Question:
Facts:
1/18/00 - Bought a cell phone from a representative retailer of a local
phone company (not the phone company itself).
Two contracts involved..one from the phone company stating early
cancellation feel of $150. This conract was mistakenly never signed nor
dated by me. Second contract from retailer stating that early termination as
stated in the phone company's contract would result in early disconnect fee
of $200 from retailer
3/5/00 - Terminated contract, sent phone company their $150 early
termination fee, decided to wait to hear from retailer regarding their $200
early disconnect fee
4/21/00-Received letter from a collection agency demanding $379 to be sent
to retailer.
4/22/00-Not wanting any hassles regarding discrepencies, sent the retailer
the $379 and sent letter to collection agency stating this fact.
5/5/00-Received second notice from collection agency requesting the same
payment. Checked bank records...my check has still not cleared, so fearing
that the check may have been lost in the mail, I contacted retailer and was
told that yes indeed he had received my check. Called collection agency but
was informed that they still had not gotten notice of my payment from
retailer. Called retailer back who once again assured me that he had
received my check and that he sent a letter to the collection agency stating
as such and would also call to confirm this.
5/10/00- Called collection agency to find out status, was told that retailer
still had not contacted them but that they had received MY letter to them
and would not pursue collections at this point unless told otherwise by
retailer. Called retailer back who once AGAIN stated that he had contacted
them. When I told him that collection agency did not have record of this, he
started to tell me who he had talked with, but I cut him off saying, "No, I
don't want this information. As far as I am concerned, I am washing my hands
of the matter and if I receive another collection notice, I will consider it
harrassment."
My concern: The longer this goes on, the more likelyhood of my getting
additional penelties tagged on in addition to my credit rating being
compromised.
My question: Have I handled this correctly so far? If no, what SHOULD I be
doing, If SO, what is my next step if I once again receive another
collection notice? Secondly, what are my rights considering the fact that I
never did sign the phone company's contract? I DID sign the contract given
me by the retailer (which states I am liable for $200 if I do not live up to
the PHONE COMPANY'S contract). Also, what about the discrepency between the
$200 as stated in the original retailer's contract and the $379 I was billed
for? The rep stated that 'sometimes, depending on the particular phone
bought, there COULD be a difference in that amount." Does he have a legal
right to state this at this point?
Do I have grounds for my own lawsuit if I decide to pursue one? If so, on
what grounds exactly? Unisgned contract? Misrepresenting a contract?
(difference of $200 - $379).
Answer:
1. There is no issue regarding the fact that the phone company
contract was not signed, because you paid the charge. The
contract is valid.
2. Why did you pay $379 when you owed $200? You could sue for
a refund of the $179 as an overpayment, unless there is some
other clause in the contract justifying the added charge. One of
your options is to use the overcharge as the basis of a suit for
violation of the Fair Debt Collection Practices Act. I don't
know much about that act, so I can't advise on whether the
collection agency has violated it. See a local attorney
experienced in such actions.
3. If you don't like the litigation option, the best thing to
do now is (a) send the agency a certified letter, return receipt
requested, containing a copy of your cancelled check and a copy
of your previous letter to them, and (b) ignore all calls and
letters from the collection agency. Don't answer, don't return
calls.
