Paisola v CACH LLC and Attorney Melissa A Ferris - Florida - The Test of The Bank of America, CACH LLC , Unifund Junk Buying Machine, Robert Paisola Reports (Seeking Class Action Status)
Tomorrow we are going to court on a case that has wide spread implications for the large Debt Buying Company CACH LLC which is related to our case with UNIFUND LLC. It is also related to the robo-signing issue with Bank of America as described below. For this story former employees of Bank of America were interviewed and the results are tragic.
The Instant Matter is a Case is based in Florida and we discussed it in detail
Here on the National Wire Services
The issue is this:
What is required of a 3rd Party Debt Collector to VALIDATE the claim that they are collecting on. If they happen to be "Junk Debt Buyers" , as is CACH LLC and Unifund, and then they SELL THE PAPER to a collection agency such as CACH LLC, a company in Florida and Colorado.
What do they have to provide in order to ensure that the debt is legal, valid, and collectible?
In the instant matter of CACH LLC v SCOTT MITCHELL, the attorney for CACH, Melissa A. Ferris in Florida, under the direction of Account Manager Joe Roberts. filed an action against Mitchell stating that he had a balance due to CACH LLC (A Bank of America Account) that had been purchased, for over TWENTY THOUSAND DOLLARS. Mitchell knew Nothing about this obligation, and immediately started searching for assistance, when he found the CEO of Western Capital, Robert Paisola.
Paisola has been battling Unifund and companies such as CACH LLC for over four years on this very issue, however, now it is in Court.
As Counsel for the Debt Buyer, Melissa A Ferris, provided the Honorable Judge George C. Richards of the Twentieth Judicial Circuit Court in Charlotte County Florida the following information to validate the alleged debt:
a.Notice of Confidential Information within the Court Filing
b. Affidavit of Reasonable Attorneys Fees
c. Affidavit of Counsel of Record
d. Affidavit of Costs
e. Affidavit of Pre judgment Interest
f. UNSIGNED Cardholder Agreement
g. Charge off INTERNAL STATEMENT COMPUTER GENERATED BY BOA dated 12/2009
h. INTERNAL STATEMENTS GENERATED BY BANK OF AMERICA IN STATEMENT LOOKING FORM (Unsigned)
i. Business Records Affidavit with attached Assistant Secretary's Certificate
j. Affidavit of Claim (AKA Affidavit of Sale) UNSIGNED BY DEBTOR
k. Affidavit of Indebtedness and Certificate of Assignment (Unsigned by Debtor)
l. Motion for Summary Judgment
m. Proposed Summary Judgment
Now, notice that not one single document in the "Discovery Package" has/ had Defendants Signature on it, and CACH LLC, and Attorney Ferris state that the documents "Are not Available" ( See Wall Street Journal Analysis)
Basically what Ferris has done is provide the Court with a robo-signed "chain of custody" of an account... or so they think.
Since we issued our National Story and the surrounding voice mails on this case, we have been receiving many complaints against Unifund and CACH LLC about this very issue. We began to contact some of the best legal scholars in the nation, and first call was to the National Debt Buyers Association, but they wanted nothing to do with this story. "The Courts are Dealing with this matter" said a representative.
The issue of CAN I RECORD A TELEPHONE CALL has also been brought up:
As you know, we encourage all of our clients to record every call that you have with a debt collector, or their agents. This is the reason why:
Lets look at another case out of Florida (Video) This made national news!
The answer to this question is simple. Are you a one party state or a two party state. In this case we are calling from Salt Lake City Utah , so we check with our legal authorities at www.rcfp.org and under Utah law we find:
Utah
An individual legally can record or disclose the contents of any wire, oral or electronic communication to which he is a party, or when at least one participant has consented to the recording, unless the person has a criminal or tortuous purpose in making the recording. Utah Code Ann. § 77-23a-4. (This means that if you consent to the recording, you can do so! It DOES NOT REQUIRE BOTH PARTIES APPROVAL! If you are a member of the media, you are free to record for "investigative purposes"
The FTC has stated that "Recording of Calls with Debt Collectors protects the Consumers Ability to Prove that they have been damaged by a violation of State or Federal Collection Laws"
So, do your research, and if you are calling from a One Party State Like Utah... Game On!
Both debt collectors and consumer groups stated that the taping of collection calls is beneficial to consumers and to the debt collection system. According to the ACA, a survey of its membership shows that in 2007, more than 40% of its debt collector members recorded calls.
Under the statute, consent is not required for the taping of a non-electronic communication uttered by a person who does not have a
reasonable expectation of privacy in that communication. See definition of “oral communication,” Utah Code Ann. § 77-23a-3.
Unlawful interception of communication, including disclosure of the contents of a communication with reason to know of the illegal origin, is a felony—except that when the communication consists of the radio portion of a cellular telephone call, it is a misdemeanor. Civil liability for unlawful interception can include the greater of actual damages, mandatory damages ranging from $50 to $1,000, depending on whether it is a first or subsequent offense, $100 per day of violation, or $10,000. Equitable or declarative relief is also available under the statute. Civil actions are governed by a two-year statute of limitations. Utah Code Ann. § 77-23a-11.
Installing a hidden camera or audio recorder to tape a person in a “private place” without consent is a misdemeanor. Utah Code Ann. § 76-9-402. A “private place” is a place where one may reasonably expect to be safe from intrusion or surveillance. Utah Code Ann. §76-9-401.
Now, the question is this: What does the creditor have to provide to "Validate the Debt"?
That question is being asked in Courts around the Country because of the sweeping financial changes under the Obama Plan. However recent law is on the Debtors Side:
What does a debt collector need to provide as debt validation?
Proof that the collection company owns the debt/or has been assigned the debt. (Bob is legally entitled to collect this particular debt from you.) This is basic contract law. It is very difficult to get a judgment without a direct contract between collection agency and the original creditor.
All certified 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 heck did Bob calculate this debt?) In this instant matter with Mitchell, he is entitled to receive all data to support all charges from the alleged opening of said account (6/26/2004) Counsel did Not Provide this!
A copy of the original application and agreement with YOUR SIGNATURE SHOWING THAT YOU AGREE TO THE TERMS AND CONDITIONS OF THE CONTRACT.
There are many cases in Court Right Now, and some Local Courts have been forced to vacate tens of thousands of judgments, where there was no signature.
This is the result of Sen. Carl Levin, D-Mich., Chairman of the Permanent Subcommittee on Investigations push for debt collection reform.
Millions of Americans are being effected. Watch this story from KSL, here in Utah that describes "A Clogged Court System" that we have used to convince lawmakers that the system is under attack by debt collectors and vultures who label themselves as "Creditors Counsel" and "Debt Buyers" The game has changed and we are seeing more Federal Lawsuits filed daily on this issue.
If a Supposed Debtor can PROVE that the court or the courts "appoints" knew about the inability to grant judgments en masse without a debtors signature, then the consumer can sue the Court and the individuals who knew (Record Everything)
What fees/interest Bob has tacked on to this debt and how he determined these fees?) This, among other requirements were established by the case Fields v. Wilber Law Firm, Donald L. Wilber and Kenneth Wilber, USCA-02-C-0072, 7th Circuit Court, Sept 2004 and many other cases outlined herein
Counsel Must Provide a Certified Copy of the original signed loan agreement or credit card application by and between the parties. (Affidavits No Longer Are Valid, ... think robo-signing)
From the Wall Street Journal...
Portfolio Recovery Associates Responds To Zombie Robo-Signer Controversy
of the Wall Street Journal replying to the Journal’s December 31, 2010, article concerning Portfolio Recovery Associates’ use of affidavits allegedly signed by
Washington Mutual robo-signer Martha Kunkle 13 years after she died in 1995. Portfolio Recovery Associates also filed a
Form 8-K with the Securities Exchange Commission which attached a copy of the letter to the editor.
Portfolio Recovery Associates asserts that it was a “victim” of the Providian – Washington Mutual record keeping process and “not a participant in it as the article implies.”
Portfolio Recovery Associates and possibly other debt buyers discovered the defects of the “Martha Kunkle” affidavits no later than the January 2008 deposition of the live (daughter) “Martha Kunkle”.
Did any of the debt buyers who purchased credit card accounts attempt to exercise their right to return the accounts to Providian, Washington Mutual, Bank America or Chase?
Portfolio Recovery Associates also points out that it purchased more than 24 million delinquent, charged-off and bankruptcy accounts during the past 15 years. Portfolio Recovery Associates estimates that it files lawsuits in order to collect slightly more than
2 percent of their accounts.
Portfolio Recovery Associates acknowledges that it “became aware” of these “defective” Providian affidavits during January, 2008.
Portfolio Recovery Associates’ letter continues :
“After we became aware of these defective Providian affidavits in January 2008, we immediately implemented a program to stop forwarding these Providian affidavits and to direct the law firms who represent PRA in collection cases to discontinue using them.” ***
Portfolio Recovery Associates does not indicate whether it took any action to recall the “defective” affidavits or took any other actions to correct any problems created by its unwitting use of the “defective” Martha Kunkle affidavits.
