Ask me about dealing with/suing/being sued by debt collectors!

The Something Awful Forums > Discussion > Ask/Tell > Business, Finance, and Careers > Ask me about dealing with/suing/being sued by debt collectors!

Leif.: Mar 27, 2005; Son of the Defender
Formerly Diplomaticus/SWATJester

BusinessWallet posted:

I recently found a judgment for a credit card on my credit report. I was never served and it took me a really long time to actually find out where to contact to find out when and where I was served. After doing a bit of research I finally found the right people.

I finally got ahold of my case ID at the city small claims court. I asked when and where I was served and the clerk who answered asked me what I look like. I told her my description (male, brown hair, 5'9", glasses, thin, 23 years old) and she said that the person who was served said they were me and met most of the description. I asked her what that was and she said early to mid 30's (I have an absolute baby face, most people assume I like 16 or 17), brown hair, average height, glasses. She told the date was July of 2009. The funny part is, the address I was "served" at I hadn't even lived at for over a year and a half from that date. At that time, I didn't even have glasses. I know that CapOne has my correct address.

The court wants me to provide documentation or a bill with a mailing address from July of 2009 to prove that it wasn't me. The funny thing is that in late June of 2009, I had my license renewed to the address I was living at the time. Could I just show them that and a few pay stubs? I'm not even sure if I have any bills or anything from when I lived there, a lot of stuff has gotten lost in transition from house to house. One funny thing I did find was a late notice from Capital One which was addressed to the apartment building I lived in directly after the one where they "served" me at. It came a few months BEFORE I was "served" which means they had updated information, but went to an old address anyway. Do you think just having my updated address on my license would be enough for the court? I could provide contact info of the landlord of that apartment building to verify that I was no longer living there, would something like that work? I have every intention of paying this off, but I don't want this on my credit report. I would have dealt with this in court if I'd been informed, but this company of heathens sent some slimeball somewhere I haven't lived in years and said a person who doesn't really match my extremely generic profile was me with no verification whatsoever.

And also, if I was served July 2009 an the judgment was October 2009, wouldn't I have heard something about it by now? The Sheriff hasn't showed up at my door, my wages haven't been garnished, no one's contacted me or my employer about anything. This whole thing is really disconcerting. If they'd actually done this legitimately I would have handed them a check.

You ought to crosspost this to the legal questions thread.

# ¿ Aug 6, 2010 17:44

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# ¿ May 20, 2024 17:09

Leif.: Mar 27, 2005; Son of the Defender
Formerly Diplomaticus/SWATJester

20 to 1 odds that what the guy means is that the agency has already filed a lawsuit against you, but they have not yet served you with the complaint. So yes, legal action has been commenced against you, but technically at the moment all the legal burdens lie with the other side until you are served with the complaint.

-e- You need to ask your question in the legal questions mega whammo, this thread gives terrible advice once lawyers are involved (It's fine for pre-litigation debt activities).

# ¿ Dec 5, 2010 16:45

Leif.: Mar 27, 2005; Son of the Defender
Formerly Diplomaticus/SWATJester

Definitely talk about that with a lawyer. Consumer law is not my area of practice, but I can imagine that they would argue that they are not asking for treble damages, but making a pre-complaint settlement demand that happens to equal that amount, and that the FDCPA or any other law does not have the authority to abridge their right to make a demand in a civil action. I think that'd be a fairly compelling argument.

# ¿ Dec 5, 2010 23:07

Leif.: Mar 27, 2005; Son of the Defender
Formerly Diplomaticus/SWATJester

Here's a flipside question. If I'm an attorney and wanted to hire a collections agency for my firm, are there any that are particularly reputable? What rates would I be looking for?

# ¿ Feb 9, 2011 10:38

Leif.: Mar 27, 2005; Son of the Defender
Formerly Diplomaticus/SWATJester

TWiNKiE posted:

They have less inclination to fight if it's past the SOL. By doing a PFD beyond the SOL, they (grudgingly) take the view that they're lucky to get anything because... well, they are. So, they can take what you're offering in exchange for a few keystrokes on their part, or they can spend time and money calling or sending letters to try to get more money on a debt they know you know they can't sue for.

They have to remove it after 7 years + 180 days. They can remove it whenever they want.

I'm not following -- why would you ever offer to pay after the statute of limitations has tolled? You're only going to run the risk of extending the SOL or revalidating the debt.

