Tag Archives: collections

Cease-Communication Letters – Make Debt Collectors Leave you Alone

Cease-Communication Letters

Debt collectors often try to wear down the resistance of consumers by repeatedly calling and harassing them. If this is happening, you can easily make it stop with a cease communication letter. Here’s how.

They’re Trying to Harass You

Debt collectors know that the people they are calling do not have much money – their purpose in harassing you is to move themselves to the head of the line. The way they do this is by attempting to inflict more pain or annoyance on you than other bill collectors. In other words, debt collectors know you only have so much money to pay your bills – they’re competing with each other. The company that harasses you the most “wins.”

Among other things, this means you should never take what they say personally. But you don’t have to put up with it.

Sometimes individual debt collectors claim not to engage in abusive behavior, but rather to be the victims of it. I leave the reader to decide how much sympathy these debt collectors deserve. My point is that, in general, the debt collectors seek emotional engagement. That is, they want you to take what they’re saying personally and to dispute or argue about it.

In general, the best thing you can do is avoid paying any attention to them. Write them a cease communication letter.

You Can Make them Stop Bugging You

The collectors are not concerned with your priorities or well-being, but you should be. It can be hard to keep a clear head amidst all the noise and all the people trying to use you. Luckily the Fair Debt Collection Practices Act (FDCPA) offers some help. Under the FDCPA, 15 U.S. Code Section 1692(c)c,

“if a consumer notifies a debt collector in writing that the consumer wishes [it] to cease further communication with the consumer, the debt collector shall not communicate further…with respect to such debt.”

However, the collector may inform the consumer that it’s efforts are being terminated, or notify the consumer that it “may or will invoke specified remedies which are ordinarily invoked” (i.e., suing or reporting to the credit agencies). They can tell you that once, but then they have to leave you alone.

Many people fear that by invoking this rule they will cause the debt collectors to sue them. This fear is misplaced. The debt collectors have their own guidelines based on what they expect to collect. That is, they may sue you, if you fit within their guidelines, but making them leave you alone is not one of those guidelines (that I’ve ever observed).

If anything, writing a cease communication letter may reduce your chance of being sued because it keeps the debt collector from gathering more information about you. Lawyers dislike uncertainty. They want to be pretty sure they’re going to make money if they go to the trouble of suing you. Your talking to them is one way they find out what they need in order to decide to sue you. Making them leave you alone leaves them in the dark.

What to Do to Make Debt Collectors Stop Harassing You

Crucially, if the cease communication notification is made by U.S. mail, the communication is complete “upon receipt.” In other words, to make sure the debt collector is forced to leave you alone, it makes sense (although it is not required by the law) to send the letter by certified mail. That way you have proof that the debt collector received the letter and when it received it. Any further communication would be in violation of the FDCPA.

When the phones stop ringing off the hook, you will be freer to make decisions according to your own best interests and priorities.

For More Help

If you would like a product that gives you more information on whether the cease-communication letter or the debt validation letter would work for you and be a good idea, along with sample letters that really work, click here. 

Check out our Guide to Legal Research and Analysis for a guide to researching and laws and cases in the most effective way. But legal research is more about what you do with what you find, and so this is a primer on legal thinking and analysis as well.

Garnishment of Assets by Debt Collectors

debt collectors garnish your wages? What about bank accounts? Here are some things you need to know about garnishment.

If you have assets, and this includes either a job or money in the bank, you must be concerned about the possibility of the debt collector finding and garnishing your money. The risk exists if a debt collector (or anybody else) has a judgment against you.

Governments can levy even without a judgment. Our discussion here focuses on private debt collectors, however.

Bank Accounts

Debt collectors can seize and garnish bank accounts and, when they do, it is almost always comes as a surprise to the debtor. What typically happens is collectors obtain money judgments (usually by default) and then use the judgment to freeze the funds in your bank account.

No Notice of Bank Garnishment

State law and banking rules govern how the bank must handle the garnishment process. Collectors always notify the bank first and then notify the debtor. This way your funds are frozen before you can take any action such as withdrawing all your funds.

Their notifying the bank first is perfectly legal. You typically receive the notice (including your rights) a few days after your funds have been frozen. In most states, the garnishment can only freeze funds already in your account at the time of service on the financial institution. During the time the garnishment is in effect, the financial institution cannot honor checks or other orders for the payment of money drawn against your account.

