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Cease & Desist Contact & Disputing Alleged Debts


Are you in debt--and avoiding ringing phones, ignoring your mail and only hesitatingly opening the door--all to steer clear of the dreaded bill collector?

No one likes dealing with these people. But the good news is that the law forbids repeated harassment by bill collectors--and gives you the right to sue for violations. If you complain loudly enough--and you've got proof backing you up--you have a chance to get the whole debt canceled.

Bill collectors are of two types. (No, not nasty and even nastier.) Some bill collectors work for the original creditor, the business or person who first extended you credit or loaned you money. Others work for a collection agency, a company hired by an original creditor to collect its debt.

The difference is important. You have much greater legal protection against harassment by debt collectors who work for collection agencies, because they are governed by a federal law called the Fair Debt Collection Practices Act, or FDCPA.

Tell Them to Stop

Few consumers know that under the FDCPA, you have the right to tell a collection agency employee to bug off. Simply send a letter stating that you want the collection agency to cease all communications with you. All agency employees are then prohibited from contacting you, except to tell you that collection efforts have ended or that the collection agency or original creditor may sue you.

Debt collectors, however, are notorious for breaking the law--contacting people who have sent a cease-contact letter, or violating other provisions of the FDCPA.

Document Illegal Behavior

To get results, you need proof of the illegal behavior. If phone calls from someone from a collection agency violate the law, try to tape the next harassing phone call you get. In most states, you can tape a conversation without telling the other party, as long as you are a party to the conversation. That's because the law allows you to record any conversation in which at least one party consents to the taping, and you can be the one who consents.

In a dozen states (listed below), however, it's illegal to record a conversation, unless you get the permission of the person to whom you are speaking, or at least warn the person that the conversation may be recorded.

Don't record a conversation without the debt collector's knowledge in:

  • California Massachusetts

  • Connecticut Michigan

  • Delaware Montana

  • Florida New Hampshire

  • Illinois Pennsylvania

  • Maryland Washington

If you can't tape the conversation, try to get a witness. Have the witness listen on a phone extension while you and the collector talk. Try to get the collector to repeat the earlier illegal statements.

It's illegal for bill collectors to:· contact third parties, other than an attorney or a credit bureau, except to locate you · call you repeatedly or contact you before 8 a.m. or after 9 p.m. · contact you at work if your employer prohibits it · use or threaten to use violence · use obscene or profane language · place telephone calls to you without identifying themselves as bill collectors · claim you owe more than you do · claim to be attorneys · claim that you'll be imprisoned or your property will be seized · send you a paper that resembles a legal document, or · add unauthorized interest, fees or charges.

File a Complaint

Once you have the conversation taped or witnessed, you can make an official complaint. The federal agency that oversees collection agencies will send you a complaint form if you ask, or you can simply write a letter. Contact the Federal Trade Commission at 6th and Pennsylvania Ave. NW, Washington, DC 20580, Error! Bookmark not defined.. Include the collection agency's name and address, the name of the collector, the dates and times of the conversations, and the names of any witnesses. Attach copies of all offending materials you received and a copy of any tape you made. Also, send a copy of your complaint to the state agency that regulates collection agencies for the state where the agency is located. To find the agency, call information in that state's capital city. Finally, send a copy to the original creditor and the collection agency. The original creditor may be concerned about its own liability and offer to cancel the debt at once.

Once your complaint is filed, don't expect immediate results. The FTC may take steps to sanction the agency if it has other complaints on record. The state agency may move more quickly to sue the collection agency or shut it down for egregious violations. Your best hope is that the creditor will offer to cancel the debt.

Sue them if they keep it up!

If you've been subject to repeated abusive behavior, consider suing the collection agency. But don't bother if the illegal behavior was annoying but nothing more. For example, if the collector called three times in one day but never again, you probably don't have a case.

You can represent yourself in small claims court, or hire a lawyer and go to regular court. (The other side may have to pay your attorney fees and court costs if you win.) You're entitled to any actual losses--for example, your pain and suffering, or the amount you paid to switch to an unlisted number to avoid harassment--and up to $1,000 in punitive damages.

In truly outrageous cases--especially if the abuse inflicted on you was substantial and you have reports from therapists and doctors documenting your suffering--consider hiring a lawyer to represent you. One Texas jury awarded $11 million to a woman and her husband against both a collection agency and creditor. The collector had called the woman repeatedly at home and work, and made death and bomb threats. She, fearing for her own and her husband's safety, had actually moved out of town. (Driscol v. Allied Adjustment Bureau, Docket #92-7267 (El Paso, TX 1995).


