I do owe the money

[Michaelon]

I was unemployed for a while (thankfully that is over) and ran up credit card debts. Now, gerald e. moore & associates is saying they will take me to court and charge perhaps an additional $5000! The debt is for $4000 and I'm able to make payments of around $400 per month, but they want the whole thing right away. Can they sue me? Can I just make payments? This is all very new to me and I'd really appreciate any help you have to offer.

Thank you in advance,

Michael Pollard

[stargazer0725]

They can bring a lawsuit against you at any point for any outstanding debt you owe.

However, depending on how old the debt is, you could have defenses that would get any lawsuit dismissed (with no attorney's fees owed). When did you make your last payment(s)? And what state are you in?

[Michaelon]

Thanks for responding Stargazer.

My last payment was mid January for $465. I'm in California. I just want to get the debit paid off and not incur any further expenses. I'm going to send off a check for a couple of hundred tomorrow also.

[stargazer0725]

Before you send off the check, get a statement of the account showing what the $4k is made up of, what kind of interest and fees they are charging you. You need to make sure you are comfortable with the how they came up with the amount you owe. If it seems fishy in the least, I would consult with a professional prior to sending off any money.

Just for the record, you have 30 days from the date of first contact to dispute a debt, then they need to provide you documentation regarding the debt which has been obtained from the original creditor. Until they provide this, they must stop collection efforts. The fact that they are demanding payment immediately (seemingly within the 30-day window) is against the law.

I'm not saying don't pay the debt if it's really yours (especially since it's so recent), but you have the right to be fully informed prior to settling with them.

I'm saying this because very frequently collection agencies stumble across the wrong consumer (someone with a similar name, etc.) and start demanding payment on a debt the might belong to someone else. Make sure it's really yours before sending off your hard-earned money to a stranger.

[JETX]

I was going to stay out of this one since 'starman' seemed to be getting it right.... until this post.

Originally Posted by stargazer0725

Before you send off the check, get a statement of the account showing what the $4k is made up of, what kind of interest and fees they are charging you. You need to make sure you are comfortable with the how they came up with the amount you owe. If it seems fishy in the least, I would consult with a professional prior to sending off any money.

What you are trying to describe is called a 'validation' of the account. To do this, the OP needs to send a WRITTEN request (send it certified RRR) to the debt collector (and yes, Moore is a 3rd party collector).
A good sample form letter for this can be found at: [url]www.creditinfocenter.com/forms/[/url]

Just for the record, you have 30 days from the date of first contact to dispute a debt, then they need to provide you documentation regarding the debt which has been obtained from the original creditor.

Not correct. The debt collector is required to validate upon request.... not by default.

Until they provide this, they must stop collection efforts.

Almost correct. Per the FDCPA:
§ 809. Validation of debts:
(b) If the consumer notifies the debt collector in writing within the thirty-day period described in subsection (a) that the debt, or any portion thereof, is disputed, or that the consumer requests the name and address of the original creditor, the debt collector shall cease collection of the debt, or any disputed portion thereof, until the debt collector obtains verification of the debt or any copy of a judgment, or the name and address of the original creditor, and a copy of such verification or judgment, or name and address of the original creditor, is mailed to the consumer by the debt collector."

The fact that they are demanding payment immediately (seemingly within the 30-day window) is against the law.

And that is flat out incorrect. There is no restriction on the debt collector making a demand for "payment immediately".... nor is there an automatic "30-day window" restricting them.

I strongly suggest that the OP and 'starman' both read and understand the FDCPA.
[url]http://www.ftc.gov/os/statutes/fdcpa/fdcpact.htm[/url]

[stargazer0725]

JETX:

It looks like you are misreading most of my post, as I am quite familiar with the FDCPA, FCRA and TDCA.

In it, I told the OP of his rights prior to payment of any funds on his part.

OP...this is the way it should go...

