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Am I screwed/Did I screw myself?


tropicaljo
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I apologize in advance for the length of this post…

Okay, I’m now totally freaking out with all of this and it looks like I need to backtrack a bit. My last thread on this topic (located here: http://www.debt-consolidation-credit-repair-service.com/forums/showthread.php?t=297639&highlight=TCPA&page=2 ) got pretty long and convoluted… so many different opinions and varied advice. After reading numerous threads this morning scary thoughts have come to mind and now I have come up with a lot of questions. Let me start with a recap of my situation:

Due to a prolonged financial crisis (over 8 months), my husband and I recently (in June) had to default on a number of credit accounts… (so no, we're nowhere near SOL's). This is not something we’re happy with or proud of, but our current deflated income is just not enough to go around to everyone we currently owe. Tack on late fees and other penalties, we just can’t catch up when they say the minimum payment is now $XXX.00 instead of $XX.00 and the current balance is $XXXX.00 instead of $XXX.00 In late July I wrote all of the creditors that we had to default on and explained that we were not refusing to pay our bill with them, but that we would not be able to pay anything on our bill for the foreseeable future. I explained our current dire financial circumstances and asking them to close our accounts (Some did, many now demanding payment in full). I let them know we felt our situation was temporary and that as soon as we are able to satisfy our account that we would do so, but that at this point we are struggling to just pay basic living & transportation expenses.

In early August, I got a letter of validation/dun notice from Allied Interstate (a CA) regarding a credit card of mine that is backed by GE Money Bank. About that time I began getting numerous calls every day from an “Unknown Caller” with a phone number on the caller ID. Lets be clear that at that point my phone was ringing on an average of 25 times a day and I was screening all calls before answering and was not answering any calls from “Unknown”, 800 numbers, etc. After doing a Google search I discovered that one number belonged to this CA and that they were ringing my phone at least 3 times a day, but have written notes that they’ve rang my phone as many as 5 times on one day. When I replied within the 30 days allowed by their validation/dun notice, I wrote them, including a copy of my letter to the OC and said 1.) my financial situation had not changed; 2.) that I was not refusing to pay the OC whatever amount I might actually owe but that I don’t work with collection agencies; 3.) asked them to return the documents related to my account back to the original creditor; 4.) and do not call my home, put replies in writing. I sent my letter CMRRR and the day after they received it they called using a robodialer, wanting to set up a payment plan, then again the following day wanting the same thing.

Now, here are the areas I’m freaking about;

1)First and foremost, am I allowed by law to respond to an initial letter from a collection agency with a written letter stating that I don’t negotiate with collection agencies, only with the original creditors? I’ve heard from other sources that this is legal, but is there a specific law or case law that supports this tactic?

I have read a lot of pros and cons on a limited C&D request, and that it is a greatly debated tactic and probably not supported with the FDCPA, so please... lets not start that one rolling again... Some have suggested that I could cite harassment and TCPA violations, but after some of the threads I’ve read this morning, I don’t see how those two phone calls could be considered harassment if the limited C&D is not valid, nor do I clearly see a valid TCPA violation. It seems to my uneducated mind, that the only way I could push a TCPA violation is if my limited C&D to them could be construed as a DO NOT CALL request, and only then if collection agencies are bound by the TCPA to follow that rule, which I can’t seem to sort out from all the legalese in that Act.

2)C&D issues aside, are they allowed to continue to attempt to collect after I’ve advised them in writing that I will only negotiate my account with the original creditor? Is that where the harassment comes into play?

And just ‘cause I’m curious about these things, can someone give me some clear answers to the following questions?

3)What constitutes harassment via telephone?

4)Is the user (collection agency) of an autodialer required to leave a message containing callers identifying information… name? address? Return telephone number?

5)Am I correct in reading that the TCPA states that the user of an automated dialer must maintain a DNC list and honor it for 10 years and does this apply to collection agencies and to my situation?

6)Is user of an autodialer required to keep hard-copy records of calls initiated… i.e. who the auto dialer called, time of day, correct date, etc?

