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Lost, Hoping and May Have Arbitration Ammunition


Mumof1
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Thanks for responding nobk4me.  It isn't Discover. 

Hoping to avoid lurkers, this particular OC starts with an "A" and likes green.

Works for you?

I wonder if TILA requires an OC to correct mistakes?  (And if it doesn't, violates TILA?)

Thanks much!

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11 minutes ago, Mumof1 said:

Thanks for responding nobk4me.  It isn't Discover. 

Hoping to avoid lurkers, this particular OC starts with an "A" and likes green.

Works for you?

I wonder if TILA requires an OC to correct mistakes?  (And if it doesn't, violates TILA?)

Thanks much!

To hold an OC responsible under TILA for mistakes, you must submit a written dispute to the OC within 60 days of receiving an incorrect billing statement, and you must specify the part of the statement (charge, amount of payment, etc.)  that you believe is inaccurate.  Also note that you must be able to prove the inaccuracy.  

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Hi Brotherskeeper.  I'm not sure of the difference between a charge card or a credit card account.  In this case, though, part of the balance is paid each month and installments need to be paid--with interest--on the rest of the balance.  Make sense?

Thanks (and a big thanks for BV80 helping me privately, too.)

Blessings to all!

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9 minutes ago, Mumof1 said:

Hi Brotherskeeper.  I'm not sure of the difference between a charge card or a credit card account.  In this case, though, part of the balance is paid each month and installments need to be paid--with interest--on the rest of the balance.  Make sense?

Thanks (and a big thanks for BV80 helping me privately, too.)

Blessings to all!

That is a credit card. 
 

That particular company used to specialize in charge cards, for which the balance has to be paid off in full every month.  At some point they realized they were leaving a lot of money on the table. Now they do both. 

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I see.  Thanks!

By the way, BV80, for some reason I cannot message to you.  The website just hangs. 

So here, a question:  if I understand correctly, if an OC hides its phone ID when calling to collect a debt, we cannot do a legal thing about that, right?  OK for creditors hide on the phone to get debtors?

Blessings,

Mumof1

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51 minutes ago, Mumof1 said:

I see.  Thanks!

By the way, BV80, for some reason I cannot message to you.  The website just hangs. 

So here, a question:  if I understand correctly, if an OC hides its phone ID when calling to collect a debt, we cannot do a legal thing about that, right?  OK for creditors hide on the phone to get debtors?

Blessings,

Mumof1

All I know is that the TICA does not have a private right of action.  The section to which you referred allows for enforcement only by the government.  That is not to say that Michigan doesn’t have a relevant law with a private right of action.

Again, you have to look at the intent specified by the section you cited.  “Spoofing” in and of itself is not always harmful.  While it may be annoying, it’s annoying anytime we get calls from creditors or debt collectors.

Also, it can depend on what was identified in the “spoof”.  For instance, was it actually false?  In an FDCPA case, a Pennsylvania court ruled that the use of Pennsylvania area codes in the debt collector was from Florida was not false or deceptive because it did not mislead the consumer about the nature and purpose of the call.   

In regard to “OK for creditors hide on the phone to get debtors?”.  No, creditors cannot take any action they want, but we can’t claim that everything they do is illegal. A judge could say that if consumers paid their bills, they wouldn’t have to hear from creditors.  I’m not fussing at you because I’ve been where you are.  I’m just pointing out that not every action we don’t like is illegal.  What we may view as false, deceptive, harmful, etc. may be viewed differently by courts.

An attorney experienced in the TCPA AND Michigan law would know which actions violated federal and state laws.  He or she would know which kinds of “spoofing” are not allowed, and if there is a law the spoofs violated for which you have a private right of action. Let an attorney handle it. Don’t continue to put yourself under stress. 

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@Mumof1 @BV80

REGULATION OF COLLECTION PRACTICES (EXCERPT) Act 70 of 1981

445.252 Prohibited acts.

 (g) Communicating with a debtor without accurately disclosing the caller's identity or cause expenses to the debtor for a long distance telephone call, telegram, or other charge.

