old charged off card / CA (long, sorry)

[jamied66]

What is the name of your state? Virginia

I received a call from the office of an attorney (James Roscetti of Niagara Falls, NY aka Triton Capital, Inc.) and we discussed a credit card that had been charged off in 2001. Apparently they had purchased the debt from MBNA and were now looking for money.

After initially agreeing verbally to a payment plan they faxed me a letter "detailing" debt settlement (approx. 58% of the original debt). This letter looked more like a receipt for a used car than a legal document. I also looked up their local number online (they gave me an 800#), and I found 2 addresses and the phone number I found wasn't in service. In addition to this they sounded basically unprofessional (i.e. they have no voice mail, just a circa 1980's answering machine at their office). I decided that I didn't want to pay them this amount of money.

I'm more than happy to pay it, but I just don't think giving it to them will do any good. I have a call in to MBNA, but they sounded confused when I spoke to them. I also mailed them a cease and desist letter outlining my desire to not deal with them and left them a message to the same effect. I also placed a stop payment on anything they might try to put through (in my ignorance I gave them my account number).

My question, is, have I unleashed the hounds of hades by agreeing and then changing my mind, or will they probably "file me away" like I often hear this kind of collector doing? Thanks for any help.

 

[Debt Guy]

Nothing is as simple as it seems.

Stop. Before you do anything, figure out when the statute of limitations expires on this account. In Virginia, the SOL is either 3 years or 6 years. The 3-year limitation applies to open accounts (which credit cards are considered to be) and the 6-year limitation applies to written agreements.

The Federal Truth-In-Lending Act defines a credit card as an open account. However, there are differences of opinion on whether credit cards are written agreements. If you try to use the SOL defense, then expect the creditor to argue that the card is a written agreement.

I am not aware of any decisions in Virginia that go to this point. A court decision in your favor would be tremendous.

The SOL begins to run from the date of default. So, when did you make a last regular payment on the account? Add 30 days and that is almost surely the date of default.

If the debt is out of statute, you are safe to a degree. They can still call you until you send a cease and desist letter. They can still sue you. If they sue you, you can use the SOL as a defense and cause the lawsuit to be dismissed.

If this was the initial contact by the collector, they are required to mail you a notice within five days. This notice explains your rights under federal law. One of those rights is to demand validation of the debt. There are differences of opinion as to what DV means. At minimum, you should write a letter requesting validation. You can find samples at www.creditinfocenter.com. You read more about the Fair Debt Collection Practices Act at www.ftc.gov.

If MBNA has sold the loan, calling MBNA will do no good since they no longer have an interest or any grounds to do anything.

I don't think I would worry a lot about the "broken promise". It happens all the time.

However, once they had made contact with you and know how to reach you, they are not likely to "file you away" and forget the debt.

First things, first. Is the debt within SOL? Have you demanded validation? Your next step will be guided by those answers.

 

[jamied66]

Thanks so much for your help.

The account went into default 10/2000. So if it's a 3 year SOL I can breathe a little more easily.

I verbally asked for validation, and received the aforementioned letter with a payment schedule. I sent a Cease and Desist letter with notice to not initiate any debits from my bank account (like i said, they have my numbers) by certified mail w/return receipt.

I now feel more confident in battling these people.

Thanks a lot.

 

[Debt Guy]

A verbal request for validation will not do the trick. It must be in writing. To be effective, you must make your request in writing and do so within 30 days of receipt of their "first communication" letter.

I typically recommend against a cease and desist until you are sure what you got. But, since you already sent one, don't complicate things by trying to rescind it.

Remember, there are opinons on both sides of the SOL question. Personally, I think that credit cards are open accounts as defined by TIL. I just wish there were judges publishing opinions to support that position.

By the way, if they contact you again about the agreed settlement, just say "I decided that it would be better if I required you to validate the debt so that we could be sure that you have the right person and that the accounting for what you claim is accurate. I made my validation request in writing on _______________. It is a violation of federal law to contact me until you have complied with my request. Please don't contact me again until you have complied with my request." Then just hang up. Keep copious notes of all conversations in case you get sued. If you are sued, you can use these violations as leverage in a countersuit.

Now, you said this was a law firm contacting you. Lots of collectors hold themselves out as lawyers these days. They probably are lawyers. Which means they know the way to the courthouse.

 

[jamied66]

I found the SOL for Virginia and also read as much of the code as I understand. It states that open accounts have a 3 yr. SOL from the date of the last payment or the last date services are rendered. That would be 12/01 for this accout, which is 4 months ago. It also gives the SOL for Non-UCC written agreements as 5 years, but not a lot of information was available past that, that I could understand at least.

I was contacted via phone for the 1st time 3 weeks ago, and have yet to receive anything in writing (1 fax of the payment agreement like I mentioned earlier).

I feel like I'm in pretty safe ground if they do file suit, all things considered.

Thanks for helping to point me in the right direction!

 

[Debt Guy]

They are likely in violation of the FDCPA for failure to send the "first communication letter"

I recommend you go ahead and send a written demand for validation.

 

[jamied66]

I left them a message over the weekend outlining my desires with this company, and received a call at 6 pm last night from the "next step up" in terms of aggressive collection agents in their office. After wrangling for the better part of an hour, I quoted him the SOL info you pointed me towards and his tone changed considerably.

I've decided to settle the debt. It's full amount was $5192, and I'm settling for $1733 in 2 payments. That's 33% of the face value, which is much easier for my family to live with today.

Thanks for all of your help!

 

[Tayla]

I left them a message over the weekend outlining my desires with this company, and received a call at 6 pm last night from the "next step up" in terms of aggressive collection agents in their office. After wrangling for the better part of an hour, I quoted him the SOL info you pointed me towards and his tone changed considerably.

I've decided to settle the debt. It's full amount was $5192, and I'm settling for $1733 in 2 payments. That's 33% of the face value, which is much easier for my family to live with today.

Thanks for all of your help!

Since your bending on a non collectable account, require them to send you a "PAID IN FULL, DELETE FROM CREDIT REPORTS" Letter BEFORE you even send them a dime .Read it and make sure it meets your requirements.This will save you the hassle of seven years of negativity on your credit reports for this account specifically. They bought the account for pennies on the dollar so this supposed savings is really a profit for them. They are well aware its an old account and are wagering that you'll just pay up with little negotiating.

 

[foolsmission]

A little tough love:
If your willing to pay them any amount...
are you willing to spend $4.42 for a CMRRR from the post office?
Get off the phone or they'll steal you blind.
Everthing in writting, or don't bother.