profworm

Time Zone Confusion .. harassing calls?

Recommended Posts

Hi there all, 

I have Portfolio Recovery (as purchaser of debt) coming after me for an alleged debt, about a year after default. I think they noticed my having settled another debt so my blood is in the water.

Anyway, my cell phone is in a different time zone and they keep calling it around 6am-7am.. about 4 times now. They have sent me their initial notice that they acquired the debt, so they have my address. I live in CA. I waited for them to make several calls, answering each time after several rings, in hopes they'd hang up and they have, until recently. I answered. They said my area code indicated it was not too early, and I said "don't call again (*see note)" and hung up.

(1) Are they in violation of state and/or federal regulations for calling my phone whose area code is on the east coast, when I live on the west coast and they have my address? I would argue that it's not irregular to move with a cell phone and keep the number. 

(2) If they have violated something, can I use that to send a cease and desist, report them to someone, or use it as an affirmative response if they sue? 

*I understand I can't really document that request not to call me, at this time- I can do a phone recording but it's a pain, as in CA I have to ask permission, then hit my recording app, which joins the call as a conference call and records.. a lot of trouble. 

Link to post
Share on other sites
8 hours ago, profworm said:

oh look at that: 

https://www.paulmankin.com/creditors-and-debt-collectors-are-not-allowed-to-call-you-before-8-00-a-m-or-after-9-00-p-m

I wonder if I should pursue them right now for a monetary settlement?

Is the debt still within the SOL?  If so, how much is the balance?

Link to post
Share on other sites
10 hours ago, profworm said:
 

It's within the SOL. A few thousand. 

Inexplicably, they called *again* the next morning at 6am, and argued that they didn't know. Again. 

So I have 5 calls now. 

Note that the maximum statutory award under the FDCPA is $1000 per action.   “Action” means lawsuit.  No matter how many violations have been committed, you allege all of them in the same lawsuit.  Therefore, the most you can receive in statutory damages is $1000.  Punitive damages (harassment, emotional distress) are possible, but 5 phone calls would hardly qualify.

Also note that since the debt is within the SOL and more than $1000, the JDB could countersue for the balance or simply offer a mutual walk away.  In other words, there is no guarantee that you would receive a penny.

Have you sent a letter explaining that you live in different time zone than is indicated by your phone number and demanding they stop calling before 8:00 AM PST?  If not, it is merely your word that you informed them of the time difference.  I would send such a letter by certified mail.

  • Like 1
Link to post
Share on other sites
4 hours ago, BV80 said:

Note that the maximum statutory award under the FDCPA is $1000 per action.   “Action” means lawsuit.  No many how many violations have been committed, you allege all of them in the same lawsuit.  Therefore, the most you can receive in statutory damages is $1000.  Punitive damages (harassment, emotional distress) are possible, but 5 phone calls would hardly qualify.

Also note that since the debt is within the SOL and more than $1000, the JDB could countersue for the balance or simply offer a mutual walk away.  In other words, there is no guarantee that you would receive a penny.

Have you sent a letter explaining that you live in different time zone than is indicated by your phone number and demanding they stop calling before 8:00 AM PST?  If not, it is merely your word that you informed them of the time difference.  I would send such a letter by certified mail.

Emphasis on sending the letter CMRRR.  

I can't give any details, but I got a vacation paid for by a collection agency that ignored my phone demands which were in a letter.  The letter CMRRR removes all ambiguity and removes any bona fide error defense.  

Link to post
Share on other sites
On 11/9/2020 at 8:58 AM, BackFromTheDebt said:

Emphasis on sending the letter CMRRR.  

I can't give any details, but I got a vacation paid for by a collection agency that ignored my phone demands which were in a letter.  The letter CMRRR removes all ambiguity and removes any bona fide error defense.  

Ok, I plan to send a letter, but does it not show that they know where I live, that I have received mail from them at my address? Is it not the JDB's responsibility to know what the OC knew, which was where my address is? I'm anticipating a lawsuit from them anyway, so a mutual walk-away would indeed be the best possible outcome. 

EDIT: just looked at their letter. Usually the letter tells me I have the right under such and such act to demand documentation .. the 30 day "unless you ask for verification" thing. This letter doesn't have it. They've never sent me that initial letter. This one reads more like a billing statement and has no statement of rights on it. I wonder if they sent one to the other area code. I haven't lived there in 5 years, and the account in question went late just a year ago. It seems like a pretty good defense to say they don't know enough about the account to have the standing to collect on it. OC had my proper address and regularly sent statements. 

Link to post
Share on other sites
3 hours ago, profworm said:

Ok, I plan to send a letter, but does it not show that they know where I live, that I have received mail from them at my address? Is it not the JDB's responsibility to know what the OC knew, which was where my address is? I'm anticipating a lawsuit from them anyway, so a mutual walk-away would indeed be the best possible outcome. 

EDIT: just looked at their letter. Usually the letter tells me I have the right under such and such act to demand documentation .. the 30 day "unless you ask for verification" thing. This letter doesn't have it. They've never sent me that initial letter. This one reads more like a billing statement and has no statement of rights on it. I wonder if they sent one to the other area code. I haven't lived there in 5 years, and the account in question went late just a year ago. It seems like a pretty good defense to say they don't know enough about the account to have the standing to collect on it. OC had my proper address and regularly sent statements. 

