Action Credit Card Debt

Without her permission, a collection agency harassed my wife's parents, threatening legal action against my wife and discussing her debt issues with them. After then being told not to talk to them, they continued to call her parents about it.
We have no recorded conversations or messages, just the testimony of her two parents.
We are now being sued for the credit card debt, could we counter with legal action of our own?

The collection agency did violate the FDCPA by speaking with her parents

§ 805. Communication in connection with debt collection [15 USC 1692c]
(b) COMMUNICATION WITH THIRD PARTIES................
http://www.ftc.gov/os/statutes/fdcpa/fdc pact.htm#805

The collector cannot be held liable through the FDCPA for violating a "verbal" C&D, if she or her parents failed to send a C&D "in writing" telling them to cease contacting her parents.
If she or her parents notified the collector to C&D in writing, then she could go after them for that violation also.

Yes - she can file counters for ANY and EVERY violation they have committed.

She should get a notorized statement/affidavit from her parents concerning the phone calls. Specifying how often the collector called, what was said, etc., etc.

A "few" other things to look for that may be useful in filing counters -
Look over her credit reports for "any" violations the collector is reporting.
If she is past the legal collecting SOL for her state. (before the date that they filed the suit)
If they had violated any state statutes (never overlook states statutes, they often have more teeth to them than federal laws)
If they are not licensed and/or bonded IF your state requires it.

You should do as much reading as you can in the FDCPA, FCRA, also look through the FDCPA and FCRA staff opinion letters (and she might cite a letter if it will help), your states credit/debt statutes (she should cite any law that backs up her counters) AND you need to use your states rules of civil procedures when answering the suit and filing counters.
You should also try to find case law to back up her counters.
Generally try to find case law from your state first before citing case law from other states.

FDCPA Staff Opinion Letters
http://www.ftc.gov/os/statutes/fdcpa/let ters.shtm
FCRA Staff Opinion Letters
http://www.ftc.gov/os/statutes/fcra/inde x.shtm

You might click on my profile and do some reading in the "last" link listed.
It is a free credit discussion board where you will may find quite a lot of the info that you are looking for to help you in writing up her answer and filing counters. You can also ask any questions you might have on there.

If she has quite a few counters, she may be able to talk an lawyer into taking her case on a contingency basis. The lawyer should request the court that the collector pay his/her fees if your wife wins her counters.
If she gets a lawyer, be sure it is a lawyer that is well versed in consumer laws. Many lawyers will give a free first consult, ask about that if she calls.

Even if she gets a lawyer, you and she should still be as informed as you both can be on the federal and state laws.
Generally lawyers and judges are very knowledgable, but many times the informed debtor will know things that the lawyer or judge does not know - yes it does happen since there are so many laws, they cannot know everything.

2007-08-03 12:27:23 by jumbo lopez

www.creditadvocates.org Drastic times call for responsible measures with plastic. CBS New story on 1 discussing how consumer need to take action ...

My husband and I recently purchased a house. Right before our purchase we found out about a delinquent credit card. To make a long story short, it was a credit card that was in my husband's name that he was to use when he was in college that his mom was supposed to be paying for. My husband had no idea that there was a delinquency until we were notified by our lender. The account has been closed since 2002. It states on his credit report that the "account closed at consumers request, charged off account, bad debt; placed for collections; skip." We do not want to bother his Mom about this. After no communication with Discover, for 5 years, we have now received a letter from Northstar Location Services, a collection agency (not from Discover), for a settlement amount which is 40% of the debt. What should we do, contact Discover, deal with the collection agency, or something else? I realize everything needs to be in writing beforehand, but can anyone advise me on this at all?
I will check out your other posts, Studly, thanks...as far as my concern with it, it is mainly because of the recent contact with the collection agency now after so many years. We were still able to get the loan for our house, so I am not really concerned about that part of it. Since it "technically" wasn't our debt, but my mother in law's, the bank didn't really care. Actually the amount was pretty significant, $3000 with an offered settlement of $1200, which is why I'm extremely surprised that we were not contacted before about this. I believe the statute of limitation on credit cards is 3 years in our state. I know they can still take us to court over it but its probably unlikely since the statute of limitations has run out. I just don't want to settle on an amount and still have it show up on our credit history for another 7 years. I think this just may be a last ditch effort by the collection agency to get some money and I just want to make sure we make the right decision.

