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Does this prove OC debt collector in Michigan


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HOLY CRAP ---CAN THIS BE TRUE I HAVE TO TURN MY PAPERWORK ON MONDAY

Could this be construed that Michigan considers a “regulated person” under the employ of Discover Card, trying to collect a debt… A DEBT COLLECTOR, subject to the violations of Mich. Laws as well as FDCPA.

MICHIGAN LEGISLATURE

REGULATION OF COLLECTION PRACTICES

Act 70 of 1981

445.251 Definitions.

Sec.1. As used in this act:

(e) "Creditor" or "principal" means a person who offers or extends credit creating a debt or a person to whom a debt is owed or due or asserted to be owed or due. Creditor or principal does not include a person who receives an assignment or transfer or a debt solely for the purpose of facilitating collection of the debt for the assignor or transferor. In those instances, the assignor or transferor of the debt shall continue to be considered the creditor or the principal for purposes of this act.

(g) "Regulated person" means a person whose collection activities are confined and are directly related to the operation of a business other than that of a collection agency including the following:

(i) A regular employee when collecting accounts for 1 employer if the collection efforts are carried on in the name of the employer.

( xi) An attorney handling claims and collections on behalf of a client and in the attorney's own name

445.252 Prohibited acts.

Sec. 2. A regulated person shall not commit 1 or more of the following acts:

(e) Making an inaccurate, misleading, untrue, or deceptive statement or claim in a communication to collect a debt or concealing or not revealing the purpose of a communication when it is made in connection with collecting a debt.

(f) Misrepresenting in a communication with a debtor 1 or more of the following:

(i) The legal status of a legal action being taken or threatened.

(ii) The legal rights of the creditor or debtor.

(iii) That the nonpayment of a debt will result in the debtor's arrest or imprisonment, or the seizure, garnishment, attachment, or sale of the debtor's property.

(iv) That accounts have been turned over to innocent purchasers for value..

(n) Using a harassing, oppressive, or abusive method to collect a debt, including causing a telephone to ring or engaging a person in telephone conversation repeatedly, continuously, or at unusual times or places which are known to be inconvenient to the debtor. All communications shall be made from 8 a.m. to 9 p.m. unless the debtor expressly agrees in writing to communications at another time. All telephone communications made from 9 p.m. to 8 a.m. shall be presumed to be made at an inconvenient time in the absence of facts to the contrary.

(q) Failing to implement a procedure designed to prevent a violation by an employee.

(s) Employing a person required to be licensed under article 9 of Act No. 299 of the Public Acts of 1980, being sections 339.901 to 339.916 of the Michigan Compiled Laws, to collect a claim unless that person is licensed under article 9 of Act No. 299 of the Public Acts of 1980.

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This is something that I would have to read a few times, maybe look at a few other relevant laws and maybe even read some case law, but my first impression is that yes, in house collections agents are subject to that. Something that I don't have to read up on more to state is that in house collections are not subject to the federal FDCPA because of that.

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An attorney sending out a collection letter on their own letterhead exempts them from the licensing requirement in Michigan, BUT there are a couple of rulings now such as Lesher V Kay that say its a FDCPA violation for them to send a collection letter on attorney letterhead.

they can be exempt from Michigan Licensure but they are not exempt from violating FDCPA or the Michigan collection laws,

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I should be more clear...

My complaint is against OC for harassing phone calls etc.

You are still in the first 180 days of default?

An OC can violate but its more difficult to pursue an OC, sometimes they transfer the debt to an in house collection arm but that collection department could violate, I think more information would be helpful, one of the arenas I've seen OC's and their in house collections get hammerred on was being deceptive.

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I am at the stage of pre-trial questions.

OC (discover) suing me

I filed counter claim to w/answer for to their complaint for harassment, etc.

Attorneys say the oc not a dc.

I contend that they were... in the beginning before the lawsuit, when they were calling constantly.

By the way that was sept 2010. they stopped calling after few months, next thing i know, i have summ and compl in nov 2011

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I am at the stage of pre-trial questions.

OC (discover) suing me

I filed counter claim to w/answer for to their complaint for harassment, etc.

Attorneys say the oc not a dc.

I contend that they were... in the beginning before the lawsuit, when they were calling constantly.

