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Been Threatened with Lawsuit, should I respond?


the-g
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Here are the details:

I live in AZ

Law firm : xxxx

Their Client: xxxx xxxx

Amount Due: ~$1,000.xx

OC Info:

xxxx Credit Card

Last Activity: 11/08, balance was ~$190

Got a notice from a local law firm, xxxxx Law Group back in June, 2010 threatening various things like a lawsuit, wage garnishments in the event of a judgment etc.

I sent them a validation request and received back:

  • Copies of all of the original credit card statements form day one through the time it was charged off/sold to collections.
  • Copy of bill of sale of debt from Chase to Forward Properties International Inc., which included over 25,000 total accounts, but no mention of my account specifically.
  • Copy of bill of sale between "Turtle Creek Assets Ltd., and by and through its general partner, Forward Properties International Inc." (Seller) and xxxxx xxxxx xxxxx xxxx (Purchaser), which included over 500 accounts, again mine is not listed specifically here either.
  • 4 pages of an illegible card member agreement (looks to have been photocopied/faxed too many times). There's nothing with my signature on it, and the only thing that even identifies it with a particular company is fax pagination info along the bottom that says Chase Bank USA, N.A.

After receiving this, I sent them a pay for delete offer on July 8, 2010 (certified mail, did not accept the debt as my own, but offered them $200 in exchange for signed agreements from them and them and their client to remove the item from my credit report. I also included demands that they not call my work, and a notice that it was inconvenient to me to get phone calls between 8am and 6pm on weekdays on my personal phone, per the FDCPA.

I got no response until October 4th when I got a demand for payment in full within 5 days or they "may" file a lawsuit against me.

I also did receive a phone call at around 3pm on a weekday, which goes against the written notification that that it is inconvenient to receive calls from them during that time.

So that's it. It all looks pretty flimsy to me, and I'll infidelity fight them in court if they want to go there. But I'm wondering if I should even respond to them, or just let them serve?

Do you more experienced folk have an overall take on my situation based on the info given? Thank you very much for taking the time. I have little experience in these matters, but am not willing to roll over and will share my experience as best I can to help others here.

Edited by the-g
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I'd probably wait to be served, but other members might disagree with me. If you are served, you have the "chain of ownership" in your favor. The fact that you offered to pay for a delete might be a problem, but since you didn't admit to the debt, you would argue that you were just trying to get it off your CR and make them go away. Even then, they would still have to prove they own the debt.

Did they give you a breakdown of the all the charges including their fees? The amount they're requesting seems like an awful lot considering the original amount of the debt is only 2 years old.

As far as the phone call is concerned, the call would have to have been made after they received your letter. If that's the case and you have a record of the call, you may have leverage with an FDCPA counterclaim.

If I'm not mistaken, the SOL in AZ is 3 years for CC debt. Hopefully, nothing will happen within the next year.

Edited by BV80
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Finally got a notice from a local law firm, back in June, 2010 threatening various things like a lawsuit, wage garnishments in the event of a judgment etc.

[*]Copies of all of the original credit card statements form day one through the time it was charged off/sold to collections.

[*]Copy of bill of sale of debt , which included 25,756 total accounts, but no mention of my account specifically.

[*]Copy of bill of sale , and by and through its general partner,

[*]4 pages of an illegible card member agreement (looks to have been photocopied/faxed too many times). There's nothing with my signature on it, and the only thing that even identifies it with a particular company is fax pagination info along the bottom

I got no response until October 4th when I got a demand for payment of $1,006.30 within 5 days or they "may" file a lawsuit against me.

When you file answer you may not have a counterclaim for the FDCPA violation. They have sent the required DV info ....and have filed suit.

Yes I would file answer:

Typical Evidence [reprinted combo - mixed]

Although the evidence available will vary by case, it is possible to make some generalizations regarding the type of proof that plaintiffs are able to produce. Original creditors usually have access to more evidence than debt buyers. For example, in a credit card case, a credit card company will usually provide a set of terms and conditions and several years of account statements showing charges and payments. In cases involving other consumer debts, the credit grantor may even be able to provide a signed contract.

