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Advice on debt passed SoL and possible violations of FDCPA by CA?


Shogun of Harlem
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In 2002, my wife bought two cell phones from a Kiosk in the mall and she signed up with Cingular. When setting up the contract, my wife wanted her phone to start now and mine when I came back from deployment. She was also given two rebates to mail in for $200.

She mailed in both rebates and never received the cash back. Both phones started when she bought them, not one now and the other later. She called Cingular about it. Long story short, they keep charger her for 3 months (my deployment was extended). She figured she paid three months extra on one phone and never received her rebate, so she cancelled.

Cingular sent a notice that she owed money and we talked to them and they agreed, they were in the wrong. They removed all charges.

The Kiosk company then sent a notice that she owed money and we explained it to them, the same as we did Cingular. They sent it to a Collection Agency. After a few phone calls, I wrote a cease and desist letter and had it with a return signature. After they received the cease and desist letter they called three additional times up to a month and half after receiving the letter. I reported them to the BBB and they responded with:

“Company states after receiving consumer’s cease and desist letter no further contact has been attempted by company. However, company has an automatic dialing system and consumer’s number may have been called. This would only happen for a few days…”

My never never admitted to the debt, but would pay $200 to resolve the matter. The letter to the BBB from the collection agency ended with:

"This company is no longer involved in any way with this consumer. Any questions or concerns consumer has regarding this debt should be addressed with the original creditor, XXX". - This was May of 2004.

Two days ago, I received a letter from the same collection agency, asking to clear this matter. I looked up the statue of limitations in California and it is 4 years on written contracts. (Not sure on the tolling, as I am military and left California in June of 2006 and returned in June 2010). The approx time of "default" would be Jan/Feb/Mar of 2003.

Can I sue these people? I know we had a case under the Fair Debts and Collection Act when they called after receiving the cease and desist letter, but what about now?

Also, their most recent letter states:

"It is our intent to help you resolve this matter and clear up this situation with an updated credit record which will reflect a paid status on this account. This will enable you to enhance your credit rating and put this matter to rest once for all."

If the debt cannot be placed on your credit report is it fraud to say that it is and they can clear it up with a payment?

Note, I haven't checked my wife's credit report yet.

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"It is our intent to help you resolve this matter and clear up this situation with an updated credit record which will reflect a paid status on this account. This will enable you to enhance your credit rating and put this matter to rest once for all."

If the debt cannot be placed on your credit report is it fraud to say that it is and they can clear it up with a payment?

Assuming your dates are correct, in my opinion, you have a slam dunk violation.

1. Deceptive practices

2. Telling you they will take an action they are not legally able to take.

3. unfair collection attempt by trying to get you to restart the statue of limitations.

4. Misrepresentations as to the status of the debt. They are telling you there is a debt that can be on your report and that is not true.

You get the point, you can throw in a few more. I'd send them an intent to sue and then sue them in 30 days when they ignored you.

Also the statute of limitations for credit reporting is 7 years and those are not tolled. The statute of limitations for using the courts, might be different due to tolling of the statute of limitations. I have no idea on this one in your case.

Congratulations on your good fortune !!

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Also, their most recent letter states:

"It is our intent to help you resolve this matter and clear up this situation with an updated credit record which will reflect a paid status on this account. This will enable you to enhance your credit rating and put this matter to rest once for all."

While the FDCPA violations may all be out of Statute - FDCPA has a 1 year SOL - the Credit Repair Organizatioins Act violation here is brand new.

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While the FDCPA violations may all be out of Statute - FDCPA has a 1 year SOL - the Credit Repair Organizatioins Act violation here is brand new.

I am assuming that you mean the calls to my wife after receiving the Cease and Desist letter are no longer valid to sue, but their most recent attempt is.

I left a message with CreditReportProblems(dot)com today to talk to one of their lawyers. Not to familiar with the process. Any ideas on this service?

Also, this hasn't effected my wife's credit report. She is still in the 700s, the last time we checked. We were still able to purchase a second home in 2006, refi on another home, and purchase a car.

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Also, the contract from the original company stated $400 for each phone is not used for 181 days. So, the original amount is/was $800. There recent letter has the balance at $1513.42 with an offer to settle at $756.71. The original letter had the balance at $835. Should ask them to validate the date to account for extra charges? When I original did this, they only sent a copy of the contract that stated "$400 for each phone". I am considering slow playing this to see how much more they will violate the FDCPA.

