     June Logan (Junel) | Wednesday, November 01, 2000 - 04:41 am 
I have been helping my mother negotiate with her creditors since her divorce ruined her credit. Her ex maxed out her credit cards before the divorce and now she is stuck with the bills. Asset Acceptance Corp out of Michigan is handling a Visa account and sent my Mom a letter offering to settle the account for 50% of the balance. I called them about a week ago to check into this further and they asked, of course, for her signature authorization to speak with me. I told them I would have her call but she never did since we decided not to do anything right now. This will come off her file in exactly 2 years. Yesterday, the end of the month, at about 11am this agency calls me to find out what my Mom is going to do. I told them I was very busy right now, asked them when they closed which was 7pm, and told them I would call later. At about 4pm they call me again trying to find out what is going on. I told them this is a violation of the FDCPA an they hung up on me. Christine, I need that attorney now! |
| Morgan Appel (Downinsocal) | Wednesday, November 01, 2000 - 07:43 am
Ah! Just my .02, but this is not atypical of these numbnuts collectors who don't believe that we know the law. Make sure that you have documented everything and send a certified letter to the FTC, copied to them, and everyone else under the sun who means anything. Good for you! You caught 'em.
Yesterday was the end of the month, and, being Halloween, the freaks come out like blood cascading down the walls of that hotel in The Shining. I got these precious calls:
"You better call us before noon before we take further action...we've already verfied information with your payroll department..." Verified what? That I work at my job? Hmmmm....I guess dept stores are now in the prosecution, adjudication, and ganishment biz...
Some sort of electronic computerized calls:
"This is not a sales solicitation call. Please hold for important information..." Yeah, sure I will.
"Please have (insert name here) contact (insert name here), reference # (insert here)." Sure, if you can't even get a PERSON to call...
and finally, this doozy:
"I have to make a decision whether to report this matter to an attorney..." You want my help? You're a big boy, I'm sure you can figure it out on your own.
Truth is that collection agencies have terrible batting averages when it comes to getting people to buy into their tricks. I'm sure they'll pass it off to another Atlanta-based company.
Go get em! |
| June Logan (Junel) | Thursday, November 02, 2000 - 04:04 am
Funny thing is when I called the FTC to file a complaint over the phone and get their address for a formal complaint, they gave me hell. I explained the situation and they told me "debt collectors can call you as many times as they want". I told the guy that maybe he needed to read the FDCPA and he said "what's that". This guy eventually hung up on me so I called back and got a very helpful lady.
Morgan,
I have worked for collection agencies (didn't use harassing or deceitful tactics) and I do know how they work. Some can and will take further action depending on the debt. This could mean (depending on the state you live in) garnishments, liens on property, etc. If you need some help I would be happy to. Email me if you'd like. |
| Patrick McGarry (Pfm) | Sunday, November 05, 2000 - 12:17 pm
Buy a device to record phone calls on the telephone at Radio Shack. When a collection agent calls, tell him you are recording the call, begin to record the call, tell him on the tape that you are recording the call, ask his name, listen patiently as he speaks, then cuss at him. If he cusses back, BINGO, you've just won $1000 under the FDCPA. It is a violation of the FDCPA for a collection agent to cuss at you. It is not against the law for you to cuss at him, or to record the call if you've informed him you are doing so. You can file a lawsuit in your local small claims court (FDCPA allows state or federal court as venue), and collect $1000.
Have fun. |
| frank hardy (Esajh) | Monday, November 06, 2000 - 04:04 am
Morgan:
Just a little information for you and those here! You say a creditor said: "You better call us before noon before we take further action...we've already verified information with your payroll department..." Verified what? That I work at my job? Hmmmm....I guess dept stores are now in the prosecution, adjudication, and garnishment biz..."
If you or anyone EVER receives such a call please do a few things. This applies to those of you that are hounded by collectors. First get an answering machine and put a blanket statement on it "All conversations may be recorded!" Then set the message to come on after only one or two rings. Always let the machine answer the phone. Then you got the unruly caller - legally! Here is why? All this information below is based upon court interpretation of cases filed and won under the Consumer Fraud and Deceptive Practices Act, the Magnuson Moss Act, breach of warranty, breach of contract, and the transaction statutes that relate thereto. CONSUMER PROTECTION CASES ALL!
All quotes (other than those from the poster) are legal, lay remarks made by either courts documents or the attorney's office that prosecuted the cases or researched the cases. Names and address available upon request. I found some cases via "Sheppard-izing."
"Communications with Third Parties.
The collector may not communicate regarding the debt with anyone other than the consumer, his or her attorney, a consumer-reporting agency, the creditor, and the creditor's and consumer's attorneys. Contact with the consumer's employer or co-workers may violate the Act."
Now someone recently posted that they were threatened with arrest. Folks, collectors can not arrest you any more than I can arrest you! Yes I can perform a civil arrest - but it better be a valid and justifiable arrest (the same with the collector.) If it is not valid then the collector is subject to "False arrest," "False imprisonment," "Kidnapping" and a host of other felonies. They would also be subject to the entire criminal and civil remedies available to the state and you.
