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STUDENT'S FDCPA REFERENCE SHEET
<h1>What is FDCPA and why was this law
enacted?</h1>
1. http://www.ftc.gov/os/statutes/fdcpa/fdcpact.htm#802
(e) It is the purpose of this title to eliminate abusive debt collection practices by debt collectors, to insure that those debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged, and to promote consistent State action to protect consumers against debt collection abuses. The student should also be well aware that in the following 23 states their laws actually take precedence over FDCPA as they are more strict and also treat original creditors the same as though they were 3rd party debt collectors under state law. There are also other situations in which banks and other lending institutions as well as attorneys that might normally think of themselves as being original creditors or not subject to FDCPA are actually 3rd party debt collectors and must abide by it’s rules. This has been true since the passage of the Gramm Leach Bliley Act
2. When studying any law it is always important to have the
definitions firmly in mind. This tells us what is meant by various
terms and wording in the law and who the law applies to. Always
study the definitions and understand them well.
http://www.ftc.gov/os/statutes/fdcpa/fdcpact.htm#803
He also may not ask 3rd parties for any information which he
already has in his possession. impermissible
questions
3. § 804.
Acquisition of location information
If a debt collector calls one of your family members or a neighbor
or acquaintance or a friend here are the rules that he must go
by.
§
804. Acquisition of location information
If your are informed by any of the above types of persons that a
debt collector has called them asking about you they would be well
advised to get the collector’s Company name, address and phone
number and then you should provide them with a copy of my
FULL
CEASE & DESIST LETTER
with the instructions that they need to sign it and seal it and
send it to the collector’s address by certified mail return receipt
requested and in the event that the collector violates it they can
sue him to enforce their demand. You should also be aware that it
is illegal for the debt collector to ask any friend, relative or
neighbor to convey any message to you. This is covered in the
FTC
ATTEBERRY OPINION LETTER
In the event that a debt collector calls you at work you may use
the second letter in the series
of cease & desist
letters.
to put a stop to them harassing you at your place of employment.
You have every right to do so and in order to preserve your job you
should not hesitate to do this if a debt collector bothers you at
work. You should realize that your time at work belongs to your
employer, his telephone system also belongs to him and is for the
sole purpose of conducting his business. Allowing debt collectors
to use his labor and his facilities for their purposes is little
more than allowing an outsider to steal from your employer. You
would not do that if you realized that such a thing was taking
place and now you know how it affects your employer so put a stop
to it quickly. Use the cease & desist order to do that. The
debt collector has no reason to turn that into a lawsuit against
you since you have allowed him to contact you at your home which is
where he should be contacting you in the first place. But you
should never send a full cease & desist letter to a debt
collector because if you do you leave him little choice under the
law but to sue you.
That is covered at
§ 809. Validation of debts [15 USC
1692g]
and tells you all about cease & desist.
4. What to do if you are contacted by a debt
collector at your home by telephone. This is covered in
§
807. False or
misleading representations [15 USC 1962e] and even more
revealing and interesting is the Kwait
opinon letter
and states that debt collectors must give full and meaningful
disclosure about who they are in their communications with you.
And although it don't fit in perfectly here I would direct your
attention to this interesting court decisonwhich deals with
the envelope a debt collector used in sending a dunning leter to a
student loan debtor.
While that section does discuss initial (first) communications with
you for the most part we take it quite a bit further by having you
use our list of 18 questions which you should ask bill collectors
each and every time they call. Doing so puts a stop to the
harassment that debtors normally suffer at the hands of a calling
debt collector. When they call they expect to control the
conversation because that is the only way they can collect on the
phone and they are well trained to do just that. So you need to
have a copy of our 18 questions handy by the phone and a copy of
our phone call record
contact information
sheet handy so you can record the phone calls quickly and
easily. The list of 18 questions is part of your student
instruction sheet that you received when you first joined
Creditwrench and it is again presented in the free course you get
by sending an email to course1@autobotinfo.com
and it is presented to you yet once again at
18 QUESTIONS TO ASK DEBT
COLLECTORS
It will also be found in the student lounge
on the Creditwrench
message board. So
you should never have any problem finding it.