(n) Using a harassing, oppressive, or abusive method to collect a debt, including causing a telephone to ring or engaging a person in telephone conversation repeatedly, continuously, or at unusual times or places which are known to be inconvenient to the debtor. All communications shall be made from 8 a.m. to 9 p.m. unless the debtor expressly agrees in writing to communications at another time. All telephone communications made from 9 p.m. to 8 a.m. shall be presumed to be made at an inconvenient time in the absence of facts to the contrary.

 

The People of the State of Michigan enact:

 

Document Type Description
Section 445.251 Section Definitions.
Section 445.252 Section Prohibited acts.
Section 445.253 Section Cease and desist order; hearing; failure to comply with order; action in circuit court; fine.
Section 445.254 Section Action to restrain act or practice; injunction and other equitable orders or judgments.
Section 445.255 Section Assurance of discontinuance; contents; filing; record; opening closed matter for further proceedings.
Section 445.256 Section Wilful violation of act or engaging in recurring course of wilful conduct in violation of act; penalties.
Section 445.257 Section Action for damages or equitable relief; amount of recovery; civil fine; attorney's fees and court costs.
Section 445.258 Section Communications with person other than debtor for purpose of acquiring location information; required statements.
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10 minutes ago, Brotherskeeper said:

@Mumof1 @BV80

REGULATION OF COLLECTION PRACTICES (EXCERPT) Act 70 of 1981

445.252 Prohibited acts.

 (g) Communicating with a debtor without accurately disclosing the caller's identity or cause expenses to the debtor for a long distance telephone call, telegram, or other charge.

(n) Using a harassing, oppressive, or abusive method to collect a debt, including causing a telephone to ring or engaging a person in telephone conversation repeatedly, continuously, or at unusual times or places which are known to be inconvenient to the debtor. All communications shall be made from 8 a.m. to 9 p.m. unless the debtor expressly agrees in writing to communications at another time. All telephone communications made from 9 p.m. to 8 a.m. shall be presumed to be made at an inconvenient time in the absence of facts to the contrary.

 

The People of the State of Michigan enact:

 

Document Type Description
Section 445.251 Section Definitions.
Section 445.252 Section Prohibited acts.
Section 445.253 Section Cease and desist order; hearing; failure to comply with order; action in circuit court; fine.
Section 445.254 Section Action to restrain act or practice; injunction and other equitable orders or judgments.
Section 445.255 Section Assurance of discontinuance; contents; filing; record; opening closed matter for further proceedings.
Section 445.256 Section Wilful violation of act or engaging in recurring course of wilful conduct in violation of act; penalties.
Section 445.257 Section Action for damages or equitable relief; amount of recovery; civil fine; attorney's fees and court costs.
Section 445.258 Section Communications with person other than debtor for purpose of acquiring location information; required statements.

Does the above apply to original creditors?

Does “g” apply to a caller ID?  I can see how it would apply to a voicemail or actual conversation.  It says “communicating”.  Is caller ID considered a communication?

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32 minutes ago, BV80 said:

Does the above apply to original creditors?

 
(e) "Creditor" or "principal" means a person that offers or extends credit creating a debt or a person to which a debt is owed or due or asserted to be owed or due. Creditor or principal does not include a person that receives an assignment or transfer or a debt solely for the purpose of facilitating collection of the debt for the assignor or transferor. In those instances, the assignor or transferor of the debt shall continue to be considered the creditor or the principal for purposes of this act.
  (f) "Person" means an individual, sole proprietorship, partnership, association, corporation, limited liability company, or other legal entity.
  (g) "Regulated person" means a person whose collection activities are confined and are directly related to the operation of a business other than that of a collection agency including any of the following:
  (i) A regular employee who collects accounts for 1 employer if the collection efforts are carried on in the name of the employer.
  (ii) A state or federally chartered bank that collects its own claim.
  (iii) A trust company that collects its own claim.
  (iv) A state or federally chartered savings and loan association that collects its own claim.
  (v) A state or federally chartered credit union that collects its own claim.
  (vi) A licensee under the regulatory loan act, 1939 PA 21, MCL 493.1 to 493.24.
  (vii) A business that is licensed by this state under a regulatory act that regulates collection activity.
  (viii) An abstract company that is engaged in an escrow business.
  (ix) A licensed real estate broker or salesperson if the claim the broker or salesperson is collecting is related to or in connection with the broker's or salesperson's real estate business.
  (x) A public officer or a person that is acting under a court order.
  (xi) An attorney who is handling a claim or collection on behalf of a client and in the attorney's own name.
33 minutes ago, BV80 said:

Does “g” apply to a caller ID?  I can see how it would apply to a voicemail or actual conversation.  It says “communicating”.  Is caller ID considered a communication?

