Author Topic: Kohl's/CapitalOne vilolations of FDCPA  (Read 3170 times)

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MyBad

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Kohl's/CapitalOne vilolations of FDCPA
« on: June 08, 2016 05:41:11 PM »

Recently past due on Kohl Card issued by Capital One.  Started receiving daily calls from Kohls, but also from a number identified only by the city, state of its origin. When called it says, "Thank you for calling Kohl's." automated voice.

In checking my on line statement, I found the following notice. """This is a communication from a debt collector and is an attempt to collect a debt. Any information obtained will be used for that purpose."***

The same notice appeared in an email from Kohl's, a few days later.

To THE question...

Capital One says, they are a debt collector, so I have to assume they are subject to the FDCPA.


I'm thinking several violations, Unfair deceptive means to collect a debt, no meaningful disclosure of the callers true identity, failure to provide written notice after initial contact, failure to provide notice of ability to dispute the debt, validate the debt and obtain the original creditors name.

Thanks in advance for your feedback..or questions..



Bruno the JDB Killer

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Re: Kohl's/CapitalOne vilolations of FDCPA
« Reply #1 on: June 08, 2016 06:02:56 PM »
Original creditors are not subject to the FDCPA, no matter what their web site says. Lots of web sites include the mini miranda just as a matter of form. If they are calling to collect their own accounts, the FDCPA does not apply.
I am not an attorney. Any information I post is strictly my opinion and should be treated as such.

MyBad

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Re: Kohl's/CapitalOne vilolations of FDCPA
« Reply #2 on: June 08, 2016 07:01:11 PM »

Thanks for your reply BRUNO..I get that..however..

In reading the card member agreement, appears the Capitol One is the OC, and that Kohl's is "servicing" the account.

FDCPA still not apply???


Bruno the JDB Killer

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Re: Kohl's/CapitalOne vilolations of FDCPA
« Reply #3 on: June 08, 2016 07:23:07 PM »
99% chance the Kohl's card was issued by Cap One. Kohl's is a department store, not a credit card servicer. No FDCPA.
I am not an attorney. Any information I post is strictly my opinion and should be treated as such.

MyBad

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Re: Kohl's/CapitalOne vilolations of FDCPA
« Reply #4 on: June 08, 2016 08:32:04 PM »

Bruno,
   You"ve  taken the bait, ignore that man behind the curtain.....yes, Kohl's is indeed a Department Store, however, by their own

admission..on the Cap1 card member agreement.

"Kohl's is servicing your Account (Capital One) on our behalf and is also refereed to alone or together with others, as an agent."

If the  "agent" says they are a Debt Collector, why wouldn't they be subject to FDCPA...

Cap1 granted credit, it just happens to be for purchases at Kohl's, the brand on the card. The debt is owed Cap1, not to Kohl's.
I'm not getting any calls from Cap1..


   The least sophisticated consumer would certainly look at this way. A multi billion dollar company, with scores of lawyers wouldn't put a
notice on there if it wasn't what they wanted to communicate to consumers.

   Thanks for your input, I do see you point, but it they say they are "agents" and  "debt collectors" and act that way, and put it in writing repeatedly, they sure appear to be assuming that responsibility.

I think a judge would come to the same conclusion.



kevinmanheim

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Re: Kohl's/CapitalOne vilolations of FDCPA
« Reply #5 on: June 09, 2016 12:53:03 AM »
They include that language because some states require it in their own versions of the FDCPA.

cgoodwin

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Re: Kohl's/CapitalOne vilolations of FDCPA
« Reply #6 on: June 09, 2016 08:20:07 AM »
Your confusing legaleaze with plain language.  Their disclaimer language does not change their legal status as Original Creditor.
If you think this is legal advise.......
ask yourself why I wasn't smart enough to avoid this myself?!?

kevinmanheim

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Re: Kohl's/CapitalOne vilolations of FDCPA
« Reply #7 on: June 09, 2016 12:09:43 PM »
Your confusing legaleaze with plain language.  Their disclaimer language does not change their legal status as Original Creditor.
In several states, OCs are debt collectors per the state debt collection laws.

They include those disclaimers to avoid a state law violation claim.

Bruno the JDB Killer

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Re: Kohl's/CapitalOne vilolations of FDCPA
« Reply #8 on: June 09, 2016 01:22:44 PM »
Kohl's can act as a servicer for their own Cap One issued accounts. Most department stores do this. they are technically collecting for themselves, since they have a vested interest in Cap One getting paid.

Servicers are not subject to the federal FDCPA unless the account was in default when they got it.

If the  "agent" says they are a Debt Collector, why wouldn't they be subject to FDCPA...



