Let me get your thoughts

[Swatch]

This is a continuation of my post in regards to Capital Management Services out of Buffalo, New York committing FDCPA violations. I have filed complaints with the Indiana Attorney General, BBB of Upstate New York, New York State Attorney General and the FTC. I will be pursuing legal action against Capital Management Services, but not sure if I should wait until I start hearing back from these different entities and include those in the suit?

What are your thoughts on sending a Pre-litigation Letter?

Any thoughts or opinions good, bad and/or ugly would be greatly appreciated!!

[BV80]

I'm not sure a pre-litigation letter would impress a CA. They probably get threats to sue all the time. If you definitely intend to sue, I'd send a copy of the Complaint with a letter stating it will be filed if CapMan offers no resolution within a certain amount of time.

If I'm not mistaken, their violation is for calling you after 9 PM. The FDCPA states that you can be awarded up to $1000. That doesn't mean you will be awarded the full amount. It's up to the judge. He could decide to award you much less. Or he could very well decide to award the full amount. There's no way of knowing.

Just something to think about.

[usagi555]

IMO, if you're going to use an attorney to go after them, start talking to attorneys now and let the attorney decide if you find one who you like and that will take your case. Otherwise, I'm personally not a fan of threats. That's not to say that they don't have their place and can't be effective. It's just that if I feel that I've been wronged, I'm going to persecute and violate them.

That being said, BV80 is right. They probably get threats to sue all the time. Threats which never materialize. If you're going to do it, you better make it one convincing threat if you want them to respond. Unless you want to make it look like you tried to work things out before you got the courts involved, that is.

[Swatch]

Thanks for the replies Usagi555 and BV80. The reason I brought up the Pre-litigation letter was because Capital Management Services had to come to an "Agreement" with the New York Attorney General in 2009 and states:

"In June 2009, the New York State Attorney General reached an agreement with Capital Management Services, Inc. The company has agreed to substantially reform their business practices in order to be in full compliance with the Federal Fair Debt Collection Practices Act and New York’s Debt Collection Procedures Act. According to complaints received by the Attorney General’s Office, collectors employed fraudulent tactics in an attempt to collect debts, including: •Contacting alleged debtors without a lawful justification for doing so and even after being asked in writing to cease all communication •Contacting consumers at their places of employment even though the collectors were aware that such contact was prohibited by the consumers’ employers •Discussing consumers’ debts with third parties (i.e. employers, neighbors, etc.), and doing so even after the third party told the company to cease such communications •Falsely claiming that the company was acting on behalf of an attorney and that the company or a creditor was about to commence legal action against the consumer •Failing to respond to consumers requests for debt verification. The company has agreed to enhance their compliance protocols and make it easier for consumers to file complaints against individual collectors. They must create a direct link on their web site to consumer complaint forms. They must also maintain an employee disciplinary history database, as well as a comprehensive database of all complaints made by consumers or third parties who were wrongly contacted by collectors."

Maybe this could be some leverage???

[usagi555]

Thanks for the replies Usagi555 and BV80. The reason I brought up the Pre-litigation letter was because Capital Management Services had to come to an "Agreement" with the New York Attorney General in 2009 and states:

"In June 2009, the New York State Attorney General reached an agreement with Capital Management Services, Inc. The company has agreed to substantially reform their business practices in order to be in full compliance with the Federal Fair Debt Collection Practices Act and New York’s Debt Collection Procedures Act. According to complaints received by the Attorney General’s Office, collectors employed fraudulent tactics in an attempt to collect debts, including: •Contacting alleged debtors without a lawful justification for doing so and even after being asked in writing to cease all communication •Contacting consumers at their places of employment even though the collectors were aware that such contact was prohibited by the consumers’ employers •Discussing consumers’ debts with third parties (i.e. employers, neighbors, etc.), and doing so even after the third party told the company to cease such communications •Falsely claiming that the company was acting on behalf of an attorney and that the company or a creditor was about to commence legal action against the consumer •Failing to respond to consumers requests for debt verification. The company has agreed to enhance their compliance protocols and make it easier for consumers to file complaints against individual collectors. They must create a direct link on their web site to consumer complaint forms. They must also maintain an employee disciplinary history database, as well as a comprehensive database of all complaints made by consumers or third parties who were wrongly contacted by collectors."