Debt buyers seem to be at the mercy of their immediate predecessor in interest. In your case, they produce only a redacted, incomplete bill of sale, a do not include “your account” in printout from a computerized collection system, and sometimes a few account statements (your case from begin to end - statements), although these usually show only late fees and overdraft charges (but often no charges or payments made by the alleged debtor). In discovery, a motion for summary judgment, or at trial, the debt buyer may also provide an affidavit of the debt buyer’s custodian of records.

Debt buyers’ lawsuits are, by and large, lawsuits the plaintiffs should not win. Many original creditors sell charged-off debts to the hundreds of debt buyers in the United States who will pay “pennies on the dollar” for defaulted debt portfolios. Debt buyers then attempt to collect the full amount of the debt from consumers. Some debt buyers will repackage debts and resell them to another debt buyer. Securitization of credit card debt is also now common. (see Massive defense).

To prevail in a debt collection lawsuit, a debt buyer must be able to prove the existence of a valid debt as well as a valid chain of assignment from the original creditor. And to maintain an action, the debtor must have received notice of each assignment from the assignor. If the assignment was a partial assignment of the original creditor’s rights and obligations, as is usually the case, the debt buyer must join all previous assignees and the original creditor.

In your case it appears to be single assignment from chase. Chase keeps good records as indicated in your 'list'.

Assignments must be specific and precisely identify what is being assigned. An assignment of property is sufficiently specific if “armed with . . . and aided by competent extraneous evidence, parol or otherwise” so that “the property covered may with certainty be identified.” Debt assignments are not like property deeds or auto titles, which are tracked by independent and impartial government agencies. Instead, only the assignor and assignee track debt assignments.

With most assignments, specificity is not a problem. Yet, consumer credit assignments present a different problem. Debt buyers often have only a bill of sale that does not reference the debt that is the subject of the lawsuit. Most bills of sale reference a list of accounts, but few debt buyers can provide that list. Fewer still can provide the list for each assignment. When that is the case, the assignment does not identify the property as being assigned.

1st - under law and your RCPs research debt assignment 'notice'. An assignment is valid only if the debtor receives notice of the assignment or if sufficient facts put the debtor “on inquiry” of the assignment. “An assignment of a chose in action is wholly ineffectual as against the debtor, in the absence of notice . . . .”

Generally, the debtor does not receive notice when the original creditor sells the debt. Subsequent assignors will also not likely give notice of the assignment. This is the opposite of mortgages, school loans, and auto loans, which are regularly bought and sold and in which the servicer may change several times during the life of the loan. In other words, no notice, no lawsuit.

The reason for this rule is obvious—debtors should not have to guess whom to pay. Instead, debtors must have confidence that if they pay the assignee, they will actually be able to settle the debt.

2nd -Many consumer debt assignments are partial assignments. The debt buyer purchases the receivable portion of the account only, while the original creditor retains certain rights and obligations. an assignment of “receivables” is not a complete assignment as a matter of law. Law requires joining the assignee where an assignment is only partial. Debt buyers must therefore join all previous assignees, including the original creditor. A creditor may make a partial assignment and the courts will protect the equitable interest created when the creditor does so. But if the creditor makes a partial assignment, the assignee may not maintain a lawsuit without joining the assignor as a plaintiff or defendant.

“There can be but one action upon a single demand. The parties interested must join as plaintiffs, or those not joined must be made defendants, in the action, so that the whole controversy may be determined in one suit, unless the creditor agrees to a severance . . . .”The assignee may only bring an independent lawsuit if the debtor consents to be sued on the partial assignment alone. This is well-settled law in many states.

Debt Buyers’ Lawsuits Are, By and Large, Defective. It up to you to identify those defects - the assignment, the affidavit (unsigned and as hearsay), and its lack of standing. If debt buyers cannot prove valid assignments, if assignees are not providing notices of the assignments, and if debt buyers are failing to join necessary parties, their lawsuits should be dismissed on the merits.

The task is, without a lawyer, and Pro Se before the courts -- how do you get this before a judge -- not just a clerk or JA in a pretrial conference. [Often when defendant represented by Atty - Plaintiff will often dismiss and walk away from claim (without merit) defended by experienced Atty] No so with JDB v Pro Se in litigation - they hope to 'use court procedures and RCPs' and seek SJ on weak evidence.

