Expert: Regan Shinski - 4/21/2010

Question
I have a credit card that was written off as bad debt months ago. The original creditor calls my phone 100s a times each day. On this particular day I picked up my phone and the man asks to speak to my attorney. I respond by saying I don't have one he says well how do you plan on resolving this issue. I respond by saying making payments. He told me at this time I was no longer able to make payments on the phone or mail in payments and that I was refusing to pay by not making payments on the phone. He then told me they would just take the money out of my account. I then responded by saying I will have to look at my financial situation to see how much I would be able to pay he then told me I was a thief and that I was refusing to pay. I repeated on several occasions that I was not refusing but I was busy and that he could call me back after 5pm. He then told me that was unacceptable. I then stated I would send in payments after I sat down and looked at everything and hung up the phone! What steps should I take?

Answer
Hi Brittani:

It is more difficult to deal with issues like this when it is the original creditor calling.  They have the right to call and their limitations are more generic compared to the specific things a collection agency cannot do.

However, they are not allowed to harass you.  In general, they are allowed to talk to you once a day.  Some states have allowed more or not adjudicated this issue directly on the state level, but it is widely deemed they cannot speak with you more than once a day without your permission or it can be deemed harassment.  So, for starters, you may want to acknowledge a call in the morning and state that since they have reached you today, you expect to not call you anymore that day or you will deem it harassment.  Just say, "you'll look into it."  I noticed already you admitted the debt.  That is not a wise thing to do in general unless you can easily and freely pay the debt if you are sued.

Another thing you can do is start legally recording the calls.  Being badgered and told you are a "thief" would likely be deemed harassment but you have no evidence of it at this point.  Find out if you are a single party consent state.  If you are, you do not need their permission to record the call but BE SURE you are single-party!  If you do not live in a single-party consent state, just tell them at the beginning of the call that YOU are recording it.  This may lead them to abandon the call or certainly be more anxious to get off the phone and/or be more civil.

If you live in a single party state and you hear a recording that says the "call may be monitored or recorded" you can say you don't want the call recorded.  This often flummoxes the caller.  Say you want a guarantee it is not being recorded or they are personally breaking the law.  Often they say they will have a supervisor call you back from an unrecorded call and they never do.

You should start keeping a log of the dates and times they call.  Large volumes of calls or calls made after they spoke to you that day (see above) can be deemed harassment.

More drastic steps include basically avoiding them by changing your number or filing a pre-emptive lawsuit or cease and desist order of protection.  The latter steps are more advanced and not for most people.

You can try sending a letter stating that you want all future communications to be in writing.  Original creditors are typically not bound by this law like collection agencies are.  However, sometimes they "trick" the creditor into placing your file into a do not call list.

Your goal here is to prove a clear case of creditor harassment.  This is accomplished through recorded phone calls showing bombastic language or by an unreasonably high volume of phone calls proven by phone records.  Once you have this evidence you turn it against them by filing or threatening to file a lawsuit.  You use this threat or lawsuit to offset and/or settle the account.

Often these accounts will be turned over to a collection agency after a certain period of time.  Don't panic.  The goal remains the same but you have more laws to help you fight it.  Often it is easier on the consumer when an account goes to collection because you can easily stop the calls.  However, it is critical that you don't ignore the communication from the collection agency when it comes.

Good luck, I hope this helps.  I wish I had a quick-fix answer.

Regan
mbscompany@aim.com