How to Sue under the FDCPA

[BlueGhost]

This is a weird situation.

 

I have this rental Purchase agreement with the OC for a Musical Instrument for my son while in Band.

 

to try to make a long storey short here is a quick uptake on this:

 

My wife was mailing the payments to the wrong creditor, when I found out about this last year, I contacted the RTO-Music Store and explained.

 

At that time I was about 5 months behind on a 46.00 a month payment. I called the place on May 28, 2004 and I asked if I sent them $700.00 to bring this current and apply the balance towards future payments would this be ok. She responded with a yes!.

 

I live in Indiana, and rent to Own agreements do have a provision to be re-instated. which is exactly what I thought was happening.

 

Then sometime in Sept. 2004 I started getting calls from a CA trying to collect on this account (this is after I sent in that $700.00 that would pay forward almost 10 M0nths or more). I told this CA to not bother me as this account was reinstated and I was paid up to date.

 

Well, this Ca kept bother me on the phone at home and work, so on Nov. 14, 2004 I sent a C&D letter by USPS asking for them to leave me alone.

 

This did not seem to help, so finally on March 2, 2005 I again sent a C&D letter (this time CMRR) after receiveg twice in Feb letters stuck on my door saying they were chargeing me $40.00 per visit (first letter) and a few days later another letter stating they were charging me $60.00 per visit to try to retrieve the instrument for a total of $180.00 in charges for the three visits (I can not account for the third letter they claim) added to my account so far.

 

See the letters here:====> NMS Letters

 

Then on April 5th this CA again called my work asking for me (after receiveing that CMRR letter mentioned above, and talked to a Co-Worker, I then had the Co-Worker swear out a statment to that fact and got it notorized that same day.

 

Now, also I contacted the RTO-Music store to ask for a accounting of my account and they sent me a "screen Dump" of their accounting package.

 

It shows them posting my $700.00 payment back on 8/18/2004 agaist payments for due dayes 03/02/04,04/02/04 these two with 21.20 late fees, 05/02/04, 06/02/04, 07/02/04, 08/02/04, 09/02/04, 10/02/04, 11/02/04, 12/02/04, 01/02/05, 02/02/05, 03/02/05 all charged with 16.50 late fees (even tho some of the dates were "pre-paid" ahead of time.

 

When I called the RTO-Music place, they told me those were late fees plus 35% of the payment for collection cost, and they never took it out of collections.

 

I feel I have a number of reasons to sue these two places.

 

Maybe Fair Credit Billing act, the FDCPA, and any others you all can help me with.

 

I live in Marion County and Small Claims Court would lallow me to collect up to $6000.00 per case. I would like to file on both of these companies for as much as I can get.

 

What I need a little cuidence with is maybe drafting what "violations" I Iwll be sueing under if anyone can help me with that.

 

I will give a throw away email addy for those who might want to help me. Please contact me here or at credithelp@blueghost.ws.

 

Looking forward with some help on this, and this is a GREAT Site full of useful information etc..wish I found it sooner.

 

Jerry

Edited April 18, 2005 by BlueGhost

[BlueGhost]

*BUMP*

 

Not looking for the papers to be drafted for me, just help in identifying the laws and subsections to maybe consider

 

jerry

[LKH]

Blue, this forum is for those that are BEING SUED by an oc/ca or other. I'm moving this thread to the credit forum where you will probably get much better results.

[Gryffindor]

Try by starting here: http://creditboards.com/forums/index.php?showtopic=18123

[pryan67]

well, the CA can't charge you for trying to collect number one..

 

 

stay off the phone (which is obvious to you now I'm sure)

 

If they continued collection attempts after receiving a FULL C&D from you...it's a violation

 

 

I'd contact the OC in writing...explaining what you said here....how they're charging you late fees on payments that weren't late (assuming you can prove it), which would be a violation of the TILA and DTPA.

[DarkStorm]

Welcome back Pryan! I have a question along the same lines. Is it true the max award under the FDCPA, regardless of the number of violations a CA racks up, is $1000? I think my States law has the same limitation on award.

[pryan67]

Yep...officially, the max is 1k per action (lawsuit)...however, there have been a couple of cases recently where the Plaintiff was awarded 1k per violation...

[BlueGhost]

well, the CA can't charge you for trying to collect number one..

 

 

stay off the phone (which is obvious to you now I'm sure)

 

If they continued collection attempts after receiving a FULL C&D from you...it's a violation

 

 

I'd contact the OC in writing...explaining what you said here....how they're charging you late fees on payments that weren't late (assuming you can prove it), which would be a violation of the TILA and DTPA.

