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Enhanced Recovery Company LLC for WellsFargo Checking account


bluelife
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I was unable to pay the debt on my wells fargo checking account 2 years ago when going through some major turmoil and hardship.

 

I made a few payments last year, but still owed a couple hundred then i wasnt able to keep up and forgot about it while working and handling other business.

 

Now i receive letter from Enhanced Recovery Company, LLC for the balance of the checking account.

 

DV letter right?

 

its not a huge amount that i possibly could pay in a month or two, but I either need to buy time or get them to drop it.2013-04-22%2020.21.49ERC.jpg

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Just a thought:  Considering it says "See reverse side for important notices", let's assume the 30 day notice is on the back.

 

1692g(B) states that if a consumer disputes the debt with 30 days of the initial communication, collection efforts must cease until the debt is validated.  Also, we all know that a CA doesn't have to validate if they choose to simply cease collection efforts.

 

In the middle of the letter is a sentence that reads "Upon receipt and clearance of $XXX, your account will be closed and collection efforts will cease."

 

That implies that payment of the account is what will cause collection efforts to cease.  Could this be possible overshadowing?

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@admin

 

Contradicting and/or confusing the meaning of another statement in the letter.

 

It might depend on what their 30 day notice includes.  If it includes that a consumer can request validation within 30 days and that upon receipt of the request, the CA will stop collection efforts until the account is validated, then everything's definitely fine.  But if they don't include the part about ceasing collection until the debt's validated, one could possibly think, based upon the statement about payment, that only paying the debt will cause collection efforts to cease. 

 

We know that if we send a timely dispute, the CA can't collect again until they validate.  Some consumers may not know that fact.  So I was just wondering if the statement "Upon receipt and clearance...etc" could be misleading or contradictory to what we know is in the law.  Does it overshadow what is required or allowed by law?

 

Another example of overshadowing is when you receive an initial communication that includes the 30 day notice, then the next week the CA sends a letter that says "pay now" or "due upon receipt", but the letter doesn't remind you that you are still within the 30 day validation period.  Absent a reminder that you're still within the validation period, the language (pay now) overshadows the fact that you're still within the validation period.  It could cause some consumers to forego their validation rights.

 

Here's a case from the 4th Circuit Court of Appeals:

 

http://scholar.google.com/scholar_case?case=14985161461985147198&q=Miller+v.+Payco&hl=en&as_sdt=2,41

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@BV80 

 

We know that if we send a timely dispute, the CA can't collect again until they validate.  Some consumers may not know that fact.  So I was just wondering if the statement "Upon receipt and clearance...etc" could be misleading or contradictory to what we know is in the law.  Does it overshadow what is required or allowed by law?

 

Another example of overshadowing is when you receive an initial communication that includes the 30 day notice, then the next week the CA sends a letter that says "pay now" or "due upon receipt", but the letter doesn't remind you that you are still within the 30 day validation period.  Absent a reminder that you're still within the validation period, the language (pay now) overshadows the fact that you're still within the validation period.  It could cause some consumers to forego their validation rights.

 

Here's a case from the 4th Circuit Court of Appeals:

 

http://scholar.google.com/scholar_case?case=14985161461985147198&q=Miller+v.+Payco&hl=en&as_sdt=2,41

 

Interesting case dealing with conflicting information contained in one letter.  Been around for awhile, too (1991 case).  I would like to read some case law on overshadowing by successive letters, which I'm sure there have been some examples.  If you have it at your fingertips, would you have some like that.  Would like to have this in my arsenal.  

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@admin

 

Here's a few for you.

 

"Overshadowing or inconsistency occurs when a debt-collection letter conveys information `in a confusing or contradictory fashion so as to cloud the required message with uncertainty.'" Owens v. Hellmuth & Johnson, PLLC, 550 F. Supp. 2d 1060, 1064 (D. Minn. 2008) (Kyle, J.) (quoting DeSantis v. Computer Credit, Inc., 269 F.3d 159, 161 (2d Cir. 2001))

[C]ourts have been quick to find overshadowing in violation of § 1692g where a demand letter requested `immediate payment' or payment by any deadline falling before the expiration of the thirty days allowed by the validation notice for disputing the debt. Morgan v. Credit Adjustment Bd., Inc., 999 F.Supp. 803, 807 (E.D.Va. 1998).


Subsequent letters sent within the 30-day window need not reiterate or expressly refer back to the validation notice, but they may not impose conflicting or contradictory demands that would leave an unsophisticated consumer[1] confused about whether he still had the right to dispute the debt within 30 days. See, e.g., Russell v. Equifax A.R.S., 74 F.3d 30, 36 (2d Cir. 1996).

For instance, notices that demand payment before the 30-days have expired without reiterating the consumer's right to dispute the debt have repeatedly been deemed overshadowing. E.g., Terran v. Kaplan, 109 F.3d 1428, 1433 (9th Cir. 1997).

 

Note that the overshadowing of the right to request validation must be based upon a demand that payment must be made during the 30 day validation period.  A CA can send a letter requesting payment or even request your immediate attention.  However, they can't make a demand that implies the payment has to be made during the 30 day validation period. 

 

A demand for immediate payment would be demanding payment immediately.  If you have 20 days left to validate, but they send a letter demanding payment in 10 days, you'd have a violation.

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Just a thought:  Considering it says "See reverse side for important notices", let's assume the 30 day notice is on the back.