Maybe this could be some leverage???

Evidence of their violations is probably much better leverage. Evidence attached to the complaint that you'll file even better yet. If they know you can blow their practices wide open in a court of law, which makes it public record that your state's AG can see, as well as consumer attorneys who may want to sue later on behalf of their clients, they might pay attention. Letters like this, if you want results, are only going to be effective if they know you can hurt them and know you will hurt them.

But I'm saying that without knowing how they have violated and without knowing what proof you have. If it is solid, you might be able to turn their heads real quick. If they tell you to pound sand, that doesn't mean that your evidence sucks or there weren't any violations, but you had better reevaluate everything. CAs have been known to bluff when they're toast and should just settle (seems to be common,) but if they know they're safe...

[Swatch]

As of right now the only evidence I have on my part is the call log of when they called after 9PM. The "Agreement" that I quoted came from the BBB report for Capital Management Services. They are no longer accredited by the BBB. I'm curious to what the New York State Attorney General's Office has to say seeing as how they were part of the "Agreement" with Capital Management Services. Should be interesting to say the least!!

[Coltfan1972]

I've sued several times before, I'm on the Webrcon list, I'm on the courts offical site where anybody can see the lawsuits, and I had an unlicensed agency come after me.

I got confirmation from the head of the state board that regulates agencies they are in direct violation of the law. I also had two other violations, that while not slam dunk are very legit violations I can prove.

I sent an intent to sue letter. A copy of the Federal lawsuit that would be filed, a copy of the email from the state board of collection agencies, a docket sheet from my last case and the web link to another case.

Their response? None. Just total ignore. Not sure what they were smoking but I was at the federal courthouse filing the suit, three hours after the intent to sue letter expired and they had confirmation about an hour later.

Then they got a "courtsey copy" of the lawsuit sent to them in the mail and by email, along with a "courtsey copy" to their registred agent which is a partner at a law firm in Dallas. The suit is still being served on them (might be served now, not even sure) and I've gotten two phone calls from a law office in Dallas. One time no message and the second time a message asking for a return call.

Now guess who is playing the ignore game and will play it until the judge forces a conference. Let's see how they like a consumer that is pro-se that won't even return phone calls to the other sides attorney and would actually rather go to court. Bet they were not expecting that when they "called my bluff"

That's a very long way of saying they are not going to give a dang about your complaints and your letters. On a side note, while it can't hurt, save your time on complaint letters. Also the BBB? Who cares, what collection agency in America is going to have a good rating with the BBB. You think a consumer is going to say they were so happy with the service they received from the collection agency that called them at dinner time and took their payment for a past due bill.

And leverage from a regulatory agency? No way, they don't care, look at Midland. It's not a matter of which state attorney generals have sued Midland, but which have not. They just keep on business as usual.

All I can say is you can thank the thousands of consumers that send threatening letters and just bluff or don't even know what ITS stands for but come into the forum and say my rights are violated when do I send my ITS.

The bottom line is a very, very, very small percent will ever sue, and even a smaller percent pro-se. Then chop that number down even further when you talk about federal court and a $350.00 filing fee and about $100.00 bucks to serve the suit.

In other words, get ready to sue or don't send your letter. It's getting ignored. Maybe your sick in the head like me and will look at that as a prayer answered.

[legaleagle]

They will probably argue permissible error, that the douche bags they hire to harrass people are too stupid to know there is a time difference in the US and the idiots from Umbutuville or Mumbai are responsible, so go sue them. Really. I can see them pulling some crap like this. Ever sell anything on Ebay and give your phone number? Dummies from California will call you at midnight. "Like dude, you know, like can I get a picture of the thing for sale?"

"No, you pathetic a$$***e, you can't. Don't you know what time it is?"

"Like 9 o'clock. What's your problem, dude? You are like so hostile."

"That's because IT"S F***ING MIDNIGHT HERE YOU MORON and you just woke up the whole family."

"Really? It's like midnight there. Oh, wow. That's like really awesome, dude. Do you have like a time machine?"

"Yeah, and I have a bazooka, and I'm going to shoot you in your thick head with it, but I guarantee it won't do any damage. YOU ARE STUPID. Don't ever call here again."

"Dude, you need to have some decaf and listen to some wind chimes."

