Cease and Desist order

[kuzinscove]

What is the name of your state (only U.S. law)? Florida

I am dealing with a credit card company that has been harassing my mom (I am her POA). I have faxed and sent by certified mail a copy of the POA and a Cease and Desist order and They still call. I have recording of most of the calls and I have documented the calls I have received. I have it of a recording just today that they have the Cease and Desist order. But they are still call. The cards are not my moms, and a fraud case was opened in Oct 2008 and due to the fact that it was a family member that made an agreement with the person responsible to keep her from going to jail, and now it seems that she has stopped making payments and that is why they are call. What can we do?

My mother did not make any agreement with the card companys. We filded a fraud case with them they made an agreement with my sister for repayment. We were ready to file with the police, the card company said that with it being a family member it would be best if they worked with her, She siged and noterized papers and things with her. They call us and said they had worked out evrything with her and that she took responsible. We never heard from them again until a few months ago. Fraud case was filded Oct 2008.

[racer72]

Let's get this straight. A family member stole Mom's identity, obtained a credit card and ran up a debt. Mom in turn, to keep the family member out of jail, made an agreement with the family member to pay the credit card. This agreement was made in lieu of filing a police report and having potential charges brought against the family member. Now the family member has decided to not pay the credit card and Mom is getting hassled by the credit card company.

If the above is true, Mom is liable for the debt.
1. The agreement to pay the debt does not include the credit card company.
2. The credit card company requires the filing of a police report to transfer responsibility of the debt, this did not happen.

This leaves Mom 2 options. File a police report and file an ID theft claim with the credit card company or pay the debt then sue the family member. If this is the original creditor, they do not have to honor cease and desist letters, that only applies to third party collections.

[ecmst12]

The credit card does not have to pay any attention to the cease & desist, they are the original creditor, not a collection agency, and the FDCPA does not apply to them.

[BOR]

Originally Posted by kuzinscove

What is the name of your state (only U.S. law)? Florida

I am dealing with a credit card company that has been harassing my mom (I am her POA). I have faxed and sent by certified mail a copy of the POA and a Cease and Desist order and They still call. I have recording of most of the calls and I have documented the calls I have received. I have it of a recording just today that they have the Cease and Desist order. But they are still call. The cards are not my moms, and a fraud case was opened in Oct 2008 and due to the fact that it was a family member that made an agreement with the person responsible to keep her from going to jail, and now it seems that she has stopped making payments and that is why they are call. What can we do?

Aside from any legal obligation of debt, since a C&D letter was written and presumably received, I would say they are in violation of FL's Telephone harassment law:

a) Makes a telephone call to a location at which the person receiving the call has a reasonable expectation of privacy.

Maybe you can tell them you are going to sue them for Invasion of Privacy. The fact they are a creditor has no bearing on permitting them to call.




http://www.leg.state.fl.us/STATUTES/index.cfm?App_mode=Display_Statute&Search_String=&URL=Ch0365/SEC16.HTM&Title=->2009->Ch0365->Section%2016#0365.16

[racer72]

The Florida statute does not apply to the OP's problem.

1) Whoever:

(a) Makes a telephone call to a location at which the person receiving the call has a reasonable expectation of privacy; during such call makes any comment, request, suggestion, or proposal which is obscene, lewd, lascivious, filthy, vulgar, or indecent; and by such call or such language intends to offend, annoy, abuse, threaten, or harass any person at the called number;

Nope, the OP does not state the calls are any of the above.

b) Makes a telephone call, whether or not conversation ensues, without disclosing his or her identity and with intent to annoy, abuse, threaten, or harass any person at the called number;

I would bet the creditor is letting the OP know who they are.

(c) Makes or causes the telephone of another repeatedly or continuously to ring, with intent to harass any person at the called number; or

Never stated as done by the OP.

(d) Makes repeated telephone calls, during which conversation ensues, solely to harass any person at the called number,

The calls are to collect a legal debt, they are not meant to harrass.

Besides, federal law, which trumps state law, allows the creditor to make calls to the OP to collect the debt. As stated, the cease and desist is irrelevant, per federal law the it only applies to third party creditors, not original creditors. Also, when the OP's mother allowed the debt to remain in her name, she gave up her right to privacy as she agreed by contract to allow the creditor to contact her if the account became past due.

Sorry Charlie, try again.

[BOR]

Originally Posted by racer72

.
Besides, federal law, which trumps state law, allows the creditor to make calls to the OP to collect the debt. As stated, the cease and desist is irrelevant, per federal law the it only applies to third party creditors, not original creditors. Also, when the OP's mother allowed the debt to remain in her name, she gave up her right to privacy as she agreed by contract to allow the creditor to contact her if the account became past due.

Sorry Charlie, try again.

Sorry charlie, wrong. You tell me what law permits a person to call a home 15 times a day! Federal law does not always pre-empt state law, sorry charlie, wrong again.

[ShyCat]

Originally Posted by BOR

You tell me what law permits a person to call a home 15 times a day!

What?! My daughter is a lawbreaker????

[BOR]

Originally Posted by ShyCat

What?! My daughter is a lawbreaker????

She's the only exception!

[racer72]

Originally Posted by BOR

Sorry charlie, wrong. You tell me what law permits a person to call a home 15 times a day! Federal law does not always pre-empt state law, sorry charlie, wrong again.

Where in the hell did the OP state anybody was calling 15 times a day? I think you are highly confused and your posts in this thread prove that. And the FDCPA does trump Florida's telephone harrassment law as it applies to collection of debts. The Florida law never specifally target debt collection activity, that is governed by federal law. If a debt collector calls someone 15 times a day, he is in violation of the FDCPA too.

