logcabin

Collections after SOL

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1 hour ago, WhoCares1000 said:

If you don't want to do the lawsuit yourself then take the recordings to a consumer attorney. If you have a case, they will do the suing for you and it will not cost you a dime because their fees are paid for by the JDB. Just give the attorney your evidence and they handle the rest.

Did you revoke consent for them to call your cell phone?

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I have not had any contact whatsoever with this JDB.  They must have bought it from the last one, but it’s past the SOL, so I’ve ignored all of the contact so far, but now that they started with the calls, I’d like to do something.  So, I haven’t revoked anything, because I haven’t done anything.  Other than. I have kept everything, letters and now the calls.  

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16 hours ago, BV80 said:

Did you revoke consent for them to call your cell phone?

When I have more time I will dig up the case law I have that says essentially that you need not revoke permission from a JDB unless you gave "express" permission to the JDB directly (which no one ever does, since the JDBs don't have any application or permission forms that consumers fill out when collections starts).  I recall the court specifically saying that getting a phone number from the OC is "implicit" and not "explicit" as required by the TCPA.  Therefore, IMO, any call to a cell phone from a JDB is a violation and needs no revoking.

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8 minutes ago, fisthardcheese said:

When I have more time I will dig up the case law I have that says essentially that you need not revoke permission from a JDB unless you gave "express" permission to the JDB directly (which no one ever does, since the JDBs don't have any application or permission forms that consumers fill out when collections starts).  I recall the court specifically saying that getting a phone number from the OC is "implicit" and not "explicit" as required by the TCPA.  Therefore, IMO, any call to a cell phone from a JDB is a violation and needs no revoking.

Edeh v. Midland Credit Management, Inc., 748 F. Supp. 2d 1030 - Dist. Court, Minnesota 2010

Midland first objects to Judge Noel's finding that it violated the TCPA. Midland asserts that, notwithstanding the undisputed fact that it made an automated call to Edeh's cellular phone for a non-emergency purpose, there is a factual dispute over whether Edeh previously consented to receive automated calls to his cellular phone about the disputed debt. Midland Obj. R & R at 9. Midland argues that it obtained Edeh's phone number when it bought Edeh's debt, and that it "reasonably relied upon the seller of the debt to provide the appropriate contact information" for Edeh. Gustad Aff. Ex. B at 14 [Docket No. 46-1].

That is beside the point. Midland's call to Edeh's cellular phone was permissible only if it was made "with [Edeh's] prior express consent." 47 U.S.C. § 227(b)(1)(A)(iii) (emphasis added). "Express" means "explicit," not, as Midland seems to think, "implicit." Midland was not permitted to make an automated call to Edeh's cellular phone unless Edeh had previously said to Midland (or at least to Midland's predecessor in interest) something like this: "I give you permission to use an automatic telephone dialing system to call my cellular phone." Midland has no evidence that Edeh gave such express consent. In fact, uncontroverted evidence, in the form of Edeh's affidavit, shows that Edeh did not consent to receive automated calls on his cellular phone. Edeh Aff. ¶ 10 [Docket No. 41-3]. The Court therefore overrules Midland's objection to the R & R as it relates to TCPA liability.

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Thank you Fisthardcheese, I love this.  I am really green at this, I did not know that they cannot call my cell phone.  I will draft a cease letter, and include some info from above on the cell phone calls.  Thank you for all of your help everyone, as always, you are very reassuring to those of us that are uninformed and scared and everything else.

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2 hours ago, logcabin said:

I did not know that they cannot call my cell phone.

That is not necessarily true.  MANY creditors now have you enter your phone number on line when you make a payment and by doing so you are consenting to them calling, texting and using an auto dialer to contact you.  Since many consumers no longer have a land line they provide their cell phone on the application which is also long forgotten permission to call it.  It is not automatically a violation until permissible reasons have been ruled out.  If you NEVER provided your cell number to them and they called it is a violation.  To be safe you have to send the cease and desist and then if they keep calling it is a blatant violation.

As an asignee Midland gets all the rights of the original creditor.  If you gave permission to the OC then Midland would also get that permission to call your cell.  It transfers with the sale of the account.  The case law quoted in the second case states that.  You would have to specifically revoke permission to Midland.