5. §
809. Validation of
debts [15
USC 1692g]
tells us that
(a) Within five days after the initial communication with a
consumer in connection with the collection of any debt, a debt
collector shall, unless the following information is contained in
the initial communication or the consumer has paid the debt, send
the consumer a written notice containing ---
Sorry, but in order to conserve space and to be sure that you
thoroughly learn the lesson I must insist that you click on the
link above and learn it for yourself.
The important part to understand here is that the initial
communication can be either verbal by phone or by written letter.
What must be in that initial letter is very important to know and
understand. It is thoroughly covered at
§
809. Validation of
debts [15
USC 1692g]
and again in the FTC opinion letter entitled MEZINES
and in the case of Carroll v.
Wolpoff & Abramson 961 F.2d 459 (4th Cir. 1992) in an
opinion dated March 30, 1992, the court held that the statutory
mandate was clear: the debt collection notification must be
included in all correspondence. It is again addressed in 15 U.S.C.
@ 1692(e) and so it should be very easily seen by the student
exactly what is demanded in all dunning letters as well as in the
initial (first) dunning letter sent by the collector. There are a
plethoria of court cases which cover this in great detail.
Spears
v. Brennan, 7th Circuit Ct. of Appeals. as well as other court
cases. However, do not be fooled into believing that an attorney
cannot bring a lawsuit against you during that 30 days after
sending you his dunning letter. Bartlett v. Heibl, 128 F.3d 497
(7th Cir. 1997)
Here, an attorney drafts a letter which he
recommends that debt collectors use for their
initial letter to debtors but this letter would not be as safe
as this lawyer seems to think it would be. Can you spot why it
would not pass muster under current law? It should be easy for you
to find several violations of FDCPA in this letter. But do not
think that such a letter and it's lack of proper wording does not
make it dangerous. But it does lack at least 3 highly important
indices. What are they? Can you spot all 3?
www.hinshawlaw.com also have valuable comments on Illinois law
and Bartlett v. Heibl, 128 F.3d 497 (7th Cir. 1997). It appears
that the case does not appear anywhere on line so that if you wish
to study the actual case itself you may have to go to a law library
in order to do that.
What you need to do when you receive that
initial contact by phone is once you have reached the end of the 18
questions is to be sure that you verbally demand that they validate
the debt. If they claim that they have already validated the debt
you need to tell them very firmly that they have not validated the
debt and the normal thing to do at that point is to simply hang up
on them. And if they call back again immediately or at any time in
the future you need to force them to go through the same list of
questions all over again with the same end result. You demand
validation and hang up on them. If you will but do as I tell you it
will not be long before you will be wishing they would call back
again so you can have some more fun with them. But they won’t.
Problem solved.
If you have received your first (initial) contact letter you should immediately check it out to see whether or not it contains all of the things on it that are required by law. First thing to check for is to see if the letter complies with the law to be found at
§
809. Validation of
debts [15
USC 1692g]
In order for the letter to be fully compliant it must bear all of
the indices enumerated and outlined in § 809. All of them must be present
and none can be left out.
Additionally, there must be
a statement on the letter which says and I quote, “As of this date
your total indebtedness is $XX.xx. Each and every letter sent to
you by a debt collector must have that wording or it is a violation
in and of itself. Few of them ever do.
Also, each and every letter sent to you by a 3rd party
debt collector must have the wording to be found at
“communication is from a debt
collector”
It is also discussed in the FTC
opinion letter entitled Stewart which goes clear back to 1993
so this is nothing new at all.
Once you have received your initial written
communication from the debt collector you have 30 days within which
you must answer that letter with a demand for validation or you
will suffer the consequences listed at §
809. Validation of
debts (b) but you do not lose the right to demand validation of
the debt as some debt collectors would like you to believe. One
never loses the right to have proof of the debt. When you receive a
dunning letter from a collector you may want to note the date on
the letter and wait for 25 days after the date on the letter to
send validation in order to put as much delay into their process as
possible. Your validation letter should never give any account
information.
I will now go into the reason why I teach that you should never
give any account information when demanding validation of the debt.
