Frightened Into Making Payments.... HELP Please!

[meehanmama]

What is the name of your state? Tennessee (TN)

Hi there!
I've been reading every thread I can get my hands on... and I feel so ignorant! I had no idea that I had any rights to validate the debt I've been paying on. Hopefully someone can help me out... and let me know If I have a chance to fight this.
Here it goes...

(We Live In TN)
My husband works out of town, and I had recieved a few calls from a collector wanting to verify his address. Since he wouldn't disclose his identity... I didnt disclose my hubby's identity. No harm... No foul.

On 10/24/06... I recieved a call from the collector and my husband was home. They talked for a minute and my husband didnt understand the man... so he had me talk to him. He said he was from the Law Office Of Donald Burak (PA). He instisted that we pay a credit card debt from my hubby's past. I stood my ground for a while stating that I need info showing that he really owes this. The law office stated that he does not have to do that and WILL NOT do so. He said they purchased this account and are now the sole owners of the debt. I stayed strong until he said:

-- "If I dont recieve a good faith payment during this phone call, I have the power to garnish your husbands wages and seize your income tax return. I also see you have a Dodge Grand Caravan..."

This frightened me enough to ask the amount owed and such. He said I owe $18065.23 as of that day. He said we can settle at $10,839. We were ignorant of the SOL laws and had no idea what to do. He made me believe he had a form to enforce garnishment immediately! We have 3 babies and a lot of health problems, so we can't be without our only income.

So, I asked what I can do to keep from being garnished. He said I HAVE to make a good faith payment right now over the phone of 10%. I refused since we dont have that kind of money laying around. I agreed to put $100 on my credit card. So we did that.
I told him the only other money we have is a CD for $1200. He demanded that amount to be due by 10/31/07 (1 week away). He asked how much we can afford each month for our payment agreement. I said it will be hard... but I will try & scrape $100 each month. He said that wasnt acceptable. The lowest amount I can pay is $300 per month. I said thats impossible for us... and he said if we default on this amount, he will garnish all of our wages and sieze our IRS refund. Also, he said that the ONLY WAY for them to recieve payment is through electronic debits from my checking!

I was very upset and felt trapped. He said he is faxing me an agreement and it has to be returned signed via fax before 6:30pm. (This only gave me a few minutes to sign it and send back).

My husband felt awful about this old debt that he was unaware of. I told him I will do everything I can to make some money to pay (Im an at home mom) so we dont lose our van, wages, and IRS refund.

After this, we have had alot of hardships back to back... but I still managed to make the payments. I lost the use of my hands in January due to a medical disease and am just now able to partially use them again. 2 days ago, I googled BURAK... and saw complaints from consumers. After reading for a few hours about old debts and such... I went back and looked at our origional agreement. Here's what I am now seeing...

-- There is no statement giving me ANY rights to validate or dispute.
(I was told I Could NOT validate or dispute this)
-- "This law firm is a debt collector attempting to collect a debt for our client"
(says nothing about owning the debt themselves)
-- "You authorized and requested this firm to effect payments by debit
entries to your bank"
(I didnt request it... it was forced on me)

So, I pulled my husbands credit report... and Transunion has the Credit card info on it. It says:

charged off as bad debt.
Balance = $8504
Date Opened = 12/93
Date Closed = 11/01
Past Due = $3,089 (which is almost exactly what I have paid the law office)
Est Date to be Removed = 06/08
Last date updated = 05/03

There is no entry for this law office... and I dont have a date for 1st delinquecy (for SOL). I am assuming that the removal date is at least 7yrs 1 month since the delinquency date.

With all this said... I am at a loss on what to do. If I had any idea I could validate this debt.,... I would have. Hubby dont remember it and I believe him. This law office lied to me about so many things... I dont even know really where to begin.

Please help this unaware wife of a consumer... I really appreciate it!!!

[311Spider]

Ouch, this is a bad one. The fact that he wants access to your checking accounts sounds fishy to me. What did that document say that he faxed to you and you signed???

If this guy will not tell you what the debt is from I would refer this creep to Fair Debt Collection Practices Act, telling him that under this act he cannot contact you once you have notified him not to.

[FlyingRon]

Run, do not walk, to your bank and do whatever you have to do (switch accounts, take all your money to another bank, whatever) to keep him from drafting.

They will DRAIN your account with the authorization you signed.

[Zigner]

Unfortunately, the Statute of Limitations defense is out the window, as you have made recent payments on the account. In fact, the form you already signed may, in fact, confirm that you DO owe the debt.

