ceasing and desisting includes arbitration demands?

[IOIOIO]

I recently got a scary 15-page document from Mann Bracken detailing their arbitration case/demand to me in a complex enough way that an intelligent person can't tell what the hell is going on. Using the search, as usual I got lots of helpful info from this web site and basically concluded that an arbitration demand has no real coercive power because ultimately they have to sue in court anyway to get an enforceable judgment. The arbitration info is ambiguous enough, however, to leave a little doubt as to where you stand, so here's one more bit of info:

Mann Bracken has several of my accounts and my cease and desist letters, so when I got the arbitration demand I was ready either to get scared that they had this option, or to sue the pants off them CPO-style. I checked my records, and the arbitration offer is for the one account I accidentally neglected to tell them to cease and desist on. They've sent me no arbitration crap relating to any other of the accounts they have. It appears then, in terms of the FDCPA, that arbitration offers are just more garden variety dunning we're entitled to be free of if we demand it, and that collectors know that. Am I right?

[BKOnce]

In other words, "arbitration" = negotiation = agreement-before-sue = out-of-court settlement = legal-cost-avoidance = nothing-yet-compared-2-My-BK-Golden-Benefits!!!...

[CPO]

I recently got a scary 15-page document from Mann Bracken detailing their arbitration case/demand to me in a complex enough way that an intelligent person can't tell what the hell is going on. Using the search, as usual I got lots of helpful info from this web site and basically concluded that an arbitration demand has no real coercive power because ultimately they have to sue in court anyway to get an enforceable judgment. The arbitration info is ambiguous enough, however, to leave a little doubt as to where you stand, so here's one more bit of info:

Mann Bracken has several of my accounts and my cease and desist letters, so when I got the arbitration demand I was ready either to get scared that they had this option, or to sue the pants off them CPO-style. I checked my records, and the arbitration offer is for the one account I accidentally neglected to tell them to cease and desist on. They've sent me no arbitration crap relating to any other of the accounts they have. It appears then, in terms of the FDCPA, that arbitration offers are just more garden variety dunning we're entitled to be free of if we demand it, and that collectors know that. Am I right?

Yes. As you know, these bastards are sneaky. Be wary.

Scrutinize everything they send you. You can still "cease and desist" them, although they may claim it's past the 30 day period and they are collecting on a valid debt. Worth a try if you want...

Arbitration is merely the new fangled way of "them" trying to stay out of court...a newer "pressure" tactic.

It's a forum where a dispute can be settled without the formalities of a trial. More and more credit card companies are using the arbitration process. From the standpoint of the debt collection process arbitration can be yet another intimidating series of letters and legal looking documents that may spur you into making a payment. Even if the arbitrator rules against you the creditor would still need to file a traditional lawsuit to enforce the ruling. While most people probably ignore the arbitration papers, and therefore automatically lose, some will respond and either win the arbitration outright or at the very least slow the collection process down for a while.

In the end, if you don't play, they still have to win a judgement to collect.

CPO

[IOIOIO]

OK, now I just got another "Arbitration Claim Form" from Mann Bracken for a different account. On this account they signed for their cease and desist letter about five weeks ago. The arbitration cover letter does say "This communication is an attempt to collect a debt, etc." Does this arbitration form violate the cease and desist letter? Since the fine print of my cc card terms obligates both parties to arbitration, I think there's a possibility that an arbitration request of this type might be an allowable communication from the debt collector. After all, if they sued me in court a court summons would not violate FDCPA even though it's an attempt to collect the debt too. Anyone know for certain whether or not an "Arbitration Claim Form" is an actionable violation of my cease and desist request?

[CPO]

OK, now I just got another "Arbitration Claim Form" from Mann Bracken for a different account. On this account they signed for their cease and desist letter about five weeks ago. The arbitration cover letter does say "This communication is an attempt to collect a debt, etc." Does this arbitration form violate the cease and desist letter? Since the fine print of my cc card terms obligates both parties to arbitration, I think there's a possibility that an arbitration request of this type might be an allowable communication from the debt collector. After all, if they sued me in court a court summons would not violate FDCPA even though it's an attempt to collect the debt too. Anyone know for certain whether or not an "Arbitration Claim Form" is an actionable violation of my cease and desist request?