Again, I apologize for the length of this post and for the number of questions I have, but I’m trying to figure out if I have totally screwed up and left myself open to be immediately sued, which would only put me deeper in debt.

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1)First and foremost, am I allowed by law to respond to an initial letter from a collection agency with a written letter stating that I don’t negotiate with collection agencies, only with the original creditors? I’ve heard from other sources that this is legal, but is there a specific law or case law that supports this tactic?

You can answer how you like. It is called the 1st Amendment. The correct way to answer is with a demand for VOD and a statement that it is inconvenient for you to accept telephone calls from them in relation to this matter on any number.

I have read a lot of pros and cons on a limited C&D request, and that it is a greatly debated tactic and probably not supported with the FDCPA, so please... lets not start that one rolling again... Some have suggested that I could cite harassment and TCPA violations, but after some of the threads I’ve read this morning, I don’t see how those two phone calls could be considered harassment if the limited C&D is not valid, nor do I clearly see a valid TCPA violation. It seems to my uneducated mind, that the only way I could push a TCPA violation is if my limited C&D to them could be construed as a DO NOT CALL request, and only then if collection agencies are bound by the TCPA to follow that rule, which I can’t seem to sort out from all the legalese in that Act.

You Are confusing TCPA and FDCPA whilst the former may in some circumstances give rise to claim under the later they each stand on their own.

2)C&D issues aside, are they allowed to continue to attempt to collect after I’ve advised them in writing that I will only negotiate my account with the original creditor? Is that where the harassment comes into play?

And just ‘cause I’m curious about these things, can someone give me some clear answers to the following questions?

They may not continue to collect in the absence of validation when timely requested by the consumer.

3)What constitutes harassment via telephone?

Any number of things not limited to, causing the phone to ring repeatedly, calling at a time inconvenient, calling at your place of work when it is known or should be known that such calls are not permitted by your employer, swearing at you on the phone etc etc

4)Is the user (collection agency) of an autodialer required to leave a message containing callers identifying information… name? address? Return telephone number?

They must meaningfully identify themselves and the purpose of the call together with the mini miranda. Of course if they do that on a voicemail they breach another section. So they are damned if they do and damned if they dont. Either way you get them on a violation. The answer for them is to stick to written correspondence. If they choose not to it is their problem.

5)Am I correct in reading that the TCPA states that the user of an automated dialer must maintain a DNC list and honor it for 10 years and does this apply to collection agencies and to my situation?

Yes and yes, By the way there has just been an update within the past few weeks from the FTC

6)Is user of an autodialer required to keep hard-copy records of calls initiated… i.e. who the auto dialer called, time of day, correct date, etc?

Records are kept by the phone company. They are always obtainable with a court order so who cares if the user keeps them or not?

Again, I apologize for the length of this post and for the number of questions I have, but I’m trying to figure out if I have totally screwed up and left myself open to be immediately sued, which would only put me deeper in debt.

People get sued all the time. You have been at risk of suit ever since default. So relax. Being sued as we know from the many experiences posted on this forum does not mean you are going to be successfully sued. Often the reverse is true.

.

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Okay I can't figure out how to do the quote boxes or even how to change the color of the text... I'm feeling too stupid to breath and will have to resort to doing this another way...

I am not trying to be difficult, newryman, just want to make sure I'm correctly understanding some of the information you've given me here...

My question;

1)First and foremost, am I allowed by law to respond to an initial letter from a collection agency with a written letter stating that I don’t negotiate with collection agencies, only with the original creditors? I’ve heard from other sources that this is legal, but is there a specific law or case law that supports this tactic?

newryman said;

You can answer how you like. It is called the 1st Amendment. The correct way to answer is with a demand for VOD and a statement that it is inconvenient for you to accept telephone calls from them in relation to this matter on any number.

my response;

Since I didn’t include a VOD request in my response, I imagine that at this point it would be a bit late for me to send a VOD with the “inconvenient” phrasing considering I yelled at them about calling after they recieved my last letter. Instead of a "limited C&D, I guess the more accurate description of that letter to them was that it was a "Do Not Call" request.

