National Enterprise Systems, Inc. (“NES”) allegedly violated the Fair Debt Collection Practices Act (“FDCPA”) by threatening to sue without being able to or intending to sue, threatening to garnish non-borrower’s wages, repeatedly calling consumer’s relatives, threatening to have consumers arrested unless they paid their alleged debts, and using profanity according to consumers who filed FDCPA lawsuits.
Although the factual allegations in the Fair Debt Collection Practices Act lawsuits described in this article are just that — alleged facts which were never proven or disproven in court — many of the consumers’ complaints allege serious misconduct.
FALSE THREATS TO SUE CONSUMERS
A Florida consumer alleged that National Enterprise Systems left a message on her answering machine which stated :
“I am one of the facilitators here with NES and Associates. I am calling in regards to a file complaint that’s here in my office that is scheduled to be forwarded out today at 3 PM through Fort Lauderdale, FL. It is in your best interest to retun my call today before 3 PM in regards to the file complaint number FL, as in Florida, 41485642.”
False threats to sue a consumer violate the Fair Debt Collection Practices Act. If a collection agency threatens to sue a consumer without having : (1) the ability to sue; OR (2) the then-present intention to do so, violates the FDCPA. If the collection agency does not own the debt OR does not have lawyers licensed to practice law in the state where the consumer resides, the debt collector does not have the ability to sue. Even the very few debt collectors that actually have the ability to file suit seldom have a firm intention to sue a consumer.
The Florida consumer alleged that NES called her cell phone although she never gave NES or the original creditor express permission to call her cell phone. Unless the consumer granted the original creditor (or the debt collector) “express permission” to call their cell phone, collection agencies who use “automatic dialers” or leave prerecorded messages on consumer’s cellular telephones may have violated the consumer’s rights under the Telephone Consumer Protection Act.
PHONE MESSAGE “REGARDING A PENDING LEGAL ACTION”
A Minnesota consumer alleged that National Enterprise Systems’ debt collector left a phone message at her place of employment stating that NES was calling “regarding a pending legal action” and that the debt collector needed to speak with her immediately.
Obviously, this is yet another false threat to sue by a NES debt collector. Leaving no stone unturned, the Minnesota consumer’s highly experienced FDCPA lawyer alleged that NES’s message violated 15 U.S.C. Section 1692d, 1692d(2), 1692e, 1692e(2), 1692e(4), 1692e(5), 1692e(9), 1692e(10), 1692e(11), 1692f, and 1692f(1), “amongst others”.
IF YOU HANG UP, YOU WILL BE SUED IMMEDIATELY
A New York consumer alleged that National Enterprise Systems called consumer at the hospital where she works. Debt collectors who call employees at hospitals, emergency services, or transportation facilities just might have a “clue” that such calls might be inconvenient. NES’ employee told consumer that he would be sued immediately unless she agreed to pay NES during this phone call. Consumer informed NES that he was not able to speak while at his place of employment. NES’ employee replied that, if consumer hung up, he would be sued immediately. During this conversation, NES’ debt collector indicated that she had spoken to other employees at consumer’s place of employment. [Debt collectors frequently contact co-workers, neighbors, relatives and friends in an attempt to illegally coerce consumers into paying.]
NES’ employee demanded to know consumer’s cellular telephone number and the telephone numbers of consumer’s friends and relatives. NES then informed consumer that he needed to telephone his friends and relatives on another telephone line to attempt to have them pay the alleged debt. NES again reminded consumer that if he hung up the phone he would be immediately sued.
Eventually, consumer informed NES that he would like to discuss the account directly with Sallie Mae. NES’ debt collector told the consumer he was not permitted to speak to Sallie Mae and that his only opportunity to settle the alleged debt was right then over the phone with her.
After the consumer repeated that he was not allowed to receive NES’ calls at work, NES called him on his cellular telephone was still talking with NES’ collector on his employer’s land line. When the consumer asked the NES collector why she was calling his cell phone while she was speaking to him on his employer’s land line, NES’ debt collector responded that now that he was speaking to her on his cellular phone, the consumer was able to leave work and continue speaking to her on the cellular phone. NES’ debt collector demanded that he pay $ 5,900 right then and there or he would be sued immediately.
After the consumer finally got off the phone with NES, he contacted Sallie Mae to inquire about the status of the alleged debt. The consumer and Sallie Mae agreed to direct payment arrangements.
After the consumer and Sallie Mae agreed to payment terms, a person purporting to be a manager from NES telephoned the consumer demanding money. The consumer informed the NES “manager” that he had reached payment arrangements directly with Sallie Mae and had in fact paid Sallie Mae the required money. The consumer invited the “manager” to call Sallie Mae to confirm what he said and then demanded that NES stop calling him.
NES continued to call the consumer although the consumer paid Sallie Mae as directly agreed to.
When consumer demanded that NES stop calling him, NES’ debt collector said that NES would not comply with consumer’s request.
