Limited Cease & Desist Debate

I would love to know the correct answer to this one also. I have been coming to this site for years, it has helped me so much I will be forever grateful for the help here, you guys are awesome. But, I have seen some mods post in threads conflicting info. I have seen the same mods on one thread say send a cease and desist and on others the same person saying "a cease and desist is a sure way to get sued". It has confused me many times with this conflicting info, to send a cease and desist or not to send one. I will watch this to see the answers. It has confused me for a while with the conflicting statements by the same mods.

First, the reason why you see different posts by the same people with regards to a C&D is because the C&D has a very specific purpose. If you use it at the wrong time or in the wrong situation, you are basically inviting a lawsuit. Thats why you might see me, for example, say in one thread that you shouldnt send one, and in another thread advise someone to send one. It is not appropriate in every situation. Some examples of the best time to send a C&D are:

1--a debt that you have shown to not be yours, but they still call.
2--a debt that has already been paid off, but they still call.
3--a debt collector that does not have the legal right to be collecting on the debt.
4--a debt collector wont stop calling for someone who doesnt live at your address.

OK, now, on to the original thought....very interesting how you have structured it. But it still may come back to bite you in the end, because the FDCPA says "time" and "place". It does not say "method of communication". Heres a good example--if I tell you that it is "inconvenient for you to call me", but then ask you to send mail, you have not addressed a "time or place". If a CA cannot call your home because "it is inconvenient", then by the strict letter of the law, they cannot send you a letter there either, because the law says "cannot communicate with the consumer at a place that is inconvenient". The statute is one of exclusion--meaning it says what the CA cannot do. It makes no specific determination as to what they can do.

Now, you may even consider attaching something about the time aspect. For example, they can only call between 8 am and 9 pm....so, if I tell a CA that "it is inconvenient for me to be contacted between the hours of 8 am and 9 pm", then that rules out any and all phone calls right there. The only way they can call you outside that time is if you specifically give them permission to do so. And if they send you mail, then you can easily argue that you have the ability to open mail when it is convenient for you, and to put a letter in your mailbox to be sent out when it is convenient. Now, that might work there....and I have never seen anyone else do this. The one time I have used it, it worked as I wanted it to.

Good debate fellows,

I called the FTC just yesterday to file a complaint.....I was told then to send a letter to stop all calls and work thru the mail only.This way you have everthing in writing and can keep better records.

The guys name was Hector at the FTC...maybe someone else can call to see if they can get the same advice. BOLTA

wow..I hadn't even thought of the time angle. It is good that the FTC seems to hold this up, I wonder if we could get an opinion letter on this? How the heck do they decide what is going to be an opinion letter anyway?

When I got sick again I let all my credit repair slip so I never followed up with my DVs, so of course some of those plain wrong accounts are still there. I am back in a position to deal with them so will be starting the happy dance all over again. I will file suit if I need to and I am going to use this wording to see if it gets upheld.

To continue the debate....I can see the "time and place" and as I said I love your idea to add in the times, but you could also argue that the place it is inconvenient for them to communicate with you is at your telephone. :razz:

Inconvient timing ...when I was in training the example of someone who works an nightshift and sleeps during the day or someone who has a child that naps in the afternoon. Those times would be considered inconvient. Not calling durng American Idol would not count. It is somewhat grey.

soap--there is one issue with that explanation though--the law makes no requirement as to how that communication is "inconvenient". There is no standard within the statute that requires the level of inconvenience to be established, nor is there any requirement that the level of inconvenience meet a certain standard before it is actually acceptable to be considered "inconvenient". The law merely states:

[QUOTE]a debt collector may not communicate with a consumer in connection with the collection of any debt—
(1) at any unusual time or place or a time or place known or which should be known to be inconvenient to the consumer. In the absence of knowledge of circumstances to the contrary, a debt collector shall assume that the convenient time for communicating with a consumer is after 8 o’clock antimeridian and before 9 o’clock postmeridian, local time at the consumer’s location;[/QUOTE]

