ADVICE NEEDED

[BV80]

A while back I posted about a JDB out of California that contacted my husband about a zombie debt. They left a message on his cell (no autodialer) telling him to call a number about a legal matter. He called them, and they told him it was a cc debt. He disputed it, and the rep proceeded to tell him if they didn't receive funds in by 5:00 P.M. their time, he could expect a summons at the door the next day.

I called them, spoke to the same rep, and was told the same thing. When I told the rep the debt was way outside the SOL, he told me the SOL was 6 years. I told him it was 3 in SC, but he said it was 6 years in CA and they would sue us in CA. He then said they would garnish our wages (illegal in SC).

My husband told them he didn't know them and to send an email with their terms. He still didn't admit to knowing about the debt. They sent a letter via email stating that they would settle for $3500 ($1600 original balance) provided they received post dated checks in the amount of $500 each by that same day. The letter stated once the debt was paid, they would remove their trade line from his credit reports.

They had no TL on his CRs. There was an inquiry, but no TL.

I've been researching SC law. In this state, before one can initiate legal action under the FDCPA or SCFDCPA, one must first file a complaint with the SC Dept. of Consumer Affairs. From past experience, that can take forever. I wanted to make sure there were no repercussions for sending the JDB a letter and trying to settle outside of court before filing with the SC Dept. of Consumer Affairs, and then having to file suit.

Since it appears there is nothing that prevents me from sending a letter to the JDB, I need advice. I'm not going to DV because that would be a waste of time.

The JDB is in violation of the FDCPA:

1. 15 USC 1692e(11) which is failure to disclose they were a debt collector.

2. 15 USC 1692g(3), (4), and (5) (the 30 day dispute disclosure, etc.)

3. 15 USC 1692e(10) (deceptive means to collect a debt via the letter stating they would remove their TL from the CRs when they didn't have a TL)

4. SC Code of Laws Title 37-5-108© (deceptive means)

I could include 15 USC 1692e(5) (threatening to take an action which cannot legally be taken or not intended to be taken...the threat that we were going to get a summons)

Here's my questions:

1. The FDCPA max is $1000. So is the SC law. Should I demand $2000?

2. We have a cell phone bill to show we did call the number and the amount of time we spent on the calls. I took notes during the call. Since it's California, I couldn't legally record the call. We can both write affidavits attesting to the details of the calls. Since they made the threats of a summons, garnishment, and suing in California to me (wife), can my husband demand FDCPA and SC damages for me, as well?

3. Should we demand a specific amount in the letter?

Of course, my husband would inform them that if he doesn't hear from them in a certain period of time, he would file a complaint with the SC Dept. of Consumer Affairs and include a copy of the emailed letter and a copy of the voicemail and that, if necessary, he will take the legal remedies afforded him by the FDCPA and SC Code of Laws.

[MrPunch]

Does SC require to have license to collect?

I guess if there is no entry in the CR then you wouldn't be able to seek FDCRA damages.

Did they actually show any kind of evidence of your husband owing this debt? How about any evidence that they own the debt? If neither of the two, I would add 2 more claims:

1. Filing frivolous lawsuit - punitive damages - I think you can go up to $25,000 there

2. Fraud damages, also punitive. Not sure about SC, but in GA we have a $250,000 cap.

Think about it, if they don't show any evidence, that means they are seeking to get money from you pretending to be someone with a legit cause to do so, which, in fact, they're not. I consider this a fraud. If you are taking me to court, you better be prepared to show some sort of "evidence" to not be a complete fraud.

You can also ask for sanctions for charging usury interest.

Was the account open in CA or was it in SC? If your husband never lived in CA, then they can't go by the CA law, they have to sue him in SC and in that case you can record their conversations too because it will be the SC law to govern the case, not the CA. The same thing applies to the SOL - they can't claim 6 years if they sue you in SC - period! Do you think they going to tell the SC judge about some CA law that he/she can care less about? And if they still choose to proceed without any evidence I would also threaten the lawyer to report him into the SC Bar association for, again, filing frivolous suit without basis or knowingly filing a suit after being informed that it's outside the SOL, that should normally scare the heck out of the attorney, because you're now threatening him with his license to "work"

This is my approach - beat the crap out the jerks and you shall prevail!

Edited April 4, 2011 by MrPunch

[nobk4me]

FDCPA is federal law, and you can file suit in federal district court. How could a state law, requiring you first to file a complaint with a state agency, trump federal law?

[MrPunch]

FDCPA is federal law, and you can file suit in federal district court. How could a state law, requiring you first to file a complaint with a state agency, trump federal law?

I had the same thought, but forgot to mention it. There is no way a state can create a "burden" of any kind against the FDCPA unless the law allows it. The federal law is superior to a state law and shell be respected regardless of which state is enforcing it.

