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socrateaser
socrateaser, Attorney
Category: Bankruptcy Law
Satisfied Customers: 33500
Experience:  Attorney and Real Estate Broker -- Retired (mostly)
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Hello I own a business for many yrs and due to recession I

Customer Question

Hello I own a business for many yrs and due to recession I have fallen behind on some bills. I am doing what I can to pay these vendors but I get embarrasing calls. is there a way I can stop the phone calls to my business and return to email and snail mail correspondance? Thanks
Submitted: 1 year ago.
Category: Bankruptcy Law
Expert:  socrateaser replied 1 year ago.
Hello,

If the business is a sole proprietorship -- i.e., not an LLC, LP, LLP, or Corp. -- and the vendors have sold your debt to a third party debt collector, then you can send a "cease and desist" letter to the debt collector and demand that they stop contacting you -- other than for the purposes of serving legal process. 15 U.S.C. 1692c(c).

Otherwise, the only way that you can force the vendors to stop contacting you is to file for bankruptcy in federal court, and thereby initiate the automatic stay, which prohibits further acts to collect a debt.

Please let me know if I can be of further assistance.
Customer: replied 1 year ago.
How would I know if they sold my debt to 3rd party collector? By the name that appears on the invoice or the companys name? Can I do this verbally next time they call or should I do it via registred mail with a return receipt? Thanks
Expert:  socrateaser replied 1 year ago.
If the debt is sold, then the demand for payment will come from a third party debt collector. And, the vendor will send you an IRS Form 1099-C.

If you send a cease and desist notice, it can be by any means that you can prove. Certified mail, return receipt requested is admissible evidence. Regular mail, while presumptively admissible, is easily objected to at trial.

Hope this helps.
Customer: replied 1 year ago.
Do I actually call this "cease and desist" in the letter? Any special wording? Would this apply to personal collection matters too? thanks
Expert:  socrateaser replied 1 year ago.
If you Google "fdcpa cease and desist sample", you will find at least a dozen sample letters.

The Federal Fair Debt Collection Practices Act (FDCPA) applies to all "consumers." However, the term "consumer" is defined as "any natural person obligated or allegedly obligated to pay any debt." 15 U.S.C. 1692a(3). That's why I asked if your business is a sole proprietorship, because even though it's a business, you are a consumer for purposes of the FDCPA.

So, "yes," it applies to your business, if it's a sole proprietorship, and to you as an individual (personal matters).

Hope this helps.
Customer: replied 1 year ago.
Yes its sole prop. Must I use a sample letter or can I compose my own? Sorry so many questions. Thank you very much. If I write my own are there key words I should touch upon?>
Expert:  socrateaser replied 1 year ago.
All you need in the letter is something like: "Pursuant to the federal Fair Debt Collection Practices Act (15 U.S.C. 1692c(c)), I hereby demand that you cease and desist from further communication with me concerning the debt allegedly owed by me to you, and identified as [describe account, invoice, or other statement and/or any identifying number]."

Hope this helps.
Customer: replied 1 year ago.
So even an informal letter will suffice, good, I will copy and paste that along with busniess name and account numbers. Should I threaten any legal action should this persist or does this usually stop them in thier tracks? thank you. also should I state that I intend to pay the debt over time?
Expert:  socrateaser replied 1 year ago.
Before I answer this question, for customer service purposes, would you kindly tell me if my answers have been helpful?

Thanks in advance.
socrateaser, Attorney
Category: Bankruptcy Law
Satisfied Customers: 33500
Experience: Attorney and Real Estate Broker -- Retired (mostly)
socrateaser and 3 other Bankruptcy Law Specialists are ready to help you
Customer: replied 1 year ago.
I'm sorry had so many questions, but I really cant afford a tip as much as you deserve one. I guess I have enough info, thank you for your time and have a great day!
Expert:  socrateaser replied 1 year ago.
Thank you very much for your contribution. I'm not looking for a tip.

You can say whatever you want in the letter. However, I wouldn't make any promises concerning payment terms, because once you write something down -- your adversary may try to use it against you later.

One thing that I always add to these letters is a notice that in the event that the debt collector attempts to contact me again in violation of the FDCPA, that I will be recording any and all future telephone conversations. This notice usually causes debt collectors to immediately stop all communications by phone.

Hope this helps.
Customer: replied 1 year ago.
OK thats a wrap, many thanks, please bear in mind that I am NOT trying to dodge my debt and intend to pay in full on my terms. Only trying to stop the terrible phone calls. thank you once again and God Bless
Customer: replied 1 year ago.

Hello
Well I received the receipt back in the mail confirming this collection agency did receive my cease and desist letter. I just got a call from them, they said the call was being recorded but I did NOT record the call. I did play it off like I was an employee and they were looking for the owner (me). Is this a violation of the cease and desist order? So what do I do? Next time should I admit that I am the owner and inform then NOT to call again per the C&D order? Thank you!
Expert:  socrateaser replied 1 year ago.
Is this a violation of the cease and desist order? So what do I do?

A: Yes, it is a violation. But, if you cannot prove that they called you, you cannot successfully sue them for the violation. If you received the call on a cell phone, then it would appear on your next bill, and it would be in the cell phone memory. But, frequently debt collectors call from blocked numbers, making it impossible for you to prove who called.

You need to actually record the calls. If you don't, then you'll have no proof.

Assuming you can prove the call, then you could contact a consumer protection lawyer, or you can contact the Federal Trade Commission and file a complaint. The recording plus your certified mail proof, would prove the violation, and that's what the FTC needs.

For a consumer protection lawyer referral, see this link.

Hope this helps.

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