry about your RIGHTS..

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So, in SP's post about the DV letter stopping communications until they send (I assume by the date it's postmarked and not actually in my hands) the validation of the debt required by law. It was timely, I sent it out (to both ca's) within 2 or 3 days of the letter (in one case) and the phone call (in the other.)

Yes, they cannot continue to ask for money until after they provide validation. Or to communicate in any way about this debt. This includes the CRAs. So if they're on there, and you dispute with them, then they either verify, which is a form of communication. Or they delete. 1-2 Punch. You win. TKO....for now.

Well...if everyone is in agreement on that fact...does the fact that I gave a "cease all telephone communications" statement in the same letter basically void everything out? meaning....since I asked for a DV and gave a request to stop calling me in the same letter... does that mean they can ignore the fact the DV letter is suppose to stop all communications since I apparently cannot tell them "written communications only"? Does that question make sense?

This depends. If they took it as a full C&D, then you may have to clarify that your letter was not to be considered your evocation of the Cease and Desist clause of the FDCPA. If they didn't, we'll, again it's up to them to decide if they'll not call. To Q 2, no they still can't ignore their responsibility under the Act. They have to send you a Validation before then can continue to call and ask for money.

Yes...one for sure is wayyyyyyy out of SOL and the other one is too, I believe...but I have no proof because I didn't keep the records. One is about 17 years old and the other is over 7. Which is why I asked about the "master credit report" or other suggestions for finding out about a real old debt in my other thread.

If they are so far out of SOL. I'd give them the ole FOAD, and let them know it's out of statute. If they bring legal cause, it's up to them to prove it's not.

But, this is all at your own discretion, so you pick the path that's right for you. I'd make them my own little annuity on SOL debts.

Court is the very last thing I want to do, but I don't want them to know that. IF I was a ca I would assume that an average person would not be very likely to keep old bad debt information after so long of a time (17 years and probably 8 years) and I would probably call the consumer's bluff. Which is why I'm here trying to mount a strategy....any strategy. Mainly for my credit report. Honestly, I'd have no problem paying a $350 debt and a $300 debt (15% of the original amount), but I don't want the added hassle of fighting to get an illegally re-aged bad entry on my credit report once I admit to and pay them off. That is actually my only concern. I have no bad entries on my report and my scores are finally getting up there and I'm doing all I can to protect that. The money is irrelevant to me.

Sadly, these JDBs are turning to court more and more, as consumers are becoming more cognizant of their rights. The Internet is a wonderful thing. And you're doing the right thing. What you're doing here is building leverage if/when, and I emphasize when here, it goes to court. If you have more in damages than the debt is worth, not to mention what their legal bill will be, then you're sitting in a good negotiating position. Keep logging their misbehavior, then you'll be in prime position to smack them around in court. And if you credit report comes involved, then you've got a whole new arsenal to work with in the form of the FCRA/FACT Act.

I'm afraid if I admit to the debt, which everyone knows is past the SOL and subsequently pay both debts...then looking at it from a ca's point of view..."Why would a consumer pay a debt that is well past the SOL?" "Unless" he has no records or proof of it!" Then I'd be at their mercy if they decide to put them back on my credit reports. If I challenge the entries, I'd have no recourse but to accept them for a whole new 7 years because I have absolutely no way to fight back with proof.....unless I get cooperation from the oc's or get my hands on my master credit reports showing they were on there, but came off after 7 years.

This just struck me, have you tried to call the CRAs yet to see if they have record of these aged off accounts? The should still have the records, even though they're not being reported.

Doesn't paying a bad debt past the SOL restart the SOL? and if it does...then that means it can be put back on your credit report as a negative mark called "paid collection"...right? or No? Then I'm screwed. So, I'm trying to play the odds, which seems to be (based on remarks here) that they probably won't do anything. I'm trying to make them back off and stop without risking my credit reports and scores.

Now this is a tricky question. Depends on how they're reporting it. If they're reporting as a tradeline, then they can't put it back on without reaging it to some extent. However, if they choose to report as a collector, it will show up as a new collection account, with a paid status. Even when the Original Tradeline has been aged off. I think this is an excellent question and needs more expert commentary on the matter.

My gut feeling is that they probably won't do anything because they, too, realize that the paper they bought is basically best used for the toilet.

One, from Capital Management, wrote me a letter. The standard one saying I have 30 days to dispute the debt or it's considered valid. The other has just called me and hasn't sent me anything yet. So...I had to respond to Capital's letter with a DV request or they'd win by default...even though it's past SOL, but I can't prove it.

