Sued but elected JAMS arb

[miker735]

I have been sued by a law firm collecting for Amex. I received their initial letter that mentioned the alleged debt and I responded within the 30 days asking for validation. I also elected in the letter to settle any disputes with JAMS.

I asked that they only respond via US mail and that phone calls were inconvenient. They continued to call several times on my home and cell phone. They also left voicemails on my employer's phone mentioning that it was a call pertaining to a debt.

There was never a written response to my letter. There was no validation sent. There was no acknowledgment of my election of JAMS. The only thing sent was a lawsuit.

I know I have to respond to the complaint. I plan to file a Motion to Compel arbitration. Do I also have to answer all the points in the complaint as well as file the Motion? I am in New Jersey.

I plan to handle this case on my own. However, would I be best to file a separate suit for the FDCPA violations in Federal Court using an attorney while handling the other case myself? I have mentioned JAMS to a couple attorneys and they were really clueless as to what JAMS is and totally turned off by any suggestion of private arbitration.

Thanks for any input you have.
 

 

[shellieh98]

FDCPA does not apply to original creditors. It would depend on if the attorney's representing them were debt collectors as well as attorneys . They filed suit against you, so it is to late to ask for validation of the debt. Google Phil stern, he is a NJ consumer attorney and has lots of useful info on his site, I don't have a link but I know there is one that lists various things he has filed.

If you want to elect JAMS, you do it in your answer to the complaint, or in lieu of an answer, depending on your courts rules. I would google nJ rules of civil procedure, and find out if you do it in your answer, or in lieu of your answer. Regardless the case, it needs to be filed with the court to get your election on the record.

[shellieh98]

Oh I read it wrong, you responded to a dunning letter. Regardless, original creditors are not subject to fdcpa violations, but if attorney is acting as a 3rd party collected, and not just the attorney of record, he may be.

[miker735]

Oh I read it wrong, you responded to a dunning letter. Regardless, original creditors are not subject to fdcpa violations, but if attorney is acting as a 3rd party collected, and not just the attorney of record, he may be.

At the bottom of the letter in bold letters it states that this is an attempt to collect a debt. How can I tell if the attorney is acting as collector as well?

[BV80]

I asked that they only respond via US mail and that phone calls were inconvenient. They continued to call several times on my home and cell phone. They also left voicemails on my employer's phone mentioning that it was a call pertaining to a debt.

 

@miker735

 

Did the above occur after you sent your DV request?  Also, can you prove you sent the letter?

 

Did your employer save the voicemail messages?

 

 

At the bottom of the letter in bold letters it states that this is an attempt to collect a debt. How can I tell if the attorney is acting as collector as well?

 

 A debt collection attorney is considered to be a "debt collector" under the FDCPA. 

[miker735]

@miker735

 

Did the above occur after you sent your DV request?  Also, can you prove you sent the letter?

 

Did your employer save the voicemail messages?

 

 

 A debt collection attorney is considered to be a "debt collector" under the FDCPA. 

1. Yes, the above occured after the letter was received. The only strange thing is I don't believe I ever got the green card back. However, I have the original USPS receipt showing where it was mailed and the USPS website shows it as delivered and accepted.

 

2. When I don't pick up a message at work the message is forwarded by email to me and shows all the details of the call including the time,date and the calling party plus the voicemail. I have all the messages saved to my email.

[BV80]

@miker735

 

I believe you have a violation of 1692g(b) for continuing collection activity without validating the debt.  I'm not sure about violations for calling you when you requested no calls.  The FDCPA does not say that we can limit the type of communication by a debt collector.  In other words, it doesn't say that we can tell them to contact us in writing only. 

 

Tell us about the phone calls (not the ones to your place of employement).  Were they made to your landline or cell phone?  If made to your cell phone, were messages left? 

[miker735]

@miker735

 

I believe you have a violation of 1692g(b) for continuing collection activity without validating the debt.  I'm not sure about violations for calling you when you requested no calls.  The FDCPA does not say that we can limit the type of communication by a debt collector.  In other words, it doesn't say that we can tell them to contact us in writing only. 