This is how "communicate" is defined in the Definitions section:

(c) "Communicate" means to convey information regarding a debt directly or indirectly to a person through any medium.

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Wow, that's a lot of info!

BV80 is right, to "Don’t continue to put yourself under stress. "

Of course, it will likely be a bit stressful to get my story together in a simple way, but I'll give it a shot from BV80's guidance, before I contact an attorney.

Thanks again to all and especially BV80!

Blessings...again!

Mumof1

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33 minutes ago, BV80 said:

LOL!  That’s what attorneys are for.  😀. Let them wallow through the laws. 

I seriously wish Michigan would increase this dollar amount. 

445.257 Action for damages or equitable relief; amount of recovery; civil fine; attorney's fees and court costs.
Sec. 7.

  (1) A person who suffers injury, loss, or damage, or from whom money was collected by the use of a method, act, or practice in violation of this act may bring an action for damages or other equitable relief.
  (2) In an action brought pursuant to subsection (1), if the court finds for the petitioner, recovery shall be in the amount of actual damages or $50.00, whichever is greater. If the court finds that the method, act, or practice was a wilful violation, the court may assess a civil fine of not less than 3 times the actual damages, or $150.00, whichever is greater, and shall award reasonable attorney's fees and court costs incurred in connection with the action.
 

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Ah, but BV80, maybe an attorney will CHARGE me for wallowing!  🙂

I'm hoping a particular attorney will sign me on for a contingency, possibly if the attorney will think the OC will indeed be found guilty of TCPA violations and he could cash.   I hope that to be so, because again-- that attorney actually SUED the OC in a Circuit Court on TCPA, even though the plaintiff was to ONLY use arbitration.  Wow.   

If not acceptable on a contingency, how in the world should we tell attorneys--during the initial interview--that we don't have a lot of money to pay them? 

Lame example: If the attorney says it's a good case, would it then be time to tell him/her we're broke?  (In short, at what point do we talk fees? )

Thanks again and good to be amongst ya.🙂

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20 minutes ago, Mumof1 said:

Ah, but BV80, maybe an attorney will CHARGE me for wallowing!  🙂

I'm hoping a particular attorney will sign me on for a contingency, possibly if the attorney will think the OC will indeed be found guilty of TCPA violations and he could cash.   I hope that to be so, because again-- that attorney actually SUED the OC in a Circuit Court on TCPA, even though the plaintiff was to ONLY use arbitration.  Wow.   

If not acceptable on a contingency, how in the world should we tell attorneys--during the initial interview--that we don't have a lot of money to pay them? 

Lame example: If the attorney says it's a good case, would it then be time to tell him/her we're broke?  (In short, at what point do we talk fees? )

Thanks again and good to be amongst ya.🙂

If you have a winning case, a lot of attorneys will take it on contingency because the other party will pay their fees.

24 minutes ago, Mumof1 said:

Lame example: If the attorney says it's a good case, would it then be time to tell him/her we're broke?  (In short, at what point do we talk fees? )

I would let him look at your documentation first if he wants to do so.  Then, if he says it’s a good case, flat out ask if he accepts cases on contingency.  If he doesn’t, thank him, and contact someone else.

I could be wrong, but I think attorneys who prefer to handle class actions seem more willing to take cases on contingency.  

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Thanks so very much for the "attorney talk!" 

Still working getting the events in a corral.  Lots of documentation and--amazing that I think have nearly a hundred recorded calls (answer, silent, then human online) within the last four years.   Some of those calls have a recording that's ended by a human voice. 

Blessings!

Mumof1

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  • 3 weeks later...

Thanks again for all responded, especially lots of responses on this board by BV80. 

Sadly, I need to respond to this thread because I believe I will soon be told that TCPA lawsuits against creditors are essentially dead now, based on an April 1, 2021 decision by the United States Supreme Court in a case called Facebook, etc. v. Duguid, et. al.  Apparently the case determines what really is an ATDS.

