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Expert: Creditwrench - 10/7/2008


Question
I have 4 credit card debts ($60,000) that are with collection agencies. I called them 9 months ago after their repeated calls I never answered. I set up hardship payments with them and until this month I have been paying on them via autodraw. We have been hit by what is happening in the economy really hard and all our income has dried up at the present moment so we cannot keep up our autodraws. We have closed down that account that they were drawing money from. We are planning on sending them each a certified letter stating our circumstances and sending them each a $5.00 payment via a money order. We want to settle with them at some point and we want to hold off on any law suits or arbition claims. Is what we are planning on doing a good way to go?
Also, we wanted to send them a debt validation notice but 3 of them already sent it months ago and we never responded before the 30 days that we had to respond within. Legally can we still send that debt validation letter?
Thank you.

Answer

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You are really missing the boat here. First of all your small payments will only waste more of your scarce money because they don't have to accept that as a valid payment sufficient to stave off lawsuits. They can keep your payments and still file lawsuits against you. You will be far better off just letting the lawsuits happen as they will. Your silver bullet lies in learning what they might have done or might do in the future that constitutes violations of FDCPA and FCRA and preparing yourself to take them to federal court as soon as you have enough violations to constitute a sufficient number of causes of action to take them to federal court. I like to see at least 4 or 5 violations before going to federal if at all possible and it usually is. That way they cannot claim that your one or two violations were simply due to excusable error which is a common defense to FDCPA lawsuits.

Let us examine a hypothetical situation involving an attorney who calls you up on Monday morning and demands that you pay a credit card debt of say $1,000. You tell him that you demand that he validate the debt and his response is that you have to make your demand in writing. Violation #1 has occurred. He then asks if you have received his demand letter and you can honestly reply that you have not. He has made his initial contact with you and he must have that demand letter in your hands within 5 days or violation #2 has occurred.

You have verbally demanded validation of the debt which makes it mandatory and compulsory that he provide you with that validation properly complied with and may not continue with any further collection activity including further phone calls or legal action until he has complied with your demand for validation. If he calls you or sends you a second demand letter or files a lawsuit prior to having provided the demanded validation violation #3 has occurred.

If and when you receive that promised letter you should be certain to have that validation demand letter in his office within 30 days after the date on the letter you received. Doing that way insures that you have your written demand on his desk within the 30 day window allotted you by law. You will be well within the time window that way.

Using the date on his letterhead instead of the date you received your letter as you are allowed to do by law keeps you safe and certainly on time.

If his letter does not contain the required full miranda warning you have another violation.

You should keep careful daily contact with your local court website to see if and when he files a case against you. As soon as you see that he has filed you should prepare your response, interrogatories, demand for admissions and production of documents immediately so that you get them in the mail not later than the next day after he has filed. That puts him behind the 8 ball as far as time to respond to them. Some lawyers like to send their discovery requests right along with the summons and complaint to insure that you are behind the 8 ball in terms of time to comply with the requests. Beating him to the draw by not waiting to get served is your preemptive strike against that trick. Then do all that you logically can to avoid service. In fact, under some circumstances it can take months to get you served and by that time the case might be all over and done with and you never got served. That isn't all that likely but it can happen. A long time ago a case was filed against me in early August and it was late December before I ever got served so it does happen and is much more likely to happen if you have moved between the time the lawsuit was filed and the sheriff trying to find you to serve you. Anytime you move you should always open a P.O. Box and forward your mail to that P.O. Box rather than your new address you much harder to find that way. Don't use your new address to open the P.O. Box. Use your old address and open the P.O. Box as soon as you know you are going to move but before you actually do it. That way there is no connection between your old address and the new one. People who are having debt problems need to plan ahead before doing things so they can cover their tracks. Keep using your old address for at least the 6 months during which time the Post office will forward mail from the old address to the new one. There are other ways to extend that time out for a year or more if there are more than one member of the household.

At any rate, learn the law and use every trick you can to trap the debt collector into violations and keep a careful record of them. Record all phone calls and keep a written record as well so you can prove the violations with no problems and when they have committed a few then file a federal case against them. You will win easily and make your troubles go away forever.

My students do it all the time..  

Creditwrench

Expertise

Debt Collections law, Fair Debt Collection Practices Act (FDCPA), Fair Credit Reporting Act (FCRA), federal law, how to properly answer court summons for collection cases, how to prepare federal cases against debt collectors, how to deal with debt collection phone calls.

Experience

I've been an active consumer advocate for more than 40 years and have helped hundreds of people win cases against debt collectors as well as helping them defeat demands for summary judgment lodged against them by banks, debt collectors and defeat mortgage foreclosures and keep their homes.

Education/Credentials
Paralegal courses for the most part.
I have been teaching people how to deal with judgments, mortgage foreclosures and other such problems both on and off the internet for many, many years. I am a Richard Cornforth information provider ever since 2000 and worked with many other organizations and causes since 1980. I was Oklahoma State Chairman for the nationwide drive to defeat the Constitutional Convention which was proposed by various factions within our federal government such as the Council of State Governments and the National Organization of State Governors who were working hard to organize a Constitutional Convention to be held in 1995 for the purpose of rewriting our American Constitution to be more acceptable to the United Nations. I worked with Senator Charles Duke of Colorado and Senator Don Rogers of California and many others across the nation to keep them from getting the number of delegate states required to lawfully hold a Con-Con and we were successful. I have worked with many other legislative issues in Oklahoma and have always been very successful.

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