The initial written communication (snail mail or email) must be sent within 5 days of the first call.  

Was the letter you received sent to your correct address?  

Link to post
Share on other sites
2 hours ago, BV80 said:

Did that communication contain the 30-day notice?

No, it did not have the 30 day notice. 

Early October: Synchrony bank sent me a notice it had sold the account to Portfolio. That notice came to the correct address. 

Late October: Portfolio then sends me a notice that invites me to use their website, has an amount owed, OC listed, but no 30 day notice anywhere on this. I received the Portfolio letter around 5 days after the first phone call, although it is dated more than 5 days prior to the first phone call. 

So I have a bunch of 6am phone calls and no letter with 30 day notice. Perhaps they sent the 30 day letter to the wrong address. 

Link to post
Share on other sites
3 hours ago, BackFromTheDebt said:

The initial written communication (snail mail or email) must be sent within 5 days of the first call.  

Was the letter you received sent to your correct address?  

Yes, correct address, but no 30 day notice- it doesn't read like that kind of letter. 

EDIT: The letter is missing my apartment number! It's a miracle this was in my mailbox. Synchrony had my address and sent me mail the same month with my proper apartment number. It seems like maybe they didn't get the details they needed when they purchased the alleged debt. This could mean they did send the other kind of letter with the 30 day thing but it could have never reached me. 

Link to post
Share on other sites
9 hours ago, profworm said:

Also, what about TCPA? This is a cell phone they're calling. 

Did you give your cell number to Synchrony?  Read your cardmember agreement.  It should contain terms to which you agree when you provide your phone number.  For instance, it may state that providing your cell number means you agree to receive calls from Synchrony and its assignees or new owners for collection purposes.

 

Link to post
Share on other sites

The difficult part for you would be proving they called from a number that is considered an automated telephone dialing system to claim under the TCPA. Where I am in Texas, they have to be registered with the State and have a permit to operate the ATDS. And all I had to do was contact the Texas public utility commission and ask for the registration info. PRA has over 16,000 numbers. Did you hear any clicks, beeps, did it take a second for the person on the other end of the line to come on? TCPA is separate and apart from the FDCPA. Just because they are a debt collection agency doesn't grant them rights to break the TCPA. This is all of course assuming in hypothesis that the number they have IS NOT the same number that you provided to the original creditor and that you did not provide your number to PRA. If it was, then your ship is sunk, at least on the TCPA avenue of things as that consent is extended to collectors, etc. You would actually have to send a certified letter, cease and desist telling them to stop calling, also. Whether or not previous consent could be revoked is something an attorney could answer with certainty.

As far as the time zone thing, I wouldn't think it would be your responsibility to hold someone elses hand and make sure they are compliant. 8pm means 8pm. Not 8pm their time where it could be 10pm your time. Or vice versa.

Link to post
Share on other sites

A new update: 

They sent the letter with the 30 day rights thing to the correct address, a full month after the first call, and it's been well over 5 days since the latest call. I think it's important to note that my address is available in my credit report, if it is a legitimate account that this debt buyer has purchased, the creditor has the address they should have used. 

So we have phone calls made before 7am more than 5 days prior to my getting their notice, while I'm telling them during the calls that they are calling too early for my address and their calling again anyway. I think I send the validation notice along with a stop calling me via registered mail and save these tidbits for an affirmative defense or launch a lawsuit before the 1 year limit is up. They clearly see me paying settlements so my blood is already in the water. If I can negotiate a mutual walk-away that would be most ideal.

Link to post
Share on other sites
2 hours ago, profworm said:

A new update: 

They sent the letter with the 30 day rights thing to the correct address, a full month after the first call, and it's been well over 5 days since the latest call. I think it's important to note that my address is available in my credit report, if it is a legitimate account that this debt buyer has purchased, the creditor has the address they should have used. 

So we have phone calls made before 7am more than 5 days prior to my getting their notice, while I'm telling them during the calls that they are calling too early for my address and their calling again anyway. I think I send the validation notice along with a stop calling me via registered mail and save these tidbits for an affirmative defense or launch a lawsuit before the 1 year limit is up. They clearly see me paying settlements so my blood is already in the water. If I can negotiate a mutual walk-away that would be most ideal.

So you are saying you want to send a letter saying stop calling, now? For calls they already made but still try to sue for damages for those calls previous to them receiving your letter?

 

Link to post
Share on other sites

I think his intent is to prove that they knew his address and thus should have known the correct hours to call him regardless of when he sent the letter. The idea is to be able to beat the bona-fide error defense.

Saying that however, you don't send a validation letter AND a do not call letter. It is either one or the other. Personally, I would send a validation letter, with the current address and see if they validate and then call too early again. That would also show that they knew what that they were violating the rules. You can do a do not call letter latter.