 

Tell us about the phone calls (not the ones to your place of employement).  Were they made to your landline or cell phone?  If made to your cell phone, were messages left? 

Calls were made to both my cell phone and my land line. In all cases except for my employer there were no messages left. I have records of the call logs and took photos of my caller ID. Correct me if I am wrong but I thought if I requested that no contact be made over the phone that means no phone calls whatsoever. I requested everything be done in writing through the mail.

[debtzapper]

Contact Philip Stern as suggested above.  He is the best in NJ.  Look for my PM

[Harry Seaward]

Correct me if I am wrong but I thought if I requested that no contact be made over the phone that means no phone calls whatsoever. I requested everything be done in writing through the mail.

As of yet, there doesn't appear to be any case law in regards to letters that state phone calls are "inconvenient", but if you did in fact use the word "inconvenient" in your letter and decide to pursue an FDCPA violation on this point, make sure you cite §1692c(a)(1) as the statute they violated.  It is this section that says they cannot make calls when they know it's not convenient.

 

Statements like "don't call me anymore" can reasonably be interpreted by the CA as a request to cease communications under §1692c(c ), and IMO, is not the same thing as a 1692c(a)(1) "inconvenient" notice, especially when you simultaneously instruct them to contact you via postal mail.

[miker735]

As of yet, there doesn't appear to be any case law in regards to letters that state phone calls are "inconvenient", but if you did in fact use the word "inconvenient" in your letter and decide to pursue an FDCPA violation on this point, make sure you cite §1692c(a)(1) as the statute they violated.  It is this section that says they cannot make calls when they know it's not convenient.

 

Statements like "don't call me anymore" can reasonably be interpreted by the CA as a request to cease communications under §1692c(c ), and IMO, is not the same thing as a 1692c(a)(1) "inconvenient" notice, especially when you simultaneously instruct them to contact you via postal mail.

I checked my letter and I did not use the word "inconvenient." I told them "I do not give them permission to call." I allowed them the avenue of  mailing me the response.

 

Wouldn't the lack of the word "inconvenient" bring the "least sophisticated consumer standard" into play since it can be clearly seen what the consumer's intent was?

 

The larger issue here I believe, and please correct me if I am wrong, is that there was a breach of contract when they ignored my election of arbitration. That does not even include the fact that they never sent anything to validate even though the letter clearly states they will obtain verification of the debt.

[BV80]

The larger issue here I believe, and please correct me if I am wrong, is that there was a breach of contract when they ignored my election of arbitration. That does not even include the fact that they never sent anything to validate even though the letter clearly states they will obtain verification of the debt.

 

As I previously stated, you could possibly have an FDCPA violation for continued collection activity since they didn't validate the debt.

 

Regarding a breach of contract because you elected arbitration, that's been debated, but there's no court precedent to support such a claim.

[Harry Seaward]

I checked my letter and I did not use the word "inconvenient." I told them "I do not give them permission to call." I allowed them the avenue of  mailing me the response.

 

Wouldn't the lack of the word "inconvenient" bring the "least sophisticated consumer standard" into play since it can be clearly seen what the consumer's intent was?

 

I think you would have an uphill battle in convincing a court that saying you don't give them permission without further explanation triggers §1692c(a)(1).

 

Of course, you don't have to explicitly use the word "inconvenient" for the CA to be on notice, however, denying them permission is arguably different than something being inconvenient.

 

For example, telling them you are charged for cell minutes every time they call or you have a medical condition that makes it difficult to use the telephone would almost certainly qualify as implied inconvenience.  The court in Austin v. Great Lakes Collection Bureau, Inc. found the plaintiff had invoked §1692c(a)(1) by saying calls to her place of employment "upset her".  Incidentally, I could only find §1692c(a)(1) case law dealing with calls to place of employment and calls at certain times of day/night.

 

On the other hand, it's more likely you do have a claim under §1692c(c ) for continuing to call you after being told not to.

[hot in az]

You have a Year SOL to file for FDCPA violations. I would focus on your answer and your case. Prioritize