[Swatch]

@ legaleagle, it's funny you say that because I have been given three different excuses as to why they called after 9PM. It was either a dialer glitch, old phone system, and the TIME ZONES. But they informed me they would investigate. LOL

[legaleagle]

Doesn't matter, this is negligence. It's called "knew or should have known." They have a statutory requirement to know and follow all the laws applicable to their profession. This extends to the rectal orifices they hire in scumbag countries to do their robo calling. Sue them, let them hash it out with Punjab Collection Agency.

[Coltfan1972]

@ legaleagle, it's funny you say that because I have been given three different excuses as to why they called after 9PM. It was either a dialer glitch, old phone system, and the TIME ZONES. But they informed me they would investigate. LOL

Why don't you investigate, via discovery, after you sue them.

Something tells me three times would not be a "bona fide" error.

[legaleagle]

More like "Bona Find." Guess where you're going to find the bone.

[Swatch]

Doing some research I found that Capital Management Services uses the Castel dialer system. According to a Case Study by Castel in regards to Capital Management Services, Stephen Florczak, Executive Vice President of Information Technology is quoted stating:

" But with CastelConnects we complete 1.2 million contacts because the dialer makes no errors."

Does this help me any?

[legaleagle]

Auto dialers are a violation as I recall, I never can remember the name of this thing, TCPA or some such thing, someone will remember it.

[Swatch]

Ok, so received a response from the BBB which is one of the places I sent a complaint to in regards to Capital Management Services calling after 9pm. Capital Management's General Counsel, Cory R. Magnuson responded to the complaint as stated:

" Capital Management Services is requesting that your office refrain from publishing this response as it includes private information between the consumer and Capital Management Services. Capital Management Services is in receipt of your recent correspondence regarding (my name). It is our understanding that Mr. (my name) claims he was contacted at 9:16pm.

The system we use blocks calls from being made prior to 8:00AM and after 9:00PM to the consumer. There appears to have been a technological error in our system and our block allowed a telephone call to be placed to Mr. (my name) after 9:00PM. We have corrected our system to fix this error. We apologize for any inconvenience that Mr. (my name) may have incurred. On April 16, 2012 this matter was closed and returned to the account to our client. Capital Management Services will not attempt to contact Mr. (My Name) regarding this matter again.

I trust this response will satisfy your request. Should you have any further questions, please do not hesitate to contact me."

Since the BBB considers this matter closed I have to deal with the company directly. So, me being me and not going to go away quietly I went ahead and contacted Mr. Magnuson and informed him that in the Castel Case Study ( Castel is the dialer system used by CMS) that Capital Management Services's Executive Vice President of Information Technology, Stephen Florczak is quoted as stating:

" But with CastelConnects we complete 1.2 million contacts because the dialer makes NO ERRORS."

Which to me is a total contradiction to what Mr. Magnuson said in his response to the BBB. Of course I had to leave a message, so waiting to hear back.

Edited April 19, 2012 by Swatch

[1stStep]

I think it's time to fire up a lawsuit...

[BTO429]

tcpa" telephone consumer protections act. 47USC §227

PROHIBITIONS.—It shall be unlawful for any person within the United States, or any person outside the United States if the recipient is within the United States—(A) to make any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system or an artificial or prerecorded voice

[Coltfan1972]

I think it's time to fire up a lawsuit...

Yes, you're just wasting your time if you do not plan on suing.

You can have all your studies and arguments, be dead on accurate, and all you will get is a political sounding CYA response.

Plus you can't really hang your hat on that case study. You would never get it admitted in court without the party that actually conducted the study there to testify.

Go back and read my earlier post. Look at everything they were provided and then still ignored me. Now they just settled with me but it was because they got served the lawsuit.

Anything not wrapped in a summons and complaint is a waste of time.

[legaleagle]

There appears to have been a technological error in our system

Gee, that's too bad. Your mistake, your error, your admission, your liability. Your crap equipment is your responsibility, not mine. How about I run over your fat pancake sucking wife and blame the car manufacturer for it because they didn't build a car with ground clearance sufficient to clear a 500 pound woman trying to suck more food out of a storm drain because she smelled a McDonald's bag? Thanks for telling me it's YOUR fault. See you in court. Attach a copy of your complaint to the letter.