Link to post
Share on other sites

That could be. But it seems someone is confused about the TCPA and the FDCPA, they aren't the same thing and don't serve the same purpose. Calling his number claiming his number they were calling is on the east coast and he moved to the west coast doesn't get them any brownie points, I wouldn't imagine. If he moved, then he moved. Just because he didn't change his number to the appropriate prefix where he moved doesn't mean they get a free pass cause they called an east coast number. Maybe I am misunderstanding his view point on the TCPA issue entirely then. But they aren't the same law. TCPA SOL is 2 years, DOES NOT allow for recovery of attorney fees, and the damages would be per call (violation). FDCPA is against a debt collector calling you in violation of ONLY the FDCPA, SOL is 1 year, does allow for recovery of attorney fees, but the damages under FDCPA are limited to only $1,000 total for the debt collector no matter how many FDCPA laws he or she violates, or the number of times each law of the FDCPA is violated. So FDCPA, 100 calls = $1,000.00 civil penalty. TCPA 100 calls x 500 per violation is $5,000.00. It's two different laws, both with different requisites to prove. TCPA is going to be much harder to prove any day over FDCPA.

Link to post
Share on other sites

Time-zone issues would fall under the FDCPA.

The TCPA covers calls made to consumers without their permission using an automatic telephone dialing system (ATDS).

 "The three elements of a TCPA claim are: (1) the defendant called a cellular telephone number; (2) using an automatic telephone dialing system; (3) without the recipient's prior express consent." Meyer v. Portfolio Recovery Assocs., LLC, 707 F.3d 1036, 1043 (9th Cir. 2012)

Providing one’s cell number to a creditor, such as on an application, is considered consent to be contacted at that number regarding the account.

One must also prove that the caller used an ATDS.  Right now, some TCPA lawsuits against debt collectors are stayed pending a ruling from the U.S. Supreme Court in Facebook, Inc. v. Duguid

One of the questions the SCOTUS will address is “whether the definition of ATDS in the TCPA encompasses any device that can ‘store’ and ‘automatically dial’ telephone numbers, even if the device does not ‘us[e] a random or sequential number generator.”

A lawsuit currently on hold pending the outcome of the ruling is Aujuard v. Portfolio Recovery Associates, LLC (E.D. California).

Link to post
Share on other sites
22 hours ago, profworm said:

Yes- TCPA looks like it will not apply for me. I am looking for the best way to defend myself. 

If you have a legit FDCPA claim for the call and can prove your case that they should not have contacted you because you revoked consent or what not then you have that at least. Just because you may not have a TCPA claim doesn't necessarily mean you may not have an FDCPA claim. Look at your consumer reports too. You may discover something you can use as leverage if there are errors on any of your reports as to what is being reported by the buyer/collector.

Link to post
Share on other sites
2 hours ago, alwayswinning36 said:

If you have a legit FDCPA claim for the call and can prove your case that they should not have contacted you because you revoked consent or what not then you have that at least. Just because you may not have a TCPA claim doesn't necessarily mean you may not have an FDCPA claim. Look at your consumer reports too. You may discover something you can use as leverage if there are errors on any of your reports as to what is being reported by the buyer/collector.

1692c(a)(1)

(1) at any unusual time or place or a time or place known or which should be known to be inconvenient to the consumer. In the absence of knowledge of circumstances to the contrary, adebt collector shall assume that the convenient time for communicating with a consumer is after 8 o’clock antemeridian and before 9 o’clock postmeridian, local time at the consumer’s location;

The OP stated that he has received collection letters at his current address.   Considering that fact, the debt collector should be aware that the calls are being made before the time allowed in the FDCPA.  

  • Like 1
Link to post
Share on other sites
2 hours ago, BV80 said:

1692c(a)(1)

(1) at any unusual time or place or a time or place known or which should be known to be inconvenient to the consumer. In the absence of knowledge of circumstances to the contrary, adebt collector shall assume that the convenient time for communicating with a consumer is after 8 o’clock antemeridian and before 9 o’clock postmeridian, local time at the consumer’s location;

The OP stated that he has received collection letters at his current address.   Considering that fact, the debt collector should be aware that the calls are being made before the time allowed in the FDCPA.  

I understand what you are saying. I was just pointing out that as he thinks TCPA doesn't apply in his case to defend himself counter wise against them, that he may still have an FDCPA claim, relating to the call.

  • Like 1
Link to post
Share on other sites
21 hours ago, alwayswinning36 said:

I understand what you are saying. I was just pointing out that as he thinks TCPA doesn't apply in his case to defend himself counter wise against them, that he may still have an FDCPA claim, relating to the call.

Here's another question on this: 

If I enter a settlement agreement, can I then sue them for FDCPA, or is there typically a clause in the agreement that prevents me from doing so? 

Link to post
Share on other sites
18 minutes ago, profworm said:

Here's another question on this: 

If I enter a settlement agreement, can I then sue them for FDCPA, or is there typically a clause in the agreement that prevents me from doing so? 

Usually if you enter a settlement, it will contain language, something to the affect of you waiving or agreeing to release any and all claims against whoever you settle with. Have they offered to settle with you?

Mind you my experience with settlements are when I have sued or threatened to sue someone and received a settlement from that party. I have never received or been involved in a debt settlement. Always only had dismissals with those.

  • Like 1
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.