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Jen23514

Dealing with various forms of phone harassment...... What can the consumer do?

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NOTE: IF YOU QUOTE A PART OF THIS POST, PLEASE CLEAR OUT THE UNNCESSARY CLUTTER THAT IS NOT RELEVANT TO YOUR POST TO PREVENT LONG, LONG, LONG QUOTES.... THANK YOU.

 

 

Knowing your rights in all aspects of your life is important.

 

First of all, if you're dealing with a collector, it is very, very important that you've read the FDCPA and also realize that Abusive, false, and/or misleading tactics are prohibited according to the FDCPA

 

Know this and learn that you don't have to take their abuse. After you realize you have rights, it's important to help yourself as well. This includes staying off the phone with collectors (95% of the time this is a rule that should not be broken) and sending timely DVs (get your head out of the sand).

 

IDARE wrote a great post in 2006 regarding this, and it is still applicable today: When CA's Attack! (on the phone) How to handle harassing calls

 

 

 

 

 

*^*Why is the phone a danger to my rights and financial future?

 

Many think that they can handle a phone call from the CA, then end up getting pressured into making a small payment or admitting the debt is theirs or confirming info for a CA. This is what the collectors are trained for, to frustrate you, fluster you, and convince you to make a mistake. They will appeal to you on moral grounds (don't be a dead beat), they will use legal means (if you don't take care of this voluntarily today, we will move forward with other action), and they will use lies (if you don't pay us, we will have you arrested). Their job is to separate you from your money. There are many, many examples around here of why you should stay off the phone.

 

One example is HERE. She made a small payment with a personal check. She then got a default judgment against her because the CA served her at her parents home (not hers). She went to use her debit card and the money was gone. Not only did her account get cleaned out, but she possibly reset the SOL when she made that small payment (depending on your state laws). There are more examples around here like that than I have time to post.

 

Stay off the phone and you don't have to worry about giving away your bank account info.

 

Here is a post by a collector, it is very enlightening: http://creditboards.com/forums/index.php?showtopic=362340

 

 

*^*They won't stop leaving me messages!!!!

 

It's frustrating to see you have 7 pending voice mails and 6 are from CAs. My first question is, have you DV'd them? Have you let them know the number they are calling is a cell? Have you revoked your prior consent to call those numbers? If not, let them know via writing (CMRR). If you accidentally pick up, calmly explain that they are calling your cell (if applicable) and you are revoking any expressed or implied consent for them to do so (all phones). Then hang up. KEEP A PHONE LOG and STAY CALM and don't be scared to hang up on these guys..

 

NeverQuietHere posted a good thread about messages and CAs : http://creditboards.com/forums/index.php?showtopic=434211

 

Another thread regarding what can or cannot be said on the voice mail: http://creditboards.com/forums/index.php?showtopic=434175

 

"I have an important business matter for you" http://creditboards.com/forums/index.php?showtopic=401553

 

Foti v. NCO has really put CA's into a catch-22. If they don't state who they are on the phone, they are in violation of the FDCPA. If they do state who they are on the phone, they may be violating the third-party restriction of the FDCPA. The lack of a mini-miranda is a violation of 15 U.S.C. 1692e(a)(11) as ruled in Foti.

 

Berg v Merchants (FL) deals with leaving a voice mail where others can hear it and other 3rd party disclosure issues: http://www.buckleysandler.com/documents/Berg_v_Merchants.pdf

 

Furthermore, the statute states that “prior consent of the consumer” must be “given directly to the debt collector” before the debt collector may communicate with third parties. § 1692c(
B)
.
Random question....How can a robo call possible ask for prior consent?

 

Since 2006, Courts have recognized that a debt collector violates the FDCPA when a debt collector leaves a message and fails to disclose that the message is from a debt collector. See Foti > v. NCO Financial Systems, Inc., 424 F. Supp. 2d 643, 653 (S.D.N.Y. 2006); Costa v. Nat'l Action Fin. Servs.., 634 F. Supp. 2d 1069, 1074 (E.D. Cal. 2007); Edwards v. Niagara Credit Solutions, 586 F. Supp. 2d 1346 (N.D. Ga.2008); and Anchondo v. Anderson Crenshaw & Assoc's., 583 F. Supp. 2d 1278 (D.N.M.2008)...a violation of 1692e(11). (from beachdweller HERE)

 

for laughs: http://creditboards.com/forums/index.php?showtopic=195126

 

 

 

 

 

*^*They're calling for someone other than me!!!

