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DEBT COLLECTOR BLUNDERS? GET A RECORDING!

This post was submitted by Adam S. Alexander, Attorney At Law, 17200 W. Ten Mile Rd., Ste. 200, Southfield, MI 48075. You can reach him directly at www.myfaircreditsite.com or (248) 246-6353.

Before you implement the suggestions in this article, check to make sure it is legal to record calls in your state.

Millions of Americans are constantly being called by a debt collector or debt collectors on a daily basis. These calls can be very stressful and confusing, but there some very basic strategies you can use to deal with this situation. The first thing to remember is that you are not alone.

Most Americans have problems with debt and a high percentage are routinely contacted by a variety of debt collectors. Whether it’s medical bills, credit cards or auto or mortgage loans, you have to realize that there are many people dealing with this same issue. So stay calm, it’s not life or death.

Once you come to grips with this reality, you must recognize four (4) basic facts about debt collectors.

  1. Debt collectors are calling for one reason: they want you to pay them money immediately.
  2. Debt collectors are rude and persistent. Studies conducted by debt collectors and years of experience have proven that debt collectors are most successful in collecting money when they are rude and persistent.
  3. Debt collectors often violate the law in their efforts to collect debt.
  4. The best way to catch and prosecute debt collectors who break the law is by recording their messages and conversations.

THE BAD GUYS

My advice to consumers is to always try to pay your bills on time and take care of your financial obligations. Paying your bills will often keep the debt collectors away. But if that day comes when you simply can’t make payments on time, your best bet is to contact your creditors directly and advise them of your hardship. Request permission to make a late or partial payment and be up front with them. Many creditors will cut you some slack, (some won’t). The key is communication. Your creditors want to hear from you. Ignoring them will get you sent to collections much quicker than if you just pick up the phone and tell them about your situation.

However, if for some reason you can’t keep up because of some financial hardship, and your account is assigned to a debt collector, do not tolerate harassment or violations of the laws which exist to protect you, and discourage unethical collection practices. There are many professional and very ethical debt collection companies out there. However, there are also many debt collectors routinely violate the bounds of law, decency and/or decorum when contacting consumers. You don’t have to take my word for it, Congress made this specific finding after massive hearings and research:

“There is abundant evidence of the use of abusive, deceptive, and unfair debt collection practices by many debt collectors. Abusive debt collection practices contribute to the number of personal bankruptcies, to marital instability, to the loss of jobs, and to invasions of individual privacy.” 15 U.S.C. § 1692(a).

Accordingly, they made laws to prevent this abuse. If you are reading this article, you or someone you know has been harassed or harangued by a debt collector. I can tell you countless incredible stories of debt collector misconduct from my many clients over the years. I had one client who was advised that the sheriff was on the way to her house to arrest her, because she wouldn’t do a check by phone to pay an alleged debt. I had a client who was referred to as “Mr. Deadbeat” repeatedly during phone conversations. But I really couldn’t grasp the true feeling of harassment and stress that these people felt, until I heard them for myself on a taped recording of the phone calls. These are two cases that I may not have taken unless the clients had the evidence recorded. And the reason for this is simple: If there’s no recording, the debt collector can simply deny it. With a recording, it’s undeniable. These recordings were the foundation of lawsuits that I filed, and in both cases the alleged debts and lawsuits were resolved for terms highly favorable to my clients.

HOW AND WHAT TO RECORD

A. KEEP YOUR VOICE MAILS FROM DEBT COLLECTORS – DON’T ERASE THEM

In the hallmark case of FOTI v. NCO FINANCIAL SYSTEMS, INC., in the U.S. District Court for the Southern District of New York, the court determined that a debt collector may be in violation of the Fair Debt Collection Practices Act by leaving a message on your voice mail that doesn’t identify them as a debt collector. So, initially, all you need to do is keep your voice mails! The offending voice mail in the Foti case went like this:

Good day, we are calling from NCO Financial Systems regarding a personal business matter that requires your immediate attention. Please call back 1-866-701-1275 once again please call back, toll-free, 1-866-701-1275, this is not a solicitation.

Based on this voice mail, the court found that Plaintiff had a cause of action for violation of the FDCPA 15 U.S.C. § 1692e(11), for not identifying itself as a “Collector’ or ‘Debt Collector”.

Morever, if this was the initial or very first call from a debt collector, an additional notification would be required, as follows:

This is an attempt to collect a debt, any information obtained will be used for that purpose. Unless you notify this office within 30 days after receiving this notice that you dispute the validity of the debt or any portion thereof, this office will assume this debt is valid. If you notify this office in writing within 30 days from receiving this notice, this office will obtain verification of the debt or obtain a copy of a judgment and mail you a copy of such judgment or verification. If you make a request in writing within 30 days after receiving this notice, this office will provide you with the name and address of the original creditor, if different from the current creditor. This is a communication from a debt collector.

This notification or something close to it, is required only in the very first communication with you. Thereafter, the debt collector may simply advise that this is a call from a debt collector, or provide adequate information for the least sophisticated consumer to determine it is a call from a debt collector. For example, “this is John Doe from ABC Collection Agency”.

