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Another one -- SORRY!! Question about "Notice to File"......


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In my state (NC), it is illegal for JDBs to threaten to sue and then NOT sue.  So I'm wondering about the LANGUAGE of my Notice.....

 

I got a Notice of Intent to File Legal Action.... NOT a Notice of Intent to File Civil Lawsuit......is their a difference, according to the law?  Does this protect them from, say, ME filing legal action against THEM if they do not end up filing a lawsuit?  Is this their way of scaring me without actually having to file suit against me?

 

When I faxed it to the lawyer I spoke with, he said he's never seen anything like that before.  I didn't realize the significance of that at the time, but I wonder if it gets this JDB outside of the law on the "must file" part.

 

I've searched Bing a little about it with no luck, and I left a message for the attorney, but I wondered what anyone here thought!

 

THANKS!!

 

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In my state (NC), it is illegal for JDBs to threaten to sue and then NOT sue.  So I'm wondering about the LANGUAGE of my Notice.....

 

I got a Notice of Intent to File Legal Action.... NOT a Notice of Intent to File Civil Lawsuit......is their a difference, according to the law?  Does this protect them from, say, ME filing legal action against THEM if they do not end up filing a lawsuit?  Is this their way of scaring me without actually having to file suit against me?

 

When I faxed it to the lawyer I spoke with, he said he's never seen anything like that before.  I didn't realize the significance of that at the time, but I wonder if it gets this JDB outside of the law on the "must file" part.

 

I've searched Bing a little about it with no luck, and I left a message for the attorney, but I wondered what anyone here thought!

 

THANKS!!

 

Since a civil lawsuit IS a legal action I don't see the courts getting bogged down in what verbiage they used in the letter.  While the lawyer may not have seen it worded that way does not mean it doesn't comply with the law.  

 

It does not protect them from a counter claim if they don't follow through as far as I am concerned but that doesn't mean a court might not see it differently.  Time will tell if they don't file suit and you do go after them.

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@LisaDiane

 

In my state (NC), it is illegal for JDBs to threaten to sue and then NOT sue.

 

 

 

That is also included in the FDCPA, so it's illegal in every state.

 

 

I got a Notice of Intent to File Legal Action.... NOT a Notice of Intent to File Civil Lawsuit......is their a difference, according to the law?  Does this protect them from, say, ME filing legal action against THEM if they do not end up filing a lawsuit?  Is this their way of scaring me without actually having to file suit against me?

 

 

A civil lawsuit is a "legal action".

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@BV80

 

I meant to say in NC, they must give 30 days notice before they can file any lawsuit, so does the wording of their Notice keep them from being counter-sued if they DON'T file a suit in a timely manner?  Another poster in my state, dealing with the exact same JDB, said it took them a year to actually file the suit after she received her Notice.  I think I'd want to sue them for violating the FDCPA in that case!  But could they argue that they never gave notice of a "lawsuit", so I don't have any standing for a counter-suit?

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I would think that giving the notice covers them, but does not require them to file in a specific time frame.  I expect they could file at any time up to the expiration of the SOL.  If that is more than a year from the date of the letter, an FDCPA counter claim would be time barred, and possibly a state law counterclaim as well.

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@BV80

 

I tried to find the statute online, but it's taking too long (I have to bring my kids to the dentist!), so I'm pasting what debtzapper posted in my other thread......

 

Before bringing suit or arbitration, a debt buyer must also give the consumer debtor written notice of the 
intent to file legal action at least thirty days in advance of filing. The written notice must include the name, 
address, and telephone number of the debt buyer, the name of the original creditor and the consumer 
debtor's original account number, a copy of the contract or other document evidencing the consumer debt, 
and an itemized accounting of all amounts claimed to be owed. N.C. Gen. Stat. § 58-70-115(6).6
Pursuant to N.C. Gen. Stat. § 58-70-145, the complaint of a collection agency plaintiff shall allege as part 
of the action that the plaintiff is duly licensed, and shall contain the name and number, if any, of the 

license and the governmental agency that issued it.