To do that we need to look at
§
809. Validation of
debts [15
USC 1692g] (b)(a) and we see that they should not contact you
again after they receive your validation demand except to tell you
that they have received your demand for validation and that they
will not contact you again until their investigation is
complete.
Here is an important
case dealing with Title 15 U.S.C. 1692g
It deals with overshadowing the Miranda warning which must be given
in the first dunning letter. In this case, a few days after
plaintiff received first dunning letter a second dunning letter was
received which bore threats overshadowing the Miranda warning in
the first dunning letter.
But wait a minute! You didn’t give them an account number so they
are going to have to ask you what account you are talking about. If
it don’t do anything else it will make them waste a few days out of
their 30 days in which they must validate the debt thereby stacking
the odds in your favor that they will be unable to get the job done
within 30 days if at all. In FCRA the credit bureaus are allowed to
demand more information and their 30 day time limit is tolled until
you provide them with the information that they demand.
Congress did not accord 3rd party debt collectors that
right in FDCPA. I don’t know why they didn’t, but the fact is that
no such provision exists in FDCPA. In the event that they do ask
you for more information you should send them a photocopy of their
dunning letter and nothing more but you do need to be quick about
sending it to them. One of the most important concepts that you
need to grasp is that although you demand validation you do not
actually want to get it. What you hope is that they will fail to
validate withinthe 30 days allotted them and you will then have yet
another violation against them and your “permission to move on with
estoppel and the rest of the Creditwrench program.
You need to understand the sequence of how the
Creditwrench program works so that you do not become disillusioned
with our program. The first step is, of course, the validation
letter.
The second step in the Creditwrench process comes when you get
your green card back from the validation letter. This letter is
designed to be used hoping to get a quick deletion from your credit
bureau files. This dispute letter must be tailored to fit the exact
circumstance of the listing on your credit bureau files. You need
to put in the name and account information so that the credit
bureaus will know what listing you are talking about. The theory of
this letter is that once the collector has received a validation
demand he may not make any report to the credit bureaus. So if he
does then you have a FCRA violation against him as well as the
FDCPA violations that will normally be generated anyway.
There is no need to wait until you get your green card back from
the post office to know when to send out this second letter to the
credit bureaus. All you have to do is wait 3 days and go to
U.S.P.S.COM and enter in the
tracking code from the white slip you get from the post office and
check it each day until they tell you it has been delivered and
then you can feel free to send out the letter to the credit
bureaus. It will normally take the post office 3 to 4 days to
deliver unless a weekend is involved so that will be about right
for the time frame allowed for the credit bureaus to complete their
investigations.We will see how well this strategy actually works
over time.
If you got your Creditwrench validation letter on or after the November 1, 2003 then you need to send an email and get a copy of this new letter so you can put it to use. Like all other letters this one must be sent certified with return receipt requested.
There is never any variation of that. 25 days after the date on
the green card you need to contact me so that I can provide you
with a copy of our so called estoppel letter which needs to get
mailed out on the 30th or 31st day after the
date on the green card from validation.
The 3rd step is our 2 payday letters and they need to go
out on the 15th or 16th day after the date on
the estoppel green card. One goes to the original creditor (in most
but not all cases) and one goes to the 3rd party
collector. Each lists the offenses committed by the collector but
only 2 or 3 of them. One does not want to reveal his entire hand at
this point.
The 4th and final step is the Soap letter. This is a
much more difficult letter to prepare and I need to put out a
separate instruction sheet for the latter two letters. I will do
that as soon as possible. Soap needs to go out on the
15th or 16th day after the green card from
the payday letters. In order to meet those timelines which are
extremely important to the overall success of the Creditwrench
program you need to contact me by email and let me know that you
are in need of the next letter and what that letter is. I cannot
possibly keep track of those dates for all of my students.
I also plan to start incorporating a bit of “credit repair” tactics
into Creditwrench and that will not be long in coming. It will work
in some cases but not all.
I have a lot more to add to this instruction sheet yet and more
modifications to what is already here. I want to go over this
instruction sheet and add in the references to the appropriate FTC
opinion letters and some court cases so this will be an ongoing
project that may take a very long time to perfect. Until I can get
more time and more references this will have to do.
For now, take care.