This means any outstanding checks will more than likely bounce or be returned for NSF (non-sufficient funds). In other words, your checks will bounce. The exception to this rule is if your account has more on deposit than the amount of the garnishment. In this case, the bank can honor checks up to the amount that will reduce your funds below the amount of the garnishment. When the amount being garnished is paid, the freeze on your account must be terminated.

Wages

Debt collectors can also garnish your wages. Again, your first notice that they are garnishing you is likely to be when you receive a check that is less than you thought it would be. Federal law limits the maximum amount they can take to 25 percent of your disposable earnings for that week, or the amount by which disposable earnings for that week exceed thirty times the Federal minimum hourly wage, whichever is less. In simple terms, “disposable income” is whatever money you have left after paying all required taxes and national insurances!

Disposable income is after-tax income that is  the difference between personal income and personal tax and nontax payments. In general terms, personal tax and nontax payments are about 15% of personal income. That makes disposable personal income about 85% of personal income. IMPORTANT: In order for wages to be garnished, disposable earnings per week must exceed thirty times the federal minimum hourly wage.  (That’s $154.50 at the time of this writing.)

Put another way, if you make $154.50 or less per week your wages are immune from garnishment – for now and as long as you don’t make any more than that. Also – most debt collectors can never garnish Social Security and some other types of disability or retirement income.

But You Should Not Let them Get a Judgment if Possible

Even if you have nothing for the debt collectors to garnish, you will almost always be much better off it you don’t let them get a judgment against you. Things could get better for you in any number of ways. So they might eventually be able to garnish you when that happens if you let them have a judgment. Remember that just because things may seem bleak now doesn’t mean that the sun won’t eventually shine. When it does, you don’t want debt collectors to take your good luck away from you.

And it isn’t all that hard to keep them from getting a judgment if you know what you’re doing.

 

Should You Give a Debt Collector Money? And What Happens if You Do?

Debt collectors are trained to to intimidate or manipulate the people they call. Should you ever give a debt collector money? and what are the legal effects if you do so?

Giving them money can be a big mistake.

Giving them Money Encourages Debt Collectors

Many people have a natural impulse to bargain with debt collectors. They hope if they give a collector money they’ll go away. This does not work.

The person calling you is a low-level employee. Usually the caller will have no power at all to make any kind of deal with you. Or they will have some limited power to accept delays or offer a small discount. On the other hand, the caller’s salary will depend to some extent on getting you to pay. If you offer anything – a promise or a payment – you guarantee that they’ll call you many more times. You are sending a clear signal that they can push you over.

Of course, it costs practically nothing to call you, so any encouragement whatsoever means endless calls in the future. Giving them nothing does not mean they’ll stop calling, however.

Legal Effects of Payments

If you give a debt collector money the legal impact is even worse than just calling them. if the debt is so old that the statute of limitations does or might soon protect you, your payment can restart the clock. If you were disputing the debt, the court might take your payment as an admission that you owe it.

And if the debt collector lacks any means of proving the debt in any way, your payment will help them past any problem.

You Can Still Fight

That isn’t to say that you have lost everything if you made a payment. You still have a chance to win if they sue you. But every payment makes the road harder.

 

Verification or Validation – Using Both FDCPA and FCRA to Protect Your Rights

A smart person disputes and requires verification
A smart person disputes and requires verification

Verification under the FDCPA and FCRA – Use Both to Protect Your Rights

Three are two kinds of verification. Knowing and using them both can help protect your rights. Both the FDCPA and the Credit Reporting Act give you rights of verification. They are different, though, and you can use both. You probably should.

Two Kinds of Verification and How to Use them to Protect Your Rights

We have spent much of our time talking about “verification” on our site and videos. What we have usually meant has been the “verification” process provided by the Fair Debt Collection Practices Act (FDCPA). But there is another kind of validation you can use – validation as permitted by the Fair Credit Reporting Act.

We talk about that below and discuss how you can use both forms of validation, together or separately, in defending yourself from the debt collectors and in repairing your credit.

Verification under FDCPA and FCRA are Different

The two kinds of verification are different rights. They apply in different circumstances, to possibly different “persons” under different circumstances. They also give different rights and have different time requirements.

You can use them both, but they are completely separate. It is important to keep them straight.

Make sure you keep track of everything you do under either statute. And you need to make sure that the response you get is appropriate for the specific right you invoke.

Rights under the FDCPA

Under the FDCPA, when a debt collector first contacts you it is required by law to notify you of your right to dispute the debt and require “validation.”  The two words (validation and verification) are used interchangeably, and the requirement is quite simple in general.