Folks, unless you committed fraud, you can not go to jail for being a delinquent debtor! Debtor's prison went out with the 19th century! Furthermore, false statements regarding such actions are in and of themselves subject to civil (and possibly criminal) prosecution.
"Threats of Action That Cannot Be Legally Taken or Not Intended to Be Taken.
Collection letters that threaten a lawsuit, wage garnishment, seizure of property, etc. often are threats of unintended action. Neither the collector nor the attorney may overstate the remedies available to the creditor. Where the amount of the debt is small or the consumer has little or no assets, the threat of a collection action is usually false. In almost all circumstances threats of arrest for nonpayment of the debt are also false."
June said: "Morgan, I have worked for collection agencies (didn't use harassing or deceitful tactics) and I do know how they work. Some can and will take further action depending on the debt. This could mean (depending on the state you live in) garnishments, liens on property, etc."
Morgan, while agencies do have this right as illustrated by the court findings above, the "threat" must be valid and they must carry out with it if they so inform you. Idle threats are illegal, pure and simple. Furthermore, collectors DO NOT have the power to place liens, garnishments etc. This is done via the court. And they must present their arguments to the court; you can counter their argument, ask for a stay etc and wait for a court of proper jurisprudence to rule. Only then can they proceed with the items. Most consumers do not know this and simply do not "attend" or ask for a hearing. For those of you that argue "notification" points, remember it can be listed in "notices" under legal newspapers etc. I would recommend, if you anticipate this, to be up on the legal notices in your jurisdiction. Also note the rules on jurisdiction below.
"Suit Filed in an Improper Venue.
Where the attorney attempting to collect the debt files suit in a venue other than where the consumer resides or signed the contract, the Act may be violated. The Act limits suits regarding real estate to the jurisdiction where the land is located. For personal debts, a collection action may be filed only where the consumer resides or signed the contract."
June in your original post you said: "This will come off her file in exactly 2 years."
Let me simply point out two things. First the section below which refers to time-lines for collections.
"1. Placement for Collection
The term ``placed for collection'' means internal collection activity by the creditor, as well as placement with an outside collector, whichever occurs first. Sending of the initial past due notices does not constitute placement for collection. Placement for collection occurs when dunning notices or other collection efforts are initiated. The reporting period is not extended by assignment to another entity for further collection, or by a partial or full payment of the account. However, where a borrower brings his delinquent account to date and returns to his regular payment schedule, and later defaults again, a consumer reporting agency may disregard any collection activity with respect to the first delinquency and measure the reporting period from the date the account was placed for collection as a result of the borrower's ultimate default. A consumer's repayment agreement with a collection agency can be treated as a new account that has its own seven-year period."
Now look at the very next section.
"3. Reporting of a Delinquent Account That is Later Placed for Collection or Charged to Profit and Loss
The fact that an account has been placed for collection or charged to profit and loss may be reported for seven years from the date that either of those events occurs, regardless of the date the account became delinquent. The fact of delinquency may also be reported for seven years from the date the account became delinquent."
Everyone please note what this says. If your account is delinquent (i.e.: showing multiple 30, 60, 90 days late.) The collector can keep that on your record for as long as they want (up to the max for adverse information - usually 7 years.) Then they can 'charge it off" as a separate item "charge to profit and loss" and get a new clock of 7 more years. Or they can run both items at the same time giving you two negative credit items on that report.
Now I know many of you will say "but there is that 'date of last activity' that comes into play here." Well folks here is what the code says about that.
"c. Running of Reporting Period:
1.In general: The 7-year period referred to in paragraphs (4) and (6) of subsection (a) shall begin, with respect to any delinquent account that is placed for collection (internally or by referral to a third party, whichever is earlier), charged to profit and loss, or subjected to any similar action, upon the expiration of the 180-day period beginning on the date of the commencement of the delinquency which immediately preceded the collection activity, charge to profit and loss, or similar action.
2.Effective date: Paragraph (1) shall apply only to items of information added to the file of a consumer on or after the date that is 455 days after the date of enactment of the Consumer Credit Reporting Reform Act of 1996."
My friends, here is a "LOOP-HOLE" big enough to drive a truck through. It says the period shall begin "...with any delinquent account THAT IS PLACED FOR COLLECTION...." It further states "...upon the expiration of the 180-day period beginning on the date of the commencement of the delinquency WHICH IMMEDIATELY PRECEDED THE COLLECTION ACTIVITY..." Folks what if there is no collection activity, charge to loss etc? Then the section above " The fact that an account has been placed for collection or charged to profit and loss may be reported for seven years from the date that either of those events occurs, REGARDLESS of the date the account became delinquent" is the controlling statement!
A creditor may show you delinquent for a long period. Then they can charge it off and the clock starts 180 days before they do so. That can be a very long time! I am currently looking for evidence that this interpretation has been applied in court cases. The law is clear that they CAN do it but from a business standpoint it may not make sense (tax wise that is.)
It appears that a bk. would prevent this. Should the consumer file BEFORE they charge the account off then the collector is prevented from using this tactic to extend the time. Also you control the very important timing.