I think you're confusing things here. It's not at the court level. They can't win anything by default until they've filed, and you're served. And since they know where you live since they've already dunned you, then they SHOULDN'T use sewer service. If they do, then you get an easy dismissal. But let's worry about that bridge when we come to it. And again, it's not you who would have to prove the validity of the debt, it's them if it goes to court.

Note: @ Stress Pot

ust my opinion, but I don't think this would work.

Yes you can name inconvenient times, i.e. "Please don't call before 5pm because I am at work." I think "Please don't call me all next week because I am out of town on business" would work as well.

But...

Would a judge really believe that a CA cannot call the consumer because there is no time that is convenient to call? If calling the OP is so inconvenient, then why does the OP even subscribe to telephone service?

Again this is just my opinion. Use the law, don't stretch it as most judges can see things for what they are.

My personal opinion on this is that I'd never use it as the basis of an FDCPA suit. I'd merely add it in on top of other claims. Filing on this alone, it being untested to begin with, is a relatively weak case no matter how you slice it. That said, I wouldn't hesitate to ever use it as a supplemental claim to already egregious damages.

I look at it like this: If they continue to insist on calling you about a debt, even though they've had no success on the phone before, or if you hang up on them, they'll either a) call back incessantly, at which case it borders on civil harrassmen or B) they'll find some other way to violate the FDCPA i.e. legal status, abuse, harrassment, false/misleading, etc.

But again, I'd never base a claim on such a liberal interpretation of the law.

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Well, before I get too excited about this.....

I've found 2 or 3 OLD credit reports that show the 17 year old account on there and then charged off. Thank goodness I was smarter than I thought and saved them. One of them says....

KAY JEWELERS

>PROFIT AND LOSS WRITEOFF< REVOLVING ACCOUNT

UPDATED 09/97 BALANCE: $263 CHARGE ACCOUNT

OPENED 10/89 MOST OWED $263 INDIVIDUAL ACCOUNT

CLOSED 06/91 >PAST DUE: $263 CREDIT LIMIT: $300

>STATUS AS OF 06/91: CHARGED OFF AS BAD DEBT<

This is what it says on my TU report dated 11/06/97.

So does this mean I've got them by the "short hairs" and I can send them that popular "foad" letter with confidence that nothing will come back and bite me in the butt down the road on my credit reports and in court?

Does anyone know where I can look to find the SOL stuff for Indiana and KY. I know the years and the categories, but I've read some where that some states consider credit cards "written agreements" which would change the time table I'm thinking of. I just want to be double sure that these 2 states don't consider credit cards and charge cards "written agreements." I've looked, but can't find anything about my specific question. Any suggestions on where I might be able to find it?

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Rodney

I think you are obsessing and over analyzing all this.

These debts are clearly far outside the SOL. Just send the cease communication letter and forget all the rest. You don't need a DV and it does nothing for you of any consequence.

No matter what you do, either they will sue you or they will not. I cannot think of a single way to preemptively prevent a lawsuit. Personally, I think the chance of a lawsuit is about 1 in 500 and most likely they will just go away when they receive the cease communication instruction.

You worry too much about a lawsuit, in my opinion. If you are sued, your answer is written. Your request for discovery is written. Even if you do need to attend a court hearing, just hand a note to the judge and explain that you have a speech impediment -- I promise that s/he will not make fun of you or allow anyone else to do so. This case is simple and you can easily give a written statement to the judge of your complaints. No one will have a problem with this. If for some reason you must answer a question or two, the judge will either phrase the questions in yes/no answers or will let you scribble your response. Don't be afraid.

Take a chill pill.

Note to leuser -- I can tell you have been studying at the feet of mr flying and you seem to be coming up the learning curve pretty quick -- I can see a remarkable change in your knowledge level in only a month or so. He is a very bright guy. He talks a lot about his successes. I've never heard him talk of his failures. In my experience, anyone who becomes an "expert" does so by learning from their failures. Success teaches far fewer lessons. I don't mean to denigrate him -- just a note to take things with a grain of salt until you learn your own lessons. Personally, I don't agree with some of his positions and think one would be very hard put to make that position stick. I always have a hard time differentiating between how much is bluster and how much is solid. Candidly, I suspect there is a fair amount of each. Good luck to you.

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Well, before I get too excited about this.....