In most cases, no judge ever sees most complaints or gives the claims even cursory consideration. Instead, debt buyers need only swear that it served the defendant and that the defendant. If an alleged debtor does appear and defend the JDBs often go for a judgment anyways. Your answer and affirmative defenses lay the ground work to oppose any SJ coming - and reverse on your own SJ to dismiss. Unfortunately, the alleged debtor has little or no hope of getting a MTD in any pretrial hearing on the merits of the debt buyer’s lawsuit.

Although the debtor should and the courts should dismiss these types of cases on merits alone at pretrial conference they don't - unless you show up with an attorney - and even then they sometimes dont! The local 'rent-a-lawyer' often does not have authority to negotiate or dismiss.

A: Look here on the boards to develope your answer. Prepare for discovery to come. Prepare - read your states RCPs and research case laws from your state and your courts to 'strike' evidence [on your list] without merit. Then file for your SJ...and/or MTD - before they attempt SJ.

“No person shall . . . be deprived of life, liberty, or property, without due process of law . . . .” The basic right under the Due Process Clause is the right to be heard, but that right is meaningless if the person whose life, liberty, or property may be deprived does not have notice of the opportunity to be heard.

Edited by FL4answer58
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Start with:

[agian this is reprint - combo of sources]

Breach of Contract

A plaintiff with some evidence of an agreement between the original creditor and the alleged debtor may allege breach of contract. The elements of breach of contract are:

(1) a valid contract between the two parties;

(2) performance by plaintiff;

(3) breach by defendant; and

(4) that the plaintiff was damaged as a result of the breach.

Even original creditors rarely produce a written contract in debt collection cases. In the credit card industry, for example, the usual practice is for the consumer to apply for a credit card without seeing the terms and conditions. The credit card grantor then sends a card, which the consumer signs and uses, supposedly indicating assent to the credit card company’s terms and conditions. When the credit card company issues new terms and conditions, the consumer supposedly accepts them by using the card after receiving the new terms and conditions. Where the plaintiff is a debt buyer, proving the existence of a valid assignment of the contract benefits and obligations may be impossible

Account Stated

Since original creditors and debt buyers rarely possess a signed contract, many allege that an account stated exists (or in the case of a debt buyer, that an account stated existed between the defendant and the original creditor).

The account stated cause of action is an old claim generally used for open commercial accounts, and one that the debt collection industry has adopted for consumer accounts. In order for an account to become stated, the creditor must provide the debtor with a statement of the account. An account does not become stated simply because the creditor demands payment of a lump sum.

Many courts have decided that where the invoices and account statements sent by the creditor were not itemized and no basis for the computation was shown, no account had been stated because the debtor could not have known what went into the balance. Some Court of Appeals emphasized that the statement of account must contain a description of every charge to be included in the account as stated.

Once the creditor has provided an account statement, the account may become stated if both parties acknowledge the amount of the debt, or the defendant has acquiesced to the plaintiff’s calculation of the amount due. An account stated is essentially a new contract between the parties based on the debtor’s promise to pay and the creditor’s acceptance of that promise.

There must be a meeting of the minds as to each component of the balance. However, if the debtor retains an account statement without objection, a court may infer that he or she is satisfied with the statement of the account. The omission may rise to the level of an agreement to the account in some cases, but ordinarily is evidence that the defendant may rebut with evidence or argument. For example, if the alleged debtor did not receive the account statement or was otherwise unable to object, then no inference should be drawn.

Moreover, if no underlying entitlement to recovery exists, an account cannot become stated. Many of the foregoing [state] cases on account stated suggest that a creditor can prevail if the alleged debtor never actually had an account with the creditor. Original creditors should be able to provide evidence sufficient to prevail on an account stated claim. Yet, many original creditors never do, perhaps because their document destruction policies result in partial records by the time they sue on an account.

Very few debt buyers can actually provide evidence that would support an account stated. In some cases, they may have a facsimile of an account statement from the original creditor. However, what few statements they may have usually show nothing but late and over-limit fees. Furthermore, the debt buyer’s own statements of the account are insufficient as a matter of law to support an account stated claim since they are based on hearsay.