The law clearly states that if the CA is made aware that it is inconvenient to the consumer for them to call, then they cannot call. The CA is not granted by this law the ability to verify the level of inconvenience, nor is it granted the ability to refuse to accept the consumer's label of "inconvenient" and continue calling anyways. As such, if a case like this were to go to court, the consumer would only have to show the letter of the law, prove that they informed the CA that their calls were causing an inconvenience, and that is that. Of course, there are two sides to the law, the letter of the law and the spirit of the law....but in this case, the law was created specifically to protect consumers from debt collectors that use illegal and harassing tactics. Therefore, it is easily argued that since that is the spirit of the law, and that combined with the letter of the law makes no such requirement, that the CA must honor the consumer's request not to call. Nowhere in the law does it say that the CA must be allowed the ability to communicate by telephone. As for "American Idol", again, we are not required by the FDCPA to inform the debt collector why it is inconvenient or what we are doing at that time. So, the debt collector really has no say at all as to whether or not it really is "inconvenient". My definition of inconvenient isnt only about the time I am spending on the phone. It also includes the way they treat people, the threats and abuse they use to try to scare people into paying, the refusal to obey the law, the harassment....it seems like every day on this forum alone, we see someone posting about how a debt collector called and told them that they were about to be arrested. In my mind, that is inconvenient to have to listen to. And the law doesnt say anything to the contrary. I do see what you are saying, but if I inform a debt collector that it is inconvenient, and they actually try to badger me about it or ask me what makes it inconvenient, my one and only answer would be "that is none of your damn business".

Golden--if your telephone is an "inconvenient place", then by simple extension that would also generally make your mailbox an "inconvenient place" as well, because the spirit of the law defines "place" as an actual address or location, such as your home or your workplace. If it were me, and I was in the middle of suing a debt collector for these kinds of actions, I would argue that I acted well within the scope of the law because I stated what was inconvenient, but I also informed the debt collector what was convenient. This would show the court that I did make effort to try to allow the CA to resolve the issue by leaving a line of communication open. And if I were presenting my case, I would be sure to make mention of that....."I clearly left communication open because I wanted to get this matter resolved. The defendant is not guaranteed the ability to contact me via telephone according to the law. And by both the letter and the spirit of the law, the defendant was required to cease phone calls and communicate via mail."

I dont know if I would win the point, but I certainly could make a good go of it.

I would think that if you stated basically "don't call me but you can write me" that in the end, if common sense (granted rarely evident) prevailed they would not be prohibited from writing you just because you said don't call me. And like you said, you would be able to show the judge, "I'm not trying to play games or be difficult as evidenced by my being agreeable to written correspondence but because I for example work different shifts there is no way to predict what hours I will work. I might be out on an emergency call and sleep in and I don't know ahead of time." Sounds reasonable to me, you can hardly be expected to call your creditors and tell them your work schedule thinking they would actually give a rat's behind anyway.
But I'm finding that logic and the law do not always go hand in hand imo.

I can see where, for example in my case dealing with Midland Funding who has demonstrated a total willingness to engage in deceit and underhandedness, I would be comfortable telling them "don't call me", written communication only because I would want everything in writing to forestall their twisting things to something that didn't happen. Of course what I ask for and what are legally enforceable are two different things but it can't hurt to say so (don't call me) even if you think you are on shaky ground. The fact that they may in some cases have a legal right to call you doesn't say that you haven't the right to express an opposition to it with good cause. ;)

My two cents. Interesting and relevant discussion.

The more I think of it the more I want to see an FTC opinion letter LOL. Maybe if we each send a letter to the FTC asking for a clarification, we might actually get it. Of course, it could bite us on the hiney and they say it doesn't work that way. Still, it would be good to know.

I agree about no definition of what 'inconvenient' constitutes. There are so many ways to make it seem inconvienient....what about when they call with a recording? I got one that actually said, "Hello, we are trying to reach *name*. Please hold. I'm sorry, no representative is available right now. Please call us back at #########." To me this is not only inconvenient, it is downright rude.