<{POST_SNAPBACK}>

 

I have talked to the OC, that is how I got the Screen dump of their accounting package showing those late fees. It seems that when I thought I was re-instating my rent to Own agreement with them by remitting that $700.00 as explained above, they ate it up in late fees and what they claim are "collection" cost of 35% per payment.

 

I'd sure like to know just how they cancharge me collection cost if they, as I was told, had handed it over to the CA. and then the Collection agency also trying to charge me the same :?

 

For one, I feel that when I paid that $700.0, if they were not going to take it out of collections, then I had a right to a refund of the difference of what I owed as back payments and the over $400.00 that were for furutre/pre-paid payments, then I could of went to another place or even a Pawn shop and bought another instrument with that $$$ and turned in their pain in the butt one.

 

Now I have so much $$$ paid into it now, that I dont really have that opton after this discovery.

 

Jery

[BlueGhost]

here is a copy of a letter I mailed to my Ag yesterday in regards to this matter actually:

 

Attorney General Steve Carter

Consumer Protection Division

302 West Washington Street

Indianapolis, IN 46204

 

RE: Excessive Late fees charged on Rent to Own Agreement.

 

Honorable Sir,

 

I on or about May 28, 2004, it came to my attention that I was behind on payments to Paige’s Music regarding a Clarinet I was renting to own. I called and talked to someone in their accounting department (I can not at this time remember her name), and explained that my wife was inadvertently mailing the Payments to the wrong creditor and I would like to make good on my past due amount as well as to bring my payments forward to avoid this in the future. At that time I was about 5 months in arrears ($231.45) and I offered to mail in a check for 700.00 in order to accomplish this. The lady said my account had been turned over to collections, but this arrangement would be fine. On 6/02/2004 I mailed Check Number 911 in the amount of 700.00 to Paige’s Music to fulfill my part of the bargain, this still left in excess of $400.00 after late fees and re-instatement fee to apply to future payments not yet due.

 

What has prompted this complaint is that it has come to my attention that I have been charged excessive late fees as that are not allowed under 24-7-5-5 which state that “For rental purchase agreements with monthly renewal dates, a late charge not exceeding five dollars ($5) may be accessed on any rental payment not made within five (5) days.”

 

As shown in the accompanying attachments from a “screen dump” of Paige’s Music accounting software starting with due date 03/02/2004, I was charged 21.20 late fee, and again 21.20 late fee for payment due 04/02/2004 (payments #9 & #10), and then 16.20 for due dates 5/02/2004 thru 03/02/05 (payments #11 to #21),. This is even when the payment is “posted” on 8/18/04 and the payments of 09/02/2004 thru 03/02/2004 (payments #15 to #19), are all dates after the posting on 08/18/2004 (future due dates) also of note are payments # 20 & 21 both of which were paid on a future payment due date but charged a 16.50 late fee. I have included a spreadsheet made in MS Excel that shows I have been overcharged a total of $190.60 in late fees. I would also like to bring to your attention that payments due 04/02/2005 and 05/02/2005 (payments #22 & #23), although not paid in total are not charged a late fee, but no “Paid Date” is indicated, (this is important for my argument below). I have included a copy of my Check stub for the $700.00 payment I had agreed to make back on May, 28, 2005 as well as three Electronic printouts from Union Federal Bank showing three $50.00 payments made on10/01/2004, 10/29/2004 and 02/22/2005. I can not account for the display in their “screen dump” how they actually treated those payments as well as a money order my wife sent that reflects for payments # 22 & 23 ( I still have to locate this stub for these payments).

 

I would like to point out on the attached copy of my Rental Purchase agreement, that I had the right to reinstate this agreement as stated on the back under “Additional Charges” and “Reinstatement Rights”. When I called the accounting/billing department back on May 28, 2004, this is what I was under the assumption and was lead to believe. The musical instrument was not returned to them, I was still in possession of said instrument and had not at that time been informed to return the instrument. Also, as the lady in billing told me, I would be all set after they received payment of the $700.00 of which I complied with.

