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Settlement Offer Rescinded!


kristibean
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Hello

 

I have been reading A LOT on these boards and in just 2 weeks of doing some of the things suggested here, my score has gone from 601 to 625!

 

One of the things I did not dispute was a DFS account that is charged off. I know how aggressive Dell can be in their collection attempts so I didn't want to push that one, SOL is out on it in April or May anyways. But, I did call them and ask if they would be willing to take a settlement.

 

The balance on it is $2,165. I called them last week and they gave me a settlement offer over the phone of $1,083 and I could make that in 3 payments of $361.00 over 90 days. I asked (at least twice during that call) if I could have the offer in writing and was told that they could not provide that. I asked what proof I would have then that I had this agreement and the lady told me that I would get email confirmation of the payment agreements and that 30 days after the last payment was made, I could call and request a settlement letter, but that I had to make the payments that day over the phone by postdated EFT. I assumed this meant that I would get an email saying that I would be charged 3 payments and list the total of $1083. So, I agreed to the payments and gave my bank account information. When I got home and checked my email, basically all that was sent was an emailed confirmation of each payment with no mention at all that there was a settlement offer, the total amount due or the total number of payments to be made.

 

I wasn't satisfied with that and after some checking it seems that the FDCPA and the Telemarketing sales act both say that any written confirmation of EFT drafts has to include the total number of payments to be made. So I tried calling them back over the weekend (closed, of course unless they're trying to get in touch with you, then they call 7 days a week!) and emailing them through the customer service website and the only thing I got back was a note that my account was being handled by collections and to please contact them at said number.

 

So.... I wrote them a letter (certified, return receipt) pointing out what I thought to be the unfair practices and revoking, in writing, the authorization I gave over the phone for them to access my bank account, (specifically only revoked the authorization for bank draft, NOT the offer itself, and included a written copy of the offer - of course adding in a deletion upon payment in full). I also called my bank and put a stop payment on my account for anything from Dell Financial Services in the amount of $361. The rep there told me that if they change the amount by even .01, the charge would go through and I would have to go through the process to dispute the charge as unauthorized. The rep from my bank also advised me to call them and try to cancel the payments on their end as well so that they don't tack on a bunch of returned item fees.

 

Well, I got in touch with someone from Dell on Monday (I have been documenting EVERY call with the person's name, ID # - when they'll give it to me - and supervisor's name, and very detailed notes of the conversation by the way). I told him that I wanted to cancel the payment arrangements until I could get a copy of the offer in writing because I felt that as a financial agreement, I had the right to have it in writing for my protection. The guy asked if I had requested the offer in writing during the original call and I said yes but I was told that it couldn't be provided and I felt that the email confirmation I received was not what the rep had described to me. Well, he canceled the payments, but also retracted the offer completely.

 

 

So, I sent a message to a friend of mine who is a lawyer to ask for some general advice (unofficially, as he practices in a different state from me)

 

I asked him A- don't I have the right to have financial agreements in writing before agreeing to them?, b- If I request the offer in writing, are they obligated to provide it to me?, c- Is asking them to provide the offer that THEY made in writing justifiable grounds for them to completely retract the offer even after it was agreed to over the phone?

 

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This was his response:

YOU HAVE THE ABSOLUTE WRITE TO HAVE EVERY OFFER AND ACCEPTANCE SPELLED OUT IN WRITING BEFORE PAYMENT. IF THEY DO NOT KEEP THE OFFER. THEN YOU HAVE THE RIGHT TO RESCIND PAYMENT. you did well on this point. They should have provided you with a Copy of the agreement in writing to be signed and executed BEFORE you paid. The reason for this is that Payment is proof that you had an agreement. So if the agreement was over the phone, and the agreement wasnt recorded. . or they "lost" the record. All the court could prove was that you agreed to pay them. . . not what the terms were and so then the terms are what ever the creditor says they are. VERY DODGY but COMMON PRACTICE.

 

THEY ARE REQUIRED TO MAKE ANY OFFER IN WRITING. . OTHERWISE IT IS NOT AN OFFER. ITS JUST YOU OFFERING TO PAY THEM WHAT YOU OWE THEM. . . NOT A SETTLMENT OFFER.

 

your Questions C - NO. THEY MUST PROVIDE IT IN WRITING. AND IF THEY RETRACT THE OFFER AFTER YOU'VE RELIED. . AND THEY'VE FAILED TO PROVIDE IT IN WRITING. THEN. . YOU MAY SUE THEM IN CONTRACT, AND UNDER the NEW FDCPA. BUT your Recovery will ONLY be 1K USD plus attorney's fees. I WOULD REPORT THEM TO THE FTC AND TO THE Bank Regulators. AND the new consumer protection board.

