Letter from Attorney

Posted by Theresa (205.188.116.84) on May 14, 2004 at 17:52:39:

I posted an unsecured credit card issue a few weeks back.
(AMEX, $15000+, personal debt, within sol, recent debt, self-employed)(Asset: 1998 car, equipment used for business, vacant plot of land)
Amex would not negotiate or settle referred to CA.
RMA called , causing local city codes & violations
I sent a VOD letter CRRR with limited C&D(communication by mail only) We asked to talk to the original creditor about the account.
RMA stopped calling
Received a letter from an attorney in our area.
Am scared and confused. It states that their:
"client has turned over for collection a claim
based on non-payment...and has been instructed to commence legal action against you.This may add interest, costs and disbursements to the amount due.
If you notify this office
in writing within the thiry-day period that the
debt, or any poriton therof, is disputed, this office will obtain verification of...mini-miranda.
If you wish to resolve this matter in an amicable fashion, kindly remit
payment ........This letter is an attempt to
collect a debt etc."

I've been researching by reading the FDCPA, opinions & case law,mostly trying to find out what constitues validation: a signed contract, with accounting of payments, charges,fees and interest or a statement of balance due. I was able to get a
.pdf file from 2/2004 by Daniel Edleman (consumer advocate attorney) reviewing the FDPCA for the consumer.

The attorney letter sounds like a dunning letter, with a violation of "overshadowing" and illegal threats.
("has been instructed to commence legal action against you. This may add interest, costs and disbursements to the amount due.")

"Because to most consumers, the relevant distinction between a collection agency
and an attorney is the ability to sue, . . . the debtor would understand the disparate treatment to be the institution of suit." United States v. National Financial Services, Inc., supra. A statement thataction "could be" or "can be" taken is a "threat." Vaughn v. CSC Credit Services, 93 C 4151,1994 WL 449247, 1994 U.S. Dist. LEXIS 2172, *24 (N.D. Ill. March 1, 1994) (Magistrate Judge's
opinion), adopted, 1995 WL 51402, 1995 U.S. Dist. LEXIS 1358 (N.D. Ill. Feb. 3, 1995).
AND
The FDCPA prohibits "[t]he collection of any amount (including any interest, fee,
charge, or expense incidental to the principal obligation) unless such amount is expressly
authorized by the agreement creating the debt or permitted by law" and “[t]he false representation
of...(A) the character, amount, or legal status of any debt; or (B) any services rendered or
compensation which may be lawfully received by any debt collector for the collection of a debt”.
15 U.S.C. §§1692f(1), 1692e(2).

28
"A debt collection letter on an attorney's letterhead conveys authority
and credibility." Crossley v. Lieberman, 868 F.2d 566, 570 (3d Cir. 1989). The clear implication
of any attorney letter is a threat of suit.
Unless the attorney has in fact reviewed the debtor's file and made a professional
judgment that whatever action is threatened is appropriate, and the threatened action has been
authorized by the creditor, the use of such letters is a violation of §1692e(3),

"A dunning letter sent on attorney letterhead violates numerous provisions of the Act if the lawyer does not personally review the debtor's file and have some knowledge about the alleged debt
- Avila v. Rubin, 84 F.3d 222 (7th Cir. 1996).

The representation that
independent outside counsel has been hired may unjustifiably frighten the unsophisticated debtor
into paying a debt that he or she does not owe. The FDCPA must be construed to proscribe this
means of collection"); United States v. Central Adjustment Bureau, Inc., 667 F.Supp. 370, 380-81
(N.D.Tex. 1986) ("The attorney must have sufficient information to satisfy himself that it is proper to send the dunning letter, i.e., he must investigate the merits of the claim before making a demand for payment. . . . the attorney must have the file for review to determine the merits of the claim, as well as the limits of his authority"); Federal Trade Commission, Statements of General Policy or Interpretation, Staff Commentary on the Fair Debt Collection Practices Act,

"least sophisticated consumer" comes into play.

"Under either the "least sophisticated" or "unsophisticated" consumer standard, a collection communication which can plausibly be read in two or more ways,at least one of which is misleading, violates the law. Russell v. Equifax A.R.S., 74 F.3d30 (2d Cir. 1996)."

"A notice is overshadowing or contradictory if it would make the least sophisticated consumer uncertain as to her rights."
Russell v. Equifax A.R.S., 74 F.3d 30
(2d Cir. 1996).

The parties who own the debt, (Amex, RMA, the attorney himself)are not identified, neither is the account #.I am not sure if this attorney has knowledge of the debt as required by FDCPA.

I plan to respond to the attorney in writing before the 30 day dispute time, noting the issues
I reported above.
I will again ask for the accounting of the debt, who owns the debt, what agreement have been reached between different parties regarding this debt, etc.

Should I send a copy of the attorney letter to the FTC ( and the state Attorney General, and BBB)? Anyone know of
a fast FTC link to do this?

I think that they will sue us. We cannot pay them. We are trying to find
a way to make the land disappear, but are confused by "Fraudulent Transfer"issues.
Does having a lien on the land make it judgement proof? I am concerned that
even if we use the land as collateral on a loan, (to help pay down this and other debts),
that the land or money may be seized anyway if they get a judgement.
Bankruptcy looks appealing at this point.

Thanks for your ideas.

Theresa

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