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Is it too late for validation?

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namron77
Valued Member

Is it too late for validation?

Okay, I'm pretty sure I messed up big time.

 

I posted last week that Primary Financial Services has been harrassing me about a defaulted loan through Wells Fargo.  They called me at work one day and I made an agreement to make payments.  I was doing well for a while, but then I couldn't do it anymore.  Looking back, they bullied me, never told me over the phone that it was an attempt to collect a debt, and got me to pay by threatening litigation.

 

I have never received anything in the mail from them, but was put on the spot at work and just agreed to make a payment I couldn't afford.  Now that I've stopped paying them and am ignoring their calls (they make me cry everytime I talk to them), my dad got a letter addressed to me from an attorney (the letterhead states that he is primary financials in-house counsil).

 

I am now questioning their credibility with the debt and would like to send a debt validation letter but it's been way over 30 days since they started collecting on the debt.

 

Here are my concerns:

-I paid over $1200 to them and the only amount I had left to settle was almost $3000. Now this letter says I owe $4050.

-The letter says that if I don't respond in 20 days that the lawyer has no choice but to recommend civil suit.

-They have my address as of 10 yrs ago.  The original creditor had my updated address.

-I looked up the "in-house council" and found that he is a divorce lawyer only licensed to practice in Arizona.

 

Should I take this threat of litigation seriously.  It looks legitimate on the surface, but I'm unsure.  Also, is it a waste of time to send a debt validation letter?  The letter I received says I only have 20 days to resolve this.

Message 1 of 8
7 REPLIES 7
namron77
Valued Member

Re: Is it too late for validation?

 

My frustration and worry continues.  Based on advice in a previous post, I attempted to call the OC Wells Fargo.  They refused to even speak with me about the account.  They still own it, but they are telling me that I must go through Primary Financial Services in order to settle it.  I tried to explain that I would rather work with them, and that there have been blatant violations of the FDCPA.  I also explained the bullying that has been going on.  I was then told that the bullying must be my fault.  They wouldn't say harsh things to me unless I was inappropriate with them.

 

They then said that they were doing me a favor by allowing me to make payments in the past, because I owe the entire balance in full. I even tried to explain that they have incorrect info and that I didn't receive anything via mail from them.  In fact, I just got my first piece of mail, because it was forwarded to me from an old address.  She said that was no excuse since I knew I owed a balance. 

 

Crash and burn.

 

Now my question is, will I be sued based on the letter that was sent?  Is it even in my interest to sent a debt verification letter?  I DON'T want to call the collection agency, because they use underhanded tactics and are abusive.  I don't have the money to pay in full.  My husband has been unemployed since Feb '10 (that is what got us in this mess in the first place).

Message 2 of 8
RobertEG
Legendary Contributor

Re: Is it too late for validation?

In my opinion, you have several matters to resolve.

You can always send a DV letter.  The issue is whether it compels anything.  If they sent you a timely collection (dunning) notice, that set a 30-day period for you to DV in order to compel them to cease collection activites until such time as they respond.  If you say that they never sent you a dunning notice, then you can DV them at any time, and begin the bar against further collection activites by them.  You would have no period running against you. Failure to have provided timely dunning notice is an FDCPA violation issue, and not a disputable matter under the FCRA.

If they choose to respond to a DV letter, they need only verify the name of the creditor who assigned them collection authority, and the amount of the debt.  No legal proofs are required.

 

In considereing the merits, what is the DOFD on the OC account?  That sets your 7 year plus 180-day period for continued CR inclusion, and in most states, also sets your intial period for running of the SOL.  Some states provide for reset of the SOL based on firm agreements to pay, or actual payments.  What are the SOL provisions for your state?

Are you still within SOL under your state civil code?

 

I would take any threat of legal action seriously.  The issue, as I see it, is what defense can you raise should that occur?  Can you rely upon the affirmative legal defense of expiration of your state SOL, or are you still within SOL? 

 

 

Message 3 of 8
Anonymous
Not applicable

Re: Is it too late for validation?


@namron77 wrote:

Okay, I'm pretty sure I messed up big time.

