collector offered to dismiss, questions

[gmijackso]

Well, I just became a member, but have been using the ideas, and info here in my debt case, and now I have my own questions.

Here's a very short history of my case.

I was contacted by a law office as an attempt to collect a debt for about $9500 middle of 2008. I sent a dispute letter immediately, and they responded with another collection letter and 2 copies of old credit card bills showing that the OC wrote off about $4500 in debt on one, and showing my last payment made in October of 2003. I disputed again because they didn't show in any form that I owed $9500 to anybody, least of all them. Nor did they claim to have been assigned or sold the debt at any time.

In December, I received a summons suing me for the $9500. I answered the summons and filed a counterclaim for $9000 for violations of the FDCPA, violations of FCRA (never marked disputed), deceptive trade practices (for attempting to collect debt in Nevada without a license), and fraud (stemming from the deceptive trade practices). I also filed complaints with the department that licenses debt collectors about the collection agency, and the law firm.

Yesterday I received their answer in the mail to my counterclaim (which wasn't stamped filed by the clerk surprisingly). Seems to be mostly bs claiming that I waived my rights, and that I didn't mitigate damages etc.

Now the interesting part. Today I received a call from their lawyer which went to voice mail. I listened and thought, interesting they chose to violate FDCPA again to call me as I stipulated only mail correspondence, but chose to call them back. The lawyer stated who he was and who he worked for and who they were representing, and that they were prepared to dismiss the case with prejudice if I were willing to do the same. I said that's fine but there are some things I'm going to require as well, and said that I would need the debt to be marked as paid in full and any negatives removed from my credit report and stipulation that they would not sell or transfer the debt to anybody else. He agreed and said that he would send something to me in writing to review.

So my questions are; is there anything fishy that I should be cautious of? Is this possibly some stall tactic, and if so what for? Is there anything else I should ask for/be certain is specifically written? I feel as though I probably could have gotten more from them (as this was basically their first offer) but I felt as though I shouldn't be greedy. And of course any other comments or thoughts about what should be done. I'll of course update when I get the first copy of their agreement.

Thanks for your help, and comments, this has been a great resource!

[legal_loansharking]

If the lawyer that you talked to is the one listed on the suit, I would believe a statement in writing from them, besides they can be dealt with thru the bar association and be disciplined in their state. Collection agencies do not care and can only be disciplined if they go way too far too many times and thru a lawsuit.

[gmijackso]

Thanks for your quick reply.

The lawyer that called is the same as on the lawsuit. Since I can't figure out what they would need to stall for (since nobody has motioned for judgment, nor a court date been set), I can only assume it's a real offer to dismiss. That leaves the previous question about what to be sure is included.

Also, I've thought of even more questions. I obviously need to hold them to some sort of time limit for them to report as paid in full, and remove negatives from my report. I was thinking something around 15-20 days, what do you think is acceptable?

Also, since it's being dismissed with prejudice, how do I ensure that I can take legal action if they don't uphold?

And lastly, should I require the negative reporting repairs and paid in full reporting be complete before dismissing my suit? Is that something the law firm might even consider?

Thanks again for your thoughts!

[admin]

If it's a lawyer from a JDB, they can't do much about what the OC reports. What you want is a release stating they will not try to sell it to anyone else (tip from Recovering Attorney). You just want the collection removed from your report.

[cjtx]

You could add a NDA (non-disclosure agreement) so they cannot disclose information about your debt to anybody, including CRAs and JDBs, and a liquidated damages clause of say $100,000 (or whatever you feel comfortable with) plus attorney's fees for breach of contract.

This way they cannot disclose info to the CRAs, you dispute with the CRA and if they verify, there is a breach of contract and you are entitled to liquidated damages.

If they sell it, or hire another CA, they are in breach of contract as well.

[gmijackso]

All great info. Thanks for the ideas.

I'm aware they can't do anything about the OC, but the collection agency (First Resolution) has this debt on my credit report as well, and in kind of a funny (strange, not ha ha) way. They've reported to TransUnion as "1st Resolutn", and Experian as "First Resolution Inves" and that shows up as a single account. Then, they've reported to Equifax as "FRIC" and it's listed separately. I don't really understand very well about how that would affect my credit score, but basically I want these items removed (or whatever is best for my score).

I was trying to sleep last night and my head got to thinking about this whole thing. I started to wonder what exactly is best for my credit score for them to do. Is it best to have them just remove their entries? Or mark them Paid in Full? Or something else?

I'm concerned about something happening and resetting the last active date on the credit report. As it stands, the last payment was October of 2003, which as I understand, means it should expire and fall off the credit report in October of 2010 either way.

Basically, I guess I'm wondering what is best for my credit score? Are they able to just remove their reporting after they've reported? Or is it better to have them report it as paid and have the paid debt on the report? If they can't remove it, do I then require them to not verify and dispute it, and then it goes away right? Or as a final option, I could just let it age and fall off.