Attorneys and others now say it was the SCOTUS decision that benefits "for entities defending against TCPA actions, as it rejects the expansive interpretation of the statutory ATDS definition previously endorsed in some Circuits."

I know that BV80 will illuminate on that decision, but even important to me is a question:

Is there anything that a consumer might actually take on an OC to court or arbitration?  

Right now does it seem for a consumer to do is hire an attorney to write a creditor and tell the OC to go away?  Because of SOL?  (Because I've read that a creditor can go ahead and file a suit after SOL and still win a renewable judgement, if the consumer doesn't hire an attorney to respond with defense of the SOL.  That's scary.  The consumer should hire the attorney to write a letter?)

Lost again and don't know what to do.

Thanks so much. 

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2 hours ago, Mumof1 said:

Sadly, I need to respond to this thread because I believe I will soon be told that TCPA lawsuits against creditors are essentially dead now, based on an April 1, 2021 decision by the United States Supreme Court in a case called Facebook, etc. v. Duguid, et. al.  Apparently the case determines what really is an ATDS.

Attorneys and others now say it was the SCOTUS decision that benefits "for entities defending against TCPA actions, as it rejects the expansive interpretation of the statutory ATDS definition previously endorsed in some Circuits."

Personally, I don’t see how the 9th Circuit came up with its decision.  Here is the section of the TCPA at issue.

Section 227(a)(1) defines an autodialer as:

"equipment which has the capacity—

"(A) to store or produce telephone numbers to be called, using a random or sequential number generator; and

"(B) to dial such numbers."

The 9th Circuit said that “using a random or sequential number generator” only applied to “produce”.  It did not apply to “store”.  That’s ridiculous.

to store or produce telephone numbers to be called”  is one phrase.  “Store and produce” are not separated.

Anyway, the SCOTUS pointed out that “using a random or sequential number generator” applies to both.  The kicker is that Because Facebook's notification system neither stores nor produces numbers ‘using a random or sequential number generator,’ it is not an autodialer.

The SCOTUS ruled that an ATDS has to store numbers to be called using a random sequential number generator or produce numbers to be called using a random sequential number generator.

The burden of proving a system is an ATDS within that definition would fall on the party making the claim.  It could be that some attorneys just don’t want to take the time to do the work to prove it.

2 hours ago, Mumof1 said:

Is there anything that a consumer might actually take on an OC to court or arbitration?  

TILA applies to OCs, but it mostly addresses proper disclosures.  There is the section on disputing billing errors, but it requires that a consumer dispute the error within 60 days of the occurrence of that error.

The FCRA applies to OCs.  It has a 4-year SOL.

Check your state laws.  Some states have laws mirror the FDCPA and apply to OCs.

2 hours ago, Mumof1 said:

Right now does it seem for a consumer to do is hire an attorney to write a creditor and tell the OC to go away?  Because of SOL?  (Because I've read that a creditor can go ahead and file a suit after SOL and still win a renewable judgement, if the consumer doesn't hire an attorney to respond with defense of the SOL.  That's scary.  The consumer should hire the attorney to write a letter?)

A creditor can sue when a debt is outside the SOL, but I don’t think most OCs do it.  If it happened in your case, you simply raise the SOL as an affirmative defense.  The OC would then bear the burden of proving it filed a timely claim.  You don’t need an attorney for that.  

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Hi there.  Thanks for the response.  Your referral to TILA and FCRA  makes me questions: 

Pertaining to TILA, If the consumer disputed the original error within 60 days of the occurrence of the ORIGINAL error and then repeated dispute of the balance of every bill since then, within 60 days of every bill, do those actions can be used against the OC using TILA?

Also, wondering how the FCRA applies to OCs.  Can you mention the right sections in FCRA to look at about OCs?

In addition,"Check your state laws.  Some states have laws mirror the FDCPA and apply to OCs. " 

Do those laws mirror the reference made earlier in Michigan laws, here, to be able to charge OCs in the following?

REGULATION OF COLLECTION PRACTICES (EXCERPT) Act 70 of 1981

445.252 Prohibited acts.  (More above)

I know, simply put, what should I tell what the attorney should check those laws to further check? 

In short, do you have any ideas about what to mention inside a simple mail to the atty, now he says that TCPA is dead?