[debtcollector`]

Originally Posted by Zigner

Unfortunately, the Statute of Limitations defense is out the window, as you have made recent payments on the account. In fact, the form you already signed may, in fact, confirm that you DO owe the debt.

I'd be willing to bet the form was a consent to judgment.

DC

[meehanmama]

Thanks everone for your replies! Feel free to keep posting your advise... its priceless!

Yesterday... we went & opened a new account at a different bank. I am setting up my online billing so I can close out the other account. I havent told the bank to refuse the automatic withdrawls yet... so I will do that now.

Thanks again...and will be back later for more tips

[debtcollector`]

Originally Posted by meehanmama

Thanks everone for your replies! Feel free to keep posting your advise... its priceless!

Yesterday... we went & opened a new account at a different bank. I am setting up my online billing so I can close out the other account. I havent told the bank to refuse the automatic withdrawls yet... so I will do that now.

Thanks again...and will be back later for more tips

You realize that by negating the agreement you made, you are giving the free reign to:
a. get a judgment if you haven't already consented
b. if you have or after the get the judgment:
1. take every non-exempt asset you have
2. garnish pay
3. add a lot of interest and fees to the account

You should hold to your agreement while you verify what you did and decide how to proceed.

DC

[FlyingRon]

Originally Posted by debtcollector`

You should hold to your agreement while you verify what you did and decide how to proceed.

DC

The agreement was most to pay a $100 draft. Fine honor that. However, there is most likely a legally revocable authorization to draw that she does not have to leave in place. Make the scum go through channels. She's under no obligation to let them suck her accounts dry at their own will.

Get behind me SATAN!

[meehanmama]

Thanks everyone!
I am working on the debt validation letter... as well as trying to find a local lawyer for this.
All tips are appreciated

[Ladynred]

This so-called 'law office' told you some whoppers that's for sure !! You had/have EVERY right to request validation of the debt. The SOL in TN is 6 years and if the debt was last paid in 11/01, the SOL has not expired yet anyway.

What you signed may or may not have been a consent to judgment, I rather doubt it but you'd better check with court to be certain your DH has NOT been sued. Just ask the court clerk if any lawsuits have been filed against him.

They can't take your IRS refund, they don't have the power to intercept that at all. The only way they can get it is by siezing a bank account it's been deposited into and only after a judgment has been rendered. They can NOT garnish wages, bank accounts or seize assets w/o suing your DH FIRST and they can never take ALL of anyone's wages, the max allowed is 25% of your net wages.

I told him the only other money we have is a CD for $1200.

NEVER, NEVER, NEVER tell a debt collector any such thing !!!!! Would you tell any other complete stranger about your finances ??? I doubt it.

As for the bank account, don't CLOSE it -- leave it open and keep ONLY the agreed upon amount in that account and don't put any more in there until the next agreed upon payment is due. That way they cannot help themselves whenever they want to as too many unscrupulous collectors will do. Just make sure that your bank won't allow any overdrafts on that account or you'll get stuck with fees.

You are a collectors dream victim.. they were able to BS you and scare you into paying something that you may or may not be able to afford.

If you haven't read it, read the Fair Debt Collection Practices Act. This guy violated the law in so many ways. Validation may not get you anywhere since you admitted to the debt with whatever it is you signed and your payments.

[meehanmama]

Thanks again for posting... I am absorbing all that i can with you help
I have been reading/printing/highligting everything that I can find that pertains to the situation I am in. I am super-studying the FDCPA laws... and only wish I knew then what I know now.

The SOL in TN is 6 years and if the debt was last paid in 11/01, the SOL has not expired yet anyway.

Well, the transunion report shows the origional acct was closed on 11/01.
It doesn't show the DOLA (last pmt made on acct). This gives me hope that the last payment made on the account was still in the SOL bounds.

The other 2 credit reports dont list this debt at all... and none of the reports list a collection agency for it.
GOOD NEWS- No extra derogatory marks...
BAD NEWS- The $3000 we have paid isnt reflected anywhere!

NEVER, NEVER, NEVER tell a debt collector any such thing !!!!! Would you tell any other complete stranger about your finances ??? I doubt it.

I know... I really thought I was in big trouble and had to be 100% honest... since he said he was a lawyer. Big lesson learned.

As for the bank account, don't CLOSE it -- leave it open and keep ONLY the agreed upon amount in that account and don't put any more in there until the next agreed upon payment is due.

Thanks for the tip... I have read that now a few times and will wholeheartedly take that advise. I definately wouldnt want to cause more trouble for us than I already have.

