h8spleadingpaper

Portfolio Recovery / Hunt & Henriques_NEW

Recommended Posts

@h8spleadingpaper

 

So my question is, if Midland hasn't yet sued (and I believe that I'm now outside of SOL in anyone's book), are they allowed to be reporting?

 

 

Yes.

 

What do you mean that the reporting dates are outside the SOL?

Share this post


Link to post
Share on other sites

@h8spleadingpaper

 

 

Yes.

 

What do you mean that the reporting dates are outside the SOL?

In other words, it was well-past the 4 year SOL in California when some of the tradelines were entered on my CR.  Wondering if this would be a violation, particularly since the JDB hasn't yet sued.  Thanks.

Share this post


Link to post
Share on other sites

@h8spleadingpaper

 

Whether or not a JDB can or will sue has nothing to do with credit reporting.

 

Unfortunately, there's no violation for reporting past the 4-year SOL.  The state SOL for collection/litigation is a different type of SOL than the federal SOL for reporting.  According to the Fair Credit Reporting Act (FCRA), an entry on your CR can remain for 7.5 years after the date of first delinquency (DOFD) reported by the OC.  The DOFD is the date that you were late and never again brought the account back to a current status.

 

A JDB can report up until the end of the OC's DOFD.

  • Like 2

Share this post


Link to post
Share on other sites

It is still legal for them to collect on a debt past the SOL, it is not legal to file a lawsuit  on it. The alleged debt can be reported to the CRA's for 7.5 years.

 

A lot of times just before they sue you they will check your credit report. In your case they should be much less likely to sue due to the SOL, but it does happen. You will have a good affirmative defense and  a FDCPA cross complaint if they do sue you. 

  • Like 2

Share this post


Link to post
Share on other sites

I spoke with Equifax and when the  negative tradeline is past the SOL in your state, your credit score will get a bit better. They told me it does not count so much as a negative.  While still appearing for 7 years, it is not looked at so bad  as it did lets say 1 year or more prior to the negative  appearing. 

  • Like 3

Share this post


Link to post
Share on other sites

@credit2011

 

 

I spoke with Equifax and when the  negative tradeline is past the SOL in your state, your credit score will get a bit better. They told me it does not count so much as a negative.  While still appearing for 7 years, it is not looked at so bad  as it did lets say 1 year or more prior to the negative  appearing. 

 

 

One of the reasons for the above is due to the fact that you can't be sued (or will have a solid affirmative defense which would result in a dismissal), you won't have a judgment against you which could result in possible wage garnishment or a lien on property.

  • Like 1

Share this post


Link to post
Share on other sites

@h8spleadingpaper

 

 

Yes.

 

What do you mean that the reporting dates are outside the SOL?

Okay, so Midland is really starting to tick me off on this alleged account, which is at least 6 months past SOL in California.  I don't mind their ridiculous settlement offers in the mail (aside from the fact that it wastes trees and petroleum), but they're now calling my cell phone every single day, sometimes several times a day.  

 

So I'm planning to send a limited Cease and Desist letter, stating that I don't want to be contacted via telephone.  My thought here is that they will either stop calling or will continue to do so and I'll try to hit them on an FDCPA violation (which I think they would be guilty of if they continue to call after receiving the letter?).  However, I feel as though I remember someone somewhere on the site telling me that there's no such thing as a limited Cease and Desist and that a consumer would have to tell the JDB to cut-off all communications.  Thoughts?

 

I'm planning to send something like this, which is a modified version of a C&D letter that I found elsewhere on CIC:

 

[My Name]

 

[My Address]

 

[Date]

 

Midland 

[Midland's Address]

Re: Debt Collection Activities

 

 

Dear Midland Representative,

 

I am responding to your correspondence regarding collection of an alleged debt. An employee of your company contacted me via telephone on [date] and claimed to be attempting to engage in collection activities on an alleged debt.

 

You may contact me about this alleged debt, but only in the way I have authorized below. You may not contact me about this matter in other way, or at any other place or time.  It is inconvenient to me to be contacted except as I authorize below.

 

You may only contact me via the United States Postal Service at:

 

[My Mailing Address]

 

 

 

Thank you for your cooperation in this matter.