Did Portfolio Recovery Associates notify any courts who accepted the “defective” affidavits; seek to vacate the judgments obtained through the use of the Martha Kunkle affidavits, or undertake similar actions to correct what some people may consider a defective or improperly obtained judgment.
Portfolio Recovery Associates explained that it had :
“no reason to believe that the Martha Kunkle, whose name appeared on Providian, Bank America and Washington Mutual affidavits is deceased, particularly in light of the fact that she was named as a defendant and an active participant in the litigation that resulted from the use of such affidavits. The article fails to mention disclose that the name of the living daughter is the same as the deceased mother. ***
[W]e do not view an isolated example of a third party law firm employee mistakenly including a Kunkle affidavit in a single Washington state collection lawsuit as being symptomatic of ‘corner-cutting’ or ‘sloppy and inaccurate documentation’.”
Portfolio Recovery Associates’ belief that its “affidavit process is as advanced as any in our industry” may well be correct but it avoids an important issue —
Is the debt buying industry’s state of the art acceptable?
During a 2008 deposition, the “live” Martha Kunkle testified that numerous Providian employees signed the name “Martha Kunkle” to sworn affidavits.
Even assuming the Providian employees were signing the name “Martha Kunkle” intending for it to represent the signature of the “live” Martha Kunkle rather than the “dead” Martha Kunkle, the affidavits are still fraudulent.
Portfolio Recovery Associates’ assessment that “the ‘Zombie’ heading was sensational” is in correct in some respects. But it avoids an important question —
what actions did Portfolio Recovery Associates take to ensure the authenticity of the Providian, Bank America and Washington Mutual affidavits before it distributed thousands of “defective” “Martha Kunkle” affidavits to lawyers so that courts throughout the United States would rely on them when entering judgments against credit card borrowers. Similarly, what actions did any of the other debt buyers take when they learned about the “defective” affidavits? The Court said "This is only the tip of the iceberg, we can see that millions of judgments will have to be vacated regardless of whether "Kunkle" signed the affidavit, as now the Courts are aware of the robo-signing that has been going on in the
Providian, Bank America and Washington Mutual affidavits
The Wall Street Journal further reported that :
“In 2008, Judy Montoya, an employee at Portfolio Recovery Associates, testified in a debt-collection suit filed by the company that its ‘legal specialists’ sign as many as 200 affidavits in a day. The company’s spokeswoman said such employees sign an average of 100 affidavits a day and are guided by ‘a very rigorous set of policies and procedures’.”
In order to execute 200 affidavits per an eight hour day, an “Authorized Representative”, “Records Custodian” or “Legal Specialist” would have to sign an affidavit an average of every 2.4 minutes. Such limited time hardly seems adequate to review credit card account records, review (nonetheless complete) an affidavit, take an oath and execute the affidavit.
At least a couple of Providian employees are known to have signed the Martha Kunkle affidavits. It is possible that, prior to January 2008, Portfolio Recovery Associates
or other debt buyers had at least some reason to question whether the Providian affidavits were what they purported to be.
Obvious questions arise. How many of the tens of thousands of affidavits evidencing Providian credit card accounts bore the signature of anyone
other than “Martha Kunkle”? Why do many of the “Martha Kunkle” signatures contain
obvious differences in the handwriting?
Perhaps other state attorney generals will join Minnesota and investigate the credit and debt collection industry’s extensive reliance on robo-signers to obtain default judgments against consumers in credit card collection lawsuits.
Congratulations America, You Won!
Data on Robert Paisola from Experts.Com: True Results : True Change
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Click Here to Watch this video to see exactly how Western Capital and The Robert Paisola Team deal with Rogue Debt Collectors. Then call 1-877-517-9555
One of the biggest developments in years was the Obama Administrations announcement on June 19 of the development of the "Financial Regulatory Reform, A New Foundation: Rebuilding Financial Supervision and Regulation" To be governed by a Financial Services Oversight Counsel.
The Financial Services Oversight Council (“Council”) established by Title I of the Dodd-Frank Act held its much anticipated first meeting on October 1, 2010. The Council is poised to play a critical role in the implementation of key elements of the Dodd-Frank Act. At this point, the Council has three principal responsibilities it must address: (i) developing a process for determining whether a particular financial institution will be deemed to be systemically significant (“Significant Nonbank”), (ii) making recommendations to the Board of Governors of the Federal Reserve System as to the heightened capital and other prudential standards that will apply to Significant Nonbanks and bank holding companies with consolidated assets of $50 billion or more; and (iii) preparing a study regarding the Volcker Rule.
The Council held a brief session accessible to the public by webcast following a closed meeting. After a week that included news reports suggesting that some federal regulatory authorities had opposed the FDIC’s decision to adopt a sweeping new rule regarding depository institution securitizations without further coordination among the regulatory community, see
FDIC Board Approves Final Rule Regarding Safe Harbor Protections for Securitiza-tions, and controversy in a Senate hearing regard-ing the timing for the Bureau of Consumer Financial Protection to take binding regulatory actions, there was significant attention to how the fifteen-member Council would work together.
The Council members’ statements conveyed a sense that the Council would play a leading role in a cooperative effort to set the direction for financial
services regulation as well as a sense that the Council needs to accomplish a large amount in a short period of time. The Council explained that its discussions would be conducted in public to the maximum extent possible, but noted that certain matters, such as those involving particular compa-nies, might have to be addressed in a closed session.
Designation of Significant Nonbanks
The Dodd-Frank Act provides only general guidance as to how the Council should determine whether a
financial institution should be desig-nated as a Significant Nonbank. This has led to speculation as to whether the Council would de-velop some type of matrix of factors that it would consider in determining the treatment of particular institutions and whether such a matrix would be made available in some type of public process. It now appears that the Council intends to conduct a rulemaking process to adopt the criteria that it will use. As the first step in the process, the Council announced that it will be issuing an advance notice of proposed rulemaking (“ANPR”) regarding the designation process. The ANPR will consist of 15 questions and will have a 30-day comment period. The Council expects to follow the ANPR with a pro-posed regulation to be issued by the end of the year, with a final regulation targeted for adoption by March 31, 2011.
This rulemaking process will be of great importance to many non-banking
financial services firms that may be-come subject to comprehensive and strict federal regu-lation if designated as a Significant Nonbank.
Volcker Rule Study
As has been widely observed, the Volcker Rule raises a wide range of critical issues that should be clarified be-fore it becomes effective. See
Dodd-Frank’s Limitations on Risk Taking: An Analysis of the Volcker Rule’s Re-strictions on Proprietary Trading and Investments In and Sponsorship of Hedge Funds and Private Equity Funds.
The Volcker Rule requires the Council to conduct a study and make recommendations (“Study”) regarding the implementation of the Rule that addresses, among other matters, (i) minimizing the risk that insured de-pository institutions and their affiliates will engage in unsafe and unsound activities, (ii) reducing the conflicts of interest between the self-interest of banking entities or Significant Nonbanks and the interests of their cus-tomers, and (iii) limiting activities that have caused or may cause undue risk or loss to banking entities and Significant Nonbanks. The Dodd-Frank Act requires that the Study be completed by January 22, 2011. Following completion of the Study, specified federal
financial regu-latory agencies are generally given nine months to adopt rules implementing the Volcker Rule.
The Council announced that it will publish a request for public input in connection with the Study. The request will have a 30-day comment period following its publication in the Federal Register. This notice will offer an im-portant opportunity for parties potentially impacted by the Volcker Rule to identify inconsistencies and unin-tended impacts of the Rule that should be addressed and resolved in the rulemaking process.
Dodd-Frank Implementation Roadmap
In what may be a signal that the Council intends to per-form a coordinating role across agencies as the Dodd-Frank implementation process proceeds, the Council published a 20-page Integrated Implementation Road-map that outlines a wide range of rulemakings, studies and other actions that will be undertaken under Dodd-Frank, with anticipated timeframes.
DBA International, The Debt Buyers Association, strenuously fought this law and issued this statement:
DBA International Responds to Consumer Advocates' Call to Restrict Debt Buyers
February 3, 2011
DBA International, the voice of the debt buying industry, disagrees with Consumers Union and East Bay Community Law Center’s call for further restrictions to the debt buying industry. Over the past decade, selling bad debt has emerged as an important and effective way for financial institutions to recoup money from bad debts. The money from those sales is then invested back into the banking system in the form of loans and revolving credit for working class Americans.
Greater restrictions on selling debt would cause primary lenders to choke off credit and limit their lending to only the best qualified so they can avoid the bad debt risk. Those who will suffer are the very people these organizations are seeking to protect.