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3 hours ago, logcabin said:

Thank you Fisthardcheese, I love this.  I am really green at this, I did not know that they cannot call my cell phone.  I will draft a cease letter, and include some info from above on the cell phone calls.  Thank you for all of your help everyone, as always, you are very reassuring to those of us that are uninformed and scared and everything else.

NO! All you do is tell them to cease and desist. Do not mention that they might have violated the law already. The C&D covers everything.

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5 hours ago, fisthardcheese said:

When I have more time I will dig up the case law I have that says essentially that you need not revoke permission from a JDB unless you gave "express" permission to the JDB directly

That's not what the court in Edeh stated.

That is beside the point. Midland's call to Edeh's cellular phone was permissible only if it was made "with [Edeh's] prior express consent." 47 U.S.C. § 227(b)(1)(A)(iii) (emphasis added). "Express" means "explicit," not, as Midland seems to think, "implicit." Midland was not permitted to make an automated call to Edeh's cellular phone unless Edeh had previously said to Midland (or at least to Midland's predecessor in interest) something like this: "I give you permission to use an automatic telephone dialing system to call my cellular phone."

Unless the OP is sure he did not provide his number to the original creditor, Edeh does not help him.

In addition, it's one federal court ruling out of MN.   I don't know that the OP is from MN.

The FCC has ruled that providing a cell number to a creditor gives consent to a debt collector collecting that same debt. 

"We conclude that the provision of a cell number to a creditor, e.g., as part of a credit application, reasonably evidences prior express consent by the the cell phone subscriber to be contacted at that number regarding the debt." In the Matter of Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991, 23 FCC Rcd. 559, 564 (2008).

In Mais v. Gulf Coast, the 11th Circuit Court of Appeals made that same ruling.  Here's a 6th Circuit ruling;

In sum, we find Mais persuasive and adopt its conclusion that consumers may give "prior express consent" under the FCC's interpretations of the TCPA when they provide a cell phone number to one entity as part of a commercial transaction, which then provides the number to another related entity from which the consumer incurs a debt that is part and parcel of the reason they gave the number in the first place.  The FCC's rulings in this area make no distinction between directly providing one's cell phone number to a creditor and taking steps to make that number available through other methods, like consenting to disclose that number to other entities for certain purposes. Baisden v. Credit Adjustments, Inc., 813 F.3d 338, 346 (6th Cir. 2016).

 

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11 minutes ago, BV80 said:

The FCC has ruled that providing a cell number to a creditor gives consent to a debt collector collecting that same debt. 

Yes, because a debt collector is an agent working directly for the OC who can prove express consent (usually).  However, a debt BUYER must prove that such express consent was given.

5 hours ago, fisthardcheese said:

"Midland has no evidence that Edeh gave such express consent."

Midland would need to provide the original application showing express consent.  This is one document they still usually do not acquire from the OC.

Yes, one MN court is not an nice to have as a Circuit court ruling, however, absent any rulings to the contrary, it should still hold some weight and make for a compelling argument. 

Also, there is the Case from the 11th Circuit in Osorio v. State Farm Bank, which raised the question of whether simply giving a phone number constitutes "express permission".  In that case, they ruled that because Plaintiff had gave them her boyfriend's cell phone number as an "emergency contact" verbally when they asked for a secondary number, that no "express permission" to autodial that number was given.  So, Midland would have to provide pretty solid proof that the phone number was given to the OC specifically for the express reason of receiving autodialed calls.

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57 minutes ago, fisthardcheese said:

Yes, because a debt collector is an agent working directly for the OC who can prove express consent (usually).  However, a debt BUYER must prove that such express consent was given.

I understand what you mean but, to clarify, whether it's the OC, a collection agency collecting for the OC, or a debt buyer, consent must be proven.

 

57 minutes ago, fisthardcheese said:

Also, there is the Case from the 11th Circuit in Osorio v. State Farm Bank, which raised the question of whether simply giving a phone number constitutes "express permission".  In that case, they ruled that because Plaintiff had gave them her boyfriend's cell phone number as an "emergency contact" verbally when they asked for a secondary number, that no "express permission" to autodial that number was given.  So, Midland would have to provide pretty solid proof that the phone number was given to the OC specifically for the express reason of receiving autodialed calls.