By the way that was sept 2010. they stopped calling after few months, next thing i know, i have summ and compl in nov 2011

FDCPA has a 12 month window to take action which has expired,

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Personally, I would use it against them, if for nothing more than causing the judge to question it. As the statute reads, a reasonable person would agree with you. Without knowing the whole of your state's statutes, it is not easy to state as absolute. You would have to read the whole statute, and especially read all footnotes, or other items at end. See if they offer a summary. California has a summary available which describes the intent of congress.

As to your case now, if it has been over one year as pointed out by another member, forget it, you have no recourse. The SOL begins on first date of injury. For example, if they called you 10 times on the very first day, it would be a violation, but, only actionable for one year from that date. My comments above are for the sole purpose of letting the court know of the incident, in hopes the court will reduce the amount of claim, accept your payment options, whatever, just as long as it benefits you, and puts a bug in the judge's ear as to this plaintiff condoning violating the consumer.

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Thanks for the answer RETMAR

This whole thing stinks. So that means that all of the violations I have on OC and attorney don't apply because of the SOL?

NOT my fault it took them so long to file. That does not make sense!!

Thanks ,going back to reveiw FDCPA

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The OC wouldn't be held liable under the FDCPA. It would be necessary to find out the SOL under the MI statute and whether or not the consumer has a private right of action.

There are very few instances where the OC can get into trouble re FDCPA and engaging in deceptive practices is one way they can do that. I know I must sound like a broken record on the issue of FDCPA but if you are being contacted by a debt collector on a debt the odds are heavily in your favor that they have or will violate.

Its not enough to use FDCPA to get them to back off, if you have them on a violation go get them and make them pay, you can use the suit for leverage to settle the debt, maybe make the debt disapear, it can give you leverage in a lawsuit and if nothing else you go on the list of people who file FDCPA suits and when collectors run their list against it you are flagged as more trouble than you are worth, that has value in and by itself.

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For example, if they called you 10 times on the very first day, it would be a violation.

maybe and maybe not there are a lot of variables including which district you are in, some courts might view it as a violation, others not so much. 10 calls where you did not answer the phone, not so much, 10 calls where you answered and they talked with you 2 or 3 times in an hour would be better for proving a violation, often they will stop calling after they reach you each day and in any event recording the calls if it is legal and taking pictures of the display on your phone showing dates and times of the calls will help you prove a violation.

There messages left for you could be somthing as a simple foti violation but it is still a violation

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There are very few instances where the OC can get into trouble re FDCPA and engaging in deceptive practices is one way they can do that. I know I must sound like a broken record on the issue of FDCPA but if you are being contacted by a debt collector on a debt the odds are heavily in your favor that they have or will violate.

Its not enough to use FDCPA to get them to back off, if you have them on a violation go get them and make them pay, you can use the suit for leverage to settle the debt, maybe make the debt disapear, it can give you leverage in a lawsuit and if nothing else you go on the list of people who file FDCPA suits and when collectors run their list against it you are flagged as more trouble than you are worth, that has value in and by itself.

Oh, I agree with you. I was referring to the MI statute the poster cited...445.252 Prohibited acts. I thought perhaps the poster could find out the SOL related to that statute and whether or not it allows for a private right of action that would enable a Defendant to use it as a counterclaim.

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Boy I tell you what... I have only been doing this a short period of time and to tell truth -Sucks Big Time- hope I can prove my case and be done fat chance right

Thank you all. You have been great AND informative. So sorry you have had to go thru this crap to.

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Boy I tell you what... I have only been doing this a short period of time and to tell truth -Sucks Big Time- hope I can prove my case and be done fat chance right

Thank you all. You have been great AND informative. So sorry you have had to go thru this crap to.

Yep sucks big time, no disagreement here, but the more you learn the more empowered you will feel, it takes a lot of time to understand the rules but if you learn them and use them correctly it can make a big difference and you can win or at least place yourself in a better negotiating position

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Bravo, everyone, for jumping in on this.