Additionally, many alleged debtors do dispute the full balance. By the time they are sued, the account may include hundreds or thousands of dollars in late and over-limit fees and interest accumulated at the original, high-interest rate. Many are willing to admit they owed something near the original credit limit to the original creditor, but will not admit they owe the extra fees and charges. As a result, once a debtor has notice, he or she will often call the creditor and protest the balance.

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FL4answer58

When you file answer you may not have a counterclaim for the FDCPA violation. They have sent the required DV info ....and have filed suit.

The poster stated he's been threatened with a lawsuit, not that he's already being sued. Also he mentioned that he informed them that calls during a certain time were inconvenient, but they called during that time anyway. If that call was made after they received his letter, that's an FDCPA violation.

When I mentioned a counterclaim, I was pointing out that he has leverage against them if they ever do file suit.

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The poster stated he's been threatened with a lawsuit, not that he's already being sued. Also he mentioned that he informed them that calls during a certain time were inconvenient, but they called during that time anyway. If that call was made after they received his letter, that's an FDCPA violation.

When I mentioned a counterclaim, I was pointing out that he has leverage against them if they ever do file suit.

My mistake - your right no lawsuit yet.

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.... he got a

  • Copy of bill of sale of debt from Chase to Forward Properties International Inc., which included 25,756 total accounts, but no mention of my account specifically.
  • Copy of bill of sale between "Turtle Creek Assets Ltd., and by and through its general partner, Forward Properties International Inc." (Seller) and Western States Financial Management (Purchaser), which included 509 accounts, again mine is not listed specifically here either.

... so it's been sold twice.

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Seems like they would settle for the original amount? $800 in fees is a little excessive.

well .... you figure %29 interest for 2 years and add late fees and over the limit fees on a monthly basis .... it adds up.

Once he gets plaintiff's lawer fees added on ...... look out.

My debt has gone from $9600 to well over $13000 under just those circumstances.

Edited by Savoir
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Thank you all for your replies! I will go through them detail, as I see a lot of good info.

But yes the fact is, I have not been served yet, just threatened.

Threatening a lawsuit is a violation also.
Can someone elaborate on this a bit?

Yes they did call during the time that I notified them in writing was not convenient, so it looks like i have them on a violation there.

That part I'm still not clear on is this:

This law firm says they are a debt collector and this is an attempt to collect a debt, etc on their correspondence and phone calls. But they also list a JDB as their client. So who owns this debt, really?

It almost doesn't seem worth it for $192. Why don't you settle for that amount?

I did send a formal pay for delete notice to the law firm after they sent me their validation information ( I offered $200) in which I explicitly stated that I was not acknowledging ownership of the dept and that I disputed the amount owed. This went unanswered.

Edited by the-g
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Validation Request

xxxxx xxxxx

xxxxx E. xxxxx

Tucson, AZ 857xx

xxxx Law Group

xxxx E. xxxxx, Ste. xxx

Tucson, AZ 857xx

xxxx xx, 20xx

Dear Debt Collector,

RE: Chase Acct #xxxxxxxxxx

This letter is being sent to you in response to a notice sent to me on June 9, 2010. Be advised that this is not a refusal to pay, but a notice that your claim is disputed and validation of the alleged debt is requested.

As per the Fair Debt Collection Practices Act, 15 USC 1692g Sec. 809 (B), I have the right to request a validation of this debt. I request you to prove that I am indeed the party who is by contract obligated to pay off this debt.

In your response, please attach copies of the following documents:

1. Agreement with your client that authorizes you to collect on this alleged debt.

2. Original agreement that bears signature of the alleged debtor wherein he/she promises to pay the original creditor.

3. Complete payment history on this account so as to prove that the debt amount you wish to collect is correct, and that the statue of limitations for my state has not passed.

Until such time as the alleged debt is proven to be valid and the supporting documentation requested above provided to me, I hereby demand that you cease any and all efforts to contact me, my relations, my employer, and any other persons, businesses or entities regarding this alleged debt.

