Wednesday, May 27, 2009

Monterey Financial/ Desando's Deal With The Devil

We received the following email today:

Mr. and Mrs. Poggenburg signed a legally binding contract (attached) with our client, Be Productions, in May 2008, and as this is an assignable contract, Monterey purchased the contract later that same month. Mr. Poggenburg himself provided a copy of the contract he and Mrs. Poggenburg signed on 5/8/09, and clearly typed at the bottom of the contract is the cancellation clause. As this clause indicates, the account may only be cancelled in writing within 3 business days of signing the contract and therefore remains open. This was a “3-pay loan” and again, as the contract clearly shows, the Poggenburgs agreed to make 3 monthly payments of $1165.00 to pay off the loan. The first was taken directly by Be Productions on May 8th when the contract was signed. Mr. and Mrs. Poggenburg then gave their authorization to run their credit card for 2 more drafts on June 8, 2009 and July 8, 2009. After Monterey Financial purchased the contract, the 2 additional payments were drafted for $1165.00 each on June 10, 2009 and July 10, 2009 to pay the account in full. The Poggenburgs signed up for this service through Be Productions and their affiliates over a year ago and have had all services available throughout this year. Only now are they disputing the contract, over a year after signing. Liz Brainard (Customer Service Lead) and Barry Falck (owner) contacted Mrs. Poggenburg directly earlier this month to explain all showcases and classes and to get her daughter enrolled. Mrs. Poggenburg ended up hanging up on Liz and Barry. On May 20, 2009, our merchant provider received chargeback notification after the Poggenburgs disputed both the June and July payments with their credit card company. Because of that dispute, the account is currently over 11 months past due (351 days exactly as of today). I had previously explained this information in an e-mail to the Poggenburgs, as had multiple representatives done so by phone when they had called our office previously. Unfortunately, without adequate payment arrangements, we may be forced to send this account on to a collection agency for the full balance due to the severity of the delinquency. This could potentially have a negative impact on both of the Poggenburgs’ credit. Our goal is to prevent that from happening, which is why I have urged Mr. and Mrs. Poggenburg to contact our offices right away to set-up arrangements. They can use our toll free number, 877-399-6374, to make payment arrangements and can also use Be Productions’ toll free customer service line, which is 800-974-9178, to go over any service issues and to readdress the benefits the contract has to offer their child, which is why they signed up to begin with. They are also welcome to contact me directly with any questions or concerns. Thank you.

Brooke Potthoff

Finance Manager

Monterey Financial Services, Inc.

(800) 456-2225 ext 4301

This was my response:

Ms. Potoff,
Thank-you for clarifying Monterey Financial Services connection with Be Productions as I can use this in further complaints that will be issued. I also strongly advise,that if you are quoting 3rd parties (i.e. Barry Falck) you will look more professional if you can substantiate your claims. Also the fact that you have failed to give our family the opportunity to dispute in writing your claim is also unfair.Some how my communication with you has failed. I have stated more than once (you have it recorded!)..WE DISPUTED THE CHARGES WITH CITIBANK..YOU HAD 60 DAY'S TO ANSWER THAT DISPUTE!..THE FACT IS THAT INSTEAD OF JUSTIFYING YOUR ACTIONS YOU HAVE DECIDED TO COME AFTER US! WE DO NOT HAVE THE MONEY..CITIBANK IS HOLDING IT..IF THERE IS SOMETHING YOU DO NOT WANT TO DISCLOSE TO CITIBANK..THAT IS NOT MY PROBLEM..IF YOU OR BE PRODUCTIONS DECIDED NOT TO DISCLOSE YOUR ACTIONS..THAT IS NOT MY PROBLEM.


Opinion from a former staffer:

--I've done my research, and the do have a very good remedy via a compliant filed with the Labor Commissioner. I could not recall the number of the bill you worked on, but the code section that was amended is Labor Code Sec. 1701 et seq. That law requires all "advance fee talent services" to post a bond which the Poggenburg can file a claim against. If the agency did not post a bond, they can be subjected to prosecution by the Commissioner, the contract is voidable at the election of the Poggenburgs, which gives them a claim in Small Claims Court, and even an Unfair Trade complaint (B&P Code 17200 et seq.) if they were so inclined. The first step, however, is a compliant filed with the Labor Commissioner.

I have one question. I read the blog and it seems to indicate that the received a refund as a result of a dispute they filed with their credit card agency. Is this true? Perhaps I read it wrong, but, if this is the case, they no longer have a cause of action for damages. They can, however, still file a complaint with the Labor Commissioner. The Labor Code includes several mandatory provisions enforceable by the Commissioner that I suspect were violated. The Commissioner can fine the company and take other punitive steps for these violations.

Lets not lose focus of my original complaint and breach.

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