 

It is a violation of your privacy and rights to be harassed by a CA who is calling for someone other than you and/or someone you don't know. Watson vs. NCO discusses this. The CA is also in violation of solicitation as well. "you pay me and we stop calling".

 

The CA will often attempt to shift the burden upon you to prove that you are the wrong party. They may ask you to forward proof. Maybe send a utility bill, copy of driver’s licenses, etc to "prove" a negative - that you are not John Doe aka the alleged debtor. Any CA who asks for such proof from you violates the TCPA.

 

If this is happening to you, and you want it to stop and possibly sue the harasser, my suggestion is this: When you (the wrong party) asks the caller/collector, “TO clarify, the offer you are making to me is that if the money is paid by me to you, these calls from you will stop?” The response is probably “yes” and you have made your case, in addition to your phone logs, stronger.

 

I hope you're recording this too, if allowed by state law.

 

If you research DOLEMITE, he has a few threads about suing/settling with violators of the TCPA.

 

 

 

*^*What is the TCPA and how it can help me???

 

Jack's thread on the TCPA: http://creditboards.com/forums/index.php?showtopic=429670

 

Link to TCPA on the FCC site - only 13 pages: http://www.fcc.gov/cgb/policy/TCPA-Rules.pdf

 

In addition, the FCC found that SMS messages are indeed calls and that this should guide the court's interpretation of the TCPA.

 

And yes, there is private right of action PER VIOLATION:(5) PRIVATE RIGHT OF ACTION.—A person who has received more than one telephone call within any 12-month period by or on behalf of the same entity in violation of the regulations prescribed under this subsection may, if otherwise permitted by the laws or rules of court of a State bring in an appropriate court of that State.

 

This could be good for you/your attorney if that pesky CA is calling you 20-30 times a week ;) Again, if you're not properly documenting, then all of this consumer protection doesn't add up to much.

 

 

 

*^*Repeated calls to my cell phone

 

Not only is this possibly a violation per the previous links above, but also the FDCPA 1692 f(5) prohibits Caused any charges to be made to the consumer, e.g., collect telephone calls: http://creditboards.com/forums/index.php?showtopic=434175

 

Of course, this goes back to notifying the CA of their error, which like Dolemite, I am not scared of putting in my DV a reference to my cell number and how it is inconvenient and costly to receive calls there. I also started adding a clause that revokes any previous implied consent to call my cell (TCPA protection).

 

 

 

 

*^*What if I don't know who is calling me??

 

So what should I do with this guy? "A matter that requires you to contact me": http://creditboards.com/forums/index.php?showtopic=456214

 

They keep calling my cell, how can I DV them if I don't know who they are? Is it ok to call them back? http://creditboards.com/forums/index.php?showtopic=415772

 

 

 

*^*They're spoofing my Caller ID!!!!

 

The Truth in Caller ID Act of 2009 was signed into law Dec. 23, 2010. The Truth in Caller ID Act of 2009 (S. 30) amends the Communications Act of 1934, making it illegal to knowingly transmit misleading or inaccurate information on caller ID with the intent to defraud, cause harm, or wrongly obtain anything of value, regardless of the technology utilized.

 

The law applies to any individual attempting to manipulate caller ID information to display inaccurate information with the intent to cause harm or deceive a consumer, including third-party debt collectors, creditors and asset buyers. Additionally, the law applies to Voice over Internet Protocol (VoIP). It does not prevent or restrict individuals from blocking caller ID information from being transmitted. However, it doesn’t change the existing provision in the TCPA prohibiting telemarketers from blocking caller ID information (47 C.F.R. § 64.1601(e)(2).). The new law raises the question of whether it is permissible for a caller to display a local number on caller ID when contacting consumers and the caller is not located locally.

 

Violating the Truth in Caller ID Act will be expensive. With a two year statute of limitations for civil penalties, fines can be up to $10,000 for each violation, or three times that amount for each day of a continuing violation, up to a total of $1 million for any single act or failure to act.

 

While there is no private cause of action under the Truth in Caller ID Act, both the FCC and state attorneys general have the authority to enforce the Act. Violating the act will be expensive - civil penalties and criminal fines can be up to $10,000 per violation and three times that amount for each day the violation continues. Penalties and fines are capped at $1 million for any single act or failure to act.

 

Since this is a recently passed law, I don't have a lot to report here. Again, document, document, document if you feel there is a violation here.

 

(I can't believe I'm about to say this....) Chalk one up for Louisiana laws : http://creditboards.com/forums/index.php?showtopic=405740

ALWAYS, ALWAYS, ALWAYS CHECK FOR PROTECTIONS ALLOWED BY YOUR STATE!!!!

