The company
Complaint
John doe
Country: United States
So my girlfriend and her friend were accused of shoplifting without any actual proof, (though they were), so Walmart basically scared them into signing a piece of paper didn't call the cops and said they probably wouldn't press barges (less than $25). So about a month later they sent us a letter saying they want 200 for it which I didn't find unreasonable. We set up a $25 plan to pay; I put one payment on the card but was not aware of the 12.50 fee that they refused to take off knowing my payment would be late since I called on the day it's due. Since it was late they raised the "settlement" to $500. They have sent us a total of 2 letters, the second one saying it was my third settlement offer and I need to pay 425 by the 3rd or 3 payments of whatever sinc my payment was late again and they sent the letter before they got th payment. Also one of the loss prevention guys knew her friend an told her friend that she knows him and to go steal from another store. I've been reading a lot of things over about this firm and I was wondering if there was anything we can do, I understand the payment of $200 but everything after seems very messed up and I was wanting to know if there is anything I can do. They have sent us only 2 letters and we've only had one settlement which they claimed was the initial $200
Comments
They generally run this little shakedown racket so the store doesn't get tangled up in the dirty work, and they and the store split the take.
They typically send threatening letters, but they seldom actually sue. They send deceptive and threatening letters implying they will, slipping through the cracks of debt collection laws by claiming this is not a consumer debt, but a "settlement" of a legal dispute.
"Raising the settlement" just means you no longer have any settlement agreement at all. If you still paid the original $200, they are now saying they will no longer accept that to not do what they already seldom do anyway.
It's basically your choice at this point whether you accept this new "offer" to pay apparently $500, but you have no obligation to do so or to send them another dime. Unless there is some written agreement your girlfriend signed as part of this to the contrary, the earlier agreement to pay $200 does not force her to now agree to pay $500.
What is paying on a "settlement" worth, if apparently it isn't buying you anything, and they have just tossed it out the window and demanded a new amount? As apparently they timed the original offer so that your first payment would be late anyway, what's to stop them from coming up with a new excuse and jacking the amount up again? See the game?
From a negotiation stance, you are back to square one, with neither of you agreeing on anything, except that you have paid them some money and they aren't giving it back.
Forget right or wrong. They aren't a court or a judge. They are just senders of threatening letters. What did you think you were paying for, and what is it buying you?
If it's not buying anything, it's hard to justify paying more that may still not buy anything.
Run this by a consumer attorney to find out where you stand. Many will give you a half hour consult for free. ;You might try www.naca.net to find one in your state.
Deception is about creating perceptions and appearances to influence your decisions in an intended way, and "debt collection" deception focuses on convincing the consumer not only that he has no other choice but to pay, which is aided by also creating the perception that it is "his own fault" regardless of the facts. Lying about earlier (but non-existent) "notices" is a common practice in deceptive debt collection.
If the original threatening demand was deceptive (since they virtually never actually sue) why would you expect anything else they do to be less deceptive?
First of all, they are pretending or implying this is somehow linked to whether she will be "prosecuted" or not. Pay them off, and she won't be prosecuted, don't and she will. Yet they carefully don't say that, and if they did, they could themselves be sued or prosecuted for extortion.
It is entirely unrelated, and they have no input into whether there is any prosecution anyway.
Doesn't sound like there was even any evidence they had, other than they scared her into signing something, which is more useful in this type of con than as "evidence" of anything but duress through threatening to arrest her.
They claim they aren't collecting "debts", so they aren't covered by FDCPA.
They claim they "sue" but a WSJ article a few years ago could only find maybe 10 lawsuits, in eggregious cases and farmed out to other attorneys, out of millions of shakedowns.
So what is it? Just people calling and sending threatening letters, implying that if you don't pay them off, they will sue. Doesn't mean they automatically win, and they aren't stupid. They must not be suing all the time for a reason.
This type of shakedown works best with the young, and mostly is a shakedown of parents when their kids shoplift some trivial thing that isn't likely to get the DA interested.
What do you think they would do if your attorney sent a letter, saying "No". At that point, since she would be represented by counsel, they could no longer harass her but would be limited to contacting her attorney. They would move on to suckers with better odds.
If you want to spend a little money, paying an attorney to write that letter would buy you more.
The letter you have is probably real vague.
Without any written agreement stipulating it up front, you don't even know what that letter will say.
And their later response, demanding more money, may have retracted those terms.
Run it by an attorney to see if it's worth paying any more.
A letter from your attorney may buy you more than paying this nebulous tribute that can't be pinned down and keeps changing.
Agreements with people who engage in deception can't be trusted. You are paying for toilet paper.
