If you haven’t read my previous posts about the zombie debt collector Afni, Inc., you really should start with this post and work your way forward through the series before reading this post. None of the posts are terribly long, but they offer a great deal of context.
Once I had proof from Afni’s own records that they were attempting to collect on a time-barred debt, I decided to write a cease and desist letter.
What I wrote looked a lot like this:
THIS IS MOST DEFINITELY A REFUSAL TO PAY.
I’m aware of my rights under the Fair Debt Collection Practices Act, as well as my rights under Michigan state law…
So there is no possibility of misunderstanding: 2014 (the [then] current calendar year) minus 2005 (the invoice year) equals 9 (the age of the debt in years.) Michigan state law imposes a statutory 6 year limit on the collectability of debt of this kind. Afni, Inc. is clearly engaging in attempts at collecting expired “zombie” debt.
I therefore demand Afni cease and desist any further collection attempts, close all related collection accounts, and NOT resell this debt to any other collection agency.
A few things:
Almost every letter a debtor sends to a collector opens with “this is not a refusal to pay” to make it difficult for a debt collector to later wave the correspondence around in court claiming it is (somehow) a refusal to pay. As a result I’ve always wanted to write a letter that opened with “this is most definitely a refusal to pay.” It was quite gratifying.
There are a few different schools of thought when dealing with debt collectors:
Ignore them. This is what lots of consumers who are unaware of their rights do. This is almost always a bad idea: ignoring a debt won’t make it go away. Moreover, if you’re in the “ignore debt collectors” crowd you’re, frankly, part of the problem. Debt collectors would not be able to get away with nearly as many violations of the FDCPA if consumers were more aggressive in asserting their rights under the act. More than that, violating the FDCPA would become cost prohibitive, which would result in a lot fewer intentional violations of the act.
Tell them your sob story and see if they’ll cut you a deal as a result. This almost never works. Debt collectors quickly get jaded when dealing with debtors. Their default stance is: I don’t care about your hard luck story, just pay your damn bill.
Sic your lawyer on them. In many cases, escalating to an attorney is the most correct action you can take, but as we all know, it can be expensive.
Send them cease and desist letters. Well, yes, that can be the appropriate course of action, too. In my view, it was the correct action for me to take in my case. But it’s certainly not the most correct action in every case. If, for example, Afni’s claim had been legitimate in that (1) the debt was within the statute of limitations, and (2) their “evidence” wasn’t simulated, sending them a C&D letter might have resulted in getting served with a lawsuit a few months later. Sending a cease and desist letter should only be done if you know exactly what you’re doing, are comfortable with the risks, and have an attorney on hand in case you need help.
Every consumer should know their rights under the FDCPA and other applicable laws.
I have one last thing to say about zombie debt collectors and then I’ll move on to another subject.