 

Today, when I called and talked to a lady named “Terri” in billing at Paige’s Music and complained about the excessive late fees, I was informed those charges were “collection Fees and Late Fees”. I informed her that

1.) This agreement was reinstated back when they accepted and cashed my $700.00 check

2.) The maximum late fee allowed under Indiana law was five ($5) dollars

3.) No late fees were due on payments not yet due or late

 

She then replied they were charging me a 35% of my payments for “Collection Cost” plus late fees. I then asked how they could charge me so when the account was re-instated and they were accepting my payments. I also told her that if they were not going to re-instate my account then they should have refunded my “overpayment” I made back on 6/02/2004 with check 911 and asked me to return the musical instrument. The only answer she told me was they did not pull the account back from collections and if I had a problem with this then have my lawyer talk to them.

 

Please accept my complaint against these set of transactions I have outlined and documented for you, I do also plan on consulting with legal consul as to what my recourse going forward might be also.

 

Thanks,

 

Sincerely,

 

Jerry

[BlueGhost]

well, the CA can't charge you for trying to collect number one..

 

 

stay off the phone (which is obvious to you now I'm sure)

 

If they continued collection attempts after receiving a FULL C&D from you...it's a violation

 

 

I'd contact the OC in writing...explaining what you said here....how they're charging you late fees on payments that weren't late (assuming you can prove it), which would be a violation of the TILA and DTPA.

<{POST_SNAPBACK}>

 

What are the TILA and DTPA?

 

Jerry

[hunter29180]

Rent to own contracts are closley regulated by the state attorny general office! I Suggest contacting them FAST!!!!

I see several BIG violations.

1) fees overcharging

2) failure to reinstate contract as provided

3) failure to cease colloction activity on a currant account!

 

I am in the rent to own field and have over 20 years experiance in this!

Contact the Home office for the store and ask for the regional manager to contact you. Lay out the case and ask him(or Her) how would you like me to proceed with this?

 

He will come back with "How would you like this to be resolved? Ask for merchandise to be paid in full and all money to be refunded With a letter of apology from the CEO. And the removal of all detrimintal reports associated with this account!

 

Of course you could just send a certified letter to the CEO at the home office following the same basic outline above!

 

Remember the fines and cost of the state investigating will be enormous!

Usually if one store is caught the audit all the stores in that state!

[pryan67]

well, the CA can't charge you for trying to collect number one..

 

 

stay off the phone (which is obvious to you now I'm sure)

 

If they continued collection attempts after receiving a FULL C&D from you...it's a violation

 

 

I'd contact the OC in writing...explaining what you said here....how they're charging you late fees on payments that weren't late (assuming you can prove it), which would be a violation of the TILA and DTPA.

<{POST_SNAPBACK}>

 

What are the TILA and DTPA?

 

Jerry

<{POST_SNAPBACK}>

 

Truth In Lending Act

Deceptive Trade Practices Act

[BlueGhost]

hunter29180

 

I have already mailed that letter to my Attorney General. So that part of the complaint process is already started.

 

Any comments on those letters the CA left at my door I placed in that link in PDF form in my first post? Dont they fall under the FDCPA as deceptive, and other stuff? Help "classifying" the violations would be greatly aprecitive.

 

I did send two C&D letters, unfortunatly the first one was by reg USPS first class and not CMRR as my second one was. BUT...they did attempt to call me at work after already signing for and receiving my Second C&D sent CMRR and I have a notorized statement from my co-work to that fact sitting here in my file on them.

 

Also, I am sure the OC (Paige's Music of Indianapolis [The Rent To Own Musicial Store]) has also violated my rights with what they have did.

 

This whole situation has stressed me and my wife out to no end..first of all thinking we were way behind on our payments etc..when actually we were not.

 

this hassle from the CA has been going on since last year and I just want it to stop and to also get this over with. If I can sue these ("insert not so nice words here"), I would like to very much so....dont even care if the attorney takes all the proceeds..but the satisifaction see them lose in court and face would be tremendous (sp.)

 

Jerry

 

Jerry

[hunter29180]

Look up the rto statues for your state at

http://www.rtoonline.com/ this is the site for rto operators and they have all the states listed.

 

The 35% collection is not allowed under your contract unless it is stated in your contract!

 

Also send a letter to your state legislators with the same letter you sent to the A.G. Be sure to green card that too!

 

Be patient and keep the reg monthly pymt going to the store.

 

Deal with the rto contract first and then when that is settled go after them for the CA violations

Edited April 20, 2005 by hunter29180

[hunter29180]

Did some more research...

 

A RTO contract only has three options

1) return merchandise

2) pay in full for merchandise

3) reinstate agreement by paying all expired terms(week,month) to a current status.

