I sent LoanShopOnline/DMS Marketing/LTS Marketing, whoever they want to go by, an email requesting that they mark my account paid in full. Although they weren't very happy about it, they have sent me the below email and release document. The release document has alot of legal language in it and I was hoping that someone could review it for me to make sure I wasn't signing something I didn't want to. They are willing to refund some of the overpaid fees, which I'm good with, but I wanted to make sure this could close the account and I would not be hearing from them again. I'm not sure why they couldn't make it that simple and just say that!
Emails from them:
Thank you for your correspondence in regards to your account. We have received your complaint and would like to settle this matter immediately. Please be advised that we have reviewed your account and the request to refund you $XXX dollars. Upon approval and acceptance of the loan, you were thoroughly advised of the terms and conditions and there by agreed to them. We understand your concern as to the amount that you have paid in total. However, it is your responsibility to maintain your account and had you contacted us sooner in regards to this matter we would have been able to assist you earlier. We will agree to refund you at the amount of $XXX dollars. To complete the refund process, you will be required to complete the attached release form. Once this is received we will process your refund within one (1) business day. From the date that the refund is issued you will then have the funds within one to two (1-2) business days. If you have any further questions or concerns please contact me via email or call me at 1-800-806-9971 ext 3295. Thank you, Debi Farnen Customer Service Assistant Manager 1-800-806-9971 EXT 32951-800-488-3481 [email]FAXdfarnen@dmsmktg.com[/email]
The first thing I noticed was that my name wasn't even on the release document. I've emailed them back already about this. The "Borrower" they showed was not me, but I XXX'd it out for privacy purposes. Is there anything else I don't want to agree to?
THIS RELEASE (Ã¢â‚¬Å“AgreementÃ¢â‚¬Â) is entered into as of the 6th day of August 2008, by and between, DMS Marketing II, LLC, Delaware limited liability company (the Ã¢â‚¬Å“CompanyÃ¢â‚¬Â), and XXX (the Ã¢â‚¬Å“BorrowerÃ¢â‚¬Â).
WHEREAS, the Borrower and the Company entered into that certain Loan Agreement dated 04/24/2008 (the Ã¢â‚¬Å“Loan AgreementÃ¢â‚¬Â) and other documents related thereto; and
WHEREAS, in connection with the transactions contemplated in the Loan Agreement, the parties desire to execute and deliver this Agreement.
NOW, THEREFORE, the parties hereto, in consideration of a $XXX.00 refund and forgiveness of the loan premises and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by all parties, hereby agree as follows:
(a) Release by the Borrower. The Borrower, for herself and her present and former agents, predecessors, shareholders, directors, officers, employees legal representatives, descendants, spouses, successors, predecessors, agents, attorneys and assigns (collectively, the Ã¢â‚¬Å“AffiliatesÃ¢â‚¬Â), does hereby fully release and forever discharge the Company and its Affiliates from and against any and all claims, demands, obligations, causes of action, actions, suits, controversies, debts due, sums of money, trespasses, privileges, covenants, contracts, agreements and promises and any damages, costs, expenses, attorneysÃ¢â‚¬â„¢ fees, obligations and liabilities of whatever kind or nature, at law, in equity or otherwise, whether asserted defensively or offensively, whether known or unknown, that any of such parties ever had, now has or may have, but only to the extent arising or occurring from or in any way growing out of facts in existence or alleged to have been in existence on or prior to the date hereof (collectively, the Ã¢â‚¬Å“Released ClaimsÃ¢â‚¬Â).
(b) No Suits. The Borrower (for herself and her Affiliates) hereby covenants and agrees that they have not directly or indirectly, alone or with others, brought, commenced, instituted, maintained, prosecuted or voluntarily aided, and that they will not directly or indirectly, alone or with others, bring, commence, institute, maintain, prosecute or voluntarily aid, any action, at law or in equity, or any other proceeding against the Company or its Affiliates, either affirmatively or by way of cross-complaint, third-party claims, defense or counterclaim or by any other means with respect to any of the Released Claims.
(c) No Claims Assigned. The Borrower (for herself and her Affiliates) further represents and warrants that they have not assigned or otherwise transferred any right, title or interest in any of the Released Claims. The Borrower further agrees to indemnify and hold the Company and its Affiliates harmless from and against any claims resulting from any such assignment or transfer.
(d) Complete Defense. The parties hereto agree that this Agreement may be pleaded as a full and complete defense to, and may be used as a basis for an injunction against, any action, suit or other proceeding which may be instituted, prosecuted or attempted in breach hereof.
2. Non-Admission. The parties agree that nothing in this Agreement is an admission by any party hereto of fault, liability, of any unlawful act or breach of contract, violation of applicable law or commission of a tort, all of which are expressly denied.
3. Entire Agreement. This Agreement contains the entire agreement between and among the parties hereto with respect to the subject matter hereof and supersedes any and all prior agreements, arrangements or understandings between the parties hereto relating to the subject matter of this Agreement.
4. Successors and Assigns. This Agreement is and shall be binding upon and inure to the benefit of the parties hereto and their respective successors, assigns, administrators, legal representatives, servants, directors, officers, employees and agents.
5. Amendment; Waiver. This Agreement may be amended only by a written instrument signed by the parties hereto. No provision of this Agreement may be waived orally, but only by a written instrument signed by the party against whom enforcement of such waiver is sought.
6. APPLICABLE LAW. THIS AGREEMENT, AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HERETO SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF MISSOURI, WITHOUT GIVING EFFECT TO THE CONFLICTS OF LAW PRINCIPLES THEREOF.
7. Representations. All parties warrant and represent to all other parties to this Agreement:
(a) that they have read and understand all aspects of this Agreement, and all of its effects;
(b) that they have executed this Agreement as a free and voluntary act of their own free will without any treat, force, fraud, duress or coercion of any kind; and
(c) that they will not disclose the existence, or the terms, of this Agreement to any third party.
8. Invalid Provisions. If any provision hereof is held to be illegal, invalid or unenforceable, such provision shall be modified to the extent necessary to render such provision enforceable and, if necessary, shall be fully severable; this Agreement shall be construed and enforced as if such illegal, invalid or unenforceable provision was so modified as of the date hereof, or never comprised a part hereof, as the case may be, and the remaining provisions hereof shall remain in full force and effect and shall not be affected by the illegal, invalid or unenforceable provision.
9. Counterparts: Facsimiles: This Agreement may be executed in multiple counterparts, all of which, when combined, shall constitute one (1) agreement. Facsimile signatures shall be effective.
[Remainder of page intentionally left blank; signature page attached.]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.
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