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What to say and be polite?

IOBA
Senior Contributor

What to say and be polite?

Mods - please move if there is a better place for this post.

 

My folks have decided that they have had enough and refuse to pay any more to a loan company.  The company has been known in the past as OneMain Lending.  It's a personal loan taken out 10-15 years ago.  Interest rate is 18%.  They sent a cease and desist letter.  They refuse all phone calls from the company.  They won't open the mail from them.  If they do accidentally pick up and the other person is from the loan company, they tell them to call me.  The loan company does not call me.

 

I am willing to talk to the company.  Any suggestions on what to say?

 

Folks have one house.  It's either underwater or barely treading water.  

 

Their vehicle is paid for.  Some equity there, but it's their only vehicle.

 

All income is protected (SS & disability.)

 

Although income is good, their credit is not.  

 

They have no savings or investments.  They borrow money from friends.  The Bank of IOBA (me) shut down several years ago.

 

They refuse to file for BK because it's too embarrassing.

 

They have other debt (cc's and medical.)

 

There's not much the loan company can get.  Can't touch the house, the car, or the income.  

 

I don't agree with them NOT paying the debt back, but I can't make them and I am most certainly NOT going to pay it for them.  I don't want to be rude or in the CA's face (it's now with a CA - CACH, LLC.)  But I would like to let the CA know it's not going anywhere, even if they sue.

 

DOFD - 02/2016.

 

Any suggestions on what to say to the CA?

Message 1 of 9
8 REPLIES 8
RobertEG
Legendary Contributor

Re: What to say and be polite?

First, they must send a written authorization to the debt collector before they can communicate with you.  FDCPA 805(b)..

That is particularly true in view of the fact that they have sent the debt collector a cease commuication letter under FDCPA 805(c).

 

You can certainly inform them that filing a civil action would be futile, since all their income is unattachable since it is exempted as SSID, and that they dont have other liquiid assets.

However, that is all self-serving hearsay, and is likely to spur them to request documenatation of income and assets to verify your assertions.

I would be hiesitant to provide them such documtnattion.

Are they willing to provide documenation now in order to avoid a civil action?

 

Message 2 of 9
coyotemist
Established Member

Re: What to say and be polite?

The lender can take them to court and then attach their bank account.  They might be able to get the money back if it meets criteria, but it's a heck of a lot of a hassle to do it, and a waiting period.  With a court order, the credit agency can get all their savings and everything.  

 

Why are you involved at all in their credit issues?  (None of my business, really, but a curious question, and why are they trying to send the lender your way?)

 

Sounds like a frustrating situation.  If it were my parent I'd say:

 

Mom and Dad, I'm sorry you are dealing with this, but I can't legally help you unless you want to sign over power of attorney.  Lets talk about how those Broncos are doing? (Or insert your favorite bland subject.)  

 

If that didn't work I would leave the room, go to the bathroom, head home, hang up the phone, etc.  It sounds like it's their issue and they can choose to handle it how they want.  Not paying can make their life miserable if the creditor takes them to court.

Equifax FAKO 6/16 518 10/16 599 BK7 D/C 9/16
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Message 3 of 9
coyotemist
Established Member

Re: What to say and be polite?

Oh, what to say to the creditor...

 

Well, exactly what you just said.  But the creditor will probably request permission in writing or a power of attorney.  And once you get involved, the regular (sometimes daily!) calls asking for payment will come to you.  Do you want to deal with that harrassment?

 

They have no assets, their car is paid for, etc.

 

I'm not sure what you can say that will help the situation. Unless or until they file bankruptcy the debt is still a legitimate one.  

Equifax FAKO 6/16 518 10/16 599 BK7 D/C 9/16
Rebuilding 1stPremier $300 Cap1 Secured $300 Kohls $300 Gamestop $250 VicSec $250 WomenWithin $250
Goals: 1)scores over 600 2)Cap1 or Barclay ~7/17 3)Autoloan ~12/17 4) Mortgage? Hopeful for the right house autumn - winter 2018
Message 4 of 9
IOBA
Senior Contributor

Re: What to say and be polite?

RobertEG -

 

My mom sent the C&D letter to the OC.  She didn’t tell me that the OC had already sent it to collections.  She wrote another letter to the CA and included a copy of the POA.  The letter to the CA told them to contact me only.   Unfortunately, the letter was not a request for verification or a C&D letter.  (She just told me that she received a dunning notice from the CA.)

 

I’ve asked to her to mail, CMRR, the request for verification of debt letter to the CA first.  Then, after 35 days or so has passed, I will ask her to mail a C&D letter CMRR.  That will be after the 30 day (plus mail time) has passed for the CA to respond to her.  The CA can probably produce proof of debt.

 

I agree that saying there is nothing for the CA to go after sounds self serving.  I agree that the CA might ask for verification.  And nope, not a chance in heck of the parents providing documentation, although I will ask them.  They don’t want me to know how much money they have coming in.  I have a rough estimate from when I helped them before.  I know that SS & Disability have had cost of living increases since then.

