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Law Pro
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Category: Legal
Satisfied Customers: 23781
Experience:  20 years legal practitioner: real estate, collections, estate, civil, business, and criminal law
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Collection Agency threatening to take me to court on a $360

Resolved Question:

Collection Agency threatening to take me to court on a $360 debt- left these threats on my answering machine loud and clear so probably my next door neighbor heard.....any ideas
Submitted: 2 years ago.
Category: Legal
Expert:  Law Pro replied 2 years ago.
Maybe, exactly what did message state on the answering machine?
Customer: replied 2 years ago.

We have mae many attempts to reach you by phone - so if you do not call and make arrangements to pay by today actually - we will close your case here and turn it over to go to court - and ding your credit report as well.


They said all this on older type anwering machine - neighbor can easily here these messages.


I already called a Consumer Protection Lawyer and he will take my case and go after them on that - but what about the actual claim of suit??

Expert:  Law Pro replied 2 years ago.
First, as to a breach of contract action in CA - that the credit must file suit within 4 years of the date when you should have made a payment but didn't.

If they don't file suit within 4 years - they are too late.

Second, as to a violation of the Fair Debt Collections Practices Act -The following is a summary of possible violations:
  • You have experienced repeated calls (including computerized automated calls) from a debt collector.
  • A debt collector has informed third parties that you owe a debt.
  • A debt collector has called you before 8:00am or after 9:00pm.
  • A debt collector has failed to identify themselves when calling you or a third party concerning you.
  • A debt collector has engaged in any conduct you found to be harassing, oppressive, or abusive. This includes the making of any type of threats (including threats to "garnish your wages"), use of obscene language, excessive telephone calls, etc.
  • A debt collector has called your place of employment after knowing or having reason to know that your employer has forbade such calls.
  • A debt collectors is attempting to collect an amount (including interest, fees, or collections costs) that were not authorized by your agreement with the original creditor.
  • A debt collector has sent you post cards regarding a debt.
  • A debt collector has sent you mail in which reference to a debt is printed on the outside of the envelope.
  • A debt collector has used any false representation or otherwise deceptive means to collect a debt or obtain information about you.
  • A debt collector has informed a third party that you owe a debt (other than a consumer reporting company).
  • A debt collector has used any language or symbol on an outer envelope mailed to you that indicates that the letter relates to a debt.
  • A debt collector has continued to contact you after you have informed them in writing that you refuse to pay the debt or that you wish to debt collector to cease communication with you. (There are limited exceptions for which the debt collector may still contact you).
  • A debt collector has made threats of violence or other criminal means to harm you, your reputation, or property.
  • A debt collector has used obscene or profane language with you.
  • A debt collector has published your name as someone who allegedly refuses to pay debts.
  • A debt collector has advertised for sale your debt to coerce you to pay the debt.
  • A debt collector has caused your phone to ring excessively, the natural result being to harass.
  • A debt collector has called you without meaningful disclosure of the caller's identity. (Such may be the case when they demand your name or social security number, etc. before they tell you who they are).
  • A debt collector may not use any false or misleading representations or means to collect a debt.
  • A debt collector has falsely represented or implied being vouched for or otherwise affiliated with the federal gov. or any state gov.
  • A debt collector has falsely represented the character, amount, or legal status of a debt.
  • A debt collector has falsely represented that they are an attorney or that any communication is from an attorney.
  • A debt collector has falsely represented that nonpayment of the debt will result in the arrest of any person or the seizure, garnishment, or sale of property.
  • A debt collector threatens to take any action that cannot be legally taken.
  • A debt collector falsely represents that the consumer (debtor) has committed any crime.
  • A debt collector communicates or threatens to communicate credit information to any person when that credit information is false. (The debt collector must also inform others that the debt is disputed, if such is the case).
  • A debt collector has used any document which falsely simulates a court document or any other governmental document.
  • A debt collector uses any false representation or deceptive means to collect or attempt to collect a debt or to obtain information about the debtor.
  • The failure to disclose in the initial written communication with the consumer and, in addition, if the initial communication with the consumer is oral, in that initial oral communication, that the debt collector is attempting to collect a debt and that any information obtained will be used for that purpose, and the failure to disclose in subsequent communications that the communication is from a debt collector.
  • The use of any business, company, or organization name other than the true name of the debt collector's business, company, or organization.
  • The false representation or implication that documents are not legal process forms or do not require action by the consumer.
  • A debt collector cannot collect any amount (including any interest, fee, charge, or expense additional to the original amount owed) unless such amount is expressly authorized by the agreement creating the debt or permitted by law.
  • The acceptance by a debt collector from any person of a check postdated by more than five days unless such person is notified in writing of the debt collector's intent to deposit such check or instrument not more than ten nor less than three business days prior to such deposit.
  • The solicitation by a debt collector of any postdated check or other postdated payment instrument for the purpose of threatening or instituting criminal prosecution.
  • Depositing or threatening to deposit any postdated check or other postdated payment instrument prior to the date on such check or instrument.
  • Causing charges to be made to any person for communications by concealment of the true purpose of the communication. Such charges include, but are not limited to, collect telephone calls and telegram fees.
  • Communicating with a consumer regarding a debt by post card.
  • Using any language or symbol, other than the debt collector's address, on any envelope when communicating with a consumer by use of the mails or by telegram, except that a debt collector may use his business name if such name does not indicate that he is in the debt collection business.