 

 

 

I would think that giving the notice covers them, but does not require them to file in a specific time frame.  I expect they could file at any time up to the expiration of the SOL.  If that is more than a year from the date of the letter, an FDCPA counter claim would be time barred, and possibly a state law counterclaim as well.

 

I thought of that, but I can't imagine that they are allowed a whole YEAR to make me worry and basically suffer while WAITING for them to serve me!

Another poster on here in my state got a Notice of Intent in 9/2012, and wasn't actually sued until 11/2013!! 

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@BV80

 

I tried to find the statute online, but it's taking too long (I have to bring my kids to the dentist!), so I'm pasting what debtzapper posted in my other thread......

 

Before bringing suit or arbitration, a debt buyer must also give the consumer debtor written notice of the 
intent to file legal action at least thirty days in advance of filing. The written notice must include the name, 
address, and telephone number of the debt buyer, the name of the original creditor and the consumer 
debtor's original account number, a copy of the contract or other document evidencing the consumer debt, 
and an itemized accounting of all amounts claimed to be owed. N.C. Gen. Stat. § 58-70-115(6).6
Pursuant to N.C. Gen. Stat. § 58-70-145, the complaint of a collection agency plaintiff shall allege as part 
of the action that the plaintiff is duly licensed, and shall contain the name and number, if any, of the 

license and the governmental agency that issued it.

 

 

 

 

I thought of that, but I can't imagine that they are allowed a whole YEAR to make me worry and basically suffer while WAITING for them to serve me!

Another poster on here in my state got a Notice of Intent in 9/2012, and wasn't actually sued until 11/2013!! 

 

The problem is the statute is vaguely worded.  It only states they have to give you 30 days notice before filing.  It does NOT state how long they have to file before having to give the notice again or if there are any consequences under state law for not filing after giving notice.  

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The problem is the statute is vaguely worded.  It only states they have to give you 30 days notice before filing.  It does NOT state how long they have to file before having to give the notice again or if there are any consequences under state law for not filing after giving notice.  

 

 

Yeah, so I guess I would have to argue it's an FDCPA violation, that I was "damaged" or whatever by their threat (would anxiety, no sleep and stomach problems count as "damage"?? lol), and that I wanted compensation according to the FDCPA.

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Also, the other poster got a settlement offer after the Notice of Intent, so if she had taken the offer, they wouldn't have sued?? 

It makes me think that the real purpose of these Notices is to threaten the consumer, to try and get them to take a settlement.  That isn't lawful use of these notices, I don't think, or at least not the intended outcome of that NC law.  The offer of settlement should come first, then if that's denied or ignored, they prepare a lawsuit and send the Notice of Intent, then actually sue.

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Yeah, so I guess I would have to argue it's an FDCPA violation, that I was "damaged" or whatever by their threat (would anxiety, no sleep and stomach problems count as "damage"?? lol), and that I wanted compensation according to the FDCPA.

 

There's the statutory violation that carries up to a $1000 fine. Emotional damage would go on top of that. It's not easy to prove though without going to a doctor. And I'm certainly no expert on the subject.

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Yeah, so I guess I would have to argue it's an FDCPA violation, that I was "damaged" or whatever by their threat (would anxiety, no sleep and stomach problems count as "damage"?? lol), and that I wanted compensation according to the FDCPA.

 

No.  In order to claim damages under the FCDPA especially emotional damages you have to PROVE them.  For emotional damage if you have no medical bills, medication, stress related treatment they will treat your counter claim as frivolous.  It is high risk to sue based on damages you do not have.  Under the FCDPA if you bring a frivolous violation claim you can end up being liable for the defense's attorney fees.  There is a clown on another site who is appealing an award of $32,000 in lawyer fees that were awarded to the defense in his bad faith lawsuit where he claimed emotional damages he did not have.

 

Plus if it is the original creditor suing you then the FCDPA does not apply to original creditors.