And while these organizations identify individual stories about people for whom the system did not work, they are the exception and not the rule. An overwhelming majority of Americans repay their debts on time, and most of those who are delinquent make arrangements to pay their lenders. The small remainder becomes the responsibility of the debt's owner and their collectors. When errors occur, existing laws protect consumers and give them recourse. We don't need to add more layers to an already complex system.
It is very easy to paint the little-known debt buying industry negatively. But the work that our members do on a daily basis is a vital part of the American credit economy. Limiting their practices could have tremendous unintended consequences.
Naturally companies such as Unifund and CACH LLC want nothing to do with this agency and highly prefer to be governed by the FTC. However that is not going to happen.
How does this apply to debt collectors? In cases such as the one that we are working on in Florida, the transfer of the portfolio of Bank of America Accounts to CACH LLC and then to Attorney Melissa A Ferris is essentially illegal, unless the ORIGINAL CREDITOR, Bank of America, Provides the chain of custody AND a fully signed application with the debtors signature indicating acceptance of the agreement. BOA says this is impossible to provide, therefore the claim by CACH LLC must be dismissed.
This puts Courts like the one that we are dealing with in Florida, presided over by The Honorable George C. Richards with limited options. He is now required to STOP THE DEBT COLLECTION AGENCY CHURN MACHINES that issue default judgments.
Back to Unifund:
Unifund CCR Partners Legal Defense
If you have a Providian, Bank of America, Citibank, or American Express credit card in default or if you are receiving debt collector letters or if you are you being sued by Unifund CCR Partners, you may have a defense to the lawsuit and/or a claim against them.
Unifund feasts on the famine of others. As banks and lenders dump their delinquent consumer debt, Unifund and others happily buy it in bulk for pennies on the dollar. According to Collections & Credit Risk magazine, Unifund boasts one of the nation's biggest inventories of shaky money.
From its start in Dayton, Ohio, in 1986, Unifund has quietly become an economic force. It has 45 employees; clients as big as Citibank and American Express; and dealings with banks, retailers and law firms all over the country. Rosenberg also has a project going with hip-hop mogul Russell Simmons of New York, involving the issuance of more than 100,000 debit cards to low-income people.
Contact Information:
Unifund Group Corp.
10625 Techwoods Circle
Cincinnati, Ohio 45242
Cincinnati Enquirer Story on Unifund Partners:
With David Rosenberg as its majority owner, has clients as big as Citibank and American Express. Courtesy The Cincinnati Enquirer.
Bad debts very, very good for bill collector Unifund
When consumers can't pay, Blue Ash ( CACH LLC ) firm steps in
![[IMAGE]](https://lh3.googleusercontent.com/blogger_img_proxy/AEn0k_u8qdMpn1LN3KIG7q-Ubom20leGRllRwYchHQJRJMSwyRwO6PETd5NsOJjCDkjKTBEQbWaCUmHpIUFHMUlfnibpDPcOkqgMDWU5UOPh8QRcbiL1roaDBGrSBllNZssNmMk=s0-d) Unifund, with David Rosenberg as its majority owner, has clients as big as Citibank and American Express.
(Tony Jones photo)
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BLUE ASH - America's appetite for borrowing money bloats U.S. consumer debt to a record high almost every month. As of September, the tab stood at $2 trillion and was spurting at an annual rate of 10 percent. Through good times and bad, spending tomorrow's dollars today never goes out of fashion.
But all that borrowing produces a lot of financial heartburn. Every year, banks, retailers and other consumer lenders write off more than $70 billion in uncollectible debt, mostly hopelessly overdue credit-card balances. From there, the debts are bundled for auction and scarfed up by companies that pay next to nothing for the opportunity to take one more shot at collecting from deadbeat debtors.
It is through that process that about $9 billion in secondhand debt has landed in Greater Cincinnati, ending up at a Blue Ash company called Unifund and its 38-year-old majority owner, David Rosenberg.
Unifund feasts on the famine of others. As banks and lenders dump their delinquent consumer debt, Unifund and others happily buy it in bulk for pennies on the dollar. According to Collections & Credit Risk magazine, Unifund boasts one of the nation's biggest inventories of shaky money.
From its start in Dayton, Ohio, in 1986, Unifund has quietly become an economic force. It has 45 employees; clients as big as Citibank and American Express; and dealings with banks, retailers and law firms all over the country. Rosenberg also has a project going with hip-hop mogul Russell Simmons of New York, involving the issuance of more than 100,000 debit cards to low-income people.
All this from someone who yawned his way through school and dropped out of Ohio State University after his freshman year. Rosenberg, born in Izmir, Turkey, moved to Dayton as a child after his father, a civil service engineer, was assigned to Wright-Patterson Air Force Base. At 10, he said, he began entertaining thoughts about owning a business. Four years later, he was selling Fuller brushes. At 15, he took a summer job with a collection agency.
It soon dawned on him that regular collection methods were largely a waste of time. He also learned debtors were subjected to the practices outlawed by the Fair Debt Collection Practices Act of 1978.
"You had collection agencies that were basically beating people up by phone to attempt to collect in a very short time frame," he said. "It really does take a lot longer for people to rework their situation and regenerate themselves. To call them in some accelerated, urgent 'I only have 60 to 90 days to take care of this with you or it's going to go on to the next process' isn't something that resolves anything for someone who owes money."
The young entrepreneur
In 1986, at the age of 20, Rosenberg gathered $20,000 in savings and formed Unifund in a one-room office in north Dayton.
The business started out by buying the bad checks of supermarkets and retailers, paying 75 to 80 cents for each dollar of face value. Unifund reaped 115 percent to 125 percent of the check amounts, a return made possible by charging people insufficient-funds fees, Rosenberg said.
Relieving themselves of bad checks, though, was only one reason retailers signed up with Unifund. Rosenberg developed software that helped to avoid bad-check passers. Before long, Unifund was dealing with national chains, including Kroger. Its system is now used by more than 30,000 stores.
Meanwhile, buying bad debt was becoming big business. The Federal Deposit Insurance Corp., inheriting the bad loans of failed banks during the 1980s, began selling them in batches for pennies on the dollar. Unifund joined the action. It made its first big buys in 1990: a series of bad debt portfolios from Manufacturers Hanover Trust with face values of up to $50 million apiece.
Ironically, even as his business grew, Rosenberg found himself on the receiving end of liens and delinquency notices. Over the past decade, Rosenberg's name has appeared on Ohio income tax liens, an overdue notice for Vermont real estate tax and a lawsuit for an unpaid auto loan. Rosenberg made good on the debts. He declined to talk about them for this article
.
The price of credit
As Americans gorge themselves on easy credit, defaults are swelling. As of September, total U.S. consumer indebtedness, excluding home loans, stood just shy of $2 trillion, compared with $1.3 trillion in 1998, the Federal Reserve says.
U.S. households carried an average of $8,940 in credit-card debt in 2002, up from $6,618 in 1998, market research firm CardWeb.comsays.
Banks keep issuing credit cards because income from the interest - now averaging about 13 percent - more than offsets any write-offs. But buying the write-offs can be profitable, too, said Dennis Hammond, executive director of the Debt Buyers Association in Santa Fe Springs, Calif.
"The target," he said, "is to double your investment in three years."
Rosenberg said Unifund generally pays 4 cents to 10 cents per dollar of face value and recovers an average of about 20 cents, or a gross profit of 150 to 200 percent.
Strong-arm tactics are not part of the operating plan, he says. Collection agencies often harass by phone, threatening to garnish their wages or confiscate their homes. Such practices are illegal. Several lawsuits accuse Unifund of having an unsavory side, but Rosenberg says that pales alongside what other companies do.
"We're not in the embarrassment business," he said, not at all red-faced about the Phat Farm street sneakers he mixes in with his snappy executive garb.
Instead of rotely going after debtors, Rosenberg says, Unifund gathers information about people from public and proprietary databases, then classifies them by their ability to pay. It steers some people into credit counseling or refinancing, others into court.
"Anybody else would call those people and say, 'You've got to pay!'" he said. "I think it's important to understand what people's situations are first. Today's debtors are different. You have people who are intermittently running into problems as they change jobs, careers and have families. It's an unintentional circumstance."
After sifting its newly acquired accounts, Unifund keeps most, but sells others. Of those it retains, Unifund decrees who can pay, who can't and, above all, who should. When it decides someone can - and should - pay, Unifund assigns collecting to agencies and law firms.
"We don't do business with people who claim to be rough-tough collectors because it's not our philosophy that that's what produces payment," Rosenberg said. "We're not of the opinion that calling somebody and yelling at them and making them afraid of what might happen next is the best way to get paid."
An industry in controversy
Bud Hibbs, a nationally known consumer advocate in Fort Worth, Texas, disputes that claim.
"Excuse me while I throw up," he said. "Nothing could be further from the truth. I've heard those claims a million times over 20 years."
Hibbs, author of The American Credit System: Guilty! Until Proven Innocent, said he receives many inquiries about Unifund's collection methods. He reports on debt collection companies on his Web site.