A court summons is a demand that you appear for legal cause...

...from the court...

...not from your creditor/collector.

A dunning letter from your collector, whether its a demand for payment or a "claim form" in an arbitration exercise that has not even started yet is a communication, attempting to collect and certainly a violation of the FDCPA if in fact you sent them a "cease and desist" letter.

Cease and desist means just that...stop all collection activity, stop contacting me and desist all activities unless and until a court determines that a debtor must respond to the action.

My successful settlement involves just this very thing as far as MB is concerned. They countinously sent me collection letters for 4 months after I sent them a "cease and desist."

I hung them with their own paperwork, on their letterhead.

They did the work for me.

Nary did I record a single call from MB.

Those idiots documented their own losing case.

Hope you get some too.

CPO

[IOIOIO]

Cool, I'll put that one in the Actionable pile. Any idea how many of these a lawyer might want to have in hand before it's worth their while to sue?

[CPO]

Cool, I'll put that one in the Actionable pile. Any idea how many of these a lawyer might want to have in hand before it's worth their while to sue?

I don't really know. I went the legalhelpers route with a package deal in which a FDCPA attorney came with the BK...

Although I will not vouch for legalhelpers as I have heard too many bad things about that dump of an office in Chicago (the much touted 1-800 number...which is friggin useless...)

and some shitty attorneys too...

All I can say along those lines is I collect the data, recordings and documents, prep a little package in which I have already made a coherent case and send it off to Chicagoland to the FDCPA attorney. I have signed a "retainer" with him and I honor it. Costs me nothing other than the packaged price for my BK.

I already kinda know if I've got good goddies or just fluff...so then
he calls me periodically and we have a good time on the phone...seems to be a nice guy and quite knowledgeable.

He lets me know what's up and the coordination that goes on between him and the BK side...timing must be right otherwise the Trustee gets your award.

My legalhelpers attorney and office staff has grown on me.

At first, I was not pleased, but things were ironed out and they have proven me wrong about some of the "slow" responses I thought they had.

...but that Chicago 1-800 number is for the birds.

I have told my attorney that I think he does himself bad by associating himself with Macey & Aleman/legalhelpers....

He just giggles.

So, I don't know what the general response is if you simply walk in off the street into a NACA's attorneys office with your info and try to present a case.

You could call the legalhelpers number, ask for the FDCPA attorney and perhaps ask some questions.

Never did it and don't know what the response would be...

But, worth a try?

CPO

[IOIOIO]

Since I'm planning to go pro se, that adds a wrinkle. I don't know the ins and outs of suing for FDCPA violations separately from filing bk, and what a lawyer is willing to do or not. If a quality bk lawyer would handle my bk for free in exchange for an acceptable portion of my FDCPA violation cases I'd prefer that to going pro se. Mann Bracken has at least three of my accounts now, so I hope they'll commit enough violations for me to package them as an asset to trade for a lawyer's bk services.

[GoingDown]

Yes. As you know, these bastards are sneaky. Be wary.

Scrutinize everything they send you. You can still "cease and desist" them, although they may claim it's past the 30 day period and they are collecting on a valid debt. Worth a try if you want...


CPO

FYI-- The Cease and Desist Letter can be still be sent after the 30 Day Period and is still just as effective in getting them to stop communicating with you.

The 30 Days only applies to Disputing the Validity of the debt, not to demanding that they Cease and Desist from communicating with you.

[CPO]

FYI-- The Cease and Desist Letter can be still be sent after the 30 Day Period and is still just as effective in getting them to stop communicating with you.

The 30 Days only applies to Disputing the Validity of the debt, not to demanding that they Cease and Desist from communicating with you.

Absolutely. It does not prevent collectors from making the claim that the 30 day dispute period has passed...whether valid or not...and using that as a basis for their abuse excuse.

It's happened (to me at least) and it's just a "heads up."

Collectors don't play by the rules, so assuming that certain actions written by law will be followed is...well...assuming.