You receive first contact from the collector by telephone. At that point they either have to mirandize you over the phone, or send you a follow-up letter within 5 days telling you of your right to dispute the debt within the first 30 days. If they don't tell you about your rights, that is a violation of 1692g(a)(4).

If you take advantage of that right and dispute the debt, they have to provide you with documentation of the debt, showing how the balance is computed and where the debt originated from.

While you are awaiting the confirmation of the debt, the collector must cease collection efforts. Any attempt to shorten the 30-day validation window with demand for immediate payment is called "overshadowing" and is a violation of the right assigned to you under 1692g(b).

The reason this dispute right is given to you is so that a collector can't call you up on the telephone and demand payment today OR ELSE!!! It's your right to take advantage of the 30 days allotted to you to investigate their claim so you know the debt is actually yours and doesn't belong to somebody else (which happens at times when the only information that the collector is supplied with is a name and address).

I am not advocating that you do NOT pay this debt, however, you have the right to have clear wits about you when commencing with settlement. As long as you take advantage of your rights, you are protected for a short time and can figure out where to get the money.

[JETX]

Originally Posted by stargazer0725

It looks like you are misreading most of my post, as I am quite familiar with the FDCPA, FCRA and TDCA.

Nope, not misreading at all... just correcting your mistakes and errors.
TDCA?? Does that stand for 'Texas Dwarf Car Association'??
[url]http://www.texasdwarfcar.com/[/url]

In it, I told the OP of his rights prior to payment of any funds on his part.

Nope. You told the OP, in error, that:
1) "you have 30 days from the date of first contact to dispute a debt, then they need to provide you documentation regarding the debt which has been obtained from the original creditor."
That is not EXACTLY correct. The CORRECT advise is that the debtor has the right to request a validation of the debt from the 3rd party collector... AND IF the debtor does, then the debtor must provide.

2) "Until they provide this, they must stop collection efforts. "
That is not true. They can still continue their 'efforts'.... but must "cease collection of the debt, or any disputed portion thereof,". The FTC has ruled that continuing asset investigation and other activities can continue.
In fact, the following is per FTC Staff commentary on 'efforts':
"A debt collector need not cease normal collection activities within the consumer's 30-day period to give notice of a dispute until he receives a notice from the consumer. An attorney debt collector may take legal action within 30 days of sending the notice, regardless of whether the consumer disputes the debt. If the consumer disputes the debt, the attorney may still take legal action but must cease collection efforts until verification is obtained and mailed to the consumer."

Also, "A debt collector may report a debt to a credit bureau within the 30-day notice period, before he receives a request for validation or a dispute notice from the consumer."

3) and "The fact that they are demanding payment immediately (seemingly within the 30-day window) is against the law."
That is simply WRONG. There is no restriction against a collector demanding payment 'immediately" or at any other time.

So, with the correction of THOSE errors of yours, lets move on to your NEW ones.....

[quote]You receive first contact from the collector by telephone. At that point they either have to mirandize you over the phone, or send you a follow-up letter within 5 days telling you of your right to dispute the debt within the first 30 days. If they don't tell you about your rights, that is a violation of 1692g(a)(4)."
Not really. For the validation and collector requirements, go to:
[url]http://www.ftc.gov/os/statutes/fdcpa/fdcpact.htm#809[/url]

If you take advantage of that right and dispute the debt, they have to provide you with documentation of the debt, showing how the balance is computed and where the debt originated from.

The first part of that statment is ALMOST correct.... except you forgot the most important part. That the notice of validation must be done in WRITING.
The latter part is flat out NOT correct. The ONLY thing that a debt collector must do upon request for validation (per the FDCPA) is:
"until the debt collector obtains verification of the debt or any copy of a judgment, or the name and address of the original creditor, and a copy of such verification or judgment, or name and address of the original creditor, is mailed to the consumer by the debt collector."

While you are awaiting the confirmation of the debt, the collector must cease collection efforts.

We already know that is not true... see above.

