FDCPA SOL question

[chicamarie]

Maybe a very dumb question, but . .

 

If I want to file an FDCPA complaint based on an element of the Plaintiff's complaint/lawsuit, does the SOL of one year run from the date the suit was originally filed with the court or when I was served?  The difference is between the beginning of February and the beginning of April.  So, I would like to think it has to be from the date of service, right?  Since I was unaware of the complaint before then.

 

Thanks.

[1stStep]

It's 1 year from the date of the violation.

 

What specifically is the violation? Merely filing suit is not necessarily a violation... 

[debtzapper]

In this case, where plaintiff filed suit in wrong venue, the 5th Cir held the violation occurred the date defendant received notice, not when complaint was filed.

 

http://www.troutmansanders.com/fifth-circuit-rules-that-fdcpas-limitations-period-begins-when-debtor-suffered-actual-injury-through-notice-of-underlying-collection-suit-10-10-2013/

[chicamarie]

It's the interest they're tacking on from date of charge-off.  The OC held onto the account for 2 years without adding interest, of course. 

 

Since the complaint is the first place that a time frame and interest percentage is specifically mentioned, and what they're asking for is clearly illegal (depending on who you ask - (http://www.leagle.com/decision/In%20FDCO%2020120412E75 - Terech v First Resolution, in Illinois, for one), that's my FDCPA complaint.  I realize that filing a lawsuit itself is not a violation.

[1stStep]

Debts do continue to accrue interest even after a charge off or sale to a JDB. 

 

Now if that interest is wrong, there's a potential FDCPA issue.

[SkippieB]

Debts do continue to accrue interest even after a charge off or sale to a JDB. 

 

Now if that interest is wrong, there's a potential FDCPA issue.

 

Chicamarie is referring to the fact that the Original Creditor waived interest after it charged off the debt and now the JDB is trying to retroactively go back and charge that waived interest. That is a violation of the Fair Debt Collection Practices Act. 15 U.S.C. section 1692e(2) and 1692f(1)-trying to collect unauthorized fees; misrepresenting the amount owed.

 

SIMKUS v. CAVALRY PORTFOLIO SERVICES, LLC

 

"Based on the foregoing analysis of the FDCPA and ICAA claims, Simkus has sufficiently alleged facts that support a claim that Bank of America waived its right to charge interest, and therefore, CPS, as the assignee, does not have the right to retroactively charge this interest."

 

 

Donna Guenther v. Portfolio Recovery Associates

 

"Conclusion and Relief Requested

Ms.Guenther’s Counterclaim states valid claims for

PRA’s violations of the Fair Debt Collection Practices

Act by charging interest on the debt that was waived by the original creditor Citibank

.

Therefore, the Court should DENY

PR’s motion to dismiss"

 

SkippieB

[BTO429]

Look under your states udap laws(unfair and deceptive acts and practices) it should have your states laws concerning collection agencies. FDCPA also regualtes this type of practice. It is not allowed under the fdcpa unless the original agreement states so or your state laws say so.

I am seeing what you want,,,you say that since the bank waived the rights the collector cannot claim those rights also,,,,,,I would think that you would have to prove they waived the rights in court, you made the claim so you would need to prove it. If you can prove it, then you have a good case.

I do not know the CA laws but there are plenty peps on here that do.

[SkippieB]

Look under your states udap laws(unfair and deceptive acts and practices) it should have your states laws concerning collection agencies. FDCPA also regualtes this type of practice. It is not allowed under the fdcpa unless the original agreement states so or your state laws say so.

I am seeing what you want,,,you say that since the bank waived the rights the collector cannot claim those rights also,,,,,,I would think that you would have to prove they waived the rights in court, you made the claim so you would need to prove it. If you can prove it, then you have a good case.

I do not know the CA laws but there are plenty peps on here that do.

 

You can prove it by:

 

1.  Comparing the charge-off amount with the amount the JDB paid to acquire the account.  Most of the time they are the same amount. 

    a.  Request a copy of the JDB's sales agreement from the JDB either informally or formally.

    b.  Pull your credit report and find the original creditor's charge-off date and amount.

 

Most JDBs only charge and/or ask for statutory interest from the "date of acquisition" but a few will try and pull a fast one (since most people don't fight back or know the law) and ask for interest from the "date of charge-off."  

 

Citibank rarely, if ever, assesses post-charge off interest and often holds onto the account for a year or two before selling those accounts btw.  From the research I did here in California if Citibank is the Plaintiff, again they normally waive post-charge of interest.

 

There is California law to support the fact that they can not do this but I think the poster is from Oregon.

 

Also of note is: On August 7, 2013, the United States District Court for the Eastern District of Michigan ruled in favor of a class of consumers who were assessed post charge-off interest by a debt buyer on credit card debts prior to the time the debt was transferred to the third party. 