So, in sum, keep all of your voice mails from debt collectors. It may help you resolve the debt down the road and allow an experienced attorney to recover damages, (up to $1,000.00 in statutory damages), for you. If you run out of space on your voice mail, get a tape recorder and unload what you have saved to leave room for more calls.

B. PURCHASE A TAPE RECORDER AND USE IT IMMEDIATELY

If you are receiving harassing calls from debt collector, or even if the debt collector is saying things that don’t make sense to you, or confuse you, the best course of action is to record your conversations. Recording phone conversations is perfectly legal in Michigan, as long as you are a party to the phone call, {(a Michigan Court has ruled that a participant in a private conversation may record it without violating the eavesdropping statute because the statutory term “eavesdrop” refers only to overhearing or recording the private conversations of others. See Sullivan v. Gray, 342 N.W. 2d 58, 60-61 (Mich. Ct. App. 1982)}.

I usually recommend the Olympus VN-7600PC which will allow you to place an earpiece in your ear and make the phone call. Every sent or received call will be recorded on the attached recording device. It’s easy to use and it costs around $100.00. You will also need to purchase a microphone sold separately – consult your salesperson regarding what mic you need. You can get these at any Best Buy or Radio Shack store. However, any device that will clearly record a conversation is fine. Be sure to make and receive some test calls to your friends or family before using with debt collectors. This will allow you to adjust the volume and see of both parties can be heard clearly.

With regard to what to say to debt collectors when you are recording them, there are no hard and fast rules. Ethical collectors don’t make many mistakes no matter how long you have them on the phone. Bad debt collectors won’t need coaxing to become aggravated and threatening. I usually advise my clients to be professional and calm. You should ask the debt collector to identify the original creditor, ask how and when the debt collection company acquired your file, and request validation of the debt. You don’t have to answer questions about your job or your income or your assets. In fact, you don’t have to answer any questions. Your response to any questions should be something like:

Sir/Madam, I deny I owe this debt. Please send me validation information in the mail as required under the Fair Debt Collection Practices Act, so I can review what you are talking about.

Validation is simply breakdown of the alleged debt, the amount allegedly owed, the account number, etc. This is all important information to learn to determine if the debt is actually yours and is actually accurate. If you want to make payment arrangements with the debt collector after receiving validation, you can call back later and find out what options are available before negotiation a deal, (negotiation is addressed in a separate article). You want to have some quiet and calm time off the phone to decide how to handle future dealings with the debt collector. Don’t let the pressure, rage, and insults get to you.

If the debt collector gets insulting, rude or yells, some of the following statements/questions are advised:

“I would appreciate it if you could treat me with respect and be calm. What will happen if I don’t pay?”

“I would appreciate it if you could treat me with respect and be calm. How often are you allowed to call me?”

“I would appreciate it if you could treat me with respect and be calm. Are you going to sue me if I don’t pay?”

These questions are not designed to anger the debt collector, but will often serve to test their knowledge of the law, and allow you to record their answers just in case they don’t understand the law or refuse to abide by it. If the call gets too rude or if the debt collector refuses to stop asking questions that you don’t answer, just let them know that you can’t talk any longer and hang up. They will usually call right back and you can start the whole process over.

C. IF YOU CAN’T RECORD, YOU MUST TAKE DETAILED NOTES

You must take detailed notes of your calls if they are not being recorded. Initially, write down the date and time of the phone call. You then want to ask for names, call back numbers, file numbers, and addresses. Jot down the name of the debt collection company and the debt collector. Write down the amount they claim you owe. Write down the original creditor and anyone else who owned the debt. Then try to summarize the entire conversation, as you are talking. It is crucial that you take contemporaneous notes. You don’t want to have the conversation, and then take notes later from what you remembered. You need to take notes while you are on the phone with the debt collector. You can use shorthand or abbreviations if the conversation is moving too fast. You should also consider having someone else on the line if you are calling from a land line. A friend or family member can be a witness or take notes themselves.

Repeat this note-taking sequence for each and every phone call you make or receive.

D. IF IT’S TOO STRESSFUL TO DEAL WITH, TELL THEM TO STOP CALLING YOU.

If the recording thing is not for you, or if you are simply too overwhelmed to deal with debt collector calls, you may write a certified letter telling them to stop. Advise them of your name and phone number in the letter, (send it certified), and by law, they have to cease all contact with you. Then you won’t have to deal with the stress. But remember, that will not make the debt go away and will not prevent the debt collector or creditor from filing a lawsuit against you. The letter should look something like this:

Dear Sir/Madam,

I am writing pursuant to the Fair Debt Collection Practices Act, 15 USC 1692c(c), to request to request that you cease all communication to me about my account (list account # here), with (list name of creditor here).

Sincerely,
(Your Name)

In this letter you must be sure to include your address and phone number. You can also add information about your financial hardship or, if you are being harassed by their debt collector, the specifics of said harassment.

SUMMARY

The FDCPA prohibits many tactics and actions which are widely used by debt collectors. Often, the only way to prove that these actions took place is to keep your voice mails and record conversations. It’s very easy to do, and in the end, my allow you to resolve your debt, assuming you owe the debt. It may also allow you to obtain money damages, including payment of your attorney fees, whether you owe the debt or not. Finally, these recordings may assist you and your attorney in putting an end to the harassment!

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