They are after easy money, not a legal fight they might lose that could blow up in their faces.
Whenever a person commits, or attempts to commit a theft, that action may be considered both a crime and a civil tort. The retailer may request the state to file criminal charges and/or it may choose to take civil action seeking damages. This civil action is separate from and independent of any criminal action that may or may not have been taken. Regardless of the outcome of the criminal matter, the retailer may still make a common law civil damages request. This civil action is designed to work as a deterrent to future theft as well as to shift the tremendous cost of theft and the resulting security costs from the honest consumer (through higher retail prices) to the offenders who are creating the problem. The amount demanded by the business establishment for this civil action is not to compensate for the item, which may or may not have left the store, but for the act committed against the store. Whether the item was or was not damaged, or whether or not it was returned to the store has little, if any bearing on the demand amount. In your girlfriend’s case, the retailer did not choose to have the state file criminal charges against your girlfriend in addition to pursuing the matter civilly.
I do not know which state you are in and the law of each state is different. However, all states have civil theft statutes that allow retailers to request statutory civil damages for acts of retail theft, and most allow for damages above and beyond actual damages, even when the merchandise is recovered. Our letters do not say that your girlfriend owes any money and do not threaten criminal action, but instead request that your girlfriend pay an amount to resolve the statutory civil damages claim. The various state statutes impose civil liability for certain theft acts. If your girlfriend committed the act as you admit in your question, your girlfriend and/or her parents/guardians, should she be a minor, would likely be liable under the particular state statute. The store has the option to pursue the civil matter in civil court if your girlfriend chooses not to pay. The reason the store hired a law firm like Palmer Reifler is that it would like to resolve the civil claim through the settlement offer or civil demand process.
In most states, upon a showing of theft, a retailer may request actual damages, if any, and a civil penalty. This civil penalty reimburses the owner of the mercantile establishment for the loss of the stolen item for any amount of time and cost of business damages. In any theft incident, the retailer suffers business damages in the form of lost employee time, security costs for equipment and personnel, and loss of the item for the period of time that the stolen item was not available for sale to the public. Additionally, general loss control devices such as electronic article surveillance (EAS) and video camera systems can be amortized annually over their respective life expectancy and then divided by the average number of shoplift apprehensions to get a per stop cost. These could also be argued as additional actual damages.
If your girlfriend would like to speak about this matter and the potential for resolving the civil damages request in a no pressure setting, I would be happy to speak with her. She may also seek the advice of an attorney who would be willing to represent her for the civil matter. Alternatively, if not represented, she may call me at the toll free number listed on our letter or at (866) 875-6565 at extension 114. Lastly, I would be happy to offer her a compromise settlement amount. James F. Welborn, Jr.
This is NOT legal advice either but I would tell you to go to Hell if your firm tried that with me.
That being said, I do not believe in theft and I do believe restitution should be made based upon actual loses. The store adds cameras, security staff, those small white plastic electronic devices etc for security and pays for them irregardless of theft or attempted theft. And yes, as you pointed out, the store passes on the costs to the consumer in the form of higher prices. That means the store is NOT out anything, only the honest consumer.
Better yet, avoid Walmart altogether and buy from Amazon.com and avoid the higher prices, ability to steal anything at all and even get free shipping!
His reply is carefully worded for a reason. Not only is he the "compliance director" (and therefore his statements are in effect the company's statements), but he has to make his arguements without stepping into trouble, for himself, and for his company.
He says they are in the "civil demand" business.
He says state law in some states might allow a lawsuit, by someone.
He never says that someone will be them, or that their clients routinely, or ever, sue.
He says that one could argue that this is what someone might do.
He doesn't even say he is the one arguing that.
In more normal English, he is basically saying that they are in the business of sending letters demanding money, and arguing that you should pay them whatever they ask for.
He has not justified why "$200" or "$500" is a proper or fair "settlement". Nor has any communications you have received from them. These are amounts pulled out of thin air, backed only by nebulous arguments that "someone" might make, and even he hasn't argued they are "owed", or justified how these particular amounts were arrived at in your particular case.
Beyond that, although he implies more, he is careful to not directly threaten anything. He has to be careful of his own state bar code of ethics (NJ I believe), and of the fact that his company recently "dodged a bullet", defending itself from a lawsuit for violations of FDCPA by claiming they were a law firm and not a debt collector subject to FDCPA.
Everything he says must carefully maintain this premise, or he sets himself and his company up for another lawsuit on the same issue. Having taken this position, which sidesteps the FDPCA deception prohibitions, they can't back away, They are literally what they chose to call themselves: "law firm" or "collection agency", but whatever that is, they are subject to the matching rules that go along with their choice. The fatal choice for them is to mix up who they are or claim to be with what they actually do, and that mix-up can be as simple as a wrongly worded letter, or a wrong statement by an employee, subjecting them to the very laws they planned carefully to avoid.