Perhaps the harshest claims against U
nifund are allegations that it fiddles with people's credit reports.
To help people put their credit problems behind them, the federal Fair Credit Reporting Act requires debt to be expunged from credit histories seven years after their delinquency, barring new activity on the account. But class-action lawsuits filed in Texas and Chicago claimed Unifund is chasing outdated debts.
In the pending Texas case, two plaintiffs say Unifund bought their credit-card debt, freshened up the delinquency dates by a year and provided them to Experian Information Solutions, one of the nation's three big credit-rating firms.
Russell Van Beustring, a Houston lawyer representing the Texas plaintiffs, said the subsequent blemish on people's credit ratings lowers their creditworthiness and makes them more vulnerable to abusive collection tactics. In his lawsuit, which also names Experian and The Credit Store, he said the companies "defraud and scam American consumers out of hundreds of millions of dollars." Their actions, the suit states, amount to racketeering.
"The major reason why the Fair Credit Reporting Act was amended was that these companies were rolling back the odometers left and right on the dates of last activity, and consumers were getting screwed," Van Beustring said.
The Chicago case accused Unifund of telling Experian that Richard and Lida Munson's credit-card default dates were up to six years later than they actually were. They settled for an undisclosed amount in 2002.
Unifund says the date-changing allegations have no merit. Rosenberg declined to talk about the lawsuits beyond saying that they are off-base.
Reincarnating old debts on credit reports is a practice familiar to the agency that regulates collection agencies, the Federal Trade Commission. The FTC has fined companies twice in three years for such tampering with consumers' credit. It accused one of those companies, D.C. Credit Services of Canoga Park, Calif., of harassing people with obscene language.
D.C. Credit settled by paying a $300,000 fine and correcting seven years' worth of false information supplied to credit bureaus.
Thomas Kane, a lawyer in the FTC's Division of Financial Practices, said he was unaware of the allegations against Unifund.
"We are not shocked to hear that other debt buyers are doing it," Kane said. "It is a powerful collection tool, if you can get away with changing the date on a person's credit report. But it's illegal."
The FTC said it has received 203 complaints against Unifund - a number that it says is low for bill collectors. It has taken no enforcement actions against Unifund.
No credit to secured credit
Hip-hop impresario Russell Simmons jumps at the chance to vouch for Rosenberg's integrity.
Simmons, one of America's most successful African-American entrepreneurs, was the subject of Business Week's Oct. 27 cover story, "The CEO of Hip-Hop." His company, Rush Communications, was Black Enterprise magazine's Company of the Year in 2002. He founded, then sold, Def Jam Records - the label for hip-hop musicians Run-DMC, LL Cool J and Public Enemy. He now focuses mainly on expanding his Phat Farm apparel line - the maker of Rosenberg's sneakers - but Simmons found the time to create Def Poetry Jam, a Broadway production that won a Tony award in June. Rosenberg shared the award as an executive producer.
Simmons and Rosenberg own homes in the Hamptons. They spend vacations together in St. Bart's. In his Tony acceptance speech, Simmons thanked Rosenberg for being one of the few financial backers of Def Poetry Jam.
"He's one of my dearest friends. We're just alike," Simmons said from his office in Manhattan's Fashion District. "He and my wife are the only two outside of myself who would put money in my play."
Rosenberg and Simmons were introduced two years ago. That led to the debut of the RushCard in March. For $19.95 a year, takers are issued a debit card that draws from cash balances kept by M&T Bank of Buffalo, N.Y. It lets people who can't afford traditional banking buy things by phone and by the Internet.
"I told (Rosenberg) that my job had to do with empowerment and that the more you give, the more you get," Simmons said. "It evolved into a company that could really build on giving opportunities."
Rosenberg, who puts in 12- to 18-hour workdays and travels frequently, throttles into high gear when asked why society needs the RushCard.
"There are cases where the people who are frequent, consistent payers, but who don't show up as being qualified borrowers, are really being taken advantage of," Rosenberg said.
"So they really should be boosted up into another kind of maybe nonprime (credit) category. ... That doesn't really happen. People kinda get stuck in that place and then you get that kind of service and you're branded to an extent as being that kind of customer and you get reoffered that type of nonadvantageous solution again, and it takes a very, very long time to make it back into what you and I would call a bankable scenario."
With a $9 billion chest of bad debt, a beehive of a business and a Tony on his credenza, these are heady days for Rosenberg.
Consumer credit keeps getting easier, and Rosenberg sees nothing but growth ahead.
He won't oblige requests for an income statement, but his recent purchase of a Challenger 604 intercontinental jet seems to indicate that he has the nation at his feet.
Before long, Unifund could become a familiar name in town.
"I think," Rosenberg said, "it will become 10 times the size it is.
America, listen closely, Just because a Unifund CCR Partners or a company, sues you , or you are sued by one of its debt collection companies like CACH LLC, does not mean that they are automatically entitled to a judgment. They still have to prove their case, and you can have a trial, even a jury trial. The key is to answer their letters and threats and/or lawsuit in a timely manner. If you answer in time you can successfully defend your case. You may win money damages, and have a judgment in your favor entered stating that you owe nothing. THEY MUST PROVE WITH DOCUMENTS THAT SHOW YOUR SIGNATURE THAT YOU AGREED TO, APPLIED, AND CREATED THE DEBT IF THEY CAN NOT DO THIS THE COURT MUST DISMISS THE LAWSUIT IMMEDIATELY UNDER FEDERAL LAW.
Liability:
A lawsuit can be brought against CACH or Unifund CCR Partners for willful and intentional fraud and racketeering which will be prosecuted for at least treble damages for commercial injury pursuant to racketeering under Title 18, Chapter 96 of the U. S. Code.
Additionally CACH does NOT have any evidence and/or testimony from ANYONE with personal, first-hand knowledge and sworn to under penalty of perjury as REQUIRED by the Federal Rules of Evidence 602 and 603.
As has been clearly and thoroughly evidenced in case after case, the alleged Claimant’s alleged legal representative, Unifund or its like, continues to fail to file a PROPER and LEGAL “claim” UNDER ANY LAW.
What does the FDCPA’s requirement of “meaningful review” mean anyway? The court stated that “merely being told by a client that a debt is overdue is not enough.” Clearly, a lawyer must do something other than rely upon a client’s word. Some amount of research and review of the individual account must take place. Implicit in this case was the court’s
Case Law:
United States District Courts and Supreme Court Rulings in Mile High Industries v. Cohen, Rhode Island v. Massachusetts, Szetela v. Discover Bank, Toppings v. Meritech Mortgage Services, Inc., Doctor’s Associates, Inc. v. Casarotto, Vermont v. New Hampshire, Casteel vs. Clear Channel Broad., Inc., Fleetwood Enterprises, Inc. vs. Gaskamp, Stout vs. Byrider, Myers vs. MBNA America and North American Capitol Corporation, Georgia v. South Carolina, Hale vs. Henkel, Erie Railroad Company v. Tompkins, Trinsey v. Pagliaro and Adickes v. Kress & Co.
What can you do about it?
That is where we come in. You need to immediately contact Western Capital at 1-877-517-9555 and will assist you. As you can see, we are at the edge of this situation. More information may be obtained at www.WesternCapitalVip.com Since our first news release on this issue, we have heard from many people around the nation who are seeking assistance. We can and will assist you, It will be the best 1,000 that you ever spent. We take our job very seriously, and our results prove it. Just Look at the cases annotated above.
Mr. Paisola, What are my Rights as a Debtor. or Alleged Debtor?
First of All, RECORD EVERYTHING... based on your local laws. We will need this for your defense and it will go a long way with the Court.
False Statements and Fraudulent Debt Collection Practices
A federal statute known as the Fair Debt Collection Practices Act (often called the "FDCPA") gives you specific legal rights to sue debt collectors who unlawfully threaten, berate, intimidate or harass you; call you during odd hours, make false representations about the the debt or their intentions, or otherwise act in ways proscribed by the act (and their are many). False statements may include threats to:
Attach your wages when unlawful or not intended.
This includes threats to take more wages than is permitted by the federal limitation (wage attachment for a credit card debt, a non-student loan or for an obligation that is not support is generally illegal in many States, however, now that law has been expanded to rent and lease damages in some cases-you should check the statute to be sure);
Contact your employer about the debt;
Call you "everyday until the debt is paid;"
Sell the debt to another company for the purposes of continuing collection on a time-barred debt;
Contact neighbors about the debt;
Contact the Immigration and Naturalization Service about your alien status;
Threaten imprisonment or criminal punishment;
Report a financed vehicle as "stolen" because you missed one or more vehicle payments;
File or threaten to file criminal bad check charges on a post dated check that the collector solicited from you;
Immediate eviction (by an agent for a landlord); lockout, or seizure of personal property where such relief is limited by state law;
A disguised threat of suit e.g. A collector requested "settlement prior to possible legal action" where the collection agency had no authority to sue or to retain counsel was held by a Federal District Court in Connecticut to be deceptive and violative of the FDCPA.