 

 

 

[My Name]

[My Signature]

[Date]

Share this post


Link to post
Share on other sites

Okay, so Midland is really starting to tick me off on this alleged account, which is at least 6 months past SOL in California.  I don't mind their ridiculous settlement offers in the mail (aside from the fact that it wastes trees and petroleum), but they're now calling my cell phone every single day, sometimes several times a day.  

 

@BV80 - Correct me if I am wrong, but isn't the contact on the cellphone against the TCPA or is that just for calls dialed by autodialer?

Share this post


Link to post
Share on other sites

@CommoSGT

 

It must be an autodialer.  However, they can use an autodialer if you gave consent to call your cell.  If you gave your cell number to the OC, that's considered consent. 

Share this post


Link to post
Share on other sites

@CommoSGT

 

It must be an autodialer.  However, they can use an autodialer if you gave consent to call your cell.  If you gave your cell number to the OC, that's considered consent. 

The one time I picked up (which is how I found out who's been calling), there was a person on the other end.  Not sure if they use an autodialer and then just have a person pick up on the other end if a consumer answers the phone ("predictive dialer").  Anyone know if those are allowable?  And no, I never gave my cell number to any OC.  The number I have now is newer than the alleged default of the purported account.  Thanks.

Share this post


Link to post
Share on other sites

Here's a link to the TCPA if you want to go thru it, see if there is a violation. https://transition.fcc.gov/cgb/policy/TCPA-Rules.pdf. I'm not very familiar with it.

 

Regarding a cease & desist - If this is past the SOL, and if it were me, I'd do a full cease & desist on it. I'd rather they receive a strong and definite communication to not bother me at all. And if they do bother me, be it telephone or even better with a letter that I can use as evidence, then I'll consider action against them. My guess is they'd disappear if you send them a full C&D.

 

What I have sent to creditors once an account goes beyond the SOL:
 

To whom it may concern,

 

I am in receipt of your correspondence dated [date] (copy enclosed). I do not owe [your company] anything; I refuse to pay this alleged debt. Per section 805c of the FDCPA, you are instructed to cease further communication - do not contact me again.

 

 

Warmest regards,

RyanEx

 

 

Some might have different suggestions on the language. I make copies and send CMRRR.

  • Like 2

Share this post


Link to post
Share on other sites

What I have sent to creditors when once an account is beyond SOL:

 

 

Some might have different suggestions on the language. I make copies and send CMRRR.

Agreed.

 

I ran out of "likes" for the day

Share this post


Link to post
Share on other sites

Another quick update for those following the thread:  got my 100+ bucks back for process server costs from the JDB.  They actually paid up pretty quickly (within a couple weeks).  Wish I hadn't dumped so much money on postage, but hey, it helped me win the case.   :clapper:

  • Like 7

Share this post


Link to post
Share on other sites

That is excellent.  Hope you have a nice dinner somewhere and celebrate all your hard work.

 

I am so glad you went to the trouble of recovering your costs.  It makes it a very bad deal for plaintiff.  First, they paid to purchase your account.  Second, they paid the filing fee for this case.  Third, they had to pay the litigation expenses.  And now they have to pay yours. Great result.

  • Like 3

Share this post


Link to post
Share on other sites

don't forget to offer a toast xbeer2) to Hunt & Henriques for providing the funds for the dinner that calawyer suggested. LOL dinner will taste like VICTORY!

  • Like 3

Share this post


Link to post
Share on other sites

don't forget to offer a toast xbeer2) to Hunt & Henriques for providing the funds for the dinner that calawyer suggested. LOL dinner will taste like VICTORY!

Haha, yeah.  Good point.  Here's to you, H & H!!   :<img src=:'>

  • Like 1

Share this post


Link to post
Share on other sites

Regarding a cease & desist - If this is past the SOL, and if it were me, I'd do a full cease & desist on it. I'd rather they receive a strong and definite communication to not bother me at all. And if they do bother me, be it telephone or even better with a letter that I can use as evidence, then I'll consider action against them. My guess is they'd disappear if you send them a full C&D.

 

What I have sent to creditors once an account goes beyond the SOL:

 

To whom it may concern,

 

I am in receipt of your correspondence dated [date] (copy enclosed). I do not owe [your company] anything; I refuse to pay this alleged debt. Per section 805c of the FDCPA, you are instructed to cease further communication - do not contact me again.

