Agreed to Delete but did not sign the letter - Now what?

[ClamClamMan]

Hi all,

I found some items on my Credit Report and sent a letter for validation to the CA. As the items totaled about $150.00 I sent them a letter offering to pay in full in return for deletion of these items from the Credit reports.

Today I recieved a letter on the CA letterhaed stating the following. IT was not signed by a representative. Now what? Do I pay them? Do I ask for a more formal contract.

WE WILL ACCEPT THE $150.00 TO SETTLE IN FULL THE BILLS IN QUESTION. THEY WILL BE THEN DELETED FROM ALL THE CREDIT BUREAUS.

This is the text of my letter to them.

Thursday, March 19, 2009

VIA CERTIFIED MAIL RRR: xxxx xxxx xxxx xxxx

RE: Response to your letter of Mar 16, 2009

Dear Mr. XXX,

I am in receipt of your uncaptioned letter of March 16, 2009 with its attachment of a “list of bills”. (A copy is attached for your convenience.) Please be advised that the validity of the debt is disputed. I am not aware of the account numbers and neither did you inform me regarding the existence of these accounts. However, I wish to save us both some time and effort by settling this debt.

Please be aware that this is not an acknowledgment or acceptance of the debt, as I have not received any verification of the debt. Nor is this a promise to pay and is not a payment agreement unless you provide a response as detailed below.

I am aware that your company has the ability to report this debt to the credit bureaus as you deem necessary. Furthermore, you have the ability to change the listing since you are the information furnisher.

I am willing to pay one hundred and fifty dollars [$150.00] in return for your agreement to remove all information regarding this debt from the credit reporting agencies within ten calendar days of payment. If you agree to the terms, I will send certified payment in the amount of $150.00 payable to XXXCA, Inc. in exchange to have all information related to this debt removed from all of my credit files.

If you accept this offer, you also agree not to discuss the offer with any third-party, excluding the original creditor. If you accept the offer, please prepare a letter on your company letterhead agreeing to the terms. This letter should be signed by an authorized agent of XXXCA, Inc.. The letter will be treated as a contract and subject to the laws of my state.

As granted by the Fair Debt Collection Practices Act, I have the right to dispute this alleged debt. If I do not receive your postmarked response within 15 days, I will withdraw the offer and request full verification of this debt.

Thank you for your attention. Your anticipated courtesies are greatly appreciated.

Sincerely,

[wizz587]

I would resend it back to them with a kind note asking them to sign it but do not pay it until they sign it.

[looksbothways]

Personally, I would consider a letter on their letterhead to be enough. It's more than you get from a CA or JDB 90% of the time.

[Robert Nashville/Savannah]

If we were talking about a $1,500 or $2,500 debt, I'd want a signature.

But, I think you are safe to pay it based on the letter...this is $150 we are talking about; many DF's wouldn't even bother to acknowledge your request for such a small amount.

If you pay and they don't follow through on the agreement you have some ammunition and even if the tradeline never gets removed, it's a minor tradeline.

[cporemsk]

I know $150 doesn't seem like much, but out of principle I would request a letter signed by an individual promising to remove the item.

Nice letter. GOOD FOR YOU.

[dansocon]

It is a small amount. It is so small, it is unlikely they make much effort to collect it. You are willingly offering them $150, they would likely never otherwise collect. I don't think a signature is too much to ask for $150.

[JustaTexan]

In my opinion, you'll be okay. The letter sounds fine.

Of course if it will make you feel better and given you a stronger peace of mind, then by all means demand a signature.

Good luck!

[ClamClamMan]

Hi All,

Thank you for your replies. I think at this point I am not going to bother them for a signature and wil simply copy all of thier paperwork and send them back a money order with cover letter CMRRR.

I will however save the original letter from them and the postmarked envelope in case something happenes.

I will report back and let you know what happens.

Thanks

[nascar]

It wouldn't matter if they signed it or not; if you're paying no more than the amount owed, it's not likely that a promise to remove the tradeline is enforceable anyway.

[Robert Nashville/Savannah]

That's an odd response...what makes you think it's unenforceable?

The debtor has no legal obligation to pay anything to a CA...the CA has no obligation to report to the bureaus...no one is doing or agreeing to do anything illegal and each party is getting something of value and what each party is supposed to do is fairly straightforward...it's been many years since I took business law but seems to me they have the makings of an enforceable contract.