With all due respect, that ruling is inapplicable.  Osorio was in regard to one person providing the cell number of another person.  Osorio did not provide his cell number to State Farm.  Another person provided the number.

I agree that Midland would have to provide proof that the OP provided his number to the original creditor. However, I'm not going to quote Edeh as prevailing precedent (especially in light of the ruling's reference to "predecessor in interest"), state for a fact that calls from JDBs are violations, or that JDBs don't have copies of applications.   Depending upon the amount being demanded, it could be possible for a JDB to get a copy of an application from an OC.

Some people are willing to sue based upon possibilities, but others are not willing to do so.  It's been stated here many times that we should provide the facts and let the readers decide their own courses of action.  

On a related note, many people no longer have landlines.   They only have cellphones.   Credit card companies will not issue a card without a phone number at which the consumer can be contacted.   To date, I can find no court ruling on that particular issue, but I would not be surprised if it's not raised and ruled upon in the future. 

In other words, an attorney for a credit card company, collection agency, or debt buyer could, through discovery, request information regarding a landline number.  In the event the consumer has no landline, the requests would go from there.

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I almost never give out my cell number.  I have a landline that I use exclusively for this type of thing, but I’m not sure where they would have gotten my cell number.  Anyways. . . . . I’ll send a C and D letter, just a simple one liner and see what happens from there.  I’m thankful for everyone’s advice and that you caught my boo boo about mentioning a possible violation, thanks, fisthardcheese.  BTW, I live in MI if that has any bearing on the info you have provided.

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21 minutes ago, logcabin said:

I almost never give out my cell number.  I have a landline that I use exclusively for this type of thing, but I’m not sure where they would have gotten my cell number.  Anyways. . . . . I’ll send a C and D letter, just a simple one liner and see what happens from there.  I’m thankful for everyone’s advice and that you caught my boo boo about mentioning a possible violation, thanks, fisthardcheese.  BTW, I live in MI if that has any bearing on the info you have provided.

You said "almost".  :)

Personally, I would not sue unless I knew I could prove my claims.   But that's just me.  Some people are willing to take chances.  Also, as I stated, whether or not a JDB would be willing to get a credit card application could be dependent upon the amount demanded by a consumer.

Michigan is in the 6th Circuit Court of Appeals, so note that court's ruling in Baisden.

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26 minutes ago, BV80 said:

I understand what you mean but, to clarify, whether it's the OC, a collection agency collecting for the OC, or a debt buyer, consent must be proven.

Correct, I was only saying that it would be very easy for a collector with direct ties to the OC to provide the proper evidence, whereas a JDB would have a harder time, generally.

27 minutes ago, BV80 said:

On a related note, many people no longer have landlines.   They only have cellphones.   Credit card companies will not issue a card without a phone number at which the consumer can be contacted.   To date, I can find no court ruling on that particular issue, but I would not be surprised if it's not raised and ruled upon in the future. 

This is the reason I mentioned Osorio. My memory could be wrong, but I thought I made a mental note that the court made a ruling on providing your number that could be construed more broadly than just someone else giving your number as was the premise in that case, but that the court said blanketly that simply stating a secondary or alternative phone number did not constitute express permission.  I will have to read it again, because I know the bulk of the case was, as you said, about someone else providing your phone number, but there was this one paragraph that I recall to be more general and useful in other applications.

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2 minutes ago, BV80 said:

You said "almost".  :)

Personally, I would not sue unless I knew I could prove my claims.   But that's just me.  Some people are willing to take chances.  Also, as I stated, whether or not a JDB would be willing to get a credit card application could be dependent upon the amount demanded by a consumer.

Michigan is in the 6th Circuit Court of Appeals, so note that court's ruling in Baisden.

I wouldn't take chances unless I was in arbitration. I would want solid proof if I were going to court as well.

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7 minutes ago, fisthardcheese said:

I will have to read it again, because I know the bulk of the case was, as you said, about someone else providing your phone number, but there was this one paragraph that I recall to be more general and useful in other applications.