 

1692g( B) states that if a consumer disputes the debt with 30 days of the initial communication, collection efforts must cease until the debt is validated.  Also, we all know that a CA doesn't have to validate if they choose to simply cease collection efforts.

 

In the middle of the letter is a sentence that reads "Upon receipt and clearance of $XXX, your account will be closed and collection efforts will cease."

 

That implies that payment of the account is what will cause collection efforts to cease.  Could this be possible overshadowing?

 

It does have this on the back regarding the 30 days, is this considered "overshadowing"?

 

 

2013-05-01%2022.47.54.jpg

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@bluelife

 

I'm honestly not sure with your letter.  The 30 day notice on the back is required.  1692g(B) of the FDCPA states:

 

If the consumer notifies the debt collector in writing within the thirty-day period described in subsection (a) of this section that the debt, or any portion thereof, is disputed, or that the consumer requests the name and address of the original creditor, the debt collector shall cease collection of the debt, or any disputed portion thereof, until the debt collector obtains verification of the debt or a copy of a judgment, or the name and address of the original creditor, and a copy of such verification or judgment, or name and address of the original creditor, is mailed to the consumer by the debt collector.

 

The above shows that if you send a timely DV request (within 30 days of the first communication), a CA must cease collection efforts until they validate.  The line on the front of the letter states that "Upon receipt and clearance of $XXX, your account will be closed and collection efforts will cease."

 

That line is true in that if you pay, they will cease collection.   However, does that line combined with the 30 day notice on the back confuse the least sophisticated consumer?   Is the consumer confused about what exactly will stop debt collection efforts?   I don't know for sure because I haven't found any case law that exactly fits this letter. 

 

That's why I brought it up.  I was hoping some other members had some thoughts.

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I don't see any overshadowing.

 

The front of the letter says that when you pay the debt they will consider it paid. The back has your Statutory 30  day VOD rights warning. This is not overshadowing because the front does not give you a time frame shorter than the 30 days on the back.

 

Now.... if the front said that if you don't pay in (say...) 10 days they will do all sorts of things --- THEN you have Overshadowing.

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The only thing I see is that they did not state they would stop collection efforts until they validate the debt, but I have never seen a case over this so it is kinda of iffy. I would just send them a dv, or if you want them to stop collection efforts send them a refusal to pay letter. Make the letter short and sweet the more you say the more chances you take in screwing up. Just state the account number and a statement that you refuse to pay the debt in full or any portion of the alleged debt.

 

I do not see any overshadowing.

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I don't see any overshadowing.

 

The front of the letter says that when you pay the debt they will consider it paid. The back has your Statutory 30  day VOD rights warning. This is not overshadowing because the front does not give you a time frame shorter than the 30 days on the back.

 

Now.... if the front said that if you don't pay in (say...) 10 days they will do all sorts of things --- THEN you have Overshadowing.

 

@Flyingifr

 

I figured it was iffy, but I thought I'd throw it out there just in case someone knew of a case out there that might shed some light.  I brought it up because the statement might seem to imply that ONLY a payment would stop collection efforts but the 30 day notice on the back of the page says otherwise.  It was about the least sophisticated consumer and confusion.

 

Oh well.  If you guys think it doesn't hold water, I'm with you.  :-)

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BV80,,,those are good points and I see where you are coming from, but here is what you have to think about,,,,,,would the judge think you are just nit picking or would he see a legal issue with it?

 

He'd probably think it was nitpicking.  :-)

 

I was thinking about the least sophisticated consumer and confusion.  The notice on the back of the letter does not state the debt collector will cease collection until the debt is validated.  The statement on the front of the letter states that payment cause collection efforts to cease.  

 

That was my issue.  The only mention of anything that will cause collection efforts to cease is the statement on the front.  Consumers who know nothing about the FDCPA will not know that a DV will stop collection efforts until the debt is validated.

 

But the consensus is that there's no violation, so that's ok.  I concede to the majority.  :-)

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Yes I noticed that too, and if you want to nit pick the fdcpa clearly states in

§ 809.  Validation of debts   [15 USC 1692g]

 

b: If the consumer notifies the debt collector in writing within the thirty-day period described in subsection (a) that the debt, or any portion thereof, is disputed, or that the consumer requests the name and address of the original creditor, the debt collector shall cease collection of the debt, or any disputed portion thereof, until the debt collector obtains verification of the debt or any copy of a judgment, or the name and address of the original creditor, and a copy of such verification or judgment, or name and address of the original creditor, is mailed to the consumer by the debt collector. Collection activities and communications that do not otherwise violate this title may continue during the 30-day period referred to in subsection (a) unless the consumer has notified the debt collector in writing that the debt, or any portion of the debt, is disputed or that the consumer requests the name and address of the original creditor. Any collection activities and communication during the 30-day period may not overshadow or be inconsistent with the disclosure of the consumer's right to dispute the debt or request the name and address of the original creditor.

 

But it does not say it has to be disclosed in the letter. Section a states what has to be disclosed.

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  • 3 weeks later...

Ok so i got back a response from the DV letter I sent out.

 

I could scan the pages if thats helpful, let me know, but they sent me a Federal Violation notice with additional notes for different states, including mine here in California.

 

And they sent my statements from April to July 2012 (the last few months of my account, beginning with the month when I started to go negative - it did not help that I was being charged monthly for a "credit debt service" that ended up not doing much but just pushing back collection efforts and now dealing with that on my own, thanks to this site)

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