Even if it's not enforceable in court, with a signed agreement that a CA has reneged on, just the filing of a lawsuit against the CA for breaching the agreement would likely get their attention and force them to do what they promised if only to avoid the need to fight the lawsuit.

[ClamClamMan]

OK Please correct me if I am wrong.......

A CA is not allowed to use deceptive means to collect a debt.

If they send me a letter informing me that they will delete after being paid and they do not delete after being paid would that not be considered deceptive?

[Robert Nashville/Savannah]

Maybe...it's a decent argument anyway.

However, violations are meaningless unless you sue and unless you can get a judge not only to agree but to care...you would have a difficult time getting a judge excited about one violation and even if you did, it doesn't mean you would reap any financial reward for doing so.

I'm not trying to be overly negative here; just realistic.

[nascar]

That's an odd response...what makes you think it's unenforceable?

If there is no consideration to support the agreement, the promise is generally not enforceable. And, regarding a PFD, an agreement to pay a pre-existing debt cannot be used as consideration to support a new agreement. I've never been an advocate of PFD but, like I've said before, if you're going to do it, you need to pay something more than the amount due in order to make it binding.

[Robert Nashville/Savannah]

If there is no consideration to support the agreement, the promise is generally not enforceable. And, regarding a PFD, an agreement to pay a pre-existing debt cannot be used as consideration to support a new agreement. I've never been an advocate of PFD but, like I've said before, if you're going to do it, you need to pay something more than the amount due in order to make it binding.

I don't quite buy that...the consumer is responsible for paying a legitimate debt to the creditor...the consumer doesn't owe a penny to a CA ans has no obligation to pay them. Therefore, the CA is receiving consideration in exchange for their promised action.

Somehow, if all these PFD agreements were unenforceable in court, I suspect the attorney's for the collection industry who live this stuff every day would have figured that out a long time ago and CAs wouldn't be so reluctant to make such agreements since they would have absolutely nothing to loos by agreeing, taking the money and then doing nothing.

[ClamClamMan]

an agreement to pay a pre-existing debt cannot be used as consideration to support a new agreement

Nascar, you may be right from a hyper-techincal legal point of view, but what would be the incentive to decieve the consumer in such fashion?

Me as an individual can represent myself if I start a civil legal action and only pay filing fees, they as a corporation must be represented by an attorney. And for $150 at issue, which may or may not be mine, the thought of discovery, pre trial motions and an actual hearing doesn't bode well for the CA in this matter.

Granted, I may actually end up losing in a court of law on the very issue you raise, but many many other things could also result as well. And the argument that this entire matter is a new agreement between the CA and myself may carry significant weight in the matter as the pre-existing agreement was between the OC an myself. And of course that all asumes that the debt is accurate and also mine in the end.

[nascar]

I don't quite buy that...the consumer is responsible for paying a legitimate debt to the creditor...the consumer doesn't owe a penny to a CA ans has no obligation to pay them. Therefore, the CA is receiving consideration in exchange for their promised action.

I understand your argument, but rather than continuing to debate it, you might want to do some additional reading into what constitutes consideration, specificially promises to perform a pre-existing duty. The collection agency is hired by the creditor to secure payment of the debt. As such, they are an agent of the creditor (we know this is true because we know that under certain circumstances, the creditor is vicariously liable for the actions of the debt collector). So, payment of the debt does not create new consideration; you're merely paying a debt that was previously owed. It just so happens that you're paying it to an agent of the creditor and not directly to the creditor. A debt collector gets nothing directly from your payment of the debt. Their contract is with - and they are paid by - the original creditor, not by the debtor. They have no contract with the debtor. A debt collector's agreement to delete a tradeline amounts to nothing more than a gratuitous promise.

Now, if this discussion involved a debt-buyer who had actually purchased the debt from the previous owner, it's arguable as to whether the pre-existing duty rule would apply, since the debt buyer was not a party to the original agreement. Naturally, the debt buyer would argue that by virtue of the assignment, any pre-existing duty owed to the original creditor now becomes owed to them. That's a question for the court to decide.

[nascar]

If they send me a letter informing me that they will delete after being paid and they do not delete after being paid would that not be considered deceptive?

Yes, sure I think it is deceptive. Is is actionable under the FDCPA? ... Who knows, maybe.

Is it actionable as a breach of contract? ... I don't see it.

[nascar]

what would be the incentive to decieve the consumer in such fashion?