Me again;

I have read a lot of pros and cons on a limited C&D request, and that it is a greatly debated tactic and probably not supported with the FDCPA, so please... lets not start that one rolling again... Some have suggested that I could cite harassment and TCPA violations, but after some of the threads I’ve read this morning, I don’t see how those two phone calls could be considered harassment if the limited C&D is not valid, nor do I clearly see a valid TCPA violation. It seems to my uneducated mind, that the only way I could push a TCPA violation is if my limited C&D to them could be construed as a DO NOT CALL request, and only then if collection agencies are bound by the TCPA to follow that rule, which I can’t seem to sort out from all the legalese in that Act.

newryman said;

You Are confusing TCPA and FDCPA whilst the former may in some circumstances give rise to claim under the later they each stand on their own.

my response;

I get that they each stand alone… I just didn’t get how the 2 subsequent calls I got after they received my letter could be construed as harassment under FDCPA unless the CA [using an auto dialer] is bound by TCPA rules regarding a “Do Not Call” request from a consumer.

My question;

3)What constitutes harassment via telephone?

newryman said;

Any number of things not limited to, causing the phone to ring repeatedly, calling at a time inconvenient, calling at your place of work when it is known or should be known that such calls are not permitted by your employer, swearing at you on the phone etc etc

my response;

So since they caused my phone to ring repeatedly on a daily basis for nearly a month…hmm… Does that include calls to my landline that were allowed to ring out and were forwarded to my voice mailbox. And is there a difference whether these calls occurred before or after my sending my “Do Not Call” request?

My question;

4)Is the user (collection agency) of an autodialer required to leave a message containing callers identifying information… name? address? Return telephone number?

newryman said;

They must meaningfully identify themselves and the purpose of the call together with the mini miranda. Of course if they do that on a voicemail they breach another section. So they are damned if they do and damned if they dont. Either way you get them on a violation. The answer for them is to stick to written correspondence. If they choose not to it is their problem.

my response;

So…by ringing my landline and not leaving ANY form of message when they get bumped to voicemail…this IS a valid violation of the TCPA?

BTW… I’ve had several calls from other CA’s lately in my voicemail saying, “I am Soandso and I’m with Suchandsuch, and I’m calling about a very important financial matter… please return my call at XXX-XXX-XXXX.” Those calls that I have returned have begun with the Mini-Miranda....

My question;

5)Am I correct in reading that the TCPA states that the user of an automated dialer must maintain a DNC list and honor it for 10 years and does this apply to collection agencies and to my situation?

newryman said;

Yes and yes, By the way there has just been an update within the past few weeks from the FTC

my response;

Thank you… that reply was short and sweet and easy to comprehend. :) Is there a link that will get me to that update?

Your patience with me is very much appreciated. Seems like just when I thought I had it all figured out, WHAM... I discover there are soooo many more facets to examine!

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1) A collection agency will never send back the account to the original creditor just because you want to deal with the original creditor. There's no legal obligation for them to do so and in all likelihood they've purchased the original account for pennies on the dollar. The original creditor sold it or assigned it for a reason - they don't want to deal with it anymore.

2) You are being too nice and screwing yourself in the process. Even if you intend to repay the loan NEVER ever ever say you will repay the loan either orally or in writing. Doing so resets the Statute of Limitations the day you made that communication.

For example, if you haven't had any activity on the account 6 months ago, the SoL started to run 6 months ago. But you told them yesterday you will pay, but you can't right now - you just reset the SoL for them to sue you as of yesterday, not 6 months ago. That's called reaffirming the debt and will extend the SoL time someone can sue you because they are relying on your reaffirmation.

Check your state laws for the Statute of Limitations and keep very careful notes on when the SoL expires. Once it expires they can't sue you on the debt anymore. Also note that if the collection agency changes again that's a good thing, it is more likely your "affirmation letter" will be lost in the process and you can argue the original SoL if it comes up again.

3) Stop messing around and just send a letter requesting all telephone contact cease. Even better if you ask for all written and telephone communication to cease.

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Gosh, It drives me crazy when people jump in with advice when they haven't even absorbed all of the information that has been presented.