 

ARE you sure the contract you signed is a Rental Purchase Agreement?(in big bold letters across the very top of ontract)

 

RTO's are not bound by regular collection laws but must follow special state and federal guidelines.

 

If RTO filings must be done through State A.G. office. Also send copies to BBB,legislators and to legal dept or CEO of Rental Company.

 

If this is not a RTO contract then regular collection rules apply.

 

Any "collections" on a RTO must be aimed at one of the 3 options above. No fees or charges not stated in contract is allowed!

 

Collection from a C.A. unless in house (ie: account managers)can only be done after obtaining a judgement through the court system. Check your local court records for any record of litigation by them against you. No judgement no C.A. Allowed!(except as stated above). If C.A. DV them to show copy of court issued judgement and advise them the account has been current since mid june of 2004.

state you believe that continued collection activity on a current account is expressly forbidden by law and their fees for home vists were after account was current and not allowed by law.

[BlueGhost]

ARE you sure the contract you signed is a Rental Purchase Agreement?(in big bold letters across the very top of ontract)

 

Yes, I it does. BIG OLE LETTERHEAD AS FOLLOWS:

 

RENT TO OWN AGREEMENT

WOOD CLARINET

 

On back of my ORIGINAL contract it says as stated in the letter to my AG (so I dont have to repeat my self LOL).

 

Under the "Additional Charges" section it says this:

 

Reinstatement Fee: You agree to pay us a reinsatement fee of $5.00 if the agreement in reinstated after the Musical instrument is returned to us. (Hmm now that I read this it dont actually pertain to me hehe as it was never returned to them before she reinstated over the phone, didnt really see that before)

 

Late Charges: You agree to pay us a late charge of $5.00 for any monthly payment that is five days or more past due.

 

Default: Time is of the essence of this agreement. If you fail to pay any monthly payment when due and fail to exercise your right to reinstatement, if any bankruptcy or insolvency proceeding are commenced by or against you, or if you violate any promise or covenant in this Agreement, you will be in default. If you are in default we may, upon demand, require you to immediately pay the entire balance of your debt to us, return your musical instrument or both. We may also exercise other legal rights. you will be liable for any deficiency balance to the extent permitted by law, and reasonable attorney's fees, court cost, and collection cost.

 

Thats it besides the standard junk about bad checks etc..

 

Jerry

[hunter29180]

ARE you sure the contract you signed is a Rental Purchase Agreement?(in big bold letters across the very top of ontract)

 

Yes, I it does. BIG OLE LETTERHEAD AS FOLLOWS:

 

RENT TO OWN AGREEMENT

WOOD CLARINET

 

On back of my ORIGINAL contract it says as stated in the letter to my AG (so I dont have to repeat my self LOL).

 

Under the "Additional Charges" section it says this:

 

Reinstatement Fee: You agree to pay us a reinsatement fee of $5.00 if (no if you did reinstate!) the agreement in reinstated after the Musical instrument is returned to us. (Hmm now that I read this it dont actually pertain to me hehe as it was never returned to them before she reinstated over the phone, didnt really see that before)

 

Late Charges: You agree to pay us a late charge of $5.00 for any monthly payment that is five days or more past due.

 

($5.00 for each payment in arrears not on current or on time payments)

 

Default: Time is of the essence of this agreement. If you fail to pay any monthly payment when due and fail (no fail you did in fact reinstate as evidenced by the screen dump!) to exercise your right to reinstatement, if any bankruptcy or insolvency proceeding are commenced by or against you, or if you violate any promise or covenant in this Agreement, you will be in default. If you are in default we may, upon demand, require you to immediately pay the entire balance of your debt to us, return your musical instrument or both. We may also exercise other legal rights. you will be liable for any deficiency balance to the extent permitted by law, and reasonable attorney's fees, court cost, and collection cost. ( cannot continue to collect collection fees one account is current!)

 

Thats it besides the standard junk about bad checks etc..

 

Jerry

<{POST_SNAPBACK}>

 

 

 

 

Get the letters off to CEO and state legislators! also go to store and get new and full payment history ASAP! this will show all payments applied to this account from inception and the dates payment was applied. any payments that show a new due date in advance of the date the payment was applied shows evidence that account was reinstated as per the agreement!

Edited April 20, 2005 by hunter29180

[BlueGhost]

also go to store and get new and full payment history ASAP! this will show all payments applied to this account from inception and the dates payment was applied. any payments that show a new due date in advance of the date the payment was applied shows evidence that account was reinstated as per the agreement!