I've found 2 or 3 OLD credit reports that show the 17 year old account on there and then charged off. Thank goodness I was smarter than I thought and saved them. One of them says....

KAY JEWELERS

>PROFIT AND LOSS WRITEOFF< REVOLVING ACCOUNT

UPDATED 09/97 BALANCE: $263 CHARGE ACCOUNT

OPENED 10/89 MOST OWED $263 INDIVIDUAL ACCOUNT

CLOSED 06/91 >PAST DUE: $263 CREDIT LIMIT: $300

>STATUS AS OF 06/91: CHARGED OFF AS BAD DEBT<

This is what it says on my TU report dated 11/06/97.

So does this mean I've got them by the "short hairs" and I can send them that popular "foad" letter with confidence that nothing will come back and bite me in the butt down the road on my credit reports and in court?

Does anyone know where I can look to find the SOL stuff for Indiana and KY. I know the years and the categories, but I've read some where that some states consider credit cards "written agreements" which would change the time table I'm thinking of. I just want to be double sure that these 2 states don't consider credit cards and charge cards "written agreements." I've looked, but can't find anything about my specific question. Any suggestions on where I might be able to find it?

Rodney-I'd say that you are good to go. Now just send the FOAD letter stating that these are out of the SOL and never to contact you again. If they sue you, produce your docs. If another CA contacts you on down the line-same thing. Simple simple simple! Now don't worry about anything else! I know I know.... easier said than done right? :lol:

I'd be making multiple copies!

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Combining a cease communication instruction and a demand for validation in the same letter is issuing conflicting instructions or instructions that cancel each other out. Think about it -- on the one hand you are saying "don't contact me" and on the other hand you say saying "contact me to provide validation". It is enough to make your head hurt.

Actually this is quoting the letter of the law in the FDCPA. This is exactly what the "do not contact" clause says, the consumer is allowed to tell the collection agency to not contact them unless they have validation. I suggest you read the FDCPA.

Now, as to the question of "cease communication" or what some people refer to as a "cease and desist" -- the FDCPA allows a consumer to issue an instruction to cease communication. That is defined as only one further contact in certain very limited situations.

Right that's what he was saying, and what I pointed out.

The act does not provide for what is commonly referred to as a limited C&D. In other words, an instruction that says "don't call me -- send mail only". There are no court decisions to support such a thing and the Act simply does not provide for it. The act does not prohibit it -- just does not provide for it.

You got this one right.

As a practical matter, the recipient must take that limited C&D and decide what to so. Some CA/DBs treat it as a full C&D. A few might try to honor the limited C&D. Some will just ignore the whole thing.

Actually, if you don't ask for the right thing the CAs just ignore the whole thing. Get the language right.

There are two dangers with a limited C&D. The first is it confuses you. Collector calls and you say "gotcha" and trot off to court. The chances you would prevail on such a lawsuit are very remote. The real danger here is that the judge gets annoyed and awards the collector their attorney fees -- that means you pay their attorney. Ouch.

If they sue, it's easy to beat them. Just take a look in the legal forum, it happens constantly. Collection agencies have no teeth in court.

The second danger is if the CA/DB treats it as a full C&D. A full C&D says either roll over and die or sue me. If the debt is within SOL or you are litigation adverse, a C&D is a very dangerous thing.

No sure where you drew this conclusion, but it is utterly false.

As to the $1 award for an FDCPA violation. Yes, it happens. Not a lot but it is entirely within the discretion of the judge. Why? Perhaps the consumer offended the judge in some manner. Or the judge felt that the consumer "baited" the collector into a violation. In that latter case, baited or not, a violation is a violation. But, the judge might feel that it was just not right. Award $1 or some smaller number.

It depends how you file the case. If you have actual damages, you can get some big dollars. But the best thing to do is to file for violations of your state laws, the FCRA, and the FDCPA. This way you can collect on actual damages, allows you to recover lawyer's fees as well as $1000 for each violation.

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In reference to the above post.

I tend to agree with DebtGuy on this. He is referencing almost directly the judge's opinion from a couple of the so-called "limited C&D" cases against Midland that came out of Texas, I think. They have been referenced on this board as well.

If memory serves, Midland was hauled into court for violations relating continued reporting and failure to provide validation. The DV letter also included the references to C&D as DebtGuy indicated and the court ruled that Midland's procedure of treating the entire letter like a C&D was reasonable, given the confusing nature of the letter.

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