[BOR]

Originally Posted by racer72

Where in the hell did the OP state anybody was calling 15 times a day?

I never said they did charlie! The point was, and I thought even you could figure it out, do you think these people call once a day or one a week??

Did you read the FDCPA introduction and the legislative purpose of it?

I think you are highly confused and your posts in this thread prove that.

You are the one confused, and if you are not tell me where you get this, as you quoted in your first post:

...Also, when the OP's mother allowed the debt to remain in her name, she gave up her right to privacy as she agreed by contract to allow the creditor to contact her if the account became past due...

Just when did she agree to be called in the first place? You do NOT give up your privacy after you have communicated in writing for them to stop, that IS the purpose of a cease and desist letter?

And the FDCPA does trump Florida's telephone harrassment law as it applies to collection of debts. The Florida law never specifally target debt collection activity, that is governed by federal law.

Wrong again Charlie.

Section 816 of the FDCPA governs federal preemption, It does NOT "occupy the field". So the law that gives the most protection prevails.

A summary of the FDCPA:

The Act prohibits certain types of "abusive and deceptive" conduct when attempting to collect debts, including the following:

Failure to cease communication upon request: communicating with consumers in any way (other than litigation) after receiving written notice that said consumer wishes no further communication or refuses to pay the alleged debt, with certain exceptions, including advising that collection efforts are being terminated or that the collector intends to file a lawsuit or pursue other remedies where permitted[3]


[url=http://en.wikipedia.org/wiki/Fair_Debt_Collection_Practices_Act]Fair Debt Collection Practices Act - Wikipedia, the free encyclopedia[/url]


Florida's also has a preemption clause:


559.552 Relationship of state and federal law.--Nothing in this part shall be construed to limit or restrict the continued applicability of the federal Fair Debt Collection Practices Act to consumer collection practices in this state. This part is in addition to the requirements and regulations of the federal act. In the event of any inconsistency between any provision of this part and any provision of the federal act, the provision which is more protective of the consumer or debtor shall prevail.



559.72:

(7) Willfully communicate with the debtor or any member of her or his family with such frequency as can reasonably be expected to harass the debtor or her or his family, or willfully engage in other conduct which can reasonably be expected to abuse or harass the debtor or any member of her or his family;

Th person has asked the calls to stop, in writing, they have NOT!

Therefore they have violated BOTH acts.

IF the person is NOT subject to FL's act or the FDCPA, they are then subject to the specific telephone harassment laws.

If a debt collector calls someone 15 times a day, he is in violation of the FDCPA too.

Finally got something right Charlie!

[ecmst12]

Leave the FDCPA out of this. It does NOT APPLY. Not at all. Not even a little bit.

It's not harassment if it's for a legitimate business purpose (collecting a debt). It's only harassment if the INTENT is SOLELY to harass. Which it's not, the creditor isn't calling for fun, they're calling to get their money.

[kuzinscove]

Originally Posted by racer72

Let's get this straight. A family member stole Mom's identity, obtained a credit card and ran up a debt. Mom in turn, to keep the family member out of jail, made an agreement with the family member to pay the credit card. This agreement was made in lieu of filing a police report and having potential charges brought against the family member. Now the family member has decided to not pay the credit card and Mom is getting hassled by the credit card company.

If the above is true, Mom is liable for the debt.
1. The agreement to pay the debt does not include the credit card company.
2. The credit card company requires the filing of a police report to transfer responsibility of the debt, this did not happen.

This leaves Mom 2 options. File a police report and file an ID theft claim with the credit card company or pay the debt then sue the family member. If this is the original creditor, they do not have to honor cease and desist letters, that only applies to third party collections.

My mother did not make any agreement with the card companys. We filded a fraud case with them they made an agreement with my sister for repayment. We were ready to file with the police, the card company said that with it being a family member it would be best if they worked with her, She siged and noterized papers and things with her. They call us and said they had worked out evrything with her and that she took responsible. We never heard from them again until a few months ago. Fraud case was filded Oct 2008.

[ecmst12]

By not reporting the identity theft to the police, your mother accepted the debt as valid.

[BOR]

Originally Posted by ecmst12

It's not harassment if it's for a legitimate business purpose (collecting a debt). It's only harassment if the INTENT is SOLELY to harass. Which it's not, the creditor isn't calling for fun, they're calling to get their money.

I don't care if you are collecting a debt or not, once told to not call anymore, especially in writing, which was acknowledged by the creditor, it is a violation of your privacy and tortious, period. Even if the telephone statute does not apply from an implied cause of action attached to it, common law invasion of privacy will.

[racer72]

Originally Posted by BOR

I don't care if you are collecting a debt or not, once told to not call anymore, especially in writing, which was acknowledged by the creditor, it is a violation of your privacy and tortious, period. Even if the telephone statute does not apply from an implied cause of action attached to it, common law invasion of privacy will.

Wrong. Read a credit card agreement. The signer agrees to the phone calls when they sign the agreement.

I never said they did charlie! The point was, and I thought even you could figure it out, do you think these people call once a day or one a week??

WTF???? You did. Are your coke bottle glasses so thick you can't see what you posted?

Originally Posted by BOR the blind

Sorry charlie, wrong. You tell me what law permits a person to call a home 15 times a day! Federal law does not always pre-empt state law, sorry charlie, wrong again.

I think you better quit while you're behind.