CPO

[Granny]

Absolutely. It does not prevent collectors from making the claim that the 30 day dispute period has passed...whether valid or not...and using that as a basis for their abuse excuse.CPO

Other than a delay tactic, what is the purpose of disputing the validity of a debt?

[CPO]

Other than a delay tactic, what is the purpose of disputing the validity of a debt?

It's proof that the collection company owns the debt/or has been assigned the debt. It's very difficult to get a judgment from the court without a direct contract between the collector and the original creditor.

At a minimum, a collector must produce at least some account statements from the original creditor. If you really want to get sticky, you can pin them down on the amount of the debt by requiring complete payment history, starting with the original creditor. (How the hell did they calculate this? What fees/interest have they tacked on to this debt and how did they determined these fees?)

This requirement was established by the case Fields v. Wilber Law Firm, Donald L. Wilber and Kenneth Wilber, USCA-02-C-0072, 7th Circuit Court, Sept 2004..

A copy of the original signed loan agreement or credit card application would be sure proof. (Your contract with the creditor established the debt between you two.)

However, sometimes account statements from the original can fulfill these requirements in certain courts.

The FDCPA Section 809 that applies is:

Validation of debts [15 USC 1692g]
(b) If the consumer notifies the debt collector in writing within the thirty-day period described in subsection (a) that the debt, or any portion thereof, is disputed, or that the consumer requests the name and address of the original creditor, the debt collector shall cease collection of the debt, or any disputed portion thereof, until the debt collector obtains verification of the debt or any copy of a judgment, or the name and address of the original creditor, and a copy of such verification or judgment, or name and address of the original creditor, is mailed to the consumer by the debt collector.

So, if a creditor can't verify a debt:

They are not allowed to collect the debt.
They are not allowed to contact you about the debt.
They are also not allowed to report it under the Fair Credit Reporting Act (FCRA). Doing so would be a violation of the FCRA, and the FCRA states that you can sue for $1,000 in damages for any violation of the Act.

An opinion letter from the FTC which clearly spells out that a collector CANNOT report a debt to the credit bureaus which has not been validated:

http://www.ftc.gov/os/statutes/fdcpa/letters/cass.htm

validate the debt, further collection activity is a violation of the FDCPA.

Contact the credit bureaus, and tell them that the creditors did not verify the debts under the FDCPA, and send copies of your proof.

Request the method of verification, which is your right under the FCRA. It is crucial to contact the credit bureaus before filing a lawsuit. Make sure you state that the collector did not respond to your request for debt validation or failed to provide proper validation.

Sometimes they try to blow you off by claiming the letter must come from the creditor. B. S.

If they can't give you reasonable information on how they verified the information and the collector has provided you none, you can conclude there was no reasonable investigation performed.

That's "willful non-compliance" under the FCRA.

File a suit in either small claims, state or federal court. The basis of the lawsuit would be that the credit bureaus could not provide a satisfactory method of verification, or did not conduct a reasonable investigation.

Notify the bureaus that you are suing them. The credit bureaus will call the creditors and find out that there is a question about whether the debt is legitimate. They should delete it immediately.


Here's a "Validation" letter for your use. Check it over and make whatever changes you see fit. It's something I have used in modified form.


(Your name)
(Your address

Collection company name
Company address

(Date)

Re: Acct# 00000000

To whom it may concern:


This letter is being sent to you in response to a notice sent to me on March 8th, 2050. Please be advised that this is not a refusal to pay, but a notice sent pursuant to the Fair Debt Collection Practices Act, 15 USC 1692g Sec. 809 (b) that your claim is disputed and validation is requested.

This is NOT a request for "verification" or proof of my mailing address, but a request for VALIDATION made pursuant to the above Title and Section. I respectfully request that your offices provide me with competent evidence that I have any legal obligation to pay you.