I hope this clears up some concepts.
Christine I am still researching the civil cases brought against CRAs. I have found some interesting information but I will wait until I have everything coherently presented.
Frank |
| June Logan (Junel) | Monday, November 06, 2000 - 06:34 am
Frank,
No they certainly cannot threaten further action. It is my experience that agencies WILL NOT customarily sue on accounts less than $500.00. I'm sure there may be exceptions to this but I haven't seen any. Also, I can guarantee that if you tell a debt collector that he is being recorded, he will not talk to you. The FDCPA is very vague in some aspects and the agent is not going to incriminate himself in any way.
And Morgan,
If they left that message on your machine, save the tape. Collection agents can only legally leave their name and phone number. They cannot even say the name of their company if it would give anyone a clue as to the nature of the call. They have definitely crossed the line in that case. |
| Morgan Appel (Downinsocal) | Monday, November 06, 2000 - 07:00 am
June, Frank, etc.
Thank you for all of your advice! Its funny how much a person THINKS he knows, and then wow! Things seem suspicious, and one would think that the collection agents would be more careful about how they behave--but, I guess they count on our naivety and ignorance of the law.
I found out that this guy who was levying the threats actually works for the department store chain that keeps haranging me. I guess he is counted as a creditor and not a third party collection agency...
Just one question. I was served a summons by the process server sticking it in my door jamb for all to see. There it was, not in an envelope or anything. This can't be legal, can it?
Frank and June, thank you so much again. You both are God sends!! |
| paule (Paule) | Monday, November 06, 2000 - 07:48 am
This was very good information. But just to add, I had a judgment against me for only $180.00. |
| frank hardy (Esajh) | Monday, November 06, 2000 - 08:57 am
Morgan said: "I found out that this guy who was levying the threats actually works for the department store chain that keeps haranguing me. I guess he is counted as a creditor and not a third party collection agency... "
The following section is quite clear as to who the guy is.
"1. Placement for Collection
The term ``placed for collection'' means internal collection activity by the creditor, as well as placement with an outside collector, whichever occurs first. Sending of the initial past due notices does not constitute placement for collection. Placement for collection occurs when dunning notices or other collection efforts are initiated...."
While you are right that he is the "creditor" he is by law the same as though he works for an outside agency. Think of it in these terms. The department store probably has different departments. Once the delinquent account is turned over to the "collection" department, the account is placed for collection (when notice is initiated.) It does not matter whether the name is the same as your original lender; it was placed for collection. That is what is meant by "internal collection activity." So this guy is subject to the same "laws" as any outside agency. It is also correct, as June stated that most collection agency workers MIGHT not talk with you when they are being recorded. However, they work for organizations that spend all their time trying to collect debts. Operations, like you speak of (smaller in house departments,) may not be as savvy as outside operators nor may they be as aware of the code. It is possible that they will talk with you and make a mistake. However, I don't think it should be a matter of "got you" unless the guy is outright rude and intimidating.
You ask: "Just one question. I was served a summons by the process server sticking it in my doorjamb for all to see. There it was, not in an envelope or anything. This can't be legal, can it? "
Yes it probably is legal. It can be assumed that only you enter your door. A reasonable person can further assume that you will receive (meaning "get" or "pickup") the notice via this method. In the unlikely event that the doorjamb was to a public access area (i.e. the main entrance to an apartment complex) and the processor did not make "reasonable" efforts to deliver it to you personally then they MAY be liable. But remember they can submit documentation that they attempted the delivery personally to you and that documentation will usually hold up in a legal venue. Also remember they DO NOT have to serve you personally if they can not reasonably locate you. That simply means they tried - oops he is not home. Also check your legal notices in your community on or about the date you were served. You will probably find out that they published the notice in that paper as well just prior to service but after filing the case.
June is right about leaving messages on the telephone, but that is a different case from being served. When you said a summons, I take that to mean a notice to appear. If it is a true and valid "notice" it should have a few things. The court should sign it but an actual signature is not necessary if the jurisdiction is clearly visible. It should state the reason for the notice and give a date and time required to appear. It should also give a contact person/agency. If these things happened (or a variable based upon local laws) then you were legally notified. In this case the laws of Credit reporting do not bind the process server. Whether the server is a private server or a member of law enforcement (i.e. sheriff's Deputy or Marshall's Officer), the result is the same. It is quite legal to walk into your place of business, church, school or any other public or private place and serve you with a subpoena. More than likely that is what you got. Now don't ignore it at all! Just remember how publicly they served the Cuban family in Miami during the Gonzales INS case. It was very public!
Be very careful here because you are dealing with the law. I highly recommend you get immediate legal advice. If you were served then your creditors are probably using lawyers. You too probably need at least advice to let you know where you stand AND FEW HERE CAN HONESTLY GIVE YOU THAT ADVICE. Even a lawyer would need to look at the documents before they could help you!
Good luck
Frank |
| Don (Don) | Monday, November 06, 2000 - 09:46 am
The biggest issue around how you were served involves the time you have to repsond to the summons. Check your state laws. |