 

I posted last week that Primary Financial Services has been harrassing me about a defaulted loan through Wells Fargo.  They called me at work one day and I made an agreement to make payments.  I was doing well for a while, but then I couldn't do it anymore.  Looking back, they bullied me, never told me over the phone that it was an attempt to collect a debt, and got me to pay by threatening litigation.

 

I have never received anything in the mail from them, but was put on the spot at work and just agreed to make a payment I couldn't afford.  Now that I've stopped paying them and am ignoring their calls (they make me cry everytime I talk to them), my dad got a letter addressed to me from an attorney (the letterhead states that he is primary financials in-house counsil).

 

I am now questioning their credibility with the debt and would like to send a debt validation letter but it's been way over 30 days since they started collecting on the debt.

 

Here are my concerns:

-I paid over $1200 to them and the only amount I had left to settle was almost $3000. Now this letter says I owe $4050.

-The letter says that if I don't respond in 20 days that the lawyer has no choice but to recommend civil suit.

-They have my address as of 10 yrs ago.  The original creditor had my updated address.

-I looked up the "in-house council" and found that he is a divorce lawyer only licensed to practice in Arizona.

 

Should I take this threat of litigation seriously.  It looks legitimate on the surface, but I'm unsure.  Also, is it a waste of time to send a debt validation letter?  The letter I received says I only have 20 days to resolve this.


 

I agree with RobertEG's post and would just like to add the following.

 

I would send the DV letter.  Although the requirements for a proper response are actually very low, it does prevent them from continued collection activity -- to include suing you -- pending their response. 

 

The additional amount they claim you owe is probably interest on the debt at the original APR per the original contract.

 

The payments you made may have reset the statute of limitations (SOL), but the only way to determine that for sure is by checking your state law.  What state do you live in?  What exactly is the debt for?  When were you first delinquent on the debt and what were the dates of the recent payments you mentioned?

 

You can force the CA to cease all communication with you by sending them a Cease & Desist, but that would be unwise until you have determined whether or not they can still sue you.

Message 4 of 8
namron77
Valued Member

Re: Is it too late for validation?

I am pretty sure it is still in its SOL.  It is a private student loan.  The story is that it has been consistently late for years, but due to making payments less than what was owed, it defaulted in late 2009.  I live in PA and the SOL is 4 yrs.  I think this goes from the day of default and not the day of first deliquency.  Is this correct?  I had made firm arrangements with Wells Fargo at that time to pay it, and then my husband lost his job.  I couldn't honor the payments anymore.  It was a few months after that the collection agency became involved.

 

I think they have a legitimate case to sue me (in SOL, etc), but have violated some rules along the way in trying to collect on it.  I still want to send a DV because I don't think they have all of the correct info.  In fact, when I spoke with Wells Fargo yesterday, they told me that they should have my latest address.  Still they sent the letter to my address 10 yrs ago.  I am questioning whether they did send me info that I never received.  I want to resolve the debt within my financial capabilites, but I don't want to get sued.

 

BTW, My only assets are my 401K and I cannot touch that.  I've already tried.

Message 5 of 8
Anonymous
Not applicable

Re: Is it too late for validation?


@namron77 wrote:

I am pretty sure it is still in its SOL.  It is a private student loan.  The story is that it has been consistently late for years, but due to making payments less than what was owed, it defaulted in late 2009.  I live in PA and the SOL is 4 yrs.  I think this goes from the day of default and not the day of first deliquency.  Is this correct?  I had made firm arrangements with Wells Fargo at that time to pay it, and then my husband lost his job.  I couldn't honor the payments anymore.  It was a few months after that the collection agency became involved.

 

I think they have a legitimate case to sue me (in SOL, etc), but have violated some rules along the way in trying to collect on it.  I still want to send a DV because I don't think they have all of the correct info.  In fact, when I spoke with Wells Fargo yesterday, they told me that they should have my latest address.  Still they sent the letter to my address 10 yrs ago.  I am questioning whether they did send me info that I never received.  I want to resolve the debt within my financial capabilites, but I don't want to get sued.

 

BTW, My only assets are my 401K and I cannot touch that.  I've already tried.