In particular, if they tell you the amount is a "debt" or is "owed", they cross the line, whether they call themselves a collection agency, or a law firm. Thus all the "settlement" language.
No you don't. No court has ordered that she pay a dime to anyone, nor has any court decided she "stole" anything. Unless and until that happens, if ever, she does not "have to pay". You just have some company demanding some money, nothing more. Demanding doesn't make it owed.
And it's not even clear what "release" you get if you pay. You don't even have an attorney making sure any "release" releases her from "all claims", by both Walmart and this company, and their "heirs and assigns", with "no admission of any wrongdoing". What's to stop them from sending you this "release", and Walmart separately suing you anyway?
"She stole, it's illegal, those are the consequences get that part. "
Maybe, maybe not. It's all hypothetical, and so are the consequences. As for consequences, the only real consequences at this point are receiving demand letters for various amounts. As to whether she stole or not, again, no court has decided that. Or maybe her friend is the one that stole, and they have convinced her that she is responsible for her friend's actions. Doesn't make it a good thing, but doesn't make it some closed issue that "$200" or "$500" is "owed". Or maybe you pay that, and some other "accident" happens, and it goes to "$1000". Your "admission" that he refers to is irrelevant hearsay. You aren't in court, you aren't under oath, and if she was, you wouldn't be some "witness" to what she did or did not say. Nor is any payment made so far an "admission" of anything, any more than any offer they have made that you have not paid binding on them. This is all "just a settlement negotiation".
"What I am talking about it hiking her payment from te so called $200 settlement to $500 because of. 12.50 processing fee. "
It's their "processing fee" just like it's their "$200 demand" or is it a "$500 demand"? Or whatever else they think you are good for. Real convenient of them to tack it on, retroactively and without notice, AFTER getting your money. Looks like they have it all planned out, just to keep the game going.
From just a negotiating stance, if you always fold whenever the other side throws a tantrum, you will keep paying them to throw tantrums. You will NEVER complete any "settlement", and you are throwing money down a rathole.
"I don't care which way you spin it that's just to get them more money period."
As Mr. Welborn told you, they are in the business of demanding money and arguing that you should pay them. They have refined that process to a "high art", and probably mapped out their responses to everything that might happen (like a "processing fee" of their own making) to maximize their revenue.
At this point you have no offer worth the cheap paper it was written on, and all the "arguments" don't change a thing. They offered "$200 to settle", then yanked it and offered "$500 to settle" after you paid them toward the $200. Just because you thought it might be worth $200, doesn't mean it is now worth $500. "In for a penny, in for a pound" is one of the oldest of swindler axioms
You already had odds of being "sued" comparable to being hit by a meteor. You now have even less odds, so maybe you should sit on the porch and wait for aliens to land. They have to consider what some judge will make of their yanking the original "$200 settlement" and cluttering up his court with this crap, over some unproven and unproveable "theft", with equally nebulous "damages" that mostly consist of trumped up "attorney fees". They would have to actually hire an attorney, for what, a case likely to be thrown out, or ruled "settled" based on equity for payments already made, with no attorney fees added for wasting the court's time?
That's not the business they are in. They are predators, and like all successful predators, they don't waste effort, or take on risk that might be damaging.
Paying them has no value to you, unless this matter is settled with finality.
That's unlikely to happen unless you have an attorney represent you, since from your own experience, they have planned their reponses to keep adding demands.
With an attorney, odds are you have two responses, both with the same effective outcome:
1) Attorney writes letter, "I represent Ms. X in this matter". They go away.
2) Attorney writes letter, "Admitting nothing, my client is willing to settle for $X, in exchange for sign-off on enclosed release, by you and your client Walmart", Pay, they sign, and they go away. What is $X? No reason to make it more than the original $200 offer. What are they going to do? Turn it down, they get not a dime more, and you just have (1).
Throw more money at it, you just encourage them to keep demanding more.
They are in the business of "demanding" and "arguing".
It removes the aspect of intimidation from the "negotiation", which shifts the advantage substantially away from your adversary, who has more experience with negotiation by intimidation than you do.
It's not likely that Mr. Welborn will "argue" against attorney representation. This isn't some TV show where the detective asks the suspect "Why would you need an attorney if you're innocent?". It is a tenet of bar ethics, and not considered proper, perhaps even unethical, for an attorney to make arguments trying to convince a lay adversary not to seek representation by counsel. Furthermore, this is what any company or experienced businessman would do.
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