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I'm not sure where flying is getting the out of statute on the FDCPA claims. You state you got the letter two days ago with the language about clearing up your credit report, so those violations would be within the 1 year statute of limitations.

Google Credit Repair Organizatioins Act. It has nothing to do with calling after a C&D.

I'd just sue them. The FDCPA does not matter if you have 1 violation or 100. You can't stack the violations.

They can't legally put it on your credit report so I don't know why you would even want to jack around with them about the balance and all the other details. Who cares what they have to say.

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I brought up CROA because it allows for stacking of violations and it is a violation to claim that by paying their bill you will improve your credit rating.

OK, OP - you have unlimited FDCPA violations at a $1000 cap, unlimited FCRA violations at a $1000 cap and CROA violations to sue over. Why waste teh cost of a summons on one Cause of Action when you have so many to choose from?

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I brought up CROA because it allows for stacking of violations and it is a violation to claim that by paying their bill you will improve your credit rating.

OK, OP - you have unlimited FDCPA violations at a $1000 cap, unlimited FCRA violations at a $1000 cap and CROA violations to sue over. Why waste teh cost of a summons on one Cause of Action when you have so many to choose from?

I don't understand how the CROA applies to collection agencies.

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I brought up CROA because it allows for stacking of violations and it is a violation to claim that by paying their bill you will improve your credit rating.

OK, OP - you have unlimited FDCPA violations at a $1000 cap, unlimited FCRA violations at a $1000 cap and CROA violations to sue over. Why waste teh cost of a summons on one Cause of Action when you have so many to choose from?

Flyingifr,

Am I stuck suing for one violation of all three for $1000 or 3 violations (one each of FDCPA, FCRA, and CROA) for $3000. Or can I stack multiple claims for each?

BTW - I'll be checking my wife's credit report on all three firms tomorrow. If they are reporting, does that add to what I can sue for?

Thanks, (love the name BTW)

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Their promising the OP if they pay them they will "enhance their credit rating."

Not could, might, ect... but will enhance their credit rating. What triggers the CROA violation is they are asking for money on the front end and then they will enhance the credit rating.

You can't do that. They are attempting to "repair" the OP credit, but only if the OP sends them money first. In addition they have no idea if it will enhance the OP credit rating, they are a collection agency not somebody working with the CRA to determine credit scores.

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You mentioned an "intent to sue letter". Is there an example somewhere? I have never had to go to court and all the letters I used prior where taken from examples. Also, what is the amount I can sue for? Thanks.

You would just need to draft one, but don't be sending ITS if you're not going to follow through.

I'd see an atty. These are so clear cut violations the atty should take the case for nothing, get you about 1K and the atty probably around 2-3K in legal fees.

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You would just need to draft one, but don't be sending ITS if you're not going to follow through.

I'd see an atty. These are so clear cut violations the atty should take the case for nothing, get you about 1K and the atty probably around 2-3K in legal fees.

That works for me. Could I report them to the BBB? I did in 2004 when they called three times after I sent a cease and desist letter. I also reported the original party to the BBB. Who, I hear now, is out of business.

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Of course you can report them. You can report them to whoever you want. We're in America my friend, free speech.

Now with that said, out of the thousands of collection agencies out there, see if you can find even one where the customers are talking about how great the collection agency is and how they are just so happy to be paying money to the agency.

See if you can find one person that writes and says, "It was a pleasure talking with Mr. Smith from ABC collections. He called right during our dinner and it was a pleasure getting out my checkbook and doing a post dated check by phone. He even promised to keep calling me back until the debt was paid in full."

When I worked insurance claims our goal was 80% of the insureds or clmts to score you a 9 or a 10. If you got in the 90% range you got audited. They knew if everybody was happy you were overpaying claims. You actually got in trouble if you got 100% fully satsified for the month.

Nature of the business that people are not going to be happy. File your BBB complaint, but you're wasting your time. It won't hurt you at all. Collection Agencies only care about one type of complaint, a complaint attached to a summons for court because "You've been sued."

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Their promising the OP if they pay them they will "enhance their credit rating."

Not could, might, ect... but will enhance their credit rating. What triggers the CROA violation is they are asking for money on the front end and then they will enhance the credit rating.

You can't do that. They are attempting to "repair" the OP credit, but only if the OP sends them money first. In addition they have no idea if it will enhance the OP credit rating, they are a collection agency not somebody working with the CRA to determine credit scores.