Sorry it's kinda "scatter brained" I hope it's somewhat understandable. I have a hard time understanding the Credit Report stuff for some reason.

Addition: I know this kind of belongs in the credit repair area but wasn't sure if it warranted another thread since it's all a flow of this legal thing.

Since I don't understand the Credit Report thing so well, I figured it might be important to add that a different debt collector (Unifund) still has an entry on my report from 2007. I don't know if anything I'm doing now will affect getting that entry removed as well?

Thanks for your help/thoughts.

[KentWA]

One thing many of these guys try to put into settlement agreements is that you can never sue them, ever. Do not fall for that, if they ever ended up with another account and started all over you would be stuck. If they are going to straighten up and never violate again (yea right) there should be no concern with dismissing the current action with prejudice and leaving it at that.

[gmijackso]

One thing many of these guys try to put into settlement agreements is that you can never sue them, ever.

I will definitely keep an eye open for that. It's one of the things I was concerned about as well, though I hadn't thought about them acquiring any other debts. I was concerned about them violating this deal and not being able to do anything to enforce it.

[cjtx]

You do not want a "paid collection" or a "satisfied collection". You want it completely removed. Otherwise it will be a derogatory and will hurt your score.

The more recent derogs have a higher impact, so they probably will use the date of the agreement to make it look recent.

Do not fall for their "we cannot delete info" excuse.

[jezter6]

This one is interesting. You filed suit for $9k in violations, and even list ignoring of a partial C&D as a "violation" - it's strange they're even willing to play ball.

1) Limited/Partial C&D holds no water. They can call you all they want if they want to. Plus, since it's a lawyer calling to discuss the case - that's probably not a violation of a full on C&D.

2) As far as I knew and read, it's 1k per action against the creditor, not like you can sit back and rack up 9 violations and sue for them all at once.

You're a lucky SOB man.

[gmijackso]

This one is interesting. You filed suit for $9k in violations, and even list ignoring of a partial C&D as a "violation" - it's strange they're even willing to play ball.

1) Limited/Partial C&D holds no water. They can call you all they want if they want to. Plus, since it's a lawyer calling to discuss the case - that's probably not a violation of a full on C&D.

2) As far as I knew and read, it's 1k per action against the creditor, not like you can sit back and rack up 9 violations and sue for them all at once.

You're a lucky SOB man.

The original suit had nothing to do with the partial C&D. From what I read, it's 1k per violation for FCRA, and 1K per action for FDCPA.

My counterclaim suit was:

1K for violation of FDCPA for continuing collections without proper verification

1K for violation of FDCPA for failure to report disputed

1K for violation of FCRA for failure to report dispute to Equifax

1K for violation of FCRA for failure to report dispute to TransUnion

1K for violation of FCRA for failure to report dispute to Experian

Costs and fees for violation of Nevada's Deceptive Trade Practices for doing business as a collection agency without license.

4K for Fraud violation for misrepresentation or deception of a material fact by claiming I have a contract with them.

All are statutory damages except the fraud which is punitive.

They were also guaranteed to lose their case since they attempted to collect without being licensed (and have done so many many times as there are many court cases with them as Plaintiff). Even if they some how got that past a judge, Nevada SOL is 4 years and ran out in October 2007.

So, they were going to lose and not get my money, and they didn't want to risk me getting theirs as far as I can tell.

[notagain]

Listen, don't apologize for 'scatter brain' questions on the reporting issue. I'm facing similar questions. I currently have no report on that account, but afraid my settlement may generate a report by CA or OC. What will it say? Will it create new collection activity from other creditors. So many questions about these reports! I totally know where you are coming from.

I'm also trying to find out about stipulations. I don't want to miss anything on the settlement! Hmm. maybe I'll start a new 'Definitive Stipulations Thread'. Ha! Congrats on the case, btw, you really did your homework.

notagain

[gmijackso]

So I got the first copy of their dismissal today. It's on Pleading paper and is formatted for submission to the Justice court here. It's titled "Stipulation and order for dismissal". Here is what it says:

Plaintiff and Defendant stipulate and agree to the following:

1. Plaintiff agrees to dismiss the above referenced action with prejudice;

2. This claim is settled in full;

3. The Plaintiff will remove any and all negative comments to any and all credit reporting agencies.

4. Both parties agree to bear their own costs of suit and attorney's fees.

5. There has been no trial setting or schedule order.

Dated and signed by them of course.

So there are some things I know I want changed, and some things I don't know about, so here is what i was kinda thinking...

I'm fine with their dismissal with prejudice, I think I'm ok with their statement of settled in full. However on point 3, I want everything they've added removed, how do I word that? Also, I want it removed within 20 days. I would also like some agreed to consequences for not removing it within that time. Do I have to create a separate contract, or that that all be stipulated here?

I would also like to add a non-disclosure clause, but obviously it needs to allow them to remove their reportings. How can I do that?