[BV80]

Does SC require to have license to collect?

No, it doesn't.

Did they actually show any kind of evidence of your husband owing this debt? How about any evidence that they own the debt? If neither of the two, I would add 2 more claims:

1. Filing frivolous lawsuit - punitive damages - I think you can go up to $25,000 there

They haven't filed a lawsuit. Threatened to, but didn't go through with it.

FDCPA is federal law, and you can file suit in federal district court. How could a state law, requiring you first to file a complaint with a state agency, trump federal law?

This is the first sentence of the law:

"No action at law claiming unconscionable debt collection may be commenced in any court until at least thirty days after the facts and circumstances of any claim of unconscionable conduct in collecting a debt arising out of a consumer credit transaction has been filed in writing with the administrator of the Department of Consumer Affairs."

They want you to let them handle it first to try to keep it out of court.

[MrPunch]

"No action at law claiming unconscionable debt collection may be commenced in any court until at least thirty days after the facts and circumstances of any claim of unconscionable conduct in collecting a debt arising out of a consumer credit transaction has been filed in writing with the administrator of the Department of Consumer Affairs."

I think it's a bunch of BS, if you are being sued and didn't file whatever the state law requires you, federal law should still dominate over the state law, unless there is specific provision otherwise. Either way, since they haven't sued you yet you have the 30 days to do what you want, so it shouldn't be a problem.

If that was me I wouldn't even pick up the phone and wait and see if they have the guts to send a lawyer to fight this BS. Keep enjoying your life without wasting your energy paying them any kind of attention. Respond with C&D and DV letter ONLY if they send you a certified letter and deny that you received any other letter that they don't have a solid proof for and don't talk to them anymore after that unless they sue you. You won't believe me, but this "no talking" technique has turned away many, many collectors who tried to go after me in the past. Every single one of them has threatened me with a lawsuit too. It costs them money to keep calling and mailing you letters, so if you simply don't respond they won't have much else to do but either to back out or proceed with a lawsuit, at which point you can put them right against the wall and tell them to shove it you know where. Not many conscious attorneys would even take the case if it's out of the SOL either, although there are some that will be hoping for a 'default', but it's usually a no win situation for them otherwise and if they do sue you, you can actually make them pay you for the "frivolous" lawsuit I was talking about earlier. If you're having a CR problem, then you need to deal with the CRA to solve this. You can sue the CRA if they insist on keeping your records without a solid proof that there is indeed an account. Dealing with the junk suckers is the last thing I want to waste my time doing.

BTW you never mentioned if your husband has ever lived in CA.

Edited April 5, 2011 by MrPunch

[hopefulscambeater.]

No, it doesn't.

They haven't filed a lawsuit. Threatened to, but didn't go through with it.

This is the first sentence of the law:

"No action at law claiming unconscionable debt collection may be commenced in any court until at least thirty days after the facts and circumstances of any claim of unconscionable conduct in collecting a debt arising out of a consumer credit transaction has been filed in writing with the administrator of the Department of Consumer Affairs."

They want you to let them handle it first to try to keep it out of court.

File with them, wait 30 days and IF they've not resolved it, file in Fed OR State Court

It "appears to me" that is the most you need to do to comply?

[BV80]

File with them, wait 30 days and IF they've not resolved it, file in Fed OR State Court

It "appears to me" that is the most you need to do to comply?

I agree. I'm thinking of first sending them a letter outlining the violations to see if they want to resolve the matter before I even file a complaint with the Department of Consumer Affairs. Couldn't hurt. I was just wondering if I should include a specific amount in the letter.

[MrPunch]

I know you said that SC does not require to have a license to collect. But I bet they still have to have license to practice law in SC. And if these collectors do have one, then you can report them (or their lawyers) to the SC Bar association instead of suing them.

Even if you do file an FDCPA, wouldn't you have to sue them in their state? And how are you planning to collect the $1000? To me this battle sounds like a waste of time.

I would rather go after the CRA to make sure my credit is clean and not worry about some weeping monkeys in the jungle. SC Consumer Credit Affairs have no power over the jerks in CA. And even if you do win the federal case, the most you will get out of this is make them stop calling, which could be accomplished a lot easier with a caller block. Unless you're really getting a lot of fun of doing all of this, you might be better off saving your energy and take a different route. Those are just my thoughts.

Edited April 5, 2011 by MrPunch

[KentWA]

I'm thinking of first sending them a letter outlining the violations to see if they want to resolve the matter before I even file a complaint with the Department of Consumer Affairs. Couldn't hurt. I was just wondering if I should include a specific amount in the letter.