You are a collectors dream victim.. they were able to BS you and scare you into paying something that you may or may not be able to afford.

You hit the nail on the head! Too bad there isnt a law protecting us for being uneducated in debtors rights/credit report monitoring. I am trying to find more info about the "Least Sophisticated Consumer" law. Could someone mabey help me understand if I fall in that category?

Ya'll are angels... and good deeds always find their way back to ya
Bless ya!

[Ladynred]

BAD NEWS- The $3000 we have paid isnt reflected anywhere!

Unfortunately it will never show any payments. However, if you pay it all it should eventually show as a 'paid collection' - which is still a negative mark.

I really thought I was in big trouble and had to be 100% honest... since he said he was a lawyer.

Yeah, well lawyers aren't not cops or judges or anything else that requires you to tell all - they lie enough themselves when they need to ! They definitely use the "I'm a lawyer' thing to scare people - because people are afraid of lawyers. It's pretty silly when you think about it.. they are like anyone else except they have a law degree but they have no authority.

Too bad there isnt a law protecting us for being uneducated in debtors rights/credit report monitoring. I am trying to find more info about the "Least Sophisticated Consumer" law. Could someone mabey help me understand if I fall in that category?

I agree. I happen to think that financial education, to include what happens when you don't pay your debts and education on the FDCPA, FCRA, TILA and a few other laws should be mandatory in the schools !

The 'least sophisticated consumer' concept is key to the FDCPA in so many ways. However, you'll have to read case law to get any kind of feel for how it comes into play. Here's a bit of reading if you're so inclined:

[url]http://www.lectlaw.com/files/ban07.htm[/url]
This post on a collection lawyer's blog might also help you get a handle on it:
[url]http://www.michigancollectionlawblog.com/2006/09/remember_the_standard_is_the_l.html[/url]
(he's actually not a bad guy for a collection attorney)

If you want some more information, head over to [url]www.creditinfocenter.com[/url], lots of people there to help and discuss this sort of thing with

[Zigner]

Originally Posted by meehanmama

Well, the transunion report shows the origional acct was closed on 11/01.
It doesn't show the DOLA (last pmt made on acct). This gives me hope that the last payment made on the account was still in the SOL bounds.

I agreed to put $100 on my credit card. So we did that.

Unfortunately, your last payment was $100 on 10/24/06

[meehanmama]

Thanks for the replies. I would like to take a minute and give an update on my situation. I welcome any advise and all questions. Sometimes I cant respond right away due to my arthritis... but I can read your replies.

Ok... I have been studying/highlighting the FDCPA laws and the Tennessee Code. There's alot of things they violated, so Im compiling a list. Here are some questions I need answered. Thank you so much in advance.

How are violations counted?... example...
Sec 807 FALSE or MISLEADING REPRESENTATIONS
There are 16 subsections in this section. If a collector violates
all of those... is that counted as 16 violations? or is it just 1 violation?

The debt lawyer's letter says the client is ACCOUNT PORTFOLIO MGMT (APM)
I did a search; APM opened its 2nd office last year. Their address is the
same as the lawyer! That is the only info I can find on them.
Does that violate anything? It just seems so fishy.

I looked up debt collectors on our TN state site. It says they must be
licensed in TN and have bond. Out of state collectors can collect here
as long as they "qualify" to get a TN collector license.
They are not listed as being licensed. What does this mean for my case?

INITIAL CONTACT (referenced in origional post)
After the lawyer rambled off a bunch of numbers to my husband... he
handed me the phone. I am the one that handles the checkbook. Hubby
said "I cant hardly understand him... but he says I owe $10000 from an
old card." I said "Do you know what card he's talking about?" He said
"No... I thought I cleared up my college debt a long time ago."
I got on the phone and the "lawyer" needed Phil's permission to
speak to me about the debt. Phil said yes. And then I got back on
the phone. Blah--------Blah---------Blah---------- Blah----------
OK... when the lawyer recorded the oral agreement, it was me (wife).
Then he faxed it to us right then to sign. Hubby & I signed it. Neither
the oral or written agreement said anything about the option to dispute.
I was told by this lawyer that "We bought the debt and are now the sole
owners. We dont have to and will not prove anything." So...
Are these agreements (oral or written) legal?

The lawyer always made it clear that they owned the debt and would garnish
and take our IRS refund if we didnt make payment immediately. I/Hubby
wanted proof about the debt but was told "No." Would this agreement
be invalid since deseption was used during the whole thing?