Also, they CAN sue you for the debt. They just cannot enforce the lawsuit as you have a valid defense that the statute of limitations has tolled. That's a major difference from "you cannot be sued in the first place".

Leif. fucked around with this message at 07:36 on Mar 8, 2011

# ¿ Mar 8, 2011 07:31

Leif.: Mar 27, 2005; Son of the Defender
Formerly Diplomaticus/SWATJester

You didn't answer the question. Why would you revalidate an unenforceable debt that is going to be removed from your history for free in the next couple of years?

And it isn't pedantic in the least. If you sued me I would be forced to defend it and that costs money. Most people in this situation don't have that kind of money nor do they know their rights. It is a major difference and frankly you shouldn't be advising people otherwise.

quote:

So, sending a letter that says "I'm sure this is a mistake. I don't think that's my debt. Would you take $20 to go away?" precludes tolling. You're not acknowledging that the debt's yours, and you're not making an unconditional promise to pay the full amount.

Uh it doesn't ncessarily work like that legally, not in my jurisdiction. Where are you getting this from or are you just making this all up?

Leif. fucked around with this message at 13:41 on Mar 8, 2011

# ¿ Mar 8, 2011 13:35

Leif.: Mar 27, 2005; Son of the Defender
Formerly Diplomaticus/SWATJester

Feces Starship posted:

I appreciate the mature attitude you're displaying, Twinkie, because neither SWAT nor I would take any pleasure in contradicting you. But like all lawyers and law students I like to poke holes in blanket statements because I'm risk-adverse and because rare exceptions bite a lot of people. Put short - it's not personal; thanks for understanding this.

Back to this issue at hand, though.

The section I've quoted is the one where you might create some trouble by inquiring about the presence of the debt, especially if you offer a pay-for-delete. We'd need to look at caselaw that cited this particular provision but it is conceivable that a court could construe an information and pay-for-delete request as a per se acknowledgment of the debt.

I'm not going to post anymore about this because to be honest I'm not willing to work for free and do the leg work to prove this (also I'm not anybody's lawyer; don't take my advice get your own research done), but I wouldn't say that it's open and shut to say that you can inquire freely about debt with an expired SoL without fearing a lawsuit.

Right. This, and I wasn't just calling Twinkie out, just asking for sources to back it up since it didn't match with my understanding of the law in a field that I admittedly do not practice in (or at least not very often).

# ¿ Mar 8, 2011 23:09

Leif.: Mar 27, 2005; Son of the Defender
Formerly Diplomaticus/SWATJester

Bwahahaha parol evidence rule. Get the gently caress out.

# ¿ Mar 12, 2011 16:59

Leif.: Mar 27, 2005; Son of the Defender
Formerly Diplomaticus/SWATJester

Rusty please tell me that the best evidence rule requires the written contract to supersede the oral because it is the better evidence.

# ¿ Mar 12, 2011 17:01

Leif.: Mar 27, 2005; Son of the Defender
Formerly Diplomaticus/SWATJester

seacat posted:

In conclusion, God bless the Great State of Texas, and God bless the FDCPA.

This actually sparks a question for me. Is pro-consumer legislation about debt collection traditionally favored the Democrats or Republicans? I've never really bothered to check and while I'd assume that it's a progressive idea since Republicans are generally pro-business/industry and I've seen some legislation floated by Democrats, I never really looked into it.

# ¿ Mar 16, 2011 21:20

Leif.: Mar 27, 2005; Son of the Defender
Formerly Diplomaticus/SWATJester

Drewski posted:

Tom, I suppose there are conflicts. Basically I just want to say that I don't recognize this as a valid debt but I'm willing to pay to make it go away. Maybe I should change it to request a debt validation, something like "if these terms are not agreeable, please provide a validation". Or something to that extent.

Why combine the two? Make them verify it first, then offer to pay in a followup letter.

# ¿ Apr 11, 2011 04:52

Leif.: Mar 27, 2005; Son of the Defender
Formerly Diplomaticus/SWATJester

Hypothetical question: if a debt is still held by the original creditor, but they hire a collections agency to try to get you to pay (but the CA does not own the debt, it's still with the original creditor), a) can the CA threaten to report it on your credit report, and b) can the CA itself actually report it, despite not being the owner of the debt?