Most JDB and CAs will round file even ITS letters now with draft copies of complaints attached. A letter "outlining their violations" is going to go no where fast. However a DV letter and followup disputes can go a long way for you if you do take it to court.

[LOUISIANA OLIVE OIL]

I have a question. I have a BOA account that was charged off and sold to Arrow Financial Services. Both of these accounts are listed on my credit reports. My question is are these duplicate accounts or not? Thanks

[dvintexas]

It sounds to me like the JDB is assuming you're not very well versed in the law and is trying to intimidate you (or they're just plain ignorant of the law themselves). The FDCPA is very clear on venue and unless a contract was signed in California or you live there at the time of filing suit the JDB cannot file in California. They have to file in SC.

15 U.S.C. section 1692i(a) states:

(a) Venue

Any debt collector who brings any legal action on a debt against any consumer shall—

(1) in the case of an action to enforce an interest in real property securing the consumer’s obligation, bring such action only in a judicial district or similar legal entity in which such real property is located; or

(2) in the case of an action not described in paragraph (1), bring such action only in the judicial district or similar legal entity—

(A) in which such consumer signed the contract sued upon; or

( in which such consumer resides at the commencement of the action.

[Xcalibar]

A while back I posted about a JDB out of California that contacted my husband about a zombie debt. They left a message on his cell (no autodialer) telling him to call a number about a legal matter. He called them, and they told him it was a cc debt. He disputed it, and the rep proceeded to tell him if they didn't receive funds in by 5:00 P.M. their time, he could expect a summons at the door the next day.

I called them, spoke to the same rep, and was told the same thing. When I told the rep the debt was way outside the SOL, he told me the SOL was 6 years. I told him it was 3 in SC, but he said it was 6 years in CA and they would sue us in CA. He then said they would garnish our wages (illegal in SC).

My husband told them he didn't know them and to send an email with their terms. He still didn't admit to knowing about the debt. They sent a letter via email stating that they would settle for $3500 ($1600 original balance) provided they received post dated checks in the amount of $500 each by that same day. The letter stated once the debt was paid, they would remove their trade line from his credit reports.

They had no TL on his CRs. There was an inquiry, but no TL.

I've been researching SC law. In this state, before one can initiate legal action under the FDCPA or SCFDCPA, one must first file a complaint with the SC Dept. of Consumer Affairs. From past experience, that can take forever. I wanted to make sure there were no repercussions for sending the JDB a letter and trying to settle outside of court before filing with the SC Dept. of Consumer Affairs, and then having to file suit.

Since it appears there is nothing that prevents me from sending a letter to the JDB, I need advice. I'm not going to DV because that would be a waste of time.

The JDB is in violation of the FDCPA:

1. 15 USC 1692e(11) which is failure to disclose they were a debt collector.

2. 15 USC 1692g(3), (4), and (5) (the 30 day dispute disclosure, etc.)

3. 15 USC 1692e(10) (deceptive means to collect a debt via the letter stating they would remove their TL from the CRs when they didn't have a TL)

4. SC Code of Laws Title 37-5-108© (deceptive means)

I could include 15 USC 1692e(5) (threatening to take an action which cannot legally be taken or not intended to be taken...the threat that we were going to get a summons)

Here's my questions:

1. The FDCPA max is $1000. So is the SC law. Should I demand $2000?

2. We have a cell phone bill to show we did call the number and the amount of time we spent on the calls. I took notes during the call. Since it's California, I couldn't legally record the call. We can both write affidavits attesting to the details of the calls. Since they made the threats of a summons, garnishment, and suing in California to me (wife), can my husband demand FDCPA and SC damages for me, as well?

3. Should we demand a specific amount in the letter?

Of course, my husband would inform them that if he doesn't hear from them in a certain period of time, he would file a complaint with the SC Dept. of Consumer Affairs and include a copy of the emailed letter and a copy of the voicemail and that, if necessary, he will take the legal remedies afforded him by the FDCPA and SC Code of Laws.

Since the maximum amount of money that "you" can collect if successful is $1,000 and there are plenty of lawyers who specialize in filing FDCPA lawsuits, I would contact on of those attorneys with the set of facts for your particular case and see if they deem it a winnable case, most attorneys take cases without the consumer having to come out of pocket with one dime.

You cannot get attorney's fees for the expenditure of your own time, so why not find something better to do and allow an attorney to do all of the work?

[chiquita55]

Another thing to add to your arsenal is they lied about the Calif SOL for credit card debt. It is 4 years, not 6.

[BV80]

Thanks so much, everyone. You all gave us more food for thougtt. After reading all of this, I believe my husband is going to go ahead and DV them before he or an attorney sends them any other type of letter.

Who knows? Maybe their "validation" will give us even more fuel.

[hopefulscambeater.]

Hoping they continue to mess up legally giving your case much more strength!