As to the loudness of the answering machine - the debt collector is not liable nor responsible for that and that a neighbor can hear the recording.

The threat of "ding your credit report" - that's a violation of the Act.

So, if they file suit - you file a counterclaim for violation of the FDCPA.

You will actually win the entire case in reality.

Law Pro, Attorney
Category: Legal
Satisfied Customers: 23781
Experience: 20 years legal practitioner: real estate, collections, estate, civil, business, and criminal law
Law Pro and 16 other Legal Specialists are ready to help you
Customer: replied 2 years ago.
Yes I have read all the above in my own research and have an attorney ready to go after them for FDCPA & Rosenthal Act here in CALIF!! It was my understanding that leaving a message on answering machine was a violation of
this is "Foti v. NCO Financial Systems - 2005 ruling about leaving messages on my regular answering machine comes in to play here as well...for third party violation. They had one person calling and leaving me message about call back or we file a "suit" - then the last guy was a the "heavy hitter" and told me on the machine again - that it would be best if I called ASAP and made arrangements to pay or they were going to file a report against my credit file and take me to court - and then he said - I think it would be better to avoid court if I were you so call me. BTW the supposed drop date was today .

Do you have any opinion on if they will actually sue me?? or is this more of a bluff based on the amount of $360.

What do you see they did wrong specifically - please - in the answering machine - last call??
Expert:  Law Pro replied 2 years ago.
I think they are bluffing - collection agencies don't go to court. If it was a law firm - then yes, they would sue you certainly.

Collection agencies just like to intimidate you.

Good point - I agree that it would be an acceptable message IF the debt collector knew no one else would hear the message at your home - that you lived alone. However, if you live with another person - that message violated the FDCPA.


They can only leave a message for you - their name, company, and telephone number - anything beyond that is a violation of the FDCPA.


I would sue if you live with anyone.

Law Pro, Attorney
Category: Legal
Satisfied Customers: 23781
Experience: 20 years legal practitioner: real estate, collections, estate, civil, business, and criminal law
Law Pro and 16 other Legal Specialists are ready to help you
Customer: replied 2 years ago.

"They can only leave a message for you - their name, company, and telephone number - anything beyond that is a violation of the FDCPA."


That is interesting - and they certainly went beyond that.....


I guess they can ding my credit - but believe that has already happened.


I live with my wife - and she was very upset over this call - not sure she counts?? does she??


I believe they are bluffing as well - how much time to they have to file a law suit - after stating that are going to do so??


Thanks !!


Will leave you a BIG happy face!!


Michael


 

Expert:  Law Pro replied 2 years ago.
She counts!!! That's a third person according to the FCDPA.

They have until the statute of limitations expires - the creditor (or their assignee) must file suit within 4 years of the date when you should have made a payment but didn't.



So, I would hope that they file suit - then file a counterclaim. Let them pay the costs of filing and serving you - then you file your counterclaim against them.





Please - rate me with 3 happy faces or more for my answer! Thanks!!
Law Pro, Attorney
Category: Legal
Satisfied Customers: 23781
Experience: 20 years legal practitioner: real estate, collections, estate, civil, business, and criminal law
Law Pro and 16 other Legal Specialists are ready to help you

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