We are talking about debt collectors, aren't we?

[ClamClamMan]

OK I'm with you on the other things, but this is one is a little out of context considering the remifications.

And yes perhpas 99.99% of the poeple will not sue but if one does that will give the individual considerable negotiating power.

And yes CA's tend to push the deception envelope!

I just hope I don't have to push back!

[Bigwoodystyl]

If they send me a letter informing me that they will delete after being paid

By merely sending you this letter, they have already violated the CROA--whether or not they actually delete after payment is irrelevant.

Knowing this, if I were you, I would pay. If they don't delete, you can probably sue under both CROA and FDCPA.

All this equivocation for a $150 debt that you know is yours?! You realize you've already spent at least a few hours on this, plus $5.00 and change for CMRRR, etc. I don't know how you value your own free time; IMHO, you've already paid for this a few times over via your opportunity cost. Pay it and move on already.

Somehow, if all these PFD agreements were unenforceable in court, I suspect the attorney's for the collection industry who live this stuff every day would have figured that out a long time ago and CAs wouldn't be so reluctant to make such agreements since they would have absolutely nothing to loos by agreeing, taking the money and then doing nothing.

Maybe they're enforceable in court and maybe they aren't. I don't pretend to know. IMO, however, they're not offered for reasons that have little to do with their legal enforceability.

1.

Violation of the CROA as shown above.

2.

The CA would have to come up with a consistent methodology to apply PFD fairly. If PFD were routinely being offered to some, but not to others, then discrimination lawsuits would be filed by those who didn't receive PFD offers. What basis do you use to decide who gets offered PFD? (If you offer PFD to everyone than what incentive is there to pay bills on time if one can always remove the negative listing at a later time via PFD?)

3.

The OC's won't stand for PFD and won't assign debts to CA's who offer PFD. Partially because of #2 above, but mainly because credit grantors want to know your entire history when making the decision to offer credit.

Because OC's have the most to lose and because OC's also provide the CRA's with nearly all of their revenue, then the CRA's are also strongly against CA's/DF's who routinely offer PFD.

CA's need relationships with OC's and CRA's to make money. Offering PFD severly strains these relationships long-term--even if doing so might mean more collection $$ short-term.

[Robert Nashville/Savannah]

By merely sending you this letter, they have already violated the CROA--whether or not they actually delete after payment is irrelevant.

Maybe they're enforceable in court and maybe they aren't. I don't pretend to know. IMO, however, they're not offered for reasons that have little to do with their legal enforceability.

1.

Violation of the CROA as shown above.

2.

The CA would have to come up with a consistent methodology to apply PFD fairly. If PFD were routinely being offered to some, but not to others, then discrimination lawsuits would be filed by those who didn't receive PFD offers. What basis do you use to decide who gets offered PFD? (If you offer PFD to everyone than what incentive is there to pay bills on time if one can always remove the negative listing at a later time via PFD?)

3.

The OC's won't stand for PFD and won't assign debts to CA's who offer PFD. Partially because of #2 above, but mainly because credit grantors want to know your entire history when making the decision to offer credit.

Because OC's have the most to lose and because OC's also provide the CRA's with nearly all of their revenue, then the CRA's are also strongly against CA's/DF's who routinely offer PFD.

CA's need relationships with OC's and CRA's to make money. Offering PFD severly strains these relationships long-term--even if doing so might mean more collection $$ short-term.

I highly doubt that a PFD contract is a violation of the CROA...assuming someone actually sued someone I think they would have a difficult time getting a judge to apply that to an individual consumer and an individual CA (as opposed to an actual credit repair organazition).

I also think you assume a great deal in thinking that OCs are aware of PFD arrangements or who is making them - besides, that can be taken care of with a binding non-disclosure agreement.

No doubt that collection agency upper management may worry about such long-term issues but I can pretty much guarantee that the grunt cube dweller CA who want's his commission check next week doesn't give a rat's behind about long-term consequences to the collection industry's relationship to original creditors.

A collection agent's greed will always trump such far-flung considerations.

[Bigwoodystyl]

I highly doubt that a PFD contract is a violation of the CROA...assuming someone actually sued someone I think they would have a difficult time getting a judge to apply that to an individual consumer and an individual CA (as opposed to an actual credit repair organazition).