 

See also, 

Court Rules Debt Buyer Violates Fair Debt Collection Practices Act by Seeking to Collect Post-Charge Off Interest

http://interactivecredit.com/?p=2051

 

 

 

Carol-Lynn

[Harry Seaward]

SIMKUS v. CAVALRY PORTFOLIO SERVICES, LLC

 

"Based on the foregoing analysis of the FDCPA and ICAA claims, Simkus has sufficiently alleged facts that support a claim that Bank of America waived its right to charge interest, and therefore, CPS, as the assignee, does not have the right to retroactively charge this interest."

 

 

@SkippieB  This is GOLD for my present case.  Thanks for posting this!

[BTO429]

redacted

[willingtocope]

GUNNEY...read your PM...

[chicamarie]

It seems like the tide is turning in favor of JDBs not being able to charge post charge-off pre-purchase interest, although it has been difficult convincing consumer lawyers of this fact, in Oregon anyway.  As SkippieB has indicated, not all JDBs do this so the ones that do should be held up to scrutiny, sued, and drawn and quartered (my fantasy).

 

One more thing about it - asking for statutory interest (the state default rate of interest when there is no contract rate or other specified rate of interest) should only apply when there is no contract rate.  If they are claiming, as they are, statutory interest for the period when the OC still owned the account, then there was clearly a contract rate of interest in place.  Whether the OC decided to impose that rate or not brings up the other issue of waiver:

 

Based on all of my research, state and federal, you can prove an implied waiver on the part of the OC merely by showing that they clearly had the right to impose interest and chose not to, for a variety of reasons.  That is the very definition of an implied waiver - actions clearly showing a party not taking advantage of a known right.

 

If I have to argue this in front of anyone, I am also eager to point out why it would be advantageous for a bank to keep a delinquent account on their books without charging interest.  The loss doesn't grow, so it doesn't add to a growing deficit, which would scare shareholders, but it lingers as a loss for tax purposes - that's our corporate welfare at work!

[willingtocope]

I have to ask...how do you know they weren't charging interest?  Just because it isn't shown on your CRs is NOT proof. 

 

Also:

 

 

1. Comparing the charge-off amount with the amount the JDB paid to acquire the account. Most of the time they are the same amount.

 

Is incorrect.  A JDB never pays the charge off amount.  Its usually much, much less...like pennies on the dollar.

[chicamarie]

I have to ask...how do you know they weren't charging interest?  Just because it isn't shown on your CRs is NOT proof. 

 

Also:

 

 

Is incorrect.  A JDB never pays the charge off amount.  Its usually much, much less...like pennies on the dollar.

 

I think what SkippieB meant is the account balance at charge-off, not what they paid for the account.

 

As far as the interest goes, when the OC provided an affidavit as well as statements for the account, whether or not those statements are verified and whether or not the affidavit is admitted, the amount shown on the last statement, two years previous to the JDB purchase, is the same as is shown as the account balance at the time of JDB purchase.

 

The rub, and I believe it is a valid one, is that while the account is owned by the OC they are required to send out periodic statements if they are charging interest.  If no statements were generated during that period then no interest was accruing, legally.  And this is TILA law, the Truth in Lending Act.  The OCs are bound by it, so they have to send out statements if they are charging interest even if the account is charged off or otherwise deemed uncollectable.  The JDBs are not bound by this of course since they can add interest without sending any kind of statement.

[chicamarie]

I believe in some of the cases cited above that this point is addressed by the prevailing lawyers - the issue about the TILA and how it relates to the idea that the OCs implicitly waived the interest during those time periods.

[Harry Seaward]

I have to ask...how do you know they weren't charging interest?  Just because it isn't shown on your CRs is NOT proof.

In my case I was provided a "schedule" attached to the Bill of Sale that shows the dollar amount of the debt at the time it was sold (2.5 years after charge-off) and this amount is the same amount as what is shown on the last statement before charge-off. In other words, the dollar amount of the debt didn't change in the 2.5 years after charge-off that the OC owned the account, then suddenly the JDB claims interest in an amount nearly equal to the amount of the alleged debt.

[calawyer]

There is another case that will help you. McDonald v. Asset Acceptance 2013 Westlaw 4028947 (E.D. Mich August 7, 2013).

 

 It is a class cert ruling but also grants summary judgment to plaintiff under the FDCPA on the interest after charge off issue.  Court also holds that the Bona Fide error defense does not apply.  The Terech case, cited in McDonald, may also help out.

[GDayMateAZ]

There is another case that will help you. McDonald v. Asset Acceptance 2013 Westlaw 4028947 (E.D. Mich August 7, 2013).