Was trying to figure out how that would work. It would seem to me that a CA shouldn't be allowed to report a debt that it doesn't actually own, as they're not the creditor. But at the same time, it would be a moot point right, because they can just send everything all pretty and packaged up to the OC, who can sign it and mail it to the credit reporting agencies directly?

# ¿ Apr 20, 2011 01:35

Leif.: Mar 27, 2005; Son of the Defender
Formerly Diplomaticus/SWATJester

TWiNKiE posted:

I'd DV them anyway. If they validate, you have everything you need to tell them it's past the SOL. If they don't, you'll have stalled them to the SOL.

The rationale is twofold: First, you want them to know you're responsive, so they won't be as quick to haul you in to court. Second, you want to make sure your ducks are in a row if they report the debt to the CRA's.

So let's say you send your letter that says "don't call me, but you can write me" and they start calling you without properly validating, and poo poo on your credit report. That's when you fire back with a letter telling them the debt's past the SOL, they've violated by calling you without validating, and you're willing to settle out of court... $500 to you and deletion.
Send them a letter with a settlement offer. Make it a sum paid off in X months, so that they can't tack on interest and fees.

If they're asking for $1,000 (just to keep the math easy for this example), offer to pay $800 in four monthly installments of $200 paid via money order, beginning within 7 days from your receipt of their acceptance.

"And to further ensure that this agreement is mutually beneficial, (company name) agrees to remove this tradeline from any consumer reporting agency which may have knowledge of said account, upon completion of the proposed payment schedule."

I'd also suggest sending the DV towards the latter half of the 30 day period, to minimize the amount of time that they have to respond. The letter sounds like the standard one they send out, which would imply to me that they aren't necessarily paying attention to the fact you're nearing the SOL. You don't want to clue them in while they are still able to do anything of substance about it. If you want to really be a dick, send it at the 28 day mark via Fedex overnight.

# ¿ Apr 24, 2011 07:07

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# ¿ May 20, 2024 17:09

Leif.: Mar 27, 2005; Son of the Defender
Formerly Diplomaticus/SWATJester

Relevant court case from Western District of NY.
Technically not binding outside that district, but the rule of law is such that you would be foolish not to apply it in other courts if you came to litigation. I'll bold the relevant parts for those of you all like TL;DR.

NY Law Journal posted:

Sterling v. Mercantile Adjustment Bureau, 11-CV-639A
U.S. District Court, Western District

11-CV-639A

District Judge Richard J. Arcara

Decided: October 17, 2011

DECISION AND ORDER

I. INTRODUCTION

*1
Pending before the Court is a motion by defendant Mercantile Adjustment Bureau, LLC for a more definite statement pursuant to Rule 12(e) of the Federal Rules of Civil Procedure ("FRCP"). Plaintiff Paul Sterling has accused defendant of violating the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. ��1692�1692p, and the Telephone Consumer Protection Act of 1991 ("TCPA")1 by calling him persistently about a debt that he never incurred. Defendant asserts that it has searched its records for plaintiff's name and does not find him there, and wants to conduct an additional search of its records using plaintiff's cellular telephone number. Plaintiff refuses to disclose his cellular telephone number until discovery for fear of spoliation�namely, a fear that defendant will
*2
alter its records once it has plaintiff's number to show that it never called him. Defendant insists that it cannot frame a meaningful response to the complaint without plaintiff's cellular telephone number.

The Court has deemed the motion submitted on papers pursuant to FRCP 78(b). For the reasons below, the Court denies the motion.

II. BACKGROUND

This case concerns allegations that defendant has called plaintiff numerous times to collect a debt owed by someone whom plaintiff does not know. According to plaintiff, defendant began calling his cellular telephone around March 2011 to collect a debt owed by someone named Angie Jay. Plaintiff neither owes any debt to anyone nor knows anyone by the name of Angie Jay. Plaintiff has explained this more than once to defendant, and yet defendant has used an automated dialing system to call plaintiff multiple times per week and often multiple times per day about this debt.

Frustrated with defendant's alleged refusal to stop calling him, plaintiff commenced this case by filing a complaint on July 28, 2011. The complaint contains two counts. In the first count, plaintiff accuses defendant of violating multiple sections of the FDCPA by calling him numerous times and harassing him as a result. In the second count, plaintiff accuses defendant of violating the TCPA by using an automated telephone dialing system to call his cellular telephone number without his consent. Plaintiff seeks actual and statutory
*3
damages, along with costs and fees. Relevant to the pending motion, plaintiff sets forth in his complaint that defendant has called his cellular telephone number numerous times but does not disclose what that number is.