Or what about feeling harassed. Some people just can't take that kind of stress and feel more comfortable when they can think clearly and compose themselves. The spirit of the laws are to STOP collectors from harassing people and forcing them into something they might not otherwise do.

I can't think of one CA that doesn't do this sort of thing.....that calls you with an automated recording and makes you wait, or tells you to call back, or is silent because it doesn't work properly.....then there are those who still manage to intimidate even within the scope of the law!

So perhaps word your cease calling to explain WHY you are asking for the cease calling. And like Skydivr said, you are still attempting to communicate, just in a manner that is most convenient and less stressfull.

I did want to add something that is somewhat relevant imo, I have at times expressed irritation at the calls I might have gotten from a creditor because they refuse to leave a message. Since then I have discovered that because of the requirement that they not discuss or reveal your alleged financial problems to anyone that they can be in jeopardy for leaving a message not knowing who might pick it up. Something I had not thought of.

Although, while ethical firms may adhere to that, for the sleazy places I don't necessarily think they would not leave a message for that reason alone, I think it would in their eyes be a good way to hassle you and intimidate you because after all, we know they do some weird stuff to collect and make outlandish claims with the intent to alarm right?

Funny thing, I just noticed that while I was writing the above GB was writing something related about calls and messages left. Scary thing to think our minds are on the same wavelength? or similarly deviant, lol.

There are all kinds of reasons calls at a particular time could be inconvenient that wouldn't be obvious as to why. For example, maybe you've a new baby in the house who sleeps 30 minutes at a time and when you yourself get a chance to actually sleep a few, it would be inconvenient especially if home alone.

Or you could be undergoing medical treatment, say chemo, and as such you are "under the weather" most of the time and so you need your strength and need to not be interrupted.

What I mean is, there are many variations as to why something would be inconvenient time-wise, as many variations as there are people so it wouldn't be up to them to say "well that doesn't make sense or sound reasonable, I'll call anyway". It's not their judgment to make, if you say it is inconvenient then they have to treat it that way.

On the other hand if you got into court and it appeared to the judge you were trying to "play games" and wrangle out of some legal obligation then he could call you on it, but not the collector.

Please help to taylor the best example letter.TIA

Simple,Example:

Name
address

The Law Office of Harrison Ross Byck, Esq., P.C.
229 Plaza Blvd,Suite 112
Morrisville,PA 19067

Dear Sir/Madam,

Re: File#:

I am requesting that you cease and desist with your efforts to collect on the debt referenced above by phone only.
It is inconvenient for me to be contacted between the hours of 8 am and 9 pm and ask for all communications to come through the United States Postal Service.

Therefore. I hope you will consider giving this letter the attention it deserves.....I look forward to working with your company to resolve this matter as quickly as possible..

Sincerely,

All that letter will get you in response is a summons. They will not negotiate thru the mail. The FDCPA does not provide for a partial cease and desist, or mail only...it is all or nothing.

I don't think it should be used like in the above letter as a stand alone, but added into DV letters.

As for FDCPA I think it is ambiguous enough that you could use it...since at least 1 judge has accepted it and even the FTC said so as well....we just need an opinion letter to make it work even better.

I still think the wording of the law allows for it to be used this way, not under the cease & desist part, but under the section just above it......I do not think it is all or nothing.

I agree with GB, until we get something in writing, an official Opinion, a lot of this will be subject to conjecture. So, I hope they come out with one the sooner the better.

My lawyer down here in Orlando, Fl states in his commercials and told us that when you send a DV letter to also include a cease and desist letter requesting all communications by USPS only, so that we and the collector has all proof in writing and that phone calls will not be accepted as there will be no proof other than a he said/she said situation, seeing in Fl you need consent to record calls and he has yet to find one that will consent-he said thats because they(collectors) will knowingly break the law and they dont want anyone to have recorded proof of it. One of his commercials says that you dont have to speak to them on the phone ever and do it all in writing only. i wish I could remember the exact words he used in the commercial. He has a very large big time firm here in Florida-Morgan & Morgan Law Firm.

I beg your pardon! This is exactly what the FTC advised me to do....and so far it's working.