Here's one you may not have anticipated: A threat implying that the collection agency has multiple employees or investigators working to collect the debt, where only one or two people work for the agency.
Threats to collect or sue for "collection costs," "attorney's fees," (see also below) interest not pre-agreed (with your signature for the Court) to in excess of that allowed by statute, "fines," or any other fee in excess of the actual amount due, unless the original agreement provides for the amount the collector threatens to collect. For instance, the collector cannot threaten to add attorney's fees or his fees where the agreement you signed does not specifically provide for them. Let's say you went to the dentist and just signed consent form and a medical history. You agreed to pay for all charges if your insurance did not. Nothing is mentioned about anything else. The collector cannot add any other fees or even and especially, his costs, late fees or other charges.
Threats adding "collection costs, attorney's fees" and similar additional charges have also been held to be deceptive and misleading, because they do not state exactly what debt is being sought.
Sue or bring any kind of legal action where the threat is not followed through (i.e. a scare tactic), or any number or other threats designed to demoralize, humiliate, degrade; embarrass or intimidate a debtor into payment.
Any threat where the collector says he is legal counsel or an attorney/lawyer when he is not;
The threat or attempt to mislead a debtor that a claim will be transferred to an attorney or separate department of a collector (e.g. "This will be transferred to our legal department for further action"). Letters misrepresenting that the account has been transferred to an attorney may include an attorney's letterhead with threats of legal action. Have you ever received a letter from a lawyer who purportedly collects for a major creditor? Has the lawyer been out-of-state? Has the lawyer threatened to sue if payment was not made?
Other Little-Known Tactics that are illegal:
It is unlawful under the FDCPA to threaten suit if no such action is intended. The attorney cannot sue you in a state that is not your home state, under the FDCPA. Therefore, the threat is an empty one. Empty threats are punishable under the FDCPA!
It is unlawful for such a letter to be sent unless the lawyer reviews the letter? Do you believe that when thousands of letters issued the lawyer reviews each one? Where the correspondence is not reviewed by counsel, the correspondence violates the FDCPA.
Look at the letters you receive from lawyers. Were they signed by hand? If not, perhaps they were not reviewed by a lawyer. You may have a case under the FDCPA.
The collector's threat to "make this go legal" or to "turn the matter over to the legal department" may violate the FDCPA where the collector has no legal department. Do you think that the collector may be a collection operation only? If so, perhaps they have no legal department, i.e., the legal aspect is handled outside of the company. In this scenario is another violation of the FDCPA.
It is also a violation to send a letter stating that the collector will "recommend litigation" or "advise the creditor to sue." Some of such correspondence has been found to violate the FDCPA because it, in essence purports to give legal advice to the creditor. The collector is not permitted to give legal advice, unless, of course, if the collector is an attorney himself.
The Least Sophisticated Consumer Standard:
Did you also know that it does not matter if you believed the threats or that a person of your intelligence would not have believed the threats (i.e. the collector threatens to have you arrested for not paying the creditor. You as an intelligent consumer believe the threat is ridiculous since the U.S. Constitution prohibits such actions). The FDCPA's standard is the "least sophisticated consumer standard." That is, would anyone believe the threat.
This would be enough to sustain the standard and your burden of proof if the court believes that the threat occurred.
Supporting Case Law
The concept of deception protects even the ignorant, unthinking and the credulous, least sophisticated consumer. See Jeter v. Credit Bureau, Inc., 760 F.2d 1168 (11th Cir. 1985)
It is also unlawful to sue a consumer in a jurisdiction that is not the jurisdiction where the consumer resides or the one in which the contract was made. Example: PA R&D Enterprises, Inc. and their sister corporation Judgment Busters, Inc. (pretty despicable sounding name, huh?) seems to be in the business of purchasing uncollectible judgments. In one case, PA R&D purchased a judgment for rent against a consumer in Delaware County, PA. PA R&D exported the judgment to Luzerne County, some 115 miles away from the consumer. PA R&D then added $1,000 to the judgment as "attorney's fees." There was a slight problem: Neither PA R&D nor its officer was an attorney. In effect, they gave themselves a pay raise, just like Congress! PA R&D decided the judgment should be higher than it was, so it just put it in the Luzerne County judgment! Wow, neat trick PA R&D! PA R&D also took the judgment to a remote location which also violated the FDCPA §1692i PA R&D and executed on the consumer's wages for the greater amount. The employer balked (luckily), but the matter became moot when the consumer left the employment of the employer. This case was recently filed as an adversary proceeding (a civil action) before the Bankruptcy Court for the Eastern District of Pennsylvania. The matter is pending and awaiting an Answer from the defendants, which include PA R&D, Judgment Busters and certain officers of the corporations. The complaint alleges violations of the FDCPA, Pennsylvania Fair Trade Practices Act, and common law fraud. The courts have decided thousands of cases on the subject and it is impossible to list all prohibited types of threats. Suffice it to say that if it seems wrong, it is worth speaking to a consumer protection lawyer in your area.
We have seen may instances of this type of conduct and can help you recover money. There are literally dozens of ways in which a debt collector can break the law. Each time a collector breaks the law, you may be entitled to damages in an amount commensurate with the gravity of the violation (however, most courts limit the liquidated damages to one instance in each case-see your lawyer about this). Some collectors have gone so far as to threaten arrest, jail, or harm to loved ones, including informing friends and work associates of the debtor's financial embarrassment. Any threat to do something that is not allowed by law is grievous and actionable (you can bring suit).
The "Mini-Miranda Warning"
Each time a debt collector contacts you, he must give you what is known as a "Mini-Miranda Warning" This warning received that name because it is reminiscent of the warnings that police should give you if you are arrested, however, "Mini-Miranda Warnings" have nothing to do with criminal law. A "Mini-Miranda Warning must contain the following words (or words imparting this meaning):
"Hello, I am _________(name of collector). I am (or this office is) a debt collector representing____________(creditor). Information obtained during the course of this call will be used for the purpose of collecting the debt."
This NOW APPLIES TO LAW FIRMS! GET THE RECORDINGS AND EMAIL THEM TO US at classaction@mycollector.com
If the creditor has not been advising you as above, you may have a right to sue.
Letters you receive in the mail from collectors also must contain similar warnings such as:
"This is an attempt to collect a debt. Any information obtained will be used for that purpose. Unless within 30 days of your receipt of this notice, you notify us that you dispute the validity of this debt, it will be assumed to be correct. If you notify this office within thirty days that you dispute the validity of the debt, we will obtain verification of the debt or a copy of the judgment. If you request it within 30 days, we will provide you with the name and address of the original creditor (if different from the current creditor)."
If the letter does not state the above, or words similar or close to the above, you may also have a right of action. Furthermore, did you know that no bill collector or creditor has the right to contact any third person about your debt, except to get information solely to locate you? This means that if a bill collector or a creditor tells any except you that you owe them money, they too can be sued.
Debt Collector's Calls at Work
The FDCPA states:
“Without the prior consent of the consumer given directly to the debt collector or the express permission of a court of competent jurisdiction, a debt collector may not communicate with a consumer in connection with the collection of any debt"
Simply put, anyone can stop collectors from harassing them at work by putting the collector on notice that the employer of the consumer does not permit him or her to receive the calls.
Do you think your employer allows you to be harassed at work?
Is this why you are paid? Probably not! Tell the debt collector this and confirm it in a letter! Then make notes as to each time the collector violates this warning. Bring your notes to your attorney and have him use it against the collector in court.
Your Rights to Stop Harassment by the Debt Collectors
Insofar as collectors are concerned, there is no reason why:
You need to discuss anything with a collector if you know you cannot pay;
You have to answer a phone for a collector (this works with caller ID).
You have to speak with the collector if you do answer.
You have to answer any questions at all posed by the collector.
You have to say "good-bye" before you hang up.
You have to be truthful about your personal and financial affairs (you do not have to disclose private information about assets or income).
Important: There is no reason you need to acknowledge that you owe the money! This is very important if the debt is old. By acknowledging the debt, you may actually extend the time the creditor can sue on it.
All states have statutes of limitations on debt collecting. A few states are more than six years. Many are less.
You can extend this limitation by acknowledge the debt or even by making a partial payment!