If it was a charge off that means the company tried to collect and wasn't able to so they wrote it off. This is just probably one last attempt to collect. I'd contact Discover and see if they sent this to the collection agency. 5 years is really too long for them to wait to send it to collections. That just sounds fishy to me. Like a private agency trying to collect, on a creditors charge offs.

2007-06-05 14:46:11 by Randa

No nails, frames or glue. No professional installation required.
BE SURE you ordered the right size for your intended use!
Simply peel and stick! Easy to remove and re-apply.

Collection procedures of dredit card debt in NC

and if you don't thet could possibly gasrnish your wages but doubt it deny you credit for about 10 years file bankruptcy NOW

2006-03-24 06:08:58 by sgerman1966

Price: $29.95

I am finding conflicting information on the net about this. Do collection agencies have four years or four and half years to bring legal action pursuing collection of credit card debt?

That lawyer is probably hoping you will be an easy target and will roll over and pay even if you are past the collecting SOL.

The collecting SOL is 4 years.

California SOL info:

§337. Within four years:
1. An action upon any contract, obligation or liability founded upon an instrument in writing, except as provided in Section 336a of this code;
2. An action to recover
(1) upon a book account whether consisting of one or more entries;
(2) upon an account stated based upon an account in writing, but the acknowledgment of the account stated need not be in writing;
(3) a balance due upon a mutual, open and current account, the items of which are in writing; provided, however, that where an account stated is based upon an account of one item, the time shall begin to run from the date of said item, and where an account stated is based upon an account of more than one item, the time shall begin to run from the date of the last item.


Some items that may interest you:

From the California FDCPA:

1; Adopted in 1977,regulates the conduct of "debt collectors."
The Act prohibits numerous unreasonable, deceptive,dishonest and unfair debt collection practices by debt collectors,and it also regulates the form and content of communications by a debt collector to a consumer debtor and others.

81. In Kimber v.Federal Financial Corp.(M.D.Ala.1987)668 F.Supp.1480, the court held that it is "unfair " within the meaning of the federal statute to file a time-barred collection suit against a consumer,and that it is a deceptive act to even threaten to file such a suit.


From the California Penal Code:

523. Every person who, with intent to extort any money or other property from another, sends or delivers to any person any letter or other writing, whether subscribed or not, expressing or implying, or adapted to imply, any threat such as is specified in Section 519, is punishable in the same manner as if such money or property were actually obtained by means of such threat.


Exerpts from the FTC FDCPA Staff Opinion Letter - Wollman:

...regarding the type of verification required by Section 809(b) of the Fair Debt Collection Practices Act......
.......The statute requires that the debt collector obtain verification of the debt and mail it to the consumer.....
.....the verification of the identity of the consumer and the amount of the debt be obtained directly from the creditor. Mere itemization of what the debt collector already has does not accomplish this purpose........


I would suggest following what crazyjester and OC1999 posted in your other questions.

As you can see in the FTC FDCPA Staff Opinion Letter, they must get the validation/verification information from the original creditor and forward that information to you.
It cannot be something that is printed on the collectors own letterhead. It cannot be in the form of a computer printout, a bill from the collector or an affidavit of debt by an employee of the collector, etc.

2008-06-13 17:34:30 by u2sista

I'm a cash only girl, but it's for a relative. The cc is 8 yrs old. He received a letter from the debt collector stating that a civil action has been filed against him. It said "complaint" and he has been named as the defendant, the plaintiff being the collection agency. There was a letter of receipt from our local court house on top. It tells him to respond within 28 days or pay the full amount. A friend of his told him something similar happened to him, he never paid, nothing happened. He thinks it's a scare tactic, but I'm not so sure considering it has the letter from our local court.

A lot of collection agents like to pretend that they have filed a suit against you. They even go as far as sending you a copy of the actual court papers (not yet filed with the courts) to scare you even more.

Did you know that it's against federal law for a collection agent to say he's going to sue you and not do it?

You need to do two things right now!

1. Find out when the default on the credit card happened. This is the actual date you became late on payments, NOT the last transaction that took place.

2. Go to the first link below. It explains what the Statute of Limitations on debt is, and lists each state's SOL. Your debt may be too old, and they can not legally recover it from you.

3. Read the next link. It explains the Fair Dept Reporting Act. In it you will find the part about what Debt collecters can and can't do. It gives you information on how to file a complaint.

4. Might be nice to contact a lawyer and see if he's interested in pursuing a nice settlement for you. Split the cost with him as his incentive. I know several in my area who do that.

Good Luck

2006-03-09 09:46:22 by charlizejc