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When Is It a Good Idea To Use a Cease and Desist Letter In Massachusetts?
Cease and desist letters are a response to actions by an individual or business which is doing something wrong which affects you in some way. Common reasons for sending a cease and desist letter in Massachusetts includes incidences of bullying, intimidation, harassment, libelous or slanderous behavior, encroachment on your privacy or property, stalking, including cyberstalking and violation of intellectual property rights.
The use of cease and desist letters to prevent overzealous debt collection activity
In addition to the use of cease and desist letters in the above situations, they can also be used to prevent or control debt collectors who appear to be violating the Fair Debt Collection Practices Act (FDCPA). This is not the same as avoiding a legally valid debt, but to prevent a debt collector from acting obnoxiously or continually harassing you. In fact, some debt collectors can do some of the things already listed above, i.e. bully, stalk, invade your privacy, intimidate or even encroach on your property boundary in an attempt to get you to repay a debt.
The FDCPA was enacted to try and control the way debts are collected. The legislation prohibits “abusive and deceptive” actions by a debt collector, while at the same time providing ways in which debt collection by an individual, company should take place to remain legal.
The FDCPA also provides legal options for those who are being harassed or intimidated by a debt collector. The main avenue that the law allows is to send a cease and desist letter to the debt collector who must stop violating the law or face being sued.
As has already been stated, the law does not actually remove the debt. If you have a debt, you must still repay it, and sending a cease and desist letter could potentially backfire if the creditor decides to file a lawsuit against you for failure to repay your debt or the debt collection just gets transferred over to another collector.
The real value of sending a cease and desist letter to an overzealous or intimidating debt collector is that it gives you time to consider your finances and it should stop the harassment. You cannot sue the debt collector for violation of the FDCPA unless you have shown that you have already made the attempt to get them to stop. If you do go ahead with a lawsuit against the debt collector you should seriously consider hiring an attorney to help you prepare a case. Potentially, a successful lawsuit could result in compensation being paid out for psychological and emotional distress, lost wages, etc.
The court may also award you the right to recover a maximum of $1,000 from the creditor if a violation of the FDCPA can be proven.
The use of cease and desist letters to prevent an intellectual property violation
If you believe that an individual or business has infringed your intellectual property rights, a cease and desist letter may stop them in their tracks, or at least open the way to a lawsuit against the infringer.
A cease and desist letter used to protect your intellectual property rights should not contain too much information about the intellectual property you are actually protecting as this could be used by the infringer to avoid liability. Make sure that the letter goes by certified mail so that the date you sent the letter is officially recorded in case the infringer modifies the material they have been using in response to your letter. By recording the date, you are able to show how the infringer violated your rights before being told to desist if you then decide to proceed with a lawsuit.
If the infringer continues to infringe your property rights you may then decide to file a lawsuit against them, but before you decide to go ahead with a civil action you should get legal help from a qualified attorney. A successful lawsuit could compensate for lost profits and other financial damages.
Compiling a cease and desist letter
A cease and desist letter should ideally be sent by certified mail so that you have evidence that the person or business you have sent it to has actually received it. It is also worth sending an email in addition to the letter if you have the email address of the intending recipient.
Basic information which should always be included in every cease and desist letter, whatever the reason why you are sending it would include:
- your name and address;
- the name and address of the individual or business you are sending it to;
- what exactly you are demanding the recipient to stop doing.
Your cease and desist letter should also refer to any state or federal law that the recipient may be violating, why you think that they are violating them and what legal recourse you may take if the recipient fails to stop the action that has led to the cease and desist letter. For example, in the case of harassment by a debt collector, you would describe the actions the debt collector has been taking which you consider harassing, intimidating, bullying, etc., then refer to the clauses in the (federal law) FDCPA which specifically prohibits this sort of behavior by debt collectors and lists the actions which you can legally take against the debt collector.
It is important not to exaggerate, be dishonest or rude when compiling the cease and desist letter and be absolutely sure that you have evidence for the behavior or actions that you are demanding a stop to. Failure to do so could actually work against you and you may even be accused of harassment yourself by the very same person you have sent the cease and desist letter to!
If harassment or (in the case of violation of your intellectual property rights) continues despite receipt of a cease and desist letter you have several legal options such as a lawsuit as has already been mentioned to recover financial damages, or a petition in a state court for a cease and desist order and even in more serious cases of intimidation, a restraining order.