In fact, you do not even need a lawyer to stop collectors from calling you (although one is very helpful)! All you need to do is to mail the creditor or collector a "cease communication" letter. This request can be made any time, but it must be made in writing. It is always preferable to send the request by certified mail and keep a copy. This copy will be proof of your request should you need to sue the creditor. Once the collector receives your letter, they can only contact you to inform you of any action it intends to take or to tell you that it is terminating its efforts to collect the debt. This letter is enough you legal stop further contact or dunning letters. Validation of debts and Sample Validation Request Form
The FDCPA provides that debts that are pursued by a debt collector be validated and [15 USC 1692g]. Validation of the debt is every debtor's right. You don't need a reason. The fact that you request validation is quite enough to evoke to protection of the FDCPA. The Act provides that (paraphrasing, within five days after the initial communication with a consumer in connection with the collection of any debt, a debt collector shall (unless already provided in the initial contact), send the consumer a written notice containing - (1) the amount of the debt;
(2) the name of the creditor to whom the debt is owed;
(3) a statement that unless the consumer, within thirty days after receipt of the notice, disputes the validity of the debt, or any portion thereof, the debt will be assumed to be valid by the debt collector; and
(4) a statement that if the consumer notifies the debt collector in writing within the thirty-day period that the debt is disputed, the debt collector will obtain verification of the debt.
This means that if you write a debt validation request, a sample of which is available upon request, all communications and enforcement must stop until the debt is validated. Yes, that means lawsuits also.
What happens if the collector refuses to validate the debt?
You should only be so lucky. If after a validation request under the FDCPA, the creditor refuses to cooperate, then the creditor may not legally collect the debt, as is in our case with Unifund and CACH LLC. If the collector does, then the law is violated and a suit for damages may be brought against the attorney.
Such a suit was brought in federal court in New Jersey against MRS Associates, debt collectors for a company going by the name of Lake Cook Partners. Lake Cook engages in, what is known in the business as, "bottom feeding." Bottom feeding is a term used to mean the acquisition of "dead" or written off debts. Lake Cook purchases the debts from credit card companies (and perhaps other companies) for pennies on the dollar. Lake Cook then uses MRS Associates to make a debtor's life a living hell.
What if the debt collector ignores the request and collects the debt anyway?
That happened with MRS Associates. MRS was requested to validate a debt alleged owed by a husband of a client who received a bankruptcy discharge. The husband claimed that his wife had applied for the card, not him. Not that it would matter anyway; the husband was entitled to validation under the law. If validation was not forthcoming, too bad for the collector. MRS believed that the burden was on the debtor since the card had been open for "21 years."
Note: MRS stated that the debtor had the account for 21 years, the fact that it "is highly improbable" that MRS would have been able to get a copy of a document that the debtor signed 20 years ago did not excuse MRS from obtaining what validation that they could get. In this case, MRS did not even attempt to get anything. Perhaps MRS did not want to be bothered to comply with federal law. I guess it's easier that way.
Outcome: The foregoing message was in large part the reason that MRS settled with the debtor for $4,500. Needless to say, the debt was never validated. The debtor would have been forced to pay over $10, 000. You can see a copy of the complaint here. Lake Cook (continued)
Not even two weeks after the $4,500 payment, the same client was contacted by Creditor's Interchange, Inc., ("CI") a debt collection outfit in Buffalo, NY. The collector calls this office and this is what transpires: A collection agent by the name of Richard Kerns who says he works for CI calls.
We answer the phone saying "law offices" as is called for by our business procedure.
Kerns asked for the debtor (name withheld for privacy).
I identified myself as "Mr. (debtor's) attorney.
Kerns says, "I did not know he had an attorney."
Kerns is assured by me that I represent the debtor for all purposes.
Kerns asks if I am an attorney.
I tell him that I am and ask for debt validation.
Kerns then demands payment from the client.
l say, "we are requesting validation of that debt."
Kerns states, "Validation? What validation? He owes a debt!"
Kerns then states, "Listen smart guy. You know what? I'm going to call your client!"
He does.
I learn that Kerns is collecting the same debt that MRS was trying to collect. As a matter of fact, the same creditor, Lake Cook, is now collecting under a different corporate name, Hilco Receivables.
Outcome: CI & Hilco settle the next case for $5,000 for one phone call. That is $9,500 in settlements paid to the same client on the same debt.
Damages Under the FDCPA
The FDCPA provides for a private right of action against violators. This means that you can get a lawyer and sue for damages. A partial list of damages that are awardable are:
Statutory damages up to $1,000 for each case. This means that the violator can be charged even though there are no other damages (see below).
Attorney's fees. You can make the violator pay for your lawyer. This is big advantage; lawyers are expensive!
Actual damages including:
Stress related injuries:
Heart attack, angina, chest constrictions;
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Miscarriage;
Ulcers, diabetic flare-up;
Shock;
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Loss of appetite;
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Crying;
Nightmares; insomnia, night sweats;
Emotional paralysis;
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Inability to think or function at work;
Headaches;
Shortness of breath;
Anxiety, nervousness; fear and worry;
Hypertension (elevation of blood pressure);
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Stress to children;
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Irritability;
Hysteria;
Embarrassment, humiliation;
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Indignation and pain and suffering.
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And this is just a partial list!
Monetary damages:
Payment of a debt barred by the statute of limitations;
Taking one's property unlawfully or intimidating a debtor to return property by violating the FDCPA, e.g. "If you do not return your DVD player to the store, we will bring criminal charges!"
Long distance telephone charges for phone calls to a collector who states that you must call him back.
Attorney's fees to defend a prior suit brought in violation of the FDCPA;
Damages for intentional infliction of emotional distress generally (see above).
Your attorney may use medical (psychiatric/psychological) testimony, but does not need to. Damages for emotional distress can be claimed even without medical support. This does not mean they will always be believed, of course. It is up to the judge or jury to decide if the plaintiff is telling the truth. Anyway, the plaintiff in the FDCPA lawsuit starts with a tremendous advantage.
Sample FDCPA Cases, Complaint Forms and Their Results
The law states that FDCPA cases can be brought in any court of competent jurisdiction. This means that you can bring actions against harassing collectors, and under some state laws, creditors as well, in small claims court even without an attorney. You do not need to use a small claims court; Federal District Courts are the natural "home" for this type of litigation. It is not recommended that you start an FDCPA lawsuit without an attorney because it takes some fluency in the act to know what to ask of the court.
Many magistrates or small claims court judges are unfamiliar with the act. If you want to go ahead despite this warning, you can see how a typical action was brought in a District Justice Court in Pennsylvania. "DJ" Courts are generally small claims in PA, having jurisdiction up to $8,000. This case was brought against a collector in New York for violations of the FDCPA's verification and cease communication provisions. A copy of the complaint can be inspected here in PDF (Adobe) format. The case settled for a gross sum of $975.00 which included counsel fees of an unspecified amount. If you are in PA and need a similar (blank) form (this can be used in any type of civil action), go here. This page has filing instructions as well. Be careful though. Be aware that if the creditor has a claim against you on a debt, the creditor may counter sue you on that debt. This means that it may be better to bring this action as a counterclaim and not as an independent action if you owe more than the claim! In most cases, it is better to bring the case in U.S. District Court. This office recently sued a national law firm in the District Court in Philadelphia. The name of the firm is withheld out of courtesy, since the case was settled within four days after suing; at least the firm had the integrity to admit the error and correct it. This firm is engaged in debt collection practices on a national scale. They are based in Long Island, NY and has offices in Philadelphia and elsewhere. Their website claims they have "national ability." In reality, this "national ability" previously led to a previous class action against this firm (not brought by this office) which settled for more than $453,000! (E.D. Pa. 2000). This firm, among other things, threatened have an agent of theirs come "come to [the plaintiff's] house" and inventory all of plaintiff's personal property for sale! Jeez! What power! What abuse! Of course, this made plaintiff's wife panic. It also did not sit to well with the plaintiff's nerves, either.
Case outcome: The defendant paid plaintiff $1,500, plus $2,000 in attorney's fees (the best part) and also paid off those nasty guys at Ford Motor Credit. Value of settlement all together? About $7,500 +/-. Not bad for a few phone calls and a letter.
Auto Repossession Notes:
Note #1 When a debt collector (actually this is a repo outfit) is attempting to repossess a vehicle.
The collector or creditor cannot, "issue a warrant to the sheriff for your arrest."
The collector cannot employ criminal process to collect a civil debt (owing money and refusing to pay it is not a crime.
The collector cannot threaten to do something he knows he cannot legally do (see above).
The collector cannot leave threats on an answering machine where others can hear it.
The collector may not imply that there is some legal duty that the debtor must call back (..."must hear from you"). There is no legal duty to return a collectors phone calls.
The collector may not threaten something he does not intend. The collector does not intend to "make this thing go legal," he only intend to scare the debtor into surrendering his car. The collector has probably not even consulted counsel; his job is to collect the vehicle only.
Again, the collector cannot threaten to harass the debtor every day ("I'm never going away..."). The collector intends that the debtor fear that the collector will come to his home every day (the collector says this, in so many words). "I will be at your door every evening...." You wouldn't put up with this nonsense even from a relative; why should you stand for it from a goon from a repo outfit? The last time I checked, people do not keep motor vehicles in their living rooms. There is no reason for this man to threaten that he will come to the debtor's door "every evening." The creditor / debt collector has no right to harass the debtor "every evening." Further, a threat to behave like this is itself a form of harassment and is actionable.