Let us know when you locate it.  It could be interesting.

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1 hour ago, BV80 said:

Let us know when you locate it.  It could be interesting.

I found it. It is not as cut and dry as my memory had it.  The Court of Appeals essentially said it is a question that a jury "could find" in favor of.  This paragraph comes after the extensive discussion on agency and who has the right to consent to a number receiving auto-calls; The court shifts into this secondary argument saying that even if she DID have agency to consent to audo-dial calls to that phone number, it does not mean that saying "emergency phone number" is consenting to auto-dialed calls:

"Moreover, if, as Betancourt claims, she told State Farm that No. 8626 was to be used only for emergencies, a jury could find that she was exercising only a limited scope of agency, not the agency to consent to 327 autodialed debt-collection phone calls to Osorio’s cell-phone number."
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18 minutes ago, fisthardcheese said:

I found it. It is not as cut and dry as my memory had it.  The Court of Appeals essentially said it is a question that a jury "could find" in favor of.  This paragraph comes after the extensive discussion on agency and who has the right to consent to a number receiving auto-calls; The court shifts into this secondary argument saying that even if she DID have agency to consent to audo-dial calls to that phone number, it does not mean that saying "emergency phone number" is consenting to auto-dialed calls:

"Moreover, if, as Betancourt claims, she told State Farm that No. 8626 was to be used only for emergencies, a jury could find that she was exercising only a limited scope of agency, not the agency to consent to 327 autodialed debt-collection phone calls to Osorio’s cell-phone number."

Thank you for finding and providing that quote.   As we can see, Osorio doesn't apply here.

I appreciate your research.  :)

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Yes, thank you for your research, much appreciated.  I won’t be doing any suing unless going forward, after the C and D letter, they violate some obvious rules.  Yes, I said “almost”, so I don’t know 100% if my cell # was given out or not.  But unlikely I would guess.  But that being said, how do they manage to get your cell # if it was not initially given out?

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57 minutes ago, logcabin said:

But that being said, how do they manage to get your cell # if it was not initially given out

Cell numbers can be found through "skip-tracing".   Perhaps others can explain how that occurs.

Skip-tracing is not consent under the TCPA. 

I don't know what you mean by "unlikely" that you would provide your cell phone number, but that would be for you to determine.  In my case, I would be more likely to provide my cell number.

 

 

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I’m not going to say “never”, but I rarely give out my cell number.  No Dr.’s offices, any businesses, credit cards, etc.  Very rarely do I dish that out.  I’ve always been very protective of that. But. . . . it could happen, just unlikely.

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Banks will sometimes save numbers you call them from (especially several years ago), so if you ever called them on your cell phone, it is likely they saved that number in your file even if you never specifically gave it to them.  Now days, because of the TCPA lawsuits, they have tightened up that practice to first ask. When I call a bank I have not previously given my cell number to, they will ask if the number I am calling from is a good contact number for me and if I would like to add it to my account. I always say no.

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8 minutes ago, logcabin said:

Interesting.  I know this probably isn’t worth much, but I did go and check and my cell has been on the DNC list since 2006, and is still active on there.

That does not mean anything because there is a previous business exemption to the DNC that includes debt collectors that purchase debts.

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Sooooo, I’m back with another question about this debt.  We now have received a letter from Total Card, Inc., representing Cavalry (who is the owner of this debt), according to the letter.  It was originally with Citi, and is past the SOL.  It has never showed up on our credit report.  Back in March, I received a letter from Cavalry saying:  The law limits how long you can be sued on a debt......etc.  At that time, some of you said to ignore it, and some said to send a C and D.  We ignored it, and received 1 other letter.  Now we have received this new one from Total card, Inc., representing Cavalry.  It basically says the same thing, but on the back of the letter, it does say:  Unless you notify this office within 30 days after receiving this notice that you dispute the validity, this office will assume this debt to be valid.  On the front side, it does have the paragraph that Cav. cannot sue......

I would have just ignored this letter also, except for the part on the back about validating within 30 days.  In some respects, I hate to have any communication start up at all, after all this time.  What are your thoughts on this?  

 

 

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