 

 It is a class cert ruling but also grants summary judgment to plaintiff under the FDCPA on the interest after charge off issue.  Court also holds that the Bona Fide error defense does not apply.  The Terech case, cited in McDonald, may also help out.

 

http://www.edcombs.com/wp-content/uploads/2013/08/McDonald-v-Asset-Acceptance-LLC.pdf

[calawyer]

Thanks!

[Harry Seaward]

http://www.edcombs.com/wp-content/uploads/2013/08/McDonald-v-Asset-Acceptance-LLC.pdf

All hail the great Daniel Edelman!

[chicamarie]

I would love to be represented by Mr Edelman.  Hopefully he is inspiring a generation of consumer lawyers.

[debtzapper]

There is another case that will help you. McDonald v. Asset Acceptance 2013 Westlaw 4028947 (E.D. Mich August 7, 2013).

 

 It is a class cert ruling but also grants summary judgment to plaintiff under the FDCPA on the interest after charge off issue.  Court also holds that the Bona Fide error defense does not apply.  The Terech case, cited in McDonald, may also help out.

 

"Nikkel v. Wakefield and Associates," (D. Col. 2012) also cites "Terech."

 

http://scholar.google.com/scholar_case?

case=6934954623030494041&hl=en&as_sdt=4,343,344&as_ylo=2009&kqfp=5707766910113707277&kql=220&kqpfp=7410089811939017605#kq

[SkippieB]

I have to ask...how do you know they weren't charging interest?  Just because it isn't shown on your CRs is NOT proof. 

 

Also:

 

 

Is incorrect.  A JDB never pays the charge off amount.  Its usually much, much less...like pennies on the dollar.

 

WTC you are correct.  I meant to say:

 

Compare the charged-off amount with the amount that they claim you owe them in their affidavits of indebtedness and/or collection letters.  Also, look for other inaccuracies in the affidavits like when the debt was purchased. 

 

Yes the tide seems to be turning-now in California the JDB must submit more than just the complaint-a step in the right direction to be sure.

 

Sorry for the mislead!

 

SkippieB

[BTO429]

You can prove it by:

 

1.  Comparing the charge-off amount with the amount the JDB paid to acquire the account.  Most of the time they are the same amount. 

    a.  Request a copy of the JDB's sales agreement from the JDB either informally or formally.

    b.  Pull your credit report and find the original creditor's charge-off date and amount.

 

Most JDBs only charge and/or ask for statutory interest from the "date of acquisition" but a few will try and pull a fast one (since most people don't fight back or know the law) and ask for interest from the "date of charge-off."  

 

Citibank rarely, if ever, assesses post-charge off interest and often holds onto the account for a year or two before selling those accounts btw.  From the research I did here in California if Citibank is the Plaintiff, again they normally waive post-charge of interest.

 

There is California law to support the fact that they can not do this but I think the poster is from Oregon.

 

Also of note is: On August 7, 2013, the United States District Court for the Eastern District of Michigan ruled in favor of a class of consumers who were assessed post charge-off interest by a debt buyer on credit card debts prior to the time the debt was transferred to the third party. 

 

See also, 

Court Rules Debt Buyer Violates Fair Debt Collection Practices Act by Seeking to Collect Post-Charge Off Interest

http://interactivecredit.com/?p=2051

 

 

 

Carol-Lynn

Does CA allow credit reports as evidence? wow I wish the courts here would. A lot of time the judge wont take the credit report becuase they say they are not accurate most of the time.

[credit2011]

 

Chicamarie is referring to the fact that the Original Creditor waived interest after it charged off the debt and now the JDB is trying to retroactively go back and charge that waived interest. That is a violation of the Fair Debt Collection Practices Act. 15 U.S.C. section 1692e(2) and 1692f(1)-trying to collect unauthorized fees; misrepresenting the amount owed.

 

SIMKUS v. CAVALRY PORTFOLIO SERVICES, LLC

 

"Based on the foregoing analysis of the FDCPA and ICAA claims, Simkus has sufficiently alleged facts that support a claim that Bank of America waived its right to charge interest, and therefore, CPS, as the assignee, does not have the right to retroactively charge this interest."

 

 

Donna Guenther v. Portfolio Recovery Associates

 

"Conclusion and Relief Requested

Ms.Guenther’s Counterclaim states valid claims for

PRA’s violations of the Fair Debt Collection Practices

Act by charging interest on the debt that was waived by the original creditor Citibank

.

Therefore, the Court should DENY

PR’s motion to dismiss"

 

SkippieB

 

So are you saying that when the JDB places a higher amount on your credit report for interest is this also illegal. I received a summons and complaint with about the original amount of the debt, yet the JDB  reports on my credit report 500 more. Am i able to dispute this with the CA?