"You must call here...." As stated above, the creditor or collector may not infer that the debtor has a duty to call back.
"This is not a threat..." What is it then? This guy knows he is not supposed to be doing this.
Note #2 A Chase Bank collector threatened "fraud" because the debtor had been in bankruptcy, discharged the debt therein, and then had the unmitigated audacity to have been born in Portugal! *gasp!* The collector tried to get at the debtor by saying that she had left her mother "holding the bag." Of course, this was a lie. There was no intent to prosecute for a fraud because there was not debt.
Lawsuits under FDCPA allow for counsel fees, damages, and costs. Each FDCPA violation can net you up to $1,000 plus attorney's fees and actual damages. Repeated conduct will usually receive greater damages and is less likely to a succumb to a defense of "innocent mistake." You should be diligent in protecting your rights. The statute of limitations for bring most federal actions of this nature is only one year unless used as a defense to an action brought against you. Therefore, you should protect your rights before they become unenforceable.
Note #3 From Chase Bank. This woman sounds like she has the emotion of a collection terminator. "I'm tired of playing games with you (so I guess she is starting one of her own here). I'll call every neighbor on your block to make sure you're in the right place." Wow! How intimidating! How illegal. Collectors are allowed to obtain locator information. Once the collector knows where you are, which obviously Chase did, after all she was calling her phone, any further calls to neighbors are no longer locator information. They are just unlawful communications with third parties intending to humiliate and embarrass the debtor, which it did. Furthermore, this debtor had just received a discharge in bankruptcy! Not only are these tactics barred by state law, and the FDCPA, they were also barred by bankruptcy law. The caller then refers to "attorney fees, " which also is misleading and unlawful unless the actual amount if stated. The only help you will ever get from a debt collector, is that collector helping itself to your bank accounts or motor vehicle. More on creditor/debt collector protection:
Certain states, such as Pennsylvania, may have laws protecting consumers from harassment even though the FDCPA may not be applicable. These laws may even expand (e.g. Pennsylvania) on the FDCPA, broadening its scope and applicability. To see if your state has such a law, you should consult with a local attorney of see if you can find the information by researching your State laws.
Because of all of the Financial Reform put in place by the Obama Administration, Senator Carl Levin has now established a Permanent Committee on Investigations at :
Levin made a strong statement to the Debt Collection Industry in this Memo:
Levin: GAO Report on Credit Card Debt Collection Problems Highlights Need for Consumer Financial Protection Agency |
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WASHINGTON - Sen. Carl Levin, D-Mich., Chairman of the Permanent Subcommittee on Investigations, today released a U.S. Government Accountability Office (GAO) report on credit card debt collection practices. The report describes the increasingly complex debt collection industry; indicates that the key federal law, the Fair Debt Collection Practices Act (FDCPA), is outdated and ineffective; and demonstrates that consumer protections against abusive debt collection practices need to be modernized and strengthened.
The report, Credit Cards: Fair Debt Collection Practices Act Could Better Reflect the Evolving Debt Collection Marketplace and Use of Technology, [PDF] was requested in 2008 by Levin, then-Sen. Norm Coleman, R-Minn., former ranking minority member, and Sen. Claire McCaskill, D- Mo. Sen. Tom Coburn, R-Okla., current ranking minority member, joined in requesting the report this year.
“With the economy in crisis and many people struggling to pay their bills, debt collectors have responded by becoming more aggressive,” said Levin. “The Federal Trade Commission receives more complaints about the debt collection industry than any other industry, logging in about 79,000 complaints on third-party debt collectors last year, which is almost 19 percent of all of the complaints it received. Ongoing abusive practices include trying to collect debt that isn’t owed or is beyond the statute of limitations, making harassing phone calls, threatening to make arrests that the debt collector has no authority to make, and collecting debt discharged in bankruptcy.”
Levin continued, “The GAO report released today makes it clear that the 1977 Fair Debt Collection Practices Act hasn’t aged well and is poorly enforced. The law was written before the advent of email, cell phones, and even fax machines, and doesn’t address modern problems. GAO also found that, despite receiving thousands upon thousands of complaints, federal agencies took only 32 formal enforcement actions over the last decade related to abusive debt collection activities. Debt collection abuses are not getting the attention they should.”
Levin said the report highlights the need for a Consumer Financial Protection Agency. “In today’s complex financial world, consumers need a federal regulator that is looking out for their interests, rather than the interests of the financial industry. As this GAO report shows, even well-intentioned laws like the Fair Debt Collection Practices Act can erode over time and offer less and less protection to consumers,” said Levin. “A Consumer Financial Protection Agency would have the authority to modernize consumer protections against unfair debt collection practices, monitor compliance, and take enforcement action to stop abusive debt collectors.”
Findings of the GAO report include the following:
- Increase in Delinquent Debt. GAO presented evidence that credit card delinquency rates have spiked since 2007, with more than $23 billion in nonsecuritized debt 30 to 180 days late in 2008. According to Federal Reserve data, between 1991 and 2007, delinquency rates averaged about 4.4 percent, but rose to 6.6 percent in the first quarter of 2009.
- Credit Card Issuers Outsource Collection Activities and Sell Debt. GAO found that credit card issuers typically use their own personnel, in internal collection departments, to collect on credit card debt that is less than six months old, but often hire third-party collection agencies or law firms to collect on older debt. In addition, issuers sometimes sell portfolios of delinquent credit card debt to third party debt-buyers, trading potential long-term cash flows for the short-term proceeds of a sale.
- The Debt Collection and Debt Buying Industries are Large and Growing. GAO reported that, according to the U.S. Census Bureau, in 2006, more than 4,400 debt collection companies in the United States employed approximately 143,000 people. Many of these companies were very small—43 percent employed four or fewer people, while about three percent employed 500 or more. GAO also reported that the debt buying industry has grown, by one industry estimate, from $57 billion of purchased debt in 2003, to $100 billion in 2006.
- The Price of Debt has Declined. GAO presented evidence that the price of delinquent debt has declined significantly in recent years. According to one industry source, “Fresh” debt—debt that is 91 days to six months past due and never placed with a collection agency—sold for about 15 cents on the dollar in March 2007; in January 2009, it sold for about six cents on the dollar. “Tertiary” debt—debt that is more than two years past due or previously placed with two collection agencies—sold for about four cents on the dollar in March 2007; in January 2009, it sold for between one and two cents.
- Many Complaints, but Little Enforcement Action. GAO found that the Federal Trade Commission (FTC) receives more complaints about the debt collection industry than any other specific industry, and received 79,000 complaints in 2008 alone, representing about 19 percent of all consumer complaints it received on any topic. The Better Business Bureau reported receiving about 16,000 complaints on debt collection companies in 2008. GAO found that, in the last decade, federal agencies took only 32 formal enforcement actions related to abusive debt collection activities, including 24 enforcement actions by the FTC against debt collectors, at least 13 of which involved credit card debt; and three formal enforcement actions by the Federal Deposit Insurance Corporation against banks involved in collecting credit card debt.
- Abusive Practices. GAO found that of the enforcement actions that have occurred recently, the violations alleged have included threatening and harassing consumers to pay debts they did not owe or that were beyond that statute of limitations; threatening consumers with arrest, wage garnishment, or the seizure of property; communicating with third parties about consumer debts in ways prohibited by law; and collecting on debts that had been discharged in bankruptcy.
- Burden on State Courts. GAO noted that the FTC has reported that the majority of cases on many state court dockets on any given day are debt collection cases. GAO reported that a study by the Urban Justice Center estimated, for example, that in 2006, 320,000 debt collection cases were filed just in New York City’s Civil Court. That study also estimated that, in Chicago’s Cook County Circuit Court, more than 119,000 civil debt collection lawsuits were pending as of June 2008, and that municipal court judges in Ohio handle as many as 1,000 debt collection cases per week. GAO also cited a review by the Boston Globe which found that at least 60 percent of small claims cases filed in Massachusetts in 2005 were filed by debt collectors. GAO reported that consumer groups, attorneys, and the FTC all agree that the number of debt collection state court cases has increased in recent years and is putting a strain on state court systems.
- Outdated Federal Law. GAO found that the FDCPA has not kept up with new technologies and evolving debt collection practices. GAO noted that communication technologies that are common today—mobile telephones, email, caller identification, answering machines, and fax machines—were not prevalent when FDCPA was enacted in 1977. In addition, GAO noted that the FTC was not given rulemaking authority to implement the FDCPA, which meant the FTC could not address such basic issues as how debt collectors should verify that particular debts are still owed. GAO indicated that most stakeholders involved in the process of debt collection with whom GAO spoke—representing consumers, state and federal agencies, credit card issuers, debt collectors, and debt buyers—expressed support for updating the FDCPA. GAO explicitly recommended that Congress amend the law to do so.
