tony
Category: Collections Law
Private: No

Subject: credit card collections
Question: I responded to a law firm that has been calling my sister multiple times(she never answered).I do not even know how they got her name. He said I owe Capitol One 1200 dollars on a 300 dollar card from 2005. I told him that I have not been working since 2005 and am just now starting to get disability. He said he would take 2 payments for a settlement of 950 dollars and then would show my credit report clear for the entire 3 years. I had just gotten 2 court subpenas that morning for 2 different cards of 2500 and 1800 dollars. I said I was thinking of possibly bankruptcy or credit counseling which apparently made him mad so he started threatening me to get the IRS involved and take it to court.

I had told him I would pay the 950 but only via money order and he said they dont work that way I had to give him a check over the phone. He started becoming very loud and mean so I hung up on him. I called back that night after hours and offered to pay it via money order if he would give me the offer in writing. He called back the next day and said he would still do the offer but only by check over the phone. I have not called him back and have not heard anything from him, but am expecting another court summons soon.

Any suggestions? Do you think a judge would give me the offer since I tried to do it? I live in AZ my only income is from disability and foster care both of which I have been told are not garnishable. I also rent and do not own any real property so I do not know what they can make me do to get money. I do not know what he thinks getting the IRS involved would do, since none of my income is taxed? Sorry this is so long, but I am trying to get ahead of the game before the court summons come. I also have a problem with them thinking I should owe 1200 for a 300 card which was not put over the limit by me. thanks for any help/advice you can give.

Tony
Tucson,Az

Answer: I'm glad you want to get active before they drop their bombs on you. Now you need to learn how to do it right and that is what I teach. First thing you need to learn is to make a record of all calls and their content, date, time and ect.

That is best done with a recorder and there is a cheap and effective way to do that. All you need is an ear piece from Radio Shack called an Olympus TP-7 which you can plug into a tape recorder or into the microphone input jack located on the back of your computer. Then you need a free program called WAVEPAD and you are good to go. It will give you very clear audio and you can amplify weak audio and do lots of things with it. Then save the conversation to your hard drive in MP3 format and you have a record of the conversation.

You will be asked for a file name to save it under so you can give it a name that will always be easy to find. For instance, NCO-03-15-08-3PM and when you need it you can find it very easily because you know that the call came from NCO on 3/15/08 at 3:00 P.M. If they made multiple calls on that day you can even pull up the first one then join all the calls for one day into one file if you choose to do so.

Next you need to keep a written log of them as well. The next step is to learn what they can and cannot do. For instance, they cannot force you to pay by any means that costs you money to pay. They can demand check by phone but can't demand you pay by any means that costs you money. If they want you to pay by check by phone they can do that but they can't do it using a service that costs you money. Pay-to-pay isn't allowed.

Threatening to get the IRS involved is also illegal because the IRS doesn't get involved in such matters unless a 1099 has been issued and even then they only collect taxes not other people's debts. So those and many more types of threats are illegal. There are many other things they cannot legally do but what will you do about it when they break the law?

If you want to do something about it you will also need to learn how to file federal lawsuits against them for their violations of the law. If you don't do that then nothing will be done about their illegal activities. So are you willing to do what it takes to learn how to take them to federal court and win?

Most folks aren't willing to go to that much time and trouble so debt collectors get away with their antics. But it really isn't hard to do. Mark M. who is one of my students and probably the latest one to take a debt collector to federal court has probably already won his first case. He filed suit against debt collector attorney Howard Lee Schiff and named Capital One as co-defendant. He did that knowing that he could not possibly sue Capital One under FDCPA because original creditors are not liable to FDCPA.

But there was a method to that seeming madness. Howard Lee Schiff had sued Mark in a state court and won a judgment in favor of Capital One using a false affidavit prepared by OSI collection agency employees. OSI was never mentioned in the lawsuit as having any part in the action.

In order for a person to make an affidavit they must have first hand knowledge about the facts in the case and neither Dudley Turner of OSI nor the attorney could possibly have first hand knowledge about anything. Only a Capital One employee could possibly have first hand knowledge about any of the facts in the case. They lied under penalty of perjury! Doing that in a state court action is not a federal offense under FDCPA or any other federal law that I am aware of but providing false and misleading information to a consumer is actionable in federal court.

And that is what they have done to you among other things. They provided you false and misleading information! So what will you do about that? Will you just take that kind of abuse or will you get mad and sue them in federal court?