 

 

 

 

*^*Other random links on the above topics:

 

More discussion on previous consent: http://creditboards.com/forums/index.php?showtopic=377962

 

Is it a violation to call me daily and say nothing? http://creditboards.com/forums/index.php?showtopic=293694

 

telephone rules for collection agencies? http://creditboards.com/forums/index.php?showtopic=387863

 

I would argue that a voice mail is a communication as defined by FDCPA. Don't forget about the protections allowed by the FDCPA in addition to the TCPA.

 

ALWAYS, ALWAYS, ALWAYS CHECK FOR PROTECTIONS ALLOWED BY YOUR STATE!!!!

 

 

I hope putting these links into one place helps. Enjoy. :)

 

As a disclaimer, these are my musing, experiences, and observations I am a non‐attorney. I am not offering any legal advice or legal opinion whatsoever and I will gladly issue you a refund for the payment received for this non-legal advice. ;)

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Gutierrez v. Barclays Group, US Dist. Ct., S.D. Calif., 2011

 

The decision in this case states that, per the TCPA:

1.) Revocation of prior express consent by the subscriber permitting calls by any party (a creditor here) to call need not be in writing; oral revocation is sufficient.

2.) The subscriber (the one who owns the number) has standing to sue even if they were not the intended recipient/target.

3.) The call need not result in a charge to the subscriber for a TCPA violation to occur.

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Glad to see this one finally passed: The Truth in Caller ID Act of 2009 was signed into law Dec. 23, 2010

 

Too bad it won't mean a lick to those that are overseas and try to collect on illegal payday loans tho.... which seems to happen the most for spoofing phone numbers :(

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:clapping: :clapping: :clapping: :clapping:

 

 

 

 

 

VERY informative thread....

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interesting dilemma.... do you have a link to a recent thread?

Jen.. No.. just I know that when dealing with my own illegal payday loans, a lawyer wouldn't touch the case being the payday loans were mostly overseas, since they wouldn't get their money back. Think Internet payday loans here, not store front payday loans. There are a couple internet payday companies that are legit, such as CashnetUsa and I'm trying to think of the other one... but the majority of them are overseas. Even though they agreed what their Ca's were doing was in violation of the FDCPA. They will say you will will be going to jail and being picked up by such and such time if you do not pay them right now over the phone (which of course never happens btw) and everything you ever hear about dirty CA's doing, they will do because they know they can't get touched. If someone does find out where they are, they will just move somewhere else, start up a new name etc. Sometimes the Dfi (Department of Financial Affairs)would get involved.. but again they really couldn't do anything either other than to try and get them to stop calling but they would rarely listen.

 

Rarely will you ever get a CA letter. Eventually they stop, but every once in a while will start up again. I haven't had to deal with them for a while.. wondering when one will rear it's ugly head again.

 

I know Wv Attorney General went alot some of the illegal payday loans... 500fast cash was one of them... but not sure what happened to them.

 

One of the more recent ones:

http://www.rebuild.org/news-article/west-virginia-attorney-general-sues-8-payday-loan-companies/

 

here's one of older ones:

http://www.rtoonline.com/content/article/Sep07/WestVirginiaAttorneyGeneralPaydayLoans090607.asp

Edited by beli

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i've done my own share of battling illegal internet PDLs..... I'm going to look more into additional remedies...

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Just to add, I have filed police reports for harrasing phone calls before and faxed it to the CA.

 

It worked. I'm just sayin think outside the FDCPA sometimes, that's all.

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Just to add, I have filed police reports for harrasing phone calls before and faxed it to the CA.

 

It worked. I'm just sayin think outside the FDCPA sometimes, that's all.

 

never done that. will consider.

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If you have a landline and depending on your carrier they have a system called privacy director. It kicks out all calls made through a switchboard, the 000 calls, which some CA's use so we cannot identify who they are so if they want to reach you it must show a number, simple sh___. I believe all the baby bells have it but I am not sure who else does. I'd get upwards of 50 calls a week.

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I get names company and addresses, then I calmly say "Are you aware that you are in violation of FDCPA and NYDPA by ignoring my requests to not be telephoned?" Also "Do you realize that this very call is going to cost your company up to $6K?" When you get off the phone (or they hang up on you, which they sometimes do) write out a letter saying exactly the same thing. They sometimes get defensive, but if you stay calm, and don't let them rattle you, you'll be okay.-That's pretty much the crux of it.

 

Getty

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