 

you probably will not get them to settle again . . unless they are feeling backed into the corner. I would report them to the bank regulators. and the Consumer folks. THEN I would have an attorney in town write an attorney's letter.

 

Here is the trick . any false reporting on your credit or improper reporting on your credit has 30-60 days to be corrected depending on the thing. AND failure to do so may result in treble damages to the creditor.

 

In their case they made you a valid offer. YOU accepted. they rescinded AFTER you accepted. The offer is still technically valid. THUS they have to agree to the offer and abide by the law of providing the offer in writing. IF they do not THEN it could be argued that they are damaging your credit further by failure to abide by the contract they made, and report the settlment to the bureau. . . In that case you take TREBLE the damages which is three times the full value of the loan you are reasonable denied. Ie. reasonable. . you would have to otherwise qualify for the 100K USD house were it not for their negligence and breach of contract. . . Its not like you could say well I was gonna buy a 500K USD house. . cause you wouldnt have qualified anyways.

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Soooo.... two problems here.... 1- I really can't afford an attorney right now, and 2 - after doing some searches, I have found that Dell has already been sued over FDCPA violations and it was decided in court that the FDCPA does not apply to DFS as they are the original creditor and not a third-party collection agent.

 

So what would you recommend as a first step in this situation?

 

I was thinking I could dispute the item with them as inaccurate and ask for Validation since after adding the note to my CR, the status now says "Verified and updated Dec 2010" meaning, if the offer is technically legally valid, and binding then they have intentionally verified an incorrect amount? Then try a 1 2 punch by disputing with the CRA as soon as I know that they received the DV, but I'm really not sure, so some advise would be helpful. Thanks in advance!

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Welcome to CreditBoards! We hope that you find what you're looking for here.

 

Some helpful tips:

 

  • Your post may not get a reply right away. Don't be discouraged, this is a very busy board. If it falls off of the first page, feel free
    to reply to your post yourself, with the word *bump* in the text. This will *bump* your post back up to the top of the board.
  • If you haven't yet, take a peek at out Newbies Section.
    Everything that you need to know is in that forum, for the most part! It's a lot of reading, we know, but this credit stuff can have a steep learning curve. In no time, you'll be posting like the pros!
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First. STAY OFF THE PHONE.

If you had contacted them in writing and not talked to them on the phone they would have no choice but to send you the offer in writing.

Second. If it isn't in writing it never happened.

That pretty much sums it up. You should hang up the phone now and read read read until your eyes bleed. Then move on and try to get this corrected. By the time it is out of SOL you should have a good understanding of how to resolve it. Start with reading in the newbie forums.

 

And welcome to the board :)

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So, my question was...... what should I do? If I send the DV letter, they cannot take any further collection action (including lawsuit) until the debt is validated, right?

 

Yeah, I know I pretty much screwed this one up... but, I need to figure out what to do next to minimize the damage

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FDCPA doesnt' apply because they're an OC, right.

 

But you're talking about reporting, right? Here:

 

Here is the trick . any false reporting on your credit or improper reporting on your credit has 30-60 days to be corrected depending on the thing. AND failure to do so may result in treble damages to the creditor.

 

 

That's FCRA. Fair Credit Reporting Act. Which DOES apply... if they screw up the reporting, which seems to be what your friend was referring to in the whole last paragraph.

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SO, what should I do now? Dispute with CRA's? try 1-2 punch method? Am I correct in assuming that if I dispute the matter with the OC, they cannot file suit on it until the dispute has been resolved?

No. They don't have to wait though usually they will document the debt as it's in their interest to convince you to pay before fronting more money to get a judgement.

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SO, what should I do now? Dispute with CRA's? try 1-2 punch method? Am I correct in assuming that if I dispute the matter with the OC, they cannot file suit on it until the dispute has been resolved?

 

That is not correct. They can still sue you. And they can still try to collect using other methods, including CRA reporting, if you did not DV them within 30 days after receiving the dunning letter.

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  • 2 weeks later...

My letter worked!!!

 

They faxed me a settlement agreement in writing dated Dec 16th, 2010 :)

 

I just wish I could have negotiated a delete out of it. I tried, talked up the chain of command to the head of collections, but the best I got was that they would mark it as paid in full, rather than settled but the charge-off would still be noted.

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You got very lucky Kristibean.

You left yourself naked and they could have taken full advantage of you.

You would take care to heed the wisdom of the forum and stay off the phone.

You may think you can talk your way into a good deal but that collection agents get PAID to talk you into a bad one.

And they do it all day, everyday.

 

Good Luck

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