Regarding my comment as to "10 calls in one day", I think it best to include some items. As of today, I have found no case decisions regarding when the repeated calls in one day are considered excessive, and, in violation. I agree that it would depend on the judge as to setting an amount per case, unless the consumer can prove a previous decision, or an accepted norm from either state or federal statutes. We've had several threads on this, many just single posts included in a larger post, so, hard to recall all of them. I remember some comments as to statutes that Robo Calls must have a person at time phone is answered, available. I've also heard this is not true as long as they do not state any personal info. I argue this in respects to the first communication rule. Another thread here. As we know, many consumers work, thus, are not usually home during the day, thus, unable to respond to the call. For that reason alone does it give the CA/JDB/ATTY the right to continue to call having reasonable knowledge the consumer may be at work?

Most obvious here is this. Most consumers check their messages upon arriving home for the evening, then, decide who they will and will not call back. If a CA/JDB/ATTY, it is most obvious they will not call back. Even if the consumer has all intentions to returning call and resolve the situation, is it not reasonable to assume that two calls to the same number in one day would be excessive? Many say no as they consider it OK in case the consumer may have just run to the store, or slept late. Add other reasons here.

Personally, if a CA/JDB/ATTY calls, Robo or not, and receives no answer in the AM, then, calling again in the afternoon, or early evening, should be acceptable. But, to call every hour on the hour, or whatever, should be in violation upon the third call. I say this as reasonable people do not sit and continue calling a number that they receive no answer, especially when the message they leave is the same as all others. Yes, I am well aware that CA/JDB/ATTY's are not reasonable.

As to OP's questions, let me say this. The one year SOL does prevent you from having legal recourse, but, there is no law that says you can't complain about it, even in court. Letting the judge know the character of the plaintiff does go a long way in many cases, but, only if the consumer makes it known. As to your comment about an ATTY, if you have proof an ATTY violated you in this, file a complaint with the county and state bar. File with the AG for your state and their state. Same for the BBB. Let it be known to all you can notify. You could even throw in while in front of the judge that you find it unfair that the plaintiff had four years to sue, but, you only had one, and, since ignorance is no excuse, it is hard for you to understand how that can be fair in any situation. Never know, they may cut it in half, or some other relief.

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antiquedave, job well done. Be Proud!!!!!

As to a "sticky", send Kristy a PM and ask if she will add this to the list of sticky's.

The following actually happened to one of my friends here.

Due to a simple error on their part, they had a check returned. Of course, the payee had Certigy with their hand out. The day the letter arrived, the calls began. The rep was told a money order was being sent out in the morning, and they thought all was OK. Not two hours later, the phone rang again. Guess who? When told of the previous call and PTP made, the rep's response was, when asked why still calling, and I quote, "We haven't received the money yet". Over the next five days, they received three calls a day, different reps, everything. Come to find out, the reps do not put the info in the system most times. This, to me, is absolute harassment.

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antiquedave, job well done. Be Proud!!!!!

As to a "sticky", send Kristy a PM and ask if she will add this to the list of sticky's.

The following actually happened to one of my friends here.

Due to a simple error on their part, they had a check returned. Of course, the payee had Certigy with their hand out. The day the letter arrived, the calls began. The rep was told a money order was being sent out in the morning, and they thought all was OK. Not two hours later, the phone rang again. Guess who? When told of the previous call and PTP made, the rep's response was, when asked why still calling, and I quote, "We haven't received the money yet". Over the next five days, they received three calls a day, different reps, everything. Come to find out, the reps do not put the info in the system most times. This, to me, is absolute harassment.

Thanks, glad you like it, sounds like they might have crossed the line into harrassment but it seems to be more of a trickier violation to get consistent rulings on, doesn' mean a person should not try, my impression is that it makes a great side dish but maybe not the main course

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§ 806. Harassment or abuse [15 USC 1692d]

A debt collector may not engage in any conduct the natural consequence of which is to harass, oppress, or abuse any person in connection with the collection of a debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section:

(5) Causing a telephone to ring or engaging any person in telephone conversation repeatedly or continuously with intent to annoy, abuse, or harass any person at the called number.

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You guys are great. Nobody ever asked isd if he owes the debt. If he does he should do the right thing and pay it, right? The OC shouldn't have to call you 10 times, right? Of course, these forums are never about doing the right thing. Their about beating creditors out of their money! I don't understand how you can want the credit to be available to you when you need it, and at the same time be intent on bringing the credit industry to its knees! Yikes!

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