demitasse03 wrote:
Great advice regarding recording calls. Also, what do you think about the idea of filing suit now. Do you think I'd get a favorable response (i.e, settling outside of court) based on my having evidence of payment?
You could possibly win if you filed now. But, this isn't the area of law where I practice--mostly because I'm not a lawyer.
Standard of proof is preponderance of evidence, not beyond a reasonable doubt. You don't need DNA or fingerprint evidence. The judge simply has to believe you more than the other person.
If you show a judge correspondence showing the amount that was agreed to be paid, or an old credit report showing the collection with the full amount when it was first reported, you have pretty solid proof for the amount owed. This way, the CA cannot lie and claim, "No-no, your honor, demitasse owed us another $64." Well, they could lie and they probably will, but the judge will then ask them for any correspondence showing a balance owed of $64 more than what you've paid to date.
If you've gone thru payments, canceled checks, bank statements, what have you, and confirmed the amount paid, then you've established how much was to be paid and how much was paid. The overpayment is rather solidly documented.
You could sue and win the $300 overpayment. But, if you catch 'em in violation on tape, that's worth a $1000 to you (under the FDCPA) plus attorney's fees. A consumer lawyer would want to talk with you if you catch them in violation on tape. The CA will very likely wanna delete the collection, and perhaps pay you a little something, to avoid going to court.
What they say is what's important. I've heard about cases where CAs threatened to put people in jail, they were recorded, and the person's lawyer began negotiations with the CA starting at $250K to settle. Settlement for less was certainly agreed to, but it still would likely be very substantial money.
Someone's gonna say, "C'mon Noah, that's B.S. No CAs ever threaten to put people in jail."
Oh yeah. Tell that to the Maine AG who sued Lenahan Law Offices for just such a thing.
Here's the law on the subject.
15 USC 1692d
A debt collector may not engage in any conduct the natural consequence of which is to harass, oppress, or abuse any person in connection with the collection of a debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section:
(1) The use or threat of use of violence or other criminal means to harm the physical person, reputation, or property of any person.
(2) The use of obscene or profane language or language the natural consequence of which is to abuse the hearer or reader.
(3) The publication of a list of consumers who allegedly refuse to pay debts, except to a consumer reporting agency or to persons meeting the requirements of section 1681a(f) or 1681b(3) of this title.
(4) The advertisement for sale of any debt to coerce payment of the debt.
(5) Causing a telephone to ring or engaging any person in telephone conversation repeatedly or continuously with intent to annoy, abuse, or harass any person at the called number.
(6) Except as provided in section 1692b of this title, the placement of telephone calls without meaningful disclosure of the caller's identity.
http://caselaw.lp.findlaw.com/scripts/ts_search.pl?title=15&sec=1692e
15 USC 1692e
A debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section:
(1) The false representation or implication that the debt collector is vouched for, bonded by, or affiliated with the United States or any State, including the use of any badge, uniform, or facsimile thereof.
(2) The 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.
(3) The false representation or implication that any individual is an attorney or that any communication is from an attorney.
(4) The representation or implication that nonpayment of any debt will result in the arrest or imprisonment of any person or the seizure, garnishment, attachment, or sale of any property or wages of any person unless such action is lawful and the debt collector or creditor intends to take such action.
(5) The threat to take any action that cannot legally be taken or that is not intended to be taken.
(6) The false representation or implication that a sale, referral, or other transfer of any interest in a debt shall cause the consumer to -
(A) lose any claim or defense to payment of the debt; or
(B) become subject to any practice prohibited by this subchapter.
(7) The false representation or implication that the consumer committed any crime or other conduct in order to disgrace the consumer.
(8) Communicating or threatening to communicate to any person credit information which is known or which should be known to be false, including the failure to communicate that a disputed debt is disputed.
(9) The use or distribution of any written communication which simulates or is falsely represented to be a document authorized, issued, or approved by any court, official, or agency of the United States or any State, or which creates a false impression as to its source, authorization, or approval.
(10) The use of any false representation or deceptive means to collect or attempt to collect any debt or to obtain information concerning a consumer.
(11) The failure to disclose in the initial written communication with the consumer and, in addition, if the initial communication with the consumer is oral, in that initial oral communication, that the debt collector is attempting to collect a debt and that any information obtained will be used for that purpose, and the failure to disclose in subsequent communications that the communication is from a debt collector, except that this paragraph shall not apply to a formal pleading made in connection with a legal action.
(12) The false representation or implication that accounts have been turned over to innocent purchasers for value.
(13) The false representation or implication that documents are legal process.
(14) The use of any business, company, or organization name other than the true name of the debt collector's business, company, or organization.
(15) The false representation or implication that documents are not legal process forms or do not require action by the consumer.
(16) The false representation or implication that a debt collector operates or is employed by a consumer reporting agency as defined by section 1681a(f) of this title.