Please provide me with the following:

1. What the money you say I owe is for
2. Explain and show me how you calculated what you say I owe
3. Provide me with copies of any papers that show I agreed to pay what you say I owe
4. Provide a verification or copy of any judgment if applicable
5. Identify the original creditor
6. Prove the Statute of Limitations has not expired on this account
7. Show me that you are licensed to collect in my state
8. Provide me with your license numbers and Registered Agent

At this time I will also inform you that if your offices have reported invalidated information to any of the 3 major credit Bureaus (Equifax, Experion or TransUnion) this action might constitute fraud under both federal and State Laws. Due to this fact, if any negative mark is found on any of my credit reports by your company or the company that you represent, I will not hesitate in bringing legal action against you for the following:

1. Violation of the Fair Credit Reporting Act-reporting inaccurate information
2. Violation of the Fair Debt Collection Practices Act-continuing collection activity on a debt which has not been validated

Also during this validation period, if any action is taken which could be considered detrimental to any of my credit reports, I will consult with my legal counsel for suit. This includes listing of any information to credit reporting repository that could be inaccurate or invalidated or verifying an account as accurate when in fact there is no provided proof that it is.

REQUEST FOR CEASE AND DESIST OF CONTACT BY YOUR OFFICE: I would also like to request, in writing, no further contact, either in writing or telephone be made by your office to my home or to my place of employment, unless it is to provide validation or release of liability of the debt. If your offices attempt telephone communication with me, including but not limited to computer generated calls and calls or correspondence sent to or with third parties, it will be considered harassment and I will have no choice but to file suit.

It would be advisable that you assure that your records are in order before I am forced to take legal action. This is an attempt to correct your records; any information obtained shall be used for that purpose.

Thank you,

Signature
Printed name

Hey, I'm no lawyer and don't play one on TV. I'm a retired .mil dude with combat related disabilities and a career of shooting at bad people. This is not legal advice, so don't treat it so...



Good Luck and give them HELL!

CPO

[IOIOIO]

If I send them the Disputing the Validity letter more than 30 days after they first notified me of their attempt to collect, does that put them back on the compliance treadmill? I didn't bother disputing since I'm judgment proof, and they have mostly ceased and desisted, but if it's still worth disputing I might decide to spend the money on more certified letters.

[CPO]

If I send them the Disputing the Validity letter more than 30 days after they first notified me of their attempt to collect, does that put them back on the compliance treadmill? I didn't bother disputing since I'm judgment proof, and they have mostly ceased and desisted, but if it's still worth disputing I might decide to spend the money on more certified letters.

Probably not 'cause the law gives 30 days for "Validation" claims.

The FDCPA Section 809 that applies is:

Validation of debts [15 USC 1692g]
(b) If the consumer notifies the debt collector in writing within the thirty-day period described in subsection (a) that the debt, or any portion thereof, is disputed, or that the consumer requests the name and address of the original creditor, the debt collector shall cease collection of the debt, or any disputed portion thereof, until the debt collector obtains verification of the debt or any copy of a judgment, or the name and address of the original creditor, and a copy of such verification or judgment, or name and address of the original creditor, is mailed to the consumer by the debt collector.


You can always try...half of the collectors don't seem to really know what they are doing anyway.

Hey, I'm no lawyer and don't play one on TV. I'm a retired .mil dude with combat related disabilities and a career of shooting at bad people. This is not legal advice, so don't treat it so...

CPO US Navy (Retired)

[treehugger1]

If more people would make use of the initial 30 day time-limit to respond to a dunning letter, they would gain more time to appraise their situation. I have sent a half-dozen validation and limited cease and desist letters (only write me, no calls), and with the exception of one local collection agency, I never heard from these folks. At first I was a bit apprehensive when I received no replies, but for now those folks are on the bottom of my collectors I need to deal with. I'm sure they are rallying new troops somewhere, but I'm content to sit back and wait for their next volley. There are some who claim that if you don't hear back or receive a response to validation, then you should follow up with another letter. In my humble opinion, I would not do that. If nothing else, should they attempt a suit, you have a valid counterclaim. I believe the same is true if you hear from a CA and they don't send you written information within five days of contacting you. I have one CA in the midwest who contacted me and never sent any information. I even have the call recorded. I'm assuming they simply pushed this debt onto a junk debt buyer. Who knows? If the company that contacted me goes for a suit, i have a very solid answer and counterclaim. Again, this is just my opinion, but there is no reason to feed these folks any more info or communication than necessary.

If nothing else, a good request for validation/verification and limited cease and desist letters lets the CA know you will not lay down and roll over.