Robin, much as I appreciate your comments, you obviously didn't read my other thread that I mentioned at the beginning of this thread. I even included a link. Had you read it, you'd see how uninformed and far behind that you are on my particular issue. The SOL on the debt at issue here hasn't even begun running yet, and in fact, I've managed to get at least 2 collection agencies in the past couple of months to return documents related to an account that I'm responsible for by telling them in writing that I refuse to deal with them, etc. I know that this is merely a "delay" tactic and that eventually I'll have to deal with a collection agency to resolve my debt issues.

Did you even look to see how long I've been a member of this site? Probably not, or you wouldn't have expounded on such elemental information. I've been a member of this site for 6 years in October, so I at least have a reasonable grasp on FDCPA and FCRA violations, SOL's, keeping careful documentation, etc. I will admit that the TCPA is new ground for me, but I'm working on learning and understanding that one, too. I know the difference between an OC, a CA and a JDB, and the approximate time line that a debt goes from one to another. if you'd read my other thread, you'd see that there is a huge debate over the validity of the tactic you mentioned regarding "ask for all written [communication]and telephone communication to cease" thing. Didn't you notice item 4 in the paragraph that begins "In early August".

Really, I don't mean to be argumentative and defensive with you, but it's been a long day. I apologize if I've offended you with my comments above, however... IMHO, you shouldn't offer advice unless you are aware of and fully understand everything that has preceeded where you came into the conversation.

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Okay I can't figure out how to do the quote boxes or even how to change the color of the text...

At the bottom of each post is a "quote" button. If you click on that, it puts you into the same editor as the "post reply" button, but with the text from that post quoted. Sometimes I then copy and paste the quoted text a couple times, then delete all but one paragraph from each of those multiple quotes, then respond to those several paragraphs separately. Did I make that too confusing?

To color a text, you select the desired text, then click on...dang! I used to know how to do this! There's an "A" icon that says "Colors" when I put the cursor over it, but I can't seem to get it to work. Maybe it's not Mac friendly, and will work with a PC.

Regards,

DH

PS. One comment about your question, if the law allows you to say you won't deal with collectors. Laws are generally "Thou shalt nots", not "you may's". Anything that the law does not prohibit, you may do. There is no law that says you cannot tell a collector you will only deal with the OC. If the OC says you must deal with the collector, you tell them that you have directed the CA to cease all communication with you, so they may not legally deal with you anymore. Of course, that's only applicable if the OC still owns the debt. Once the debt is sold to a JDB, that option is gone.

Edited by debtorshusband
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Robin... I never said that I knew everything, and of course I would come here to seek others opinions on how I should handle certain problems, or to verify certain legal facts...

Also, I did apologize for coming down on you, but my comments were meant to illustrate that I am not the newbie here. My point to you about giving opinions/advice is based on logic and not meant to insult.

DH, thank you for the lesson on quotes and text colors! I don't have time this morning to play with it, but I'll give it a try the next time I need to quote someone!

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Hey tropicaljo, I have some documents that should be of help to you. According to sources I trust, these 2 documents have an 100% success rate over 8 years in eliminating any CA debt immediately, by requiring debt validation in a way that CAs are required to provide, but simply can't (since it's all based on fraud anyways).

Send me a message with your email and I'd be happy to send them to you, together with links to discussions of these docs as well as background knowledge of why they work (all free sources).

PS: on another note, for it came up here several times - if you request for CAs to stop calling you (or request anything else), I suggest to always put a price tag to any violation of this request. A high one. then learn how to enforce it, not that hard...

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newyrman pretty much landed the hammer on the nail, ;). So I don't have much to add.

If these clowns refuse to not stop calling you, you need to find an attorney to sue them.

Another fast option is to just change your phone number and make it unlisted. Tell the phone company some sad story and chances are they will change it for free.

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Okay... since it appears that I've been put in the corner with a dunce cap on my head... I apologize if I've insulted anyone/everyone with any of my previous comments on this thread.

1.) I do not know everything.

2.) I do not know everything.

3.) I do not know everything....

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