Furthermore, I hereby notify you that my employer prohibits incoming and outgoing personal phone calls to and from employees at the place of employment, and request that you do not, under any circumstances, contact my place of employment. As per the Fair Debt Collection Practices Act (FDCPA), 15 USC 1692g Sec. 809 (a)(3), you (the debt collector) may not communicate with me (the consumer) in connection with the collection of any debt at my place of employment if you know or have reason to know that my employer prohibits me from receiving such communication.

Also, as per FDCPA 15 USC 1692g Sec. 809 (a)(1), I hereby notify you that it is not convenient for me to receive communication in connection with debt collection during the hours of 8am-6pm, Monday through Friday.

With regards,

xxxxx xxxxx

Pay for Delete Offer:

xxxxx xxxx

xxxx E. xxxx

Tucson, AZ 857xx

xxxxxx Law Group

xxxx E. xxxxx, Ste. xxx

Tucson, AZ 857xx

xxxx, 20xx

Re: Chase Account Number xxxxxxxxxxxx

Dear Debt Collector:

This letter is in response to documentation sent on June 30, 2010, related to the debt listed above. I wish to save us both time and effort by settling this debt.

Please be aware that this is not an acknowledgment or acceptance of the alleged debt, as I dispute the amount of the debt ($9xx.xx) listed on your statements. It is not consistent with the balance listed on the final original account statement that you included in your documentation ($59x.xx), the credit limit on the original account ($200), or the original account balance at the date of last activity, according to your documentation ($19x.xx). 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 you and/or your client have the ability to report this debt to the credit bureaus, as you deem necessary. Furthermore, you and/or your client have the ability to change the listing since you and/or your client are the information furnisher(s).

I am willing to pay $200 in return for a signed legal agreement from both you, xxxx Law Group, and your client, xxxx xxxx Financial Management, to 1)remove all negative information regarding this debt from the credit reporting agencies within 10 (ten) calendar days of payment, and 2)change the listing with the 3 major credit bureaus (Experian, Trans Union, and Equifax) to read “Pays As Agreed”.

If you agree to these terms, please review and sign the attached Agreement to Compromise Debt, obtain the required signature of a legal representative of xxx xxxx Financial Management on the same copy of the agreement, and return it to me via USPS Certified Mail.

Upon receiving the attached Agreement to Compromise Debt, signed by both an authorized agent of xxxx Law Group, and an authorized agent of xxxx xxxx Financial Management, Llc., I will immediately send payment in the amount of $200.

By accepting the payment, you and your client agree to 1)Consider the debt paid in full and 2)Amend my credit report within 10 business days, as detailed in the Agreement to Compromise Debt.

Sincerely,

xxxxx xxxx

Agreement to Compromise Debt

AGREEMENT TO COMPROMISE DEBT

xxxx Law Group, referred to as COLLECTION AGENCY and xxxxx xxxxx, referred to as CONSUMER, agree to resolve the matter of the alleged debt, originally held by xxxx States Financial xxxxx Llc., hereafter referred to as the CLIENT. CONSUMER hereby agrees to settle this alleged debt claimed by COLLECTION AGENCY on the following terms and conditions:

The COLLECTION AGENCY certifies that it is legally authorized to act in behalf of its CLIENT and that any agreement that the COLLECTION AGENCY makes on behalf of CLIENT is legally binding on the CLIENT.

The COLLECTION AGENCY claims that the alleged debt is $9xx.xx (nine hundred fifty-nine & 00/100 dollars). While the CONSUMER feels that validity and amount of the debt has not been proved by the COLLECTION AGENCY, the parties agree that the COLLECTION AGENCY shall accept the sum of $200.00 (two hundred & no/100 dollars) as full payment on the debt. The acceptance of the payment will serve as a complete discharge of all monies due, and the COLLECTION AGENCY agrees to consider the debt paid in full and agrees to not take further action to collect on the alleged debt. The payment shall be made in the form of a cashier's check or money order.

Upon payment of the $200.00, the COLLECTION AGENCY and CLIENT both agree to remove any negative listing or information that the COLLECTION AGENCY and/or CLIENT may have placed on the CONSUMER'S credit report within 10 calendar days of receiving the payment, and to change the listing of this debt with the credit bureaus Experian, TransUnion and Equifax to read “Pays As Agreed”. The COLLECTION AGENCY and CLIENT both agree to never at any time in the future place any information on the CONSUMER'S credit report.