As others have said, could be for state laws that cover OCs. It doesn't matter what the store says, what matters is what the statute says. When Kohl's starts collecting for Macy's or Walmart, you'd have a case.
I am not an attorney. Any information I post is strictly my opinion and should be treated as such.

kevinmanheim

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Re: Kohl's/CapitalOne vilolations of FDCPA
« Reply #9 on: June 09, 2016 02:43:16 PM »
Kohl's can act as a servicer for their own Cap One issued accounts. Most department stores do this. they are technically collecting for themselves, since they have a vested interest in Cap One getting paid.
This.

Plus, I'll bet a third party is contracted to handle billing, calls, statements for these accounts.

First Data, TSYS, etc.

The OCs hate it when you drag their back room servicers into the lawsuit.

MyBad

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Re: Kohl's/CapitalOne vilolations of FDCPA
« Reply #10 on: June 11, 2016 03:09:46 PM »

Thanks for all the input, I've checked the state law's regarding debt collection in Wisconsin, Kohl's home state,
and Virginia, the state designated in user agreement under whose laws are applicable with Capital One.


Capital one under license form Kohl's issues Kohl's Branded Credit Cards, approval, issuing, termination all their rights.

Kohl's acts as agent, services,  like a third party service.

When they call they are calling about your Capitol One Account branded with Kohl's name, NOT on a credit card issued by Kohl's department store.


While not illegal, it makes Kohl's the "debt collector" not for it's own debt's but for the debts owed to Capital One, which just happen to be make in their stores. 

Therefore subject to FDCPA...







CleaningUp

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Re: Kohl's/CapitalOne vilolations of FDCPA
« Reply #11 on: June 11, 2016 03:23:10 PM »


While not illegal, it makes Kohl's the "debt collector" not for it's own debt's but for the debts owed to Capital One, which just happen to be make in their stores. 

Therefore subject to FDCPA...





I think you have something akin to the famous Spruce Goose.  It may get into the air, but it might not go very far.


Why?  Because they are only collecting on sales may through their own stores...they have an equity interest in the account.

Bruno the JDB Killer

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Re: Kohl's/CapitalOne vilolations of FDCPA
« Reply #12 on: June 11, 2016 05:16:16 PM »
Thanks for all the input, I've checked the state law's regarding debt collection in Wisconsin, Kohl's home state,
and Virginia, the state designated in user agreement under whose laws are applicable with Capital One.


Capital one under license form Kohl's issues Kohl's Branded Credit Cards, approval, issuing, termination all their rights.

Kohl's acts as agent, services,  like a third party service.

When they call they are calling about your Capitol One Account branded with Kohl's name, NOT on a credit card issued by Kohl's department store.


While not illegal, it makes Kohl's the "debt collector" not for it's own debt's but for the debts owed to Capital One, which just happen to be make in their stores. 

Therefore subject to FDCPA...


Show us one case where Kohl's was successfully sued under the FDCPA. You're going to need that to back up your case if you try this.
I am not an attorney. Any information I post is strictly my opinion and should be treated as such.

cgoodwin

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Re: Kohl's/CapitalOne vilolations of FDCPA
« Reply #13 on: June 11, 2016 09:52:53 PM »
While not illegal, it makes Kohl's the "debt collector" not for it's own debt's but for the debts owed to Capital One, which just happen to be make in their stores. 

Therefore subject to FDCPA...

Rule number one of litigation:
You are making arguments in a court of law, not a court of logic nor a court of common sense.

The law defines who is a debt collector under the FDCPA. You will need a legal stance to make that argument, not a logical one.

We have spent years on this board helping people make better legal arguments. As others have said, you will not win this one. That dog will not hunt.
If you think this is legal advise.......
ask yourself why I wasn't smart enough to avoid this myself?!?

kevinmanheim

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Re: Kohl's/CapitalOne vilolations of FDCPA
« Reply #14 on: June 12, 2016 11:01:37 AM »
Kohl's is what is known as a first party debt collector. Those aren't subject to the FDCPA.

They are, often, subject to state debt collection laws.

First party debt collectors: Any party that services or collects a debt when it is not delinquent. For example, Kohl's accepts payments on the Capital One accounts. They do so when the accounts are current and paid on time.

As a first party debt collector, a business can make the transition from collecting on a current account to a delinquent account, and not become a debt collector per the FDCPA.
________________________________________________________________________
FDCPA:

 (6) The term "debt collector" ... does not include --

(F) any person collecting or attempting to collect any debt owed or due or asserted to be owed or due another to the extent such activity ... (iii) concerns a debt which was not in default at the time it was obtained by such person;
________________________________________________________________________

Here is a good article on the subject:

http://www.bargaineering.com/articles/understanding-1st-party-and-3rd-party-collectors.html