Defendant filed the pending motion in response to the allegations in the complaint. According to defendant, it searched its records in response to the complaint and could find neither plaintiff's name nor Angie Jay's name anywhere. To make one last check of its records to see whether it ever dialed plaintiff's cellular telephone number, defendant wants to know what the number is to perform a records search by number. Defendant asserts that it cannot frame any meaningful response to the complaint without knowing from a final and definitive search of its records whether it ever dialed plaintiff's cellular telephone number. Accordingly, defendant seeks a more definite statement from plaintiff that includes that number. Plaintiff opposes the motion out of fear of spoliation. According to plaintiff, disclosing his cellular telephone number prior to discovery would give defendant an opportunity to alter its records to make those records look as if it never called him. For now, plaintiff has offered to help defendant search its records by providing his address, the last four digits of his Social Security number, and names of individuals that defendant mentioned when calling his cellular telephone. Plaintiff has promised to disclose his cellular telephone number later during discovery, once he has received a complete and unaltered copy of all calls that defendant made during the time period in question.

*4
III. DISCUSSION

"A party may move for a more definite statement of a pleading to which a responsive pleading is allowed but which is so vague or ambiguous that the party cannot reasonably prepare a response." FRCP 12(e). "Courts must keep in mind, however, that the FRCP abolished bills of particulars and that the phrase 'cannot reasonably prepare a response' means more than 'we prefer to have this information sooner than later.'" Patrick Dev., Inc. v. VIP Restoration, Inc., No. 09-CV-670, 2010 WL 447390, at *2 (W.D.N.Y. Feb. 2, 2010) (Arcara, J.). "A motion pursuant to Rule 12(e) should not be granted unless the complaint is so excessively vague and ambiguous as to be unintelligible and as to prejudice the defendant seriously in attempting to answer it. The rule is designed to strike at unintelligibility rather than want of detail and � allegations that are unclear due to a lack of specificity are more appropriately clarified by discovery rather than by an order for a more definite statement." Kok v. First Unum Life Ins. Co., 154 F. Supp. 2d 777, 781�82 (S.D.N.Y. 2001) (ellipsis in original) (internal quotation marks and citations omitted).

Here, defendant's willingness to conduct more searches of its records does not render the complaint unintelligible so as to meet the standard under FRCP 12(e). The complaint alleges, in straightforward fashion, that defendant called plaintiff to collect a debt supposedly owed by someone named Angie Jay. After an initial investigation of that allegation, defendant apparently has concluded that
*5
neither plaintiff's name nor Angie Jay's name appear in its records. That information is enough to frame a denial of plaintiff's allegations that it can change later without penalty, if necessary. Cf. Patrick Dev., 2010 WL 447390, at *2 ("Consequently, defendant has not shown how the complaint is unintelligible or what prejudice�i.e., what loss of rights in later proceedings or at trial�it will suffer if it answers or otherwise challenges the complaint in its current form."); INA Underwriters Ins. Co. v. Rubin, 635 F. Supp. 1, 6 (E.D. Pa. 1983) (denying a motion for a more definite statement, where plaintiff alleged building defects in a housing development and defendants wanted plaintiffs to "identify by name the homeowners, or by address the defective homes in question"). That information also distinguishes the principal case that defendant has cited, Coren v. Mobile Entertainment, Inc., No. C 08-05264, 2009 WL 264744 (N.D. Cal. Feb. 4, 2009). Coren addressed a situation in which a search by telephone number was the only way to conduct any investigation of the plaintiff's allegations. Under these circumstances, the Court denies defendant's motion.

IV. CONCLUSION

For all of the foregoing reasons, the Court denies defendant's motion for a more definite statement (Dkt. No. 7). Defendant shall answer the complaint within 20 days of entry of this Decision and Order.

SO ORDERED.

1. Pub. L. No. 102-243, 105 Stat. 2394 (codified as amended 1 in scattered sections of 47 U.S.C.).

# ¿ Oct 19, 2011 19:19

The Something Awful Forums > Discussion > Ask/Tell > Business, Finance, and Careers > Ask me about dealing with/suing/being sued by debt collectors!