The CONSUMER feels that the negative information related to this alleged debt on the CONSUMER's credit report is damaging and while the exact amount of the damage is not currently known, the CONSUMER estimates it to be $10,000 (ten thousand dollars & 00/100). Should the COLLECTION AGENCY fail to remove the negative information on the listing and change the listing to read “Pays As Agreed” with the three credit bureaus (Experian, TransUnion and Equifax) or reinsert any information in the listing at a later date, the COLLECTION AGENCY agrees to award liquidated damages of $10,000 to CONSUMER.

This compromise is expressly conditioned upon 1) the CONSUMER receiving a copy of this agreement with the signatures of authorized agents of both COLLECTION AGENCY and CLIENT within 10 business days of receipt, and 2) the payment being received by the COLLECTION AGENCY within 10 business days of the COMSUMER receiving a copy of this agreement with the signatures of authorized agents of both COLLECTION AGENCY and CLIENT. If both conditions are not met, the agreement will be immediately terminated.

This Agreement shall be binding upon and inure to the benefit of the parties, their successors, and assignees.

The person signing this agreement, __________________________________, hereby declares that he/she is authorized to act as an agent of the COLLECTION AGENCY.

Dated:

Signature: __________________________________

Legal Representative of xxxxx Law Group

The person signing this agreement, __________________________________, hereby declares that he/she is authorized to act as an agent of the CLIENT.

Dated:

Signature: __________________________________

Legal Representative of xxxxx xxxx Financial Management

CONSUMER Printed Name: xxxx xxxx

CONSUMER Signature: __________________________________ Dated:

Edited by the-g
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They called me again yesterday during the hours which I notified them were inconvenient. They left no message, but a reverse look up of the number confirms it came from the local law office that has been threatening me.

Edited by the-g
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Threatning a lawsuit is a violation also.

Can someone elaborate on this a bit?

For instance, if they are outside the statute of limitations for your state, they cannot legally sue, so threatening to sue would be a violation.

I hope someone chimes in on this. I believe if your state requires that a CA or JDB be licensed to collect in your state, they must be licensed not only to collect, but also to bring a lawsuit.

If they are not the real party in interest, they cannot threaten to sue.

They called me again yesterday during the hours which I notified them were inconvenient. They left no message, but a reverse look up of the number confirms it came from the local law office that has been threatening me.

If they called on your cell, and the number will show up on your cell phone bill, save the bill. If it won't show up on your bill, take a picture of the number along with the date and time. If they called on your landline, take a picture of the number. You must be able to prove they called at a time that you stated was inconvenient.

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The SOL will not expire until next year.

I'm still unclear who they are in the legal process, since they say they are a debt collector and also that they are representing a collection agency. they're listed as a law firm in the phone book, but calling themselves a debt collector in correspondence.

Which is it & can they be both?

they called my cell, so the number an time of call will show up in my phone records and the number they called from popped right up as the law firm when I googled it.

I'm wondering if I should go ahead and sue them for that, or wait for them to make a move first...

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the only thing I'm wondering in regards to suing them for contacting me is if this wording in my letter is specific enough:

"Also, as per FDCPA 15 USC 1692g Sec. 809 (a)(1), I hereby notify you that it is not convenient for me to receive communication in connection with debt collection during the hours of 8am-6pm, Monday through Friday."

I didn't say by phone or on my personal phone specifically. Plus I see that I referenced the incorrect section of the FDCPA. It should read Sec. 805(a)(1). Dammit.

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I have not used the exact section of the FDCPA. I just say that all calls are inconvient at any time, any place. They should already know the law. Then they only time they may be allowed call is if there is a change in status in the case.

I bet they didn't even notice the wrong statute.

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Looking at a recent credit report, I see that the law firm in question has also pulled my report from Experian. The date of their inquiry is before my correspondence with them began.

Under their inquiry entry under comments it reads, "Permissible purpose. This inquiry is scheduled to continue on record until May 2012". When is it legal/illegal for them to pull a credit report.

From the date it looks like they pulled a credit report, and from the information gathered there, decided I was worthy of going after.

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