This is not unprecedented. It's happened before (and no doubt it's happened countless other times where it was likely settled before court). Consumers have sued CA under the CROA after the CA promised to delete reporting and fix credit after they received payment. No person or organization, including a CA, can promise to fix one's credit, but demand payment first.

It might seem illogical and ungrateful for a consumer to sue a CA because they offered a PFD (when a PFD was what they wanted), but it's happened before.

No doubt that collection agency upper management may worry about such long-term issues but I can pretty much guarantee that the grunt cube dweller CA who want's his commission check next week doesn't give a rat's behind about long-term consequences to the collection industry's relationship to original creditors.

It's not about that grunt worker for the CA. That person in 99% of CA's doesn't have the authority to make a PFD agreement and doing so would probably cost him his job.

A collection agent's greed will always trump such far-flung considerations.

I disagree. The CA's that stick around are very much subordinate to the OC's whom they depend upon to make a living.

If your stance is "PFDs are a good way for CA to make money and PFD are definitely enforceable in court" then what is your reasoning as to why PFD sightings are rarer than the Easter Bunny?

[Robert Nashville/Savannah]

This is not unprecedented. It's happened before (and no doubt it's happened countless other times where it was likely settled before court). Consumers have sued CA under the CROA after the CA promised to delete reporting and fix credit after they received payment. No person or organization, including a CA, can promise to fix one's credit, but demand payment first.

It might seem illogical and ungrateful for a consumer to sue a CA because they offered a PFD (when a PFD was what they wanted), but it's happened before.

It's not about that grunt worker for the CA. That person in 99% of CA's doesn't have the authority to make a PFD agreement and doing so would probably cost him his job.

I disagree. The CA's that stick around are very much subordinate to the OC's whom they depend upon to make a living.

If your stance is "PFDs are a good way for CA to make money and PFD are definitely enforceable in court" then what is your reasoning as to why PFD sightings are rarer than the Easter Bunny?

I suspect that if one looks hard enough, one can find an example where almost anything has happened before; however, a happening here or there does not a precedent make.

Please cite what post I made in which I said “PFD sightings are rarer than the Easter Bunny”.

While were at it, how about some citations of the cases mentioned above?

Actually, never mind…I suspect you want to argue with me just because you want to argue with me…needless to say, I disagree with your positions expressed in this thread…let’s just leave it at that.

Have a nice day.

[dansocon]

I can only speculate on the reasons, but there does seem to be some reticence within the CA industry to issue PFDs.

There is precious little legal incentive for a debtor to pay a debt that is outside the SOL. However, if the CA offered a deletion, that would provide the incentive of cleaning the consumer's report. There are plenty of 3 year SOLs out there. That potentially leaves a 4.5 year gap where the debt can continue to be reported. If it were all clearcut, I would think CAs would be out there working that angle, but they don't seem to be.

[Bigwoodystyl]

I suspect that if one looks hard enough, one can find an example where almost anything has happened before; however, a happening here or there does not a precedent make.

Please cite what post I made in which I said “PFD sightings are rarer than the Easter Bunny”.

While were at it, how about some citations of the cases mentioned above?

Actually, never mind…I suspect you want to argue with me just because you want to argue with me…needless to say, I disagree with your positions expressed in this thread…let’s just leave it at that.

Have a nice day.

OK, you never said anything about PFD sightings being rarer than the Easter Bunny. I said that!

That is a pretty clear cut statement. It's hard to get a PFD, even if you offer to pay in full. It's the way it is, to which many folks here can testify. This is especially true of large debts to venerable OC. Now, why do you suppose that is? IMHO, it is because of the reasons elucidated in this and other threads... I don't know why you think this is the case because you've resorted to being difficult again.

And, wow, you are full of some wanton hubris?! Old man, trust me, it's not that enjoyable to argue with you. It's like playing tennis with a brick wall. I know exactly where the ball is going to go years before you hit it. :roll:

Even though, you didn't answer my question, which had to do with why you think PFD offerings are a rarity... I will answer yours and cite a court case where a CA was sued under the CROA for offering a PFD:

Bigalke v. Creditrust Corporation, 162 F.Supp.2d 996, 998 (N.D.Ill.2001),

There is precious little legal incentive for a debtor to pay a debt that is outside the SOL. However, if the CA offered a deletion, that would provide the incentive of cleaning the consumer's report.

...

If it were all clearcut, I would think CAs would be out there working that angle, but they don't seem to be.

And, why do you think that it is?

Have a nice day!