Sorry if at all vague.  Brain not playing well today.  You write better.  And think. 🙂

Thanks so very much...again!

Best,

Mumof1

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20 minutes ago, Mumof1 said:

Pertaining to TILA, If the consumer disputed the original error within 60 days of the occurrence of the ORIGINAL error and then repeated dispute of the balance of every bill since then, within 60 days of every bill, do those actions can be used against the OC using TILA?

Well, first you’d have to show that you did, in fact, dispute an error on the original billing.  And, I believe the dispute has to be specific (incorrect charge, failure to credit a specific payment, etc.).   It’s actually the Fair Credit Billing Act.  

Here is 15 USC 1666(a):

(a)Written notice by obligor to creditor; time for and contents of notice; procedure upon receipt of notice by creditorIf a creditor, within sixty days after having transmitted to an obligor a statement of the obligor’s account in connection with an extension of consumer credit, receives at the address disclosed under section 1637(b)(10) of this title a written notice (other than notice on a payment stub or other payment medium supplied by the creditor if the creditor so stipulates with the disclosure required under section 1637(a)(7) of this title) from the obligor in which the obligor—

(1) sets forth or otherwise enables the creditor to identify the name and account number (if any) of the obligor,

(2) indicates the obligor’s belief that the statement contains a billing error and the amount of such billing error, and

(3) sets forth the reasons for the obligor’s belief (to the extent applicable) that the statement contains a billing error,

In other words, it cannot be a generic dispute.  It must specify an error.  I’m not sure that disputing the balance is specific because it does not point out a specific error.  For instance, an incorrect charge would be the reason for an incorrect balance, 

Simply disputing the balance would not “set forth the reasons for the obligor’s belief (to the extent applicable) that the statement contains a billing error”.

41 minutes ago, Mumof1 said:

Also, wondering how the FCRA applies to OCs.  Can you mention the right sections in FCRA to look at about OCs?

Yes, the Fair Credit Reporting Act applies to OCs.  However, if you stopped paying over 9 years ago, the account should no longer be reported on your credit report.  The credit reporting period is 7.5 years from the date of first delinquency (DOFD). The DOFD is the date you you defaulted and never brought the account back to a current status.  Creditors are required to charge off a credit card account with 180 days of default and failure to bring an account current.  

Also, the FCRA has a 4-year SOL for violations.  Have you checked your credit report?  If the bank is no longer reporting (which it should not be), I’m not sure how you could check for credit reporting errors.

57 minutes ago, Mumof1 said:

445.252 Prohibited acts.  (More above)

445.252(n) 

  (n) Using a harassing, oppressive, or abusive method to collect a debt, including causing a telephone to ring or engaging a person in telephone conversation repeatedly, continuously, or at unusual times or places which are known to be inconvenient to the debtor. All communications shall be made from 8 a.m. to 9 p.m. unless the debtor expressly agrees in writing to communications at another time. All telephone communications made from 9 p.m. to 8 a.m. shall be presumed to be made at an inconvenient time in the absence of facts to the contrary.

That might be something you could use if you have kept a record of calls.  Repeated and continuous calls would just depend on what the court considers to be “repeated” AND “continuous”.

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I don't think any of your well-explained reasons will work for me, except 445.252 Prohibited acts.   I wish that could be used as a personal injury case, but I doubt it, in case anybody knows of any cases like that against an OC for

445.252(n) 

  (n) Using a harassing, oppressive, or abusive method to collect a debt, including causing a telephone to ring or engaging a person in telephone conversation repeatedly, continuously, or at unusual times or places which are known to be inconvenient to the debtor. All communications shall be made from 8 a.m. to 9 p.m. unless the debtor expressly agrees in writing to communications at another time. All telephone communications made from 9 p.m. to 8 a.m. shall be presumed to be made at an inconvenient time in the absence of facts to the contrary.

That might be something you could use if you have kept a record of calls.  Repeated and continuous calls would just depend on what the court considers to be “repeated” AND “continuous”.

I sure hope that with the SOL and that law might make the OC go away, if an attorney could have that as ammunition to possibly report the OC.

That's bottom line the most important thing:  Make the OC go away.

Thanks to all again and especially BV80.  Really so much.

Blessings,

Mumof1

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