  • First, the debt collector must notify you within five days of your right to dispute within 30 days. It must also give the “mini-Miranda” warning – that anything you say may be used for collection of a debt.
  • And then, the debt collector must “verify” the debt if you ask within the thirty days provided.

Just to make clear, it is YOU who have 30 days to dispute after getting the notice of your rights. The debt collector does not literally even have to do anything at all and also has no time limit. However, if you dispute and request verification, it cannot make further attempts to collect on the debt until it has verified it.

Exactly what verifying it is, is not exactly clear.

It would appear that contacting the original creditor and “establishing” that the debt is yours would be enough. The purpose of the requirement is not to require a separate lawsuit, but just to protect consumers from harassment based on typos or mistaken identities. The debt collector has to take some action to connect you to the debt if you dispute it under the FDCPA.

Even this low burden often seems to be too much for the debt collector. Possibly that is because the second owner of the debt (if there is one) has no relationship to the original creditor and simply cannot get the debt verified.  Whatever the reason, asking for verification is often enough to make them go away. If they try to collect without having verified, that violates the FDCPA. And that in turn might allow you to stop a lawsuit brought against you.

Remember, however, that when the debt collector immediately files suit against you, this is not a “first contact” which triggers your right to notice and dispute. If you get served, you have to answer (or move to dismiss). It is not enough to request verification.

Disputing under the Fair Credit Reporting Act

There is another kind of validation, and it is completely different from the FDCPA. You can still can use it to fight debt collectors, thought. It is the validation provided for by the Fair Credit Reporting Act (FCRA).

This is your right to “dispute” a harmful item on your credit report.

You do this after looking at your credit report and seeing something that is not positive. Let’s say you see a debt collector reporting that you owe a debt. Remember your right to verification under the FDCPA comes when the debt collector first contacts you to try to collect the debt. You can dispute a line item on your credit report at any time.

There are rules, and there are better and worse ways to do it. But the Credit Reporting Act does not depend on the other side being a debt collector or having tried to collect the debt. It simply requires that they have put some bad information on your credit report.

When you seek verification under the FDCPA, the debt collector has to verify the debt before making further attempts to collect. When you “dispute” the debt under the FCRA, it doesn’t affect collection. Instead, you are forcing the company to “investigate” the debt and show that what it is telling credit reporting agencies is true.

What FCRA Accomplishes

If the company reporting you cannot validate the debt, it is just required to withdraw the offending credit reference. But it could still try to collect the debt.

If it does keep trying to collect the debt after withdrawing a bad credit reference, that might be a type of admission that it can’t prove the debt if the case goes to a lawsuit.

But it probably isn’t controlling on the case because “validation” of a credit report is not

the same thing as proving that the debt is valid.

A Helpful Strategy

Here’s a strategy that might be helpful. If you receive a bill from a junk debt buyer – a company that bought your debt from the original creditor, in other words – you should

send a request for verification under the FDCPA right away. Then you should and get your credit report and look at it.

If the debt collector is reporting your debt on your credit report, you will want to dispute the credit report and seek validation under the FCRA. Separately.

Remember these are completely different rights. Your sending two different disputes may confuse the debt collector, so that may be good for you. Remember that under the FDCPA it must provide proof as to your identity and its right to bug you, while under the FCRA it must explain why the information it put on your credit report was correct. If the debt collector does not verify under the FCRA,  you can clear your credit report.

FCRA Dispute May be Helpful to Debt Defense

If a debt collector  DOES try to validate, it will probably give you information that it would object to having to provide in a law suit. So it’s a shortcut to some discovery in that situation.

Using FDCPA and FCRA

You should not try to do the FCRA verification first because it takes too much time.

To do the credit dispute right you have to get your credit report and dispute it with the credit bureau before you dispute it with the debt collector under the FCRA if you want to protect all your rights. You don’t have time to work your way through the FCRA before asserting your FDCPA rights.

On the other hand, if the company does not verify under the FDCPA, that would be worth mentioning as a basis for your credit dispute.

We should add that when you get the first letter from the debt collector you may not even know whether it is reporting you on your credit report. They often do not, so you won’t know whether or not you will have anything under the FCRA. But if they are contacting you, you have the right under the FDCPA. Since it only lasts for 30 days, you need not to delay in disputing.

We always recommend sending your disputes by certified mail (and keep all the proof). You don’t have to do this legally, but these things often come down to a question of what you can prove, and having proof from the postal service is a very good investment.