 

The screen dumps are from a envelope I have post marked March 2, 2005, must have mailed them out same day I mailed out DV to the CA LOL... Cause I sent my DV letter to their collector that day, but also called them asking for a statement of my account because I had never received a receipt for payment not a running account balance (this was before the CA could ask them for info..so if they try to change anyhting I have them dead to rights as the Account cleark has her REAL handwriting noting some notes on this screen dump explaning how the CA "now" owns this account...but then the ohter day they told me they were "charging" me collection cost...so raises doubts as to who "owns" this account now I think.

 

Jerry

[hunter29180]

Get that account "clerk" to send you a complete payment history, that print out is what will determine if by law they reinstated the agreement! If so then the C.A. & the O.C. is in big time violation for collection activity on a current account. THIS is why you need to deal with the RTO ISSUE first, to establish any violations collection wise that the O.C. and the C.A have committed. The account "clerk" is quite possibily not trained in collection practices in either RTO or debt collection. as such she may give you all you need to hang them. GET that history and do not allow the agreement to expire again. Redo the letter you sent to include collection calls, letters and home visits for the purpose of collections on a current account! Add that to the re: line. Be specific with dates and times, very important!!!

 

In the RTO world, the customer dictates what happens with the account, only as long as the account is current...a expired account is dictated by the lessor (THE STORE)

[BlueGhost]

Here is what I have for the back of the contract I signed and the screen dumps.

 

I faxed them to myself on my laptop and printed them to PDF files for review.

 

Look at page 4, it shows me "PAID" until 5/02/05 with nect payment being due on 6/2/05.

 

Notice on Page five of the screen dumps her handwritten comments. So if they no longer own it, wht take my payments and apply such lagre late fees/collection cost?

 

Here are the PDF DOCS======>Screen Dumps Plus Other docs

 

Jerry

[hunter29180]

OK, LETS back up and get the time line down right!

 

1) date contract opened..when did you sign and make first payment?

 

2) for the next we need the complete payment history! we need to see every payment and every charge associated with this account! this will establish dates they say you paid vs date you did pay. (I think I see some payments not applied properly, but need payment history to be sure)

 

3) date they placed account with C.A.

 

4) you will need copys of every check or payment reciept you can lay your hands on.

 

5) send these to me at hunter29180@gmail.com, use header of RTO history.This address will accept up to 10meg files. dont put all this on here as this is getting into your personal finances.

 

6) do not allow the property to leave you care.

 

7) keep and notate date on every notice or letter you recieve, document any "home visits" date, time, names. if the do show up at your house tell them "This account is under dispute and letters have been sent to state A.G.,and to CEO of rental company for violations of collections on a current reinstated account. Please leave and do not return or IT WILL BE CONSITERED HARRASSMENT!" do not answer any questions and keep asking them to leave NOW! If Nessarry inform them they are tresspassing and call the police to have them removed. BE NICE ABOUT THIS be sure and document all this. Remember the less you say the less you have to explain! Be preparied to show police copies and proof of mailing of the letters you have claimed to have sent.

 

8) forgive my spelling!! I suck at it!!!

[BlueGhost]

Should I show up at their place of business today nad request som eof this?

 

My earlier "record" keeping may have been sloppy, but I will call bank for copies of checks (they charge for these as they are ojnly electronic images), some have been "on-line" bill Pays too, and hoping my wife filed the Money Order Slips properly.

 

Jerry

[hunter29180]

you can or call and ask that same clerk. do not discuss account with them just ask for complete payment history record as you are entitled to by law.

[BlueGhost]

I have my Bank compiling the payments I made to these guys already over the last two years..

 

As I mostly reply on Online statements I only had 6 months back to downlaod, they are providing me with the rest..

 

I always assumed they would be available, so after getting the statement, I'd reveiw it and then shred it now I have a fee of 2.00 for each statement going back to 7/03 but also asked for a receipt to be mailed with said statements so I can try to recover the cost of my research these clowns have forced me to do.

 

I have not yet contsacted the OC for the payments they have...kinda being sneaky to see if they try to "change" their accounting records I have copies of and sent to the AG That would be their death knoll if they did that cause then Fraud will be listed as part of my complaint too

 

Cant find the address of the CEO of this company and am afraid if I send a letter to the name of the business aTT: CEO it may not be delivered and treated as "junk" mail.

 

Jerry

[hunter29180]

Give me Phone # for store and i will get that