 

Warmest regards,

RyanEx

 

Some might have different suggestions on the language. I make copies and send CMRRR.

Thanks as always, RyanEX.  

 

The purported OC on this alleged debt (Citibank) is no longer reporting on my CR.  However, Midland's trade-in indicates a "First Date of Delinquency" as February 2011, and SOL in California is 4 years.  By my count, that would make this alleged account anywhere from 3 to 6 months beyond the SOL, even by the JDBs own assertions.  I give this range because I've heard some people say that SOL starts ticking from the date of first delinquency, while others have said it begins 90 days later.  Could someone who knows verify this and double-check my math, please?  As I've mentioned, Midland has been pushing hard with the phone calls lately (including on weekends), which makes me assume that they probably think they can still sue without an FDCPA violation.  Just want to make sure I'm right on the SOL before I send a C&D letter.  Thanks!

Share this post


Link to post
Share on other sites

it is my understanding that the SOL starts the date of default. to me that means the date a payment was due but not made. example: a payment is made to the alleged account on 9/06/11, which would satisfy the, hypothetical in this case,  payment due 9/25/11. the next payment would be due on 10/23/11. but no payment was made afterwards. 10/23/11 would be the default date.

I also believe that any subsequent payment or partial payment, resets SOL even when the alleged debt is not brought out of default status.

  • Like 3

Share this post


Link to post
Share on other sites

that is just my humble opinion. ive read on the threats different opinions suggesting that SOL starts the date last payment was made. unless there is a clear caselaw, which I am not aware of.

Share this post


Link to post
Share on other sites

Here's a link to the TCPA if you want to go thru it, see if there is a violation. https://transition.fcc.gov/cgb/policy/TCPA-Rules.pdf. I'm not very familiar with it.

 

Regarding a cease & desist - If this is past the SOL, and if it were me, I'd do a full cease & desist on it. I'd rather they receive a strong and definite communication to not bother me at all. And if they do bother me, be it telephone or even better with a letter that I can use as evidence, then I'll consider action against them. My guess is they'd disappear if you send them a full C&D.

 

What I have sent to creditors once an account goes beyond the SOL:

 

To whom it may concern,

 

I am in receipt of your correspondence dated [date] (copy enclosed). I do not owe [your company] anything; I refuse to pay this alleged debt. Per section 805c of the FDCPA, you are instructed to cease further communication - do not contact me again.

 

 

Warmest regards,

RyanEx

 

 

Some might have different suggestions on the language. I make copies and send CMRRR.

Thanks, RyanEX.  I waited a little longer on this, just to be sure there'd be no problems with the SOL.  I'm now getting ready to send them a C&D letter containing the language you suggested, while also disputing their tradeline with the CRAs (on the off-chance that they choose to give up and stop reporting).  Out of curiosity, does sending them a full Cease & Desist letter like this absolve them of any responsibility to notify me if they choose to go ahead with a lawsuit anyway?  

Share this post


Link to post
Share on other sites

I think waiting was a good idea. The reporting from JDB's is all over the map and can't be relied on.

I don't think there is any law on the subject of pre-suit notification. In my opinion, any communication that is required by law should not form the basis for an FDCPA lawsuit. Se 1692c ©

You might consider sending a very simple letter saying "I refuse to pay this alleged debt". That triggers the duty to cease communications under 1692c

  • Like 1

Share this post


Link to post
Share on other sites

Update:  

I recently found this copy of a Class Action Complaint against a Plaintiff that used a “c/o:” address in their CCP 98 Declaration.  Since the Plaintiff in this old case of mine did the same thing, I’m wondering if they committed an FDCPA violation in so doing?

http://www.slodebtdefense.com/uploads/2/5/8/1/25816994/shohdy_-_conformed_complaint.pdf

Share this post


Link to post
Share on other sites

Join the conversation

You can post now and register later. If you have an account, sign in now to post with your account.

Guest
Reply to this topic...

×   Pasted as rich text.   Paste as plain text instead

  Only 75 emoji are allowed.

×   Your link has been automatically embedded.   Display as a link instead

×   Your previous content has been restored.   Clear editor

×   You cannot paste images directly. Upload or insert images from URL.