I thought about that, but then there's this:

SEC. 403. DEFINITIONS.(4)

For purposes of this title, the following definitions apply:

(ii) any creditor (as defined in section 103 of the Truth in Lending Act),(5) with respect to any consumer, to the extent the creditor is assisting the consumer to restructure any debt owed by the consumer to the creditor; or

Would attempted collection apply to "assisting the consumer to RESTRUCTURE any debt owed..."?

In addition, the definitions include a creditor, credit repair organization, and depository institution but say nothing about collection agencies. A collection agency would be collecting for the creditor, but would the creditor be liable for the actions of the agency? Would the CROA have to specify vicarious liability?

Edited by BV80
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The CA is NOT reporting on either report.

That's because you defaulted in 2003 (according to your post). That would mean the latest they can legally report on your credit report would be 2010.

In other words their time to report has sailed by about two years.

It's not for everybody but a debt outside the statute of limitations for court and outside the reporting time frame for your credit report, and having written violations?

I don't think you understand just how bad certain posters could make it on these guys that sent you the letter. You have violations all over the place. I'd have them begging me to take their money just so I'd go away.

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Coltfan,

I should have included this with my last post, but my brain just now took notice. :roll:

3. unfair collection attempt by trying to get you to restart the statue of limitations.

Could you explain the above please? Thanks.

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Could be wrong on what he means, but from my understanding any payment, promise to pay, or in some cases and admission of owning the debt can restart the SOL. So even if this is 30 years old and you agree to pay anything, that restarts the SOL and they can take legal action. By trying to get you to make some sort of admisssion or payment can be viewed as them trying to restart the SOL.

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Could be wrong on what he means, but from my understanding any payment, promise to pay, or in some cases and admission of owning the debt can restart the SOL. So even if this is 30 years old and you agree to pay anything, that restarts the SOL and they can take legal action. By trying to get you to make some sort of admisssion or payment can be viewed as them trying to restart the SOL.

Restarting the SOL is based upon state law. For instance, in my state, only a payment or a written promise to pay restarts the SOL. One must check the laws in their state.

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Coltfan,

I should have included this with my last post, but my brain just now took notice. :roll:

Could you explain the above please? Thanks.

The debt is outside the statute of limitations. They are using trickery to try and get the statute restarted. They are not just sending a letter and saying you owe this debt, please pay, like is allowed on an out of statute debt.

They have this "plan" to "help" your credit. They are using the "credit report helping" as a way to goad the OP into making a payment and therefore restarting the statute of limitations.

They are implying there is more benefit in making the payment other than just clearing up an old debt. It's a quid pro quo situation and not just a request for payment.

They are violating the FDCPA (let's say for the sake of argument it's not a CROA, which I think it is) by offering to "help" the OP credit. That illegal statement would lead to the OP possibly sending them money. Then by the OP making the payment the statute of limitations would be reset. All that based off the initial statement to help which was a violation of the FDCPA.

In criminal law they would call everything the OP, paying the money and restarting the statute of limitations, fruit of the poisonous tree. The creditors illegal actions would be the proximate cause for the OP restarting the statute of limitations. That is an unfair action against the OP.

You've got a debt out of statute, an offer to "help" credit by paying on this out of statute debt, and you have the least sophisicated consumer standard. That is just a recipe for a good ole:

:trainwreck:

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Yeah what he said lol.

I was typing a response, but Coltsfan replied as I was about to.

Regardless of state law, becuase there are other factors at play; Choice of law in original contract, currently living in the same state as the contract was signed etc. There are ways to get around some of these, but a payment for sure will reset. Promise may hold up in some instances, same as admission. Even if it is not plausible for them to actually get it reset, any action that can be construed as an attempt to do so would meet the criteria of attempting to reset the SOL.

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Choice of law in original contract

That also depend's upon your state laws. It has to do with procedural vs. substantive. If your state considers the statute of limitations to be a procedural matter, they may not allow the SOL of another state to apply.

Florida courts have ruled that the SOL is substantive, therefore, the SOL of the governing can apply. Not all state courts rule that way.

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Okay, first thanks for the comments/answers. I reread the thread and missed a few things last night. It was a late night.

I have been reading up on some things. Under the FDCPA, I believe the violations from them are sections 807.2A and 807.10.

807.2A

The false representation of—

(A) the character, amount, or legal status of any debt;

807.10

The use of any false representation or deceptive means to collect or attempt to collect any debt or to obtain information concerning a consumer.

I have browsed the FCRA and didn't see anything that "popped" out.

I am just beginning to read the CROA.

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