 

Yes, student loans are often handled differently for credit reporting time periods (CRTP), but generally not for SOL purposes.  In PA the SOL runs from the date the creditor first had a cause of action.  Since the concept of default can be tricky in student loan contracts, you'd need to examine your contract carefully.

 

What rules do you think were violated in attempts to collect on the debt?  Was it done by the OC or by the CA? If the CA and they did violate the FDCPA, you could probably sue them for around $1k per violation.  The best way would be to do that in a countersuit should they first sue you.

 

I'm still not sure what you expect to gain from a DV.  If it has been more than 30 days from the time the CA first sent you a dunning letter then they can safely ignore your DV request and continue collecting.  If, however, your DV request is timely, the CA still does not have to provide you more than the OC's name & address and the amount that the CA has verified with the OC that you owe.  If there has been any amounts added to the debt not specified in your original contract they would need to itemize those.  I see nothing else they need to provide.

 

If they do sue you, they may not be able to touch your 401K, but they can, depending on PA state law, garnish your wages, attach your bank accounts and place a lien on your property.  Judgments in Pennsylvania last a long time.  If the private student loan was guaranteed by the government in any way, ultimately the guaranty agency will reimburse the bank and then you are looking at tax offset and, long term, Social Security offsets.  Most student loans can report to your credit report for a long, long time.

 

Have you tried seeing if they will settle the debt for less than the full amount? 

 

  

Message 6 of 8
namron77
Valued Member

Re: Is it too late for validation?

Yes, but with one income it's been tough.  We are paycheck to paycheck with no savings.  They want $3000 down.  We have been trying to find work, but the economy has not bounced back here yet.  My husband can't get interviews anywhere.  On top of that, he has medical restrictions for certain types of employment.

 

The only way I can see that the collection agency violated anything is that they never told me it was an attempt to collect a debt on any of the instances that they called.  They have harrassed me and verbally abused me.  Told me it was a joke that I worked where I did.  Threatened to recommend suit because I asked to push back a payment a week when I was paying.  Most of that I believe are just strong handed tactics and not violations.

 

Actually, I would prefer to just take the money out of my 401K and be done with it.  I am going to call them today, but I don't think I can take it out.

Message 7 of 8
Anonymous
Not applicable

Re: Is it too late for validation?


@namron77 wrote:

Yes, but with one income it's been tough.  We are paycheck to paycheck with no savings.  They want $3000 down.  We have been trying to find work, but the economy has not bounced back here yet.  My husband can't get interviews anywhere.  On top of that, he has medical restrictions for certain types of employment.

 

The only way I can see that the collection agency violated anything is that they never told me it was an attempt to collect a debt on any of the instances that they called.  They have harrassed me and verbally abused me.  Told me it was a joke that I worked where I did.  Threatened to recommend suit because I asked to push back a payment a week when I was paying.  Most of that I believe are just strong handed tactics and not violations.

 

Actually, I would prefer to just take the money out of my 401K and be done with it.  I am going to call them today, but I don't think I can take it out.


I would not take any money out of your 401K.  Using money from your 401K to pay unsecured debt is seldom a good idea.

 

From what you've stated, it sounds like the CA violated the FDCPA.  I would say there is a decent chance they violated FDCPA § 806, but also § 807.  At $1,000 per violation, you could likely effectively reduce your debt by at least half and have them pay your legal fees.  The SOL on any suit brought would be one year.

 

There are a couple of  ways to handle this assuming the original debt is still within the SOL.  You could wait for them to sue you and then bring the FDCPA violations up in a countersuit, you could initiate your own preemptive strike and sue them first, or send them an Intent to Sue (ITS) letter and hope that they offer a better settlement.  The chances that they will settle rise considerably if the letter is sent by an actual attorney.  

 

It would be nice if you could record their abusive communications.  Unfortunately, in PA both parties top a phone conversation must give permission for the call to be recorded.  If you call them and their phone recording states something like "this call may be recorded or monitored" then you can feel free to record.  Or if your home answering machine states that all calls are subject to recording and after they've heard that and you pick up the phone finding they are still willing to talk then you can record at will.  Still, you don't have to have a recording to successfully smack them upside the head with a FDCPA suit.

 

if they are abusive there is no way you should have to put up with it and they should have to pay for it. 

Message 8 of 8
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