 

 

 

coyotemist -

 

The lender can sue them and get a judgement against them.  The lender can also go back to court and get a bank garnishment.  In theory, since all of the income is protected against garnishments, the bank should not take any of the funds.  They have no savings.  Their checking account is usually overdrawn.  And their income payments are staggered.  They get like 4 payments a month.

 

My dad doesn’t deal with finances at all.  His mindset is that it’s his job to provide the income.  

 

My mom doesn’t want to deal with it - too stressful.  Her mindset is that she’s had this loan for 10-15 years.  She’s confident she has paid back ALL of the principle and then some.  And since she doesn’t see the balance go down, despite making payments and sometimes paying $1 extra a month, she’s just done with it.

 

Both parents are in their late 70’s and in declining health.  My mom will have weeks/months at a time that she can’t get out of bed.  (She has MS.)  Then a few good days.  Then back to bed.  

 

I don’t mind if the CA wants to call.  I don’t live and breathe my phone.  It’s put away in a drawer in the other room at night.  The ringer is seldom on.  If I don’t recognize the number, I don’t answer.  If they leave a message, I will call back.

 

I don’t agree with my mom NOT paying.  I’ve seen one set of loan paperwork (out of two sets) and she says she did borrow the money.  I can see where the multiple calls, sometimes several calls a day, are stressing them out.  But since they have put their foot down and are NOT going to pay, I don’t want the CA to spend money chasing money that they will never see.   I feel for the OC and the CA.  So as odd as this sounds, I want to save the CA some time and money in this.  If I can get verification of income - and I am going to try RobertEG - that may be enough for the CA to drop this.  The loan is in her name only and her only income is about $650 a month from social security.  

 

As for filing for BK - I am usually very much against this too…but I have actually suggested it to them several times.  They refuse.  It’s “too embarrassing.”  Like what if the guys dad went to HS or College with ever found out?  Yes - they have really said this.  I pointed out that others from their HS’s and College’s have filed BK, been foreclosed on, had vehicles repo’d, etc.  They don’t care.  Their pride won’t back down.  And my mom refuses to “settle” for a lessor amount.  She's done with this.

 

When I do talk to the CA, I will gently let them know the financial circumstances.  Maybe that will be enough.

 

Thanks guys.

Message 5 of 9
coyotemist
Established Member

Re: What to say and be polite?

I wish you luck, it sounds like a hard situation.

 

Their income may be all protected, but they can still try.

 

At one point I was being garnished and they still went after my bank account.  So they ended up taking 100% of my income, not just 25% (what is allowed by law).  Then I had to prove that I was already being garnished, file legal forms, and wait for the money to be refunded.  It may be better if they will talk to you to see if they will back down.  

Equifax FAKO 6/16 518 10/16 599 BK7 D/C 9/16
Rebuilding 1stPremier $300 Cap1 Secured $300 Kohls $300 Gamestop $250 VicSec $250 WomenWithin $250
Goals: 1)scores over 600 2)Cap1 or Barclay ~7/17 3)Autoloan ~12/17 4) Mortgage? Hopeful for the right house autumn - winter 2018
Message 6 of 9
RobertEG
Legendary Contributor

Re: What to say and be polite?

What is the date of the dunning notice?

FDCPA 809 sets a 30-day period for the consumer to file a DV.  It does not set a 30-day period for the debt collector to respond to the consumer.

 

If a DV is sent within 30 days after receipt of a dunning notice, it imposes an automatic cease collection bar on the debt collector, which remains in effect until such time as the debt collector sends the requested validation.  There is no need to send an additional cease communication letter (FDCPA 805(c)) if the DV is timely, as a cease collection bar imposed by a timely DV request is more comprehensive, and includes a cease communication bar.

 

The debt collector can choose to delay sending validation as long as they please, but must cease all collection activities until they first provide validation.

Since the debt is admittedly valid, then a validation will likely occur.  You can then send a cease communication letter under FDCPA 805(c).

There is no provision of the FCRA or FDCPA that permits noticing a creditor to cease communication.

Message 7 of 9
IOBA
Senior Contributor

Re: What to say and be polite?

I don't know the date on the dunning letter.  We are getting prety close to the 30 notice, I think.

 

She sent them a letter telling them to deal with me only and gave them a power of attorney specifically so that they could talk to me.  They continue to call her (this is the CA).  She "accidently" answered the phone, heard who it was, told them to call me, and hung up on them.

 

To date, no one has called me.

Message 8 of 9
RobertEG
Legendary Contributor

Re: What to say and be polite?

All they need to do is send either a timely DV under FDCPA 809(b) or a cease communication letter under FDCPA 805(c) to terminate communications from the debt collector.

 

Either will prevent communication with the consumer, which would include any party named in a power of attorney to also act as the named consumer.

FDCPA 805(b)  does permit a debt collector to communicate with a third party if the consumer provides an express prior authorization to the debt collector.

Thus, providing them a power of attorney will legally permit them to communicate with you.  However, it will not require that they communicate only with you unless you are an attorney.  FDCPA 805(a)(2) and 805(b).

 

Personally, I would not advise an attempt at representation of others unless you are an attorney.

You have no presumption of knowlege of the laws nor a professional obligation to a client as a member of the bar.

 

Message 9 of 9
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