                            THE FOLLOWING LETTER WAS SENT TO A COLLECTION AGENCY                          
                     (A REAL EXAMPLE OF A LETTER USED BY A CONSUMER TO STOP A DEBT COLLECTOR)

________________________________________________________________________________________________________

From:_______________________

Date:____________                                                   Certified Mail #:___________

Personal & Confidential
To:___________________

Dear __________________:

I have been made aware of the laws pertaining to credit and collections and therefore am notifying you that under the provisions of Public Law 95-109 and 99-361, know as the Fair Debt Collection Practices Act, that your services are inappropriate to the issue between the alleged creditor and myself.

You and your organization must cease and desist all attempts to collect the above referenced matter. Failure to comply with this law will result in my immediately filing a complaint with the Federal Trade Commission and the Texas State Attorney General's Office. I will pursue all criminal and civil claims against you and your company. You may no longer phone or write to me concerning this matter as I will be dealing directly with the alleged creditor.

If any negative information is place on my credit bureau reports by your agency I will be forced to file suit against you and your organization, both personally and corporately, to seek any and all legal remedies available to me by the law.

Sincerely

______________________________

__________________________________________________________________________________

Summary of Dispute Process For Texas

Other State Laws may vary - Please Consult an Attorney or your State Attorney General

Disputed consumer accounts that fall under the Texas Debt Collection Practices Act Art 5069-11.07a-.

If an individual disputes the accuracy of an item, the creditor, debt collector, or attorney attempting to collect a debt should give written notice to the consumer acknowledging the consumers dispute, and explain to the consumer that collection efforts have ceased on any disputed portion of the alleged debt, and furthermore advise the consumer that the claim is being investigated. The creditor, debt collector, or attorney attempting to collect the debt should provide a dispute form to the consumer, and assist the consumer in summarizing such dispute when requested to do so. Within thirty (30) days after the dispute is received by the creditor, debt collector, or attorney attempting to collect the debt, the creditor, collector, or attorney attempting to collect the debt must send the consumer a written notice stating they are:

1. Denying the accuracy of the debt or,
2. Admitting the accuracy of the debt or,
3. Stating they have not had enough time to complete the investigation and they are requesting more time to do so.

If the dispute is found to be accurate, within five (5) days the creditor, debt collector, or attorney attempting to collect the debt must correct the item in its file and correct the consumers Credit Bureau Report status (if applicable), and notify any and all others involved in attempting to collect the debt of such (if applicable.)

If the dispute was being investigated and the claim was latter found to be inaccurate, the creditor, debt collector or attorney attempting to collect the debt should send a notice to the consumer "Denying the accuracy of the debt," close the account, and within five (5) days correct the item in its file and correct the consumers Credit Bureau Report status (if applicable), and notify any and all others involved in attempting to collect the debt of such (if applicable.)

Art. 5069-11.08. Bona fide error
No person shall be guilty of a violation of this Act in the action complained of resulted from a bona fide error notwithstanding the use of reasonable procedures adopted to avoid such error.

Notes of Decisions
Under this article, reasonable procedures must be adopted to avoid error before a bona fide error will be excused. See example: Central Adjustment Bureau, Inc. v. Gonzales (Civ.App.1975) 528 S.W.2nd 314.

Art. 5069-11.09. Penalties
Any person who violates a provision of the Act is guilty of a misdemeanor, and upon conviction is punishable by a fine of not less than $100.00 nor more than $500.00 for each violation. Such misdemeanor charge must be filed within one year of the date of the alleged violation.

Comments: The statute of limitations for criminal charges under this Section is one year.

Art. 5069-11.10. Civil remedies
(a) Any person may seek injunctive relief to prevent or restrain a violation of this Act and any person may maintain an action for actual damages sustained as a result of a violation of this Act. A person who successfully maintains such action shall be awarded attorney’s fees reasonable in relation to the amount of work expended and costs. On a finding by the court that an action under this section was brought in bad faith or for purposes of harassment, the court shall award to the defendant attorney’s fees reasonable in relation to the work expended and costs.

(b) When the attorney general has reason to believe that a person is violating or is about to violate a provision of this Act, the attorney general may bring an action in the name of the state against the person to restrain or enjoin the person from violating this Act.

(c) A person who successfully maintains an action under this article for violation of Article 11.02 (c) or 11.07A of this act shall be awarded at least $100. for each violation of this Act. Subsec. (c) added by Acts 1993, 73rd leg., ch. 813, § 2, eff. Sept. 1 1993.

Presumptions and burden of Proof
A party seeking to recover damages under this chapter is not required to show intent on part of wrongdoer, but merely that harm incurred was a reasonable foreseeable result of wrongdoer’s conduct. Case example: Brown v. Oaklawn Bank (Sup.1986) 718 S.W.2nd 678.

Written by James Hunt Copyright 1998 "NOBILLSMAN"



For a copy of the State "Texas Collection Practices Act" ( TCPA)

http://members.tripod.com/NOBILLSMAN/ttcpa.html

For a copy of the Federal "Fair Debt Collection Practices Act" (FDCPA)
http://www.ftc.gov/os/statutes/fdcpa/fdcpact.htm


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