Although cease communication requests must be in writing in order to be actionable without additional facts, this case presents additional facts. The consumer told NES that he had called Sallie Mae, that the parties directly agreed to payment terms, and that the consumer was satisfying the agreement with Sallie Mae. A court may decide that debt collectors who continue to call the consumer under these circumstances do so with an intent to harass the consumer.
The debt collector’s statements that the consumer could not discuss the alleged debt directly with Sallie Mae are probably also false and deceptive and, in this case, sympathetic because the consumer disregarded NES’ false representations and contacted Sallie Mae to arrange payment terms.
“HOW WOULD YOUR PARENTS LIKE THAT?”
An Arizona consumer alleged that National Enterprise Systems called her about a Citibank-Sears account. According to the consumer, NES “advised her that she would have charges pressed against her and that the police would come to her door if she terminated the phone call and/or if she did not set up a payment arrangement with an account number that very same day.” NES’ debt collector “further advised that he could have the police sent to the [consumer's] house and serve her with papers and take her to jail.” NES’ debt collector then asked “How would your parents like that?”
Consumer asked NES’ debt collector to allow her to call her mother for a loan to pay NES the amount they demanded. NES advised consumer that she could not call back, that she had to pay or NES would have the police sent to her door.
Consumer told NES that she did not have any money and requested to make payments. NES’ debt collector told the consumer that they were beyond making payments and that she needed to pay the full amount. Eventually, NES and the consumer arranged for a payment on September 19 and made a conference call with consumer’s bank to authorize the withdrawal. NES’ debt collector warned consumer that if for any reason the payment did not go through that he would go ahead with the charges against her. I am not admitted to practice in Arizona but I suspect the debt collector’s threats to prosecute were groundless. They would be under Florida law especially considering the FDCPA’s protection of consumers who provide post dated checks or electronic access to their checking accounts.
Immediately after her conversation with NES ended, the consumer was in tears and contacted her mother about what just occurred. Consumer told her mother she did not know where she could get the money to pay NES.
Consumer’s mother called the NES debt collector. The debt collector told consumer’s mother that consumer could go to jail and that if the money was not available when agreed it would be a felony offense.
On Friday September 18, consumer called NES’ debt collector to tell him that she had closed the account and that she would not be paying NES. NES’ collector informed consumer that stopping the payment was a felony and that she would have to deal with the consequences.
Later that same day, consumer’s mother called NES’ employee. NES told her that stopping payment was a felony and described consumer’s conduct as malicious and dishonest. NES’ employee claimed that he had the court charges suspended based on consumer’ promise to pay. NES’ employee also stated that he would immediately file charges for passing a bad check over state lines. The debt collector told the consumer’s mother that he had done the consumer a favor by not sending in the police.
“YOU MUST NOT HAVE A VERY GOOD RELATIONSHIP WITH YOUR DAUGHTER”
A Michigan consumer (the borrower), her co-signor (her mother), and the consumer’s step-father (who was not obligated on the loan) alleged that National Enterprise Systems violated the Fair Debt Collection Practices Act and the Michigan Collection Practices Act while attempting to collect a private student loan. NES’ debt collector called the consumer’s father and told him that they were looking for the consumer’s cell phone and address to verify a job application. Obviously, the consumer had not applied to work at NES. NES’ debt collector called the co-signor’s house and told her son and asked for the consumer’s cell phone number and address again under the ruise of a pending job application and pending employment.
Soon thereafter, NES called the consumer and was very rude to her. NES’ debt collector referred to the consumer as an “idiot” for managing money in such a fashion for allowing her student loans to be in collection and ruing her mother’s credit score. NES’ debt collector false told consumer that her mother may never speak to her again.
Several days later, NES called consumer’s 81 year old grandfather at the nursing home where he resides.
NES employee called consumer’s step father and falsely told him that consumer “does not care about your wife’s credit score”. Although consumer’s step father was not obligated to pay the consumer’s educational loan, many of the provisions of the Fair Debt Collection Practices Act also protect people who do not allegedly owe the debt.
A week later, NES’ employee told consumer’s mother (who co-signed her loan) that she had to make a decision that day. NES’ employee recommended that the mother take money out of her retirement account to pay NES and was “very rude”. NES’ debt collector said to the consumer’s mother “You must not have a very good relationship with your daughter. She didn’t tell you what was going on? You must not get along very well.” Consumer’s mother replied “You’re talking down on me. I’m not going to put up with this. I need to speak with your manager.” NES transferred the call to a manager but the parties were unable to agree to payment terms.
NES’ harassment of the consumers was rewarded by consumer’s parent’s payments of $ 7,000 and $ 6,500 during the next two weeks. The harassment also sparked the FDCPA lawsuit 36 days after the events alleged in their complaint began.
If National Enterprise Systems is threatening you like the consumers who have sued NES alleged, I understand how frightening it must be. For more information about NES’s false threats including a North Carolina consumer who NES allegedly threatened until he paid a debt that was not even his, click on “Page 2″ below.
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