 

Also, the other poster got a settlement offer after the Notice of Intent, so if she had taken the offer, they wouldn't have sued?? 

It makes me think that the real purpose of these Notices is to threaten the consumer, to try and get them to take a settlement.  That isn't lawful use of these notices, I don't think, or at least not the intended outcome of that NC law.  The offer of settlement should come first, then if that's denied or ignored, they prepare a lawsuit and send the Notice of Intent, then actually sue.

 

Oh but were that the case.  The reason for sending a settlement offer is to avoid court.  You actually want to avoid the time and expense of court if at all possible.  A consumer accepting the settlement offer is paying SOMETHING.  A judgment gives they the legal RIGHT to collect but they still may never see a penny.  Having the judgment does not automatically equate to getting the money.  One reason they may offer the settlement after the suit in NC is because NC does not allow wage garnishment.  All a consumer would need to do is switch to paper checks and not use a bank account and the judgment could be worthless since their paychecks can't be touched.

 

Unfortunately NC does not address whether or not a settlement offer must be made prior to threatening to sue.  I think the intent of that NC law is that the consumer have the opportunity to pay a debt they know they owe BEFORE they end up in court.  Unfortunately there is no way to address legitimate debts vs. JDBs and robo suits separately from viable suits for actual business reasons.

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@Clydesmom

 

I see what you mean about being frivolous.  I wouldn't want to do that -- YIKES!!  But I still think it's an FCDPA violation if they wait a YEAR to file suit after threatening to.....I could definitely argue that that's not a reasonable amount of time, and for JDBs, they are always trying to twist the laws and violate them in some cases, counting on not getting caught.  I wouldn't need damages for emotional stress, although I'll definitely go to a doctor if I start to REALLY stress about this!

 

I DV'd their attorney who sent the Notice of Intent, last week, so we'll see what they do next.  If they haven't filed suit in 4-6 months, I'm going to talk to that attorney again and see what he thinks about suing them.  ANYTHING to get some leverage against them!

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 But I still think it's an FCDPA violation if they wait a YEAR to file suit after threatening to.....I could definitely argue that that's not a reasonable amount of time, and for JDBs, they are always trying to twist the laws and violate them in some cases, counting on not getting caught.  

 

I don't think that argument will fly.  It is a FCDPA violation to threaten any action they cannot legally take or do not intend to take.  If they send the intent notice and don't file it would be a violation.  However, the FCDPA does not define the time frame in which they actually have to take the action.  The other major problem you have is that you must bring your suit within one year of the date of that intent letter or you are time barred from pursuing the FCDPA violation.  So if they send the ITS letter dated 12/15/2013 and sue you on 12/17/2014 you cannot sue for the delay because it has been more than a year since the ITS letter.  

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@LisaDiane

 

Here's the statute:

 

(6)        When the collection agency is a debt buyer or acting on behalf of a debt buyer, bringing suit or initiating an arbitration proceeding against the debtor to collect on a debt without first giving the debtor written notice of the intent to file a legal action at least 30 days in advance of filing. The written notice shall include the name, address, and telephone number of the debt buyer, the name of the original creditor and the debtor's original account number, a copy of the contract or other document evidencing the consumer debt, and an itemized accounting of all amounts claimed to be owed.

 

It says "at least 30 days in advance of filing."  It does not say that they have to file suit 30 days after they send the notice.   They could file suit later than that.  They just can't file suit any sooner than 30 days after sending the notice.

 

Did they comply with the other parts of the statute?

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  So if they send the ITS letter dated 12/15/2013 and sue you on 12/17/2014 you cannot sue for the delay because it has been more than a year since the ITS letter.  

 

 

RIGHT!!  And that's what they did to the other poster -- ITS letter 9/2012, sued 11/2013!

 

Maybe I need to focus on the fact that I believe they have the WRONG debt for me.....I was confused at first, because I just never got any notices or letters about debts from ANYONE for years.  But now that I've been looking over my credit reports and remembering back, I KNOW that I paid the OC OFF in the summer/fall of 2011, after being delinquent for several months.