NEW LETTER
After making the good faith payment of $100, a first monthly payment
of $1200, and a very painful $300 per month (total $3100)... I recieved
a letter yesterday. It is from the lawyer (letterhead) and says...
"You have promised to make regular payments on the above claim, but
it appears that you have failed to do so. If you continue to ignore this
matter, we may have no option but to recommend to our client that it
exhaust whatever legal measures are available to collect this debt
through local counsel in your state. Please call our office immediately."

At the bottom, it has "This is a communication from a debt collector, and is an attempt to collect a debt. Any info obtained will be used for that purpose. As required by law, you are hereby notified that a negative credit report reflecting on your credit record may be submitted to a credit reporting agency if you fail to fulfill the terms of your credit obligations."

WHAT?
- I was forced to have the payments drafted from my account
- Forced into a $300 pmt when I cried telling him there is no way we can
manage that. $100 was the most we could do.
- I had to push myself to the limit everyday, trying to sell enough AVON to
make the payment... while toting around 3 toddlers/babies. Hubby works
out of town and I have no family help.
- The stress of it all caused me to have a severe psoritic outbreak in Jan.
It has covered most of my body and I am insecure about people seeing me
now. I developed psoriatic arthritis w/ nail bed dysfunction in March due to
the severe outbreak. This makes everything I touch painful... so taking
care of my babies is very hard now.
- I have to have weekly blood work done for the treatment. There is no
cure... but I am on methotrexate to help with my symptoms. The cost
of these medical issues has put an even bigger burden on our situation.
- I had to quit selling Avon due to my illness. Now our income is just him.

I cant believe after all the hardship I have taken during this process, they make it sound like we haven't been paying. I know I shouldnt take it personally, but this has been the hardest time in my life. Any advise, info, tips are greatly appreciated.

LAST QUESTIONS
I am ready to send the DV letter tomorrow to the lawyer.
Do I need to send one to the Client (APM)?
Should I go ahead & get a lawyer? or wait?

[Ladynred]

How are violations counted?..

Every time they violate the FDCPA. If they call after 9pm 3x that would be 3 violations.
However, if you were to sue over FDCPA violations, you can only recover UP TO $1000 PER ACTION (lawsuit) and not per violation.

Their address is the same as the lawyer! That is the only info I can find on them.
Does that violate anything? It just seems so fishy.

Nothing fishy, just typical, it's likely the agency and/or junk debt buyer and this lawyer are 1 in the same. Perfectly legal.

Out of state collectors can collect here as long as they "qualify" to get a TN collector license. They are not listed as being licensed. What does this mean for my case?

If they have not filed the proper papers per the law, then they are not allowed to collect from TN residents. Call the state consumer protection office and ask them directly about this company.

I was told by this lawyer that "We bought the debt and are now the sole
owners. We dont have to and will not prove anything."

That is an outright LIE. Just because they bought the debt does NOT mean they don't fall under the FDCPA - they do. Their ownership has nothing much to do with it - the debt was in default when they bought it, that makes them debt collectors subject to the FDCPA- period.

If this call was the FIRST communication you've ever had from this collection agency, they are REQUIRED to follow up the phone call with a notice, in writing, within 5 days and that letter MUST INCLUDE the FDCPA notice of your 30 days to dispute. If the call was the first communication, they SHOULD have told you of that 30 day notice during the call ! By not allowing you your right to dispute, they violated the FDCPA. This would also fall under 'overshadowing' by demanding payment and not allowing you to dispute.

Are these agreements (oral or written) legal?

Unfortunately, they answer is likely 'yes'.

Would this agreement be invalid since deseption was used during the whole thing?

Doubtful, but a REALLY good lawyer might be able to argue that it is invalid. I wouldn't bet on it though.

Ok. On all those medical problems, ARE THEY DOCUMENTED ?? Would your doctor(s) back all that up in writing ?? That is the kind of thing that can take a $1000 FDCPA case to far, far more when you can prove that kind of physical 'harm'.

"You have promised to make regular payments on the above claim, but
it appears that you have failed to do so

Do you have PROOF of EVERY payment and exactly WHEN it was made - on time ?? Some of these collection agencies will pull this crap so that they can say your agreement is null and void and they want far more money - all or nothing tactic.

Do I need to send one to the Client (APM)?

They are 1 and the same, send 1 letter and make sure you send it certified, RRR and keep copies of everything !

Should I go ahead & get a lawyer? or wait?

I think you have a case NOW for the violations. Go to [url]www.naca.net[/url] and find a consumer advocate attorney if you don't have a lawyer already in mind. Whatever you do, make sure the lawyer is well versed in FDCPA and consumer law.