Any attempt to shorten the 30-day validation window with demand for immediate payment is called "overshadowing" and is a violation of the right assigned to you under 1692g(b).

Sorry, but again... not correct. I suggest you research 'Riddle & Associates, P.C. v. Kelly, 414 F.3d 832 (7th Cir. 2005)' and Bartlett v. Heibl, 128 F.3d 497, 501-02 (7th Cir.1997)
[url]http://www.wislawjournal.com/archive/2005/0727/fdcpa-analysis.html[/url]

The reason this dispute right is given to you is so that a collector can't call you up on the telephone and demand payment today OR ELSE!!!

But they can. Now, if they were to proceed with actually filing a lawsuit, there might be a claim as to violation.... but the demand can be made.

I suggest you read what 'overshadowing' really is... a good example is under 'Avoiding Overshadowing in the Initial Letter' at the following site:
[url]http://www.narca.org/Newsletter/2000/4th_quarter/FDCPA_exposure.asp[/url]

Also, read the FTC staff letter (Edwards-LeFevre) at: [url]http://www.ftc.gov/os/statutes/fdcpa/letters/edwards2.htm[/url]

[stargazer0725]

You know what....twist whatever incorrect meaning you want out of my words. The point being that once a dispute letter is received by the collector, they can take no negative action against the OP until the provide the validation, which is probably the sole concern of the OP at the moment and you know it (and why the quicker the OP's letter goes out, the better). It's highly unlikely as a least sophisticated consumer that OP is worried about the background mechanations of the collector as long as the collector doesn't do anything to harm him personally. He's worried about the collector's threat to sue him.

As to overshadowing, I am VERY familiar with the caselaw and Barlett v Heibel even validates my point. "....your letters may request payment during the 30-day period, so long as the substance or content of the letters encourages payment, rather than threatening specific consequences if payment is not forthcoming"

The OP specifically stated IN THE INTIAL MESSAGE that the collector threatened to sue them unless they received payment immediately, thereby negating the 30-day dispute rights of the OP (which probably weren't even offered by the collector). Hence, a VALID claim of overshadowing. Stick a fork in it...this subject is done..

[JETX]

Originally Posted by stargazer0725

The point being that once a dispute letter is received by the collector

Ahhhhh. You have FINALLY realized that the debtor is required to submit the dispute... in WRITING!!

As to overshadowing, I am VERY familiar with the caselaw and Barlett v Heibel even validates my point. "....your letters may request payment during the 30-day period, so long as the substance or content of the letters encourages payment, rather than threatening specific consequences if payment is not forthcoming"

See, and there is your confusion... and lack of legal knowledge. The demand for payment... is NOT a threat of forthcoming action. Now, if the collector had said that they would garnish (which they can't without a court order) or to start seizing assets (which they also can't), that would be prohibited by the FDCPA. A simple demand for payment, nor a threat of potential lawsuit, is NOT 'overshadowing'..... nor is it prohibited as you stated in error.

The OP specifically stated IN THE INTIAL MESSAGE that the collector threatened to sue them unless they received payment immediately, thereby negating the 30-day dispute rights of the OP (which probably weren't even offered by the collector).

See, there is where you are showing your ignorance. The 'threat' of a possible lawsuit filing is NOT a violation. And even if they did file a suit, the debtor would still have the right to validation of the debt.

Hence, a VALID claim of overshadowing. Stick a fork in it...this subject is done..

Yep. You have been shown to be a legal idiot... without any legal knowledge of debt collection law.

BTW, you still haven't said what TDCA is... or how it is relevant to the OP in California!

[Ladynred]

I think everyone's getting their knickers in a knot prematurely !

The OP stated that the last payment was mid JANUARY - so that means the account is just barely 30 days overdue and the original creditor STILL OWNS IT. Validation would be a ridiculous exercise at this point because the OP's most recent statements from the OC would be adequate documentation of what is owed - and what's past due. This debt is merely assigned to Moore, it's not even anywhere near charge-off yet.