 

BUT.....I have a problem.  I can't find any of the paperwork I got from them, or my bank records about it.  I never thought to keep it because I've never dealt with debt collectors before, and i never had debt problems before.

 

If I ask them to produce the original application that I signed, THAT would show it's not mine.  Should I ask for that in my dispute??

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 The written notice shall include the name, address, and telephone number of the debt buyer, the name of the original creditor and the debtor's original account number, a copy of the contract or other document evidencing the consumer debt, and an itemized accounting of all amounts claimed to be owed.

 

 

Did they comply with the other parts of the statute?

 

They only sent a single statement page from the OC showing my name, a mostly-blocked-out account number, and a transaction summary showing the amount was charged-off.

 

I GUESS that is -- "a copy of the contract or other document evidencing the consumer debt" -- but I want them to produce the CONTRACT.  That will show that it cant be MINE.

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@LisaDiane

 

I know that you want them to produce a contract, but if this is a credit card debt, there isn't a signed contract unless you signed an application.

 

In the notice, are they requesting more than the amount shown on the credit card statement?

 

One thing you can do is get your bank records from the time you believe that you paid the account off.  Do you remember if you paid in full?   Or was it a settlement?

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@BV80

 

I DID sign a contract, because I applied in their store.

 

Their notice lists the amount exactly as shown on the statement.

 

I paid it with a prepaid debit card, which was how I was getting paid for work in 2011 (it was cash-only work) -- it was a very chaotic time for me, especially financially, because I had a vindictive xhusband (long story that belongs on another site! LOL).  But I remember talking with the OC's collection department and telling them out of all my delinquent debts, I wanted to pay them off because I really love their store and I didn't want a bad record with them.  And the balance on my account that I paid off was MUCH lower than what they have on the statement they sent me! 

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@LisaDiane

 

You signed an application, but the statute doesn't require the contract.  It includes "other document evidencing the consumer debt", so they are not required to only provide the contract.

 

The other part of the statute says that they have to itemize the amount claimed.  That's the reason I asked if the amount in the notice was the same as the amount on the cc statement.

 

One last question:   Can you tell if the cc statement is one that was issued after the account was charged off?

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@BV80

 

One last question:   Can you tell if the cc statement is one that was issued after the account was charged off?

 

I think it was, because it is showing the charge off date in the Transaction Summary.  BUT, it has a payment stub on the bottom that says "Payment Due Date 4/29/2012" with a minimum payment due of $XXX.XX, and "Amount Past Due of $0", and "New Balance $0"

 

There is NO date on the statement, and it has my name and address on the payment stub (where I lived at the time).

 

The strange thing to me is that I NEVER RECEIVED this statement from the OC -- WHERE did it come from??

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@BV80

 

YES.....in the Summary of Account Activity it shows Previous Balance $XXXX.XX, then it shows a credit of the same amount, and then the New Balance = $0.00

 

But in the Payment Information section (not the paystub), it shows New Balance $0.00 and Total Minimum Payment Due $XXX.XX, Due Date 4/29/12

 

I googled the white pages, and there is someone with my exact name (except their first name is spelled differently, with a Y) who lives in the next county from me.  I feel like calling them and asking if they have an unpaid credit card with the OC!!!  (of course, I wouldn't)

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Right now, I wouldn't worry about not getting the statement from the OC.  If sued, you can deny receiving it, but there's no guarantee the judge would believe you.

 

 

 

I don't WANT to go before a judge....I want to convince the JDB that this isn't MY account!!!  But from what I've read about PRA, they don't care.....they might even purposefully go after incorrect debts, just to get summary judgements and MONEY.  That's what the Class Action Lawsuit against them by the NC attorneys is about, well, PART of it!

 

I wish there was a way to make them postpone suing me until the lawsuit against THEM is settled.....!

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