“The volume of complaints and general lack of enforcement show that abusive debt collection practices are a big and growing problem for many Americans,” Levin said. “GAO has identified some commonsense legislative steps that will update the FDCPA and benefit, not just consumers, but also honest debt collectors trying to follow the law. Congress should not only take up the task of updating the FDCPA, but also establish a new Consumer Financial Protection Agency and charge it with modernizing and enforcing consumer protections against unfair debt collection practices, among other responsibilities.”
The Government Accountability Office is the investigative arm of Congress. The report, Credit Cards: Fair Debt Collection Practices Act Could Better Reflect the Evolving Debt Collection Marketplace and Use of Technology, [PDF] is available online today. |
Now there is a place for victims to seek refuge, as Former Harvard Professor, Elizabeth Warren is in charge of the new "The Consumer Financial Protection Bureau"
WASHINGTON -- No tricks. Less fine print. Clearer agreements.
That's how banks should market products to consumers, says Elizabeth Warren, the Harvard law professor in charge of setting up a new federal agency that will police credit cards, mortgages and other financial services.
The Consumer Financial Protection Bureau was created as part of the sweeping overhaul of financial regulations last year known as the Dodd-Frank Act. Proponents said such an agency could have sounded an early warning for the abusive lending practices that precipitated the economic meltdown.
It's not clear when a permanent head will be named to lead the new agency. Warren, a vocal consumer advocate who first championed the creation of the agency, is a possibility but is regarded as a contentious choice. President Barack Obama did not need Senate confirmation when he named her in September as a special adviser to help oversee the agency's creation.
The bureau won't be able to exercise its rule-making powers until July 21. In the meantime, Warren has been making key appointments and meeting with banking executives and consumer groups to get the agency up and running.
In an interview with The Associated Press, Warren said one of the first goals will be to make the true cost of financial products easier to understand. She said that should eventually drive down prices for consumers.
Here is an excerpt:
You've said improving the disclosure of credit-card terms is going to be a top priority. How is the bureau going to change what's provided to consumers?
Think about how long a credit-card agreement has become -- it's become pages and pages and pages of largely incomprehensible fine print. In effect, it's paperwork that says, "Don't read me," and that's a real problem. Because hiding in that fine print can be anything.
So one of the things we want to push toward is trying to clear out that kind of shrubbery. So that if there are real changes that a company is proposing, they stand out. They're not camouflaged by all those other words.
And what's the timetable for when consumers can expect to see such changes?
I think people are starting to see somewhat clearer disclosures. For example, there are a couple of major credit-card issuers who -- following our early conversations last fall -- went back and voluntarily rewrote their own credit agreements and began to shrink them down. There have been others who've advertised their credit products along the lines of "no tricks," "less fine print," "clearer agreements."
This agency, even before it has its full legal authority, has driven a conversation and driven a direction for the industry. And it's toward a better-informed customer who can make apples-to-apples comparisons among products.
In terms of the required disclosures -- do you see new forms replacing the Schumer box, which is already intended to clearly lay out the APR, fees and other terms for a credit card?
We're having conversations with credit-card issuers right now and talking through what the Schumer box does and how it might be improved. You know, even the Schumer box has gone from smaller and skinnier to longer and more complicated. So I will readily admit it's an uphill walk to try to get there. But I think we're developing a path in working with the companies.
We won't have legal authority to do anything by way of rule-making authority until after July 21. But we've started now with the industry and with consumer groups and with other stakeholders, investors -- talking with them, showing them what we have in mind, asking for their input, asking for their data, asking for information.
More banks began to cut back on free checking last year in response to new regulations. Do you think further regulation by the bureau will drive up the price of banking?
If the consumer knows the price of a good, the risk associated with it, and can make apples-to-apples comparisons, that's what makes markets work for consumers.
They can figure out who's offering the most expensive product and who's offering the cheapest product. And I'm of the belief that over time, that's going to make financial products cheaper for consumers, not more expensive.
Online banking is top-of-mind right now. With so many new mobile and online banking options, is the bureau dedicating a team to ensure these options are safe?
We've organized the new consumer agency to be market facing. That means that we have divisions dealing with (1) revolving debt and credit cards, (2) mortgages and installment loans, like student loans (3) payments and deposits and (4) credit reporting and (5) debt collection.
We want to be a very data-driven agency around those five markets. Technology and innovation is hitting all of them. And so a big part of what we're doing is hiring people who are technology savvy and actually deeply interested in it.
Another area the bureau will be reviewing is services for people who don't have a bank account. How do you regulate services like payday loans and still ensure people have access to small loans?
Well you know, access to small-dollar loans is critical to many families. The notion that we somehow try to eliminate that, it's just not going to happen.
It can force people into unregulated markets, including "Jimmy the Leg Breaker," which is not where we want people to be.
So it is important from a regulatory standpoint that people are not at the mercy of lenders who build business models around fooling people. They're drawn in the front door thinking they're going to pay one price and then beat about the head and ears, financially speaking, so that they're paying much, much more.
On the other hand, there's a real problem. And that is how to get good, small-dollar lending started in areas where there's great need.
Sometimes that's going to be by community banks. Sometimes it's going to be by nonbank lenders and sometimes it's going to be innovations and new technology that's going to open up markets for the currently underserved population.
I anticipate a lot of change in this area.
As for our case with CACH LLC and SCOTT MITCHELL, We are very confident that The Honorable Judge George C. Richards of the Twentieth Judicial Circuit in Charolette County will immediately be dismissing this complaint filed by Attorney Melissa A. Ferris,
Why? In Court Documents Obtained by ABC News, an employee for Bank of America, Wendy Parnell stated:
"2. That the original contract in this matter has been destroyed, or is no longer accessible to Affiant and that this Affidavit is to be treated as THE ORIGINAL DOCUMENT for all purposes"
Congratulations Mr. Mitchell and America, Your Voice has been heard.
We will be following this case closely and will keep you updated.
Need Help? See www.WesternCapitalVIP.com and call 1-877-517-9555
About Your Author, Robert Paisola: From Wikipedia
Robert Paisola , FDCPA Law and FCRA Law Debt Collection Agency Expert Witness, International Author, International Journalist and CEO of The Western Capital Group of Companies and The Robert Paisola Foundation International | | | |
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Robert Paisola, (born December 3, 1967), is an American business Motivational Speaker, philanthropist, and the Chief Executive Officer of Western Capital. Robert Paisola is the founder of the Robert Paisola Foundation and serves as its Chairman. Paisola is a noted media analyst on the topics of the 2008 Recession, Foreclosure In America, and the business of Timeshare. Robert Paisola is an International Personality speaking around the world on the Principles of The Hit Movie "THE SECRET"
Robert Paisola is driven by a passion for people--motivating them to reach for the highest standards of success. As founder and president of many International Corporations including Western Capital and The Success Training Network, and now, Western Capital Multimedia, the parent company of Rene Magazine located at www.ReneMagazine.net , Robert trains sales and marketing professionals who want to strive to get to the top...and stay there.
He is a Nationally Recognized Criminal Rights Activist and is very involved with assisting inmates and their families who have been abused by the justice system. See www.PrisonPartners.com and www.westerncapitalfoundation.com
His innovative, no-nonsense approach is based on applying what he has observed in his fifteen-plus years in sales, motivational speaking and debt collection training, thus revealing the common business habits of the top 20% of sales performers in all organizations.
While in Mexico, he uncovered a large time share "fractional sales" scam at the Playa Del Sol Grand Hotel. His report is located at:
http://www.mycollector.com/news_playadelsolscam.html
He is also a noted authority on ethics in the Time Share Industry, as evidenced by The Timeshare Chronicles at www.TimeshareChronicles.com
Robert's unique approach to solving complex corporate problems works...that's why New York-based Success Magazine has rated Robert Paisola as one of the top-five most effective sales-training professional in the market today.
Robert Paisola's newest book was just released and is available on Amazon.com. CONVERSATIONS ON SUCCESS was co-authored with famed author Dr. John Gray and Mr. Tom Hopkins. His newest book, BLUEPRINTS ON SUCCESS is scheduled for release in 2009
Robert Paisola speaks on an International Basis to support his foundation, The Western Capital Foundation. He is also a noted speaker on the topic of Group Dynamics, Change Management, Investing, Real Estate, Asset Protection and Stock Investments.
Routinely Distinguished by The National Speakers Forum, Robert is also a regular contributor to Business Week Magazine, XM Satellite Radio, The Wall Street Journal, Telemundo International, National Public Radio and many other organizations. Robert Paisola is also an International Travel Writer and Certified Expert for magazines such as Conde Nast Publications and The National Geographic Society. His award winning investigative reporting articles have gained him worldwide recognition.
He remains at Western Capital as a part-time, non-executive chairman.
Paisola is available to assist victims of companies such as Unifund and CACH LLC on a temporary basis : See www.WesternCapitalVIP.com
Call Toll Free 1-877-517-9555
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