There is virtually NO chance the OP would be sued at this point. Gerald E Moore's threat that they could tack on another 5K is bullsh*t, a huge exaggeration since they'd never get that much in attorney's fees even if it went to court tomorrow, that would be WAY beyond 'reasonable' fees for a low-life debt collector in Buffalo, NY.

[JETX]

Originally Posted by Ladynred

I think everyone's getting their knickers in a knot prematurely!

Thank you... LNR!.... was wondering where you were in all of this.

Don't know if you have seen this lawsuit against Moore in PA:
[url]http://www.pennlawyer.com/hanley.pdf[/url]

[Ladynred]

Oh, I troll the boards now and again

I think I'd read that case once before, I've read most of the cases that Mr. Rubin has posted. Needless to say, it's pretty obvious what kind of CA they are !

[candidreply]

JETX...you're obviously jetting so high over your computer screen that you can't even comprehend that your cited caselaw supports the claim of overshadowing (i.e. the threat of a lawsuit is a threat of a specific consequence if payment is not immediately forthcoming within the first 30 days of first contact)

And the fact that I might say "I like to ski." is NO LESS CORRECT than your version of "I like to ski downhill." Maybe yours has an extra detail, but it doesn't make the first statement false.

I'll leave it to you to figure it out though. The OP is obviously not coming back and you're simply egging me on to try and get my goat. But he's already been put to pasture.

Have your last word and be done with it already...

And PS, TDCA would NOT be of benefit to the OP, it was just offered as an aside that I'm not the moron that you wish I was. (And figure out the acronym for yourself if you must.)

And ladynred...thanks for timeout...gets a bit frazzling when something so plain refuses to be seen...got caught up in the biggest beartrap of them all and lost sight of the importance of the OP. Won't happen again! Fool me once and all that...

[debtcollector`]

I just have to htrow my knickers in this.

JETX is almost total right. LNR surprised my with an obvious misread of the OP.

The OP wrote:

I was unemployed for a while (thankfully that is over) and ran up credit card debts. .... My last payment was mid January for $465.

Nowhere did the OP state when he was first contacted by a collections agency -- just that most recently they told him to cough up the money or they would sue and that there are costs involved with that.

I'll reserve comments on the CA as that has been adequately covered.

Now, that said. JETX: Here is why I think you are partially wrong -- you will, I am sure, correct the record if you agree and show my error if you do not.
1. You failed to express that there is no time period for a CA to respond after the first 30 days have expired.
2. You also failed to explain to your adversary that neither the FDCPA nor the FTC have explained what is required for validation, save that it must come from the OP. There need not be any breakdown of charges -- it could simply be a written statement saying yes he owes us X dollars.
3. You engaged in a battle of wits and experience with an unarmed foe.
4. Side note- by the time I get back, this be an old thread so feel free to PM your response.

DC

[JETX]

Originally Posted by candidreply

JETX...you're obviously jetting so high over your computer screen that you can't even comprehend that your cited caselaw supports the claim of overshadowing (i.e. the threat of a lawsuit is a threat of a specific consequence if payment is not immediately forthcoming within the first 30 days of first contact)

See, more 'failure to comprehend'.
Where did the OP ever say that they were threatened with a lawsuit??? The OP only said that "gerald e. moore & associates is saying they will take me to court and charge perhaps an additional $5000!". That is a statement of fact... and not a threat.
Nor did the OP say that the 'threat' was contingent on payment within 30 days. In fact, the OP makes NO STATEMENT at all of a deadline or 'clock'... that was made by 'starman'.

Look, you are clearly a legal novice (as is 'starman'). Leave the responses on this forum to those of us who know what we are doing.... and know how to read.

And PS, TDCA would NOT be of benefit to the OP, it was just offered as an aside that I'm not the moron that you wish I was. (And figure out the acronym for yourself if you must.)

Hmmmm... are you know using another username to try to support your first... or are you just 'pronoun challenged'??