Let me know what you're thinking, and any other suggestions you might have ASAP.

Thanks again for your help!

[notagain]

However on point 3, I want everything they've added removed, how do I word that? Also, I want it removed within 20 days. I would also like some agreed to consequences for not removing it within that time. Do I have to create a separate contract, or that that all be stipulated here?

I would also like to add a non-disclosure clause, but obviously it needs to allow them to remove their reportings. How can I do that?

Let me know what you're thinking, and any other suggestions you might have ASAP.

Thanks again for your help!

RE pt 3, Isn't that what they have done?

Stipulate 20 or 30 days. Giving them more time will be more reasonable I think, esp. if you have to go before a judge, also they will be more likely to accept the terms. What you are asking for is liquidating damages, and you may consider using the FDCPA fines as a guideline ($1000). Search here for NDA and liquidating damage clauses or on the internet. Modify as you like. repost

notagain

[henry1018]

The original suit had nothing to do with the partial C&D. From what I read, it's 1k per violation for FCRA, and 1K per action for FDCPA.

My counterclaim suit was:

1K for violation of FDCPA for continuing collections without proper verification

1K for violation of FDCPA for failure to report disputed

1K for violation of FCRA for failure to report dispute to Equifax

1K for violation of FCRA for failure to report dispute to TransUnion

1K for violation of FCRA for failure to report dispute to Experian

Costs and fees for violation of Nevada's Deceptive Trade Practices for doing business as a collection agency without license.

4K for Fraud violation for misrepresentation or deception of a material fact by claiming I have a contract with them.

All are statutory damages except the fraud which is punitive.

They were also guaranteed to lose their case since they attempted to collect without being licensed (and have done so many many times as there are many court cases with them as Plaintiff). Even if they some how got that past a judge, Nevada SOL is 4 years and ran out in October 2007.

So, they were going to lose and not get my money, and they didn't want to risk me getting theirs as far as I can tell.

You can sue for what ever you want but you wouldn't be awarded those damages

[gmijackso]

RE pt 3, Isn't that what they have done?

Stipulate 20 or 30 days. Giving them more time will be more reasonable I think, esp. if you have to go before a judge, also they will be more likely to accept the terms. What you are asking for is liquidating damages, and you may consider using the FDCPA fines as a guideline ($1000). Search here for NDA and liquidating damage clauses or on the internet. Modify as you like. repost

notagain

I'll definitely look into those. I guess my question was more along the lines of whether or not all of those things could be done in this document, or if a separate contract would need to be created and attached. Also, wondered about the NDA, whether you could limit it in such a way that would allow them to remove their reportings, but not allow them to do anything further. Would it even hold up at that point, or would it be as useless and the limited C&D at that point?

Thanks

[gmijackso]

You can sue for what ever you want but you wouldn't be awarded those damages

I can't say what I would or would not be awarded. The fact remains that they had violated all of those things. There is could be question as to whether a judge would award two FDCPA judgments. But in any event, logic dictates that there must be some credibility to my claims and defenses as the law firm approached me wanting to dismiss this case. If you're not worried about losing, you generally don't start offering deals to dismiss.

When this is done, I will have lost nothing (other than the $35 filing fee for my answer, and my time) and they will have declared paid what they had previously considered to be a $9500 debt and all entries to my credit report from them removed. Draw your own conclusions about how the case would have turned out had it gone before a judge, but it's obvious to me that the Plaintiffs attorneys and I both believe they would have lost.

[henry1018]

Make no mistake G, I'm pulling for YOU!!!

[admin]

One thing - if the lawyer calls you about the case, even after a DV, I doubt if that would be considered a violation of the FDCPA. The law allow them contact to discuss dismissing the case.

[gmijackso]

Ok, so here is what I think I'm responding to the lawyers with for my revised stipulation and order for dismissal. Will it hold legal water? How should I revise it so that it will?

1. Plaintiff agrees to dismiss the above reference action with prejudice;

2. This claim is considered settled in full, and as such will not be sold or otherwise transferred, nor disclosed to any third party or parties excepting that which is required to uphold this STIPULATION AND ORDER FOR DISMISSAL;

3. If Plaintiff discloses any details of this claim other than that which is expressly required by this STIPULATION AND ORDER FOR DISMISSAL, Plaintiff agrees to pay liquidated damages of $10000.00 to the Defendant for each and every occurrence.

4. The Plaintiff will remove any and all comments to any and all credit reporting agencies within thirty (30) days.

5. If Plaintiff fails to remove any and all comments to any and all credit reporting agencies within thirty (30) days, Plaintiff agrees to pay liquidated damages to the Defendant in the sum of $5000.00 with additional with additional damages of $1500.00 for each and every seven (7) days thereafter until the comments are removed.

Let me know what you think ASAP please, I'd like to get this out to them soon. Thanks for all of your help and thoughts.