Requested Validation, received response..need help!

Discussion in 'Credit Talk' started by Sheri, Apr 15, 2007.

  1. Sheri

    Sheri Active Member

    This is a never ending battle, I swear. To read the entire saga you can looking up a thread by me titled "Am I out of luck?"

    Long story short, there is this debt I had that was settled in Oct 2003 for $5000.00 with Direct Merchants bank, I am fairly positive i received something from DMB afterwards showing this, however 3 1/2 years later I do not have it.

    A law firm contacted in in January about this debt saying I needed to pay it, I did speak with them telling them it was settled (big mistake I am sure) and sent them a copy of the check from the bank, and 2 people said no problem it would be thrown out, well of course not, it wasn't.

    I have been working with HSBC NV (DMB) trying to get this taken care of, they finally took it off of my tradelines, they were still reporting, and they sent me a letter confirming this. In the meantime I received another letter from the law firm (2nd demand letter) and I then sent them a validation request (it said I had 30 days to dispute on both the 1st letter AND the 2nd letter.

    Well yesterday here is the 3rd letter I received from the law firm:

    Dear...

    This is in response to your request for verification of the above styled debt, dated March 19, 2007.

    As stated by 15 USC 1692(b), a consumers debt validation right persists for only thirty days after receipt of a communication containing the validation notice. Robinson v. Transworld 876 F. Supp. (NDNY 1995). You first contacted our office on Jan. 18th, 2007 to suggest, that you previously settled the account in August 2003 for $5,000.00 but had no proof that the payment made was actually a compromise settlement, as opposed to a payment on the account.

    As your right to request verfication of the debt has long expired, we decline to comply with your request.


    *****

    Um...what the hell is that all about? BOTH letters stated I have 30 days to dispute, and I did it within the time frame of the 2nd letter as well, I have the green card to prove it.

    What are my next steps? Are they required to verify or am I truely out of luck on this now?

    Thanks!!

    Sheri
     
  2. ccbob

    ccbob Well-Known Member

    It looks to me like they are trying to intimidate you.

    The Robinson case is a pretty thin citation since it was ultimately closed without much of a judgement:

    Robinson, et al v. Transworld Systems
    ORDER granting in part [21-1] Pltf's motion for Partial Summary Judgment on liability and that pltf is not bound by the Second Release; granting in part [16-1] Deft's motion for Summary Judgment in that deft did not violate 15 USC Sec. 1692e(10) and dismissing all claims that statements threatening further action constitute such violations and also granting an order pursuant to Rule 56(d) establishing that pltf's rec'd the 7/31 notice. All other issues properly raised in this motion, including the effect of the Second Release on Louis Robinson's claims, are reserved for the jury. (signed by Judge Rosemary S. Pooler) (jat)

    In fact, the judgement concerning 1962e has to do with False or misleading representations (rather ironic) and not 1692g Validation of debts.

    Tell them that if they want any hope of seeing any money, they can send you an accounting now for just the cost of a few photocopies or they can respond to your Motion for Discovery. Either way works for you.
     
    Last edited: Apr 15, 2007
  3. BellaRuss

    BellaRuss Well-Known Member

    Send them a follow up DV letter, acknowleging receipt of their response and noting its irrelevancy. Give them 15 days to respond, send it CMRRR. The proof is their responsibility, not yours, and that is the purpose of the law, and of the DV letter.
     
  4. Sheri

    Sheri Active Member

    Thanks!!!

    Is there a sample DV letter on the boards? Is there one you recommend?

    I am hoping this ends up falling into place for me. I have that letter from DMB/HSBC NV but I will only send that to them as a last resort, since it still doesn't say that the account was settled, it only says they are deleting everything from my tradelines, I am sure that still won't be good enough for this stupid law firm.
     
  5. BellaRuss

    BellaRuss Well-Known Member

    I don't have a sample letter for that, but you will be fine just sending them a modified version of the letter you sent already, mentioning their lack of proper response.

    Have you already done the basics: delete your old personal information from your three CR's, and disputing via the " inaccurate " letter to the CRA's? You could be getting started on this the same time you are working with the CA/JDB mentioned above.
     
  6. Sheri

    Sheri Active Member

    Thanks! I am horrible with words so hopefully I can piece something together.

    I was always meaning to ask this...I have read about old personal info on the reports, I have 3 address listed, is that a big deal? They are all accurate on there, we have just moved a lot because of my husbands job.

    This is the only one I have really disputed in writing, I did some disputes online and they were taken off my report, but I haven't done anything else besides this one in writing.
     
  7. BellaRuss

    BellaRuss Well-Known Member

    Sheri:

    Your old addresses are often/frequently used by the CRA's to verify any information on your file. If you want to significantly increase the chances that disputed TL's will remain, then of course you can leave them on your reports. However, if you want to dispute and delete your negative TL's, then remove your old addresses. Not sure what you mean by a " big deal ", but if the CRA's use it to keep negative TL's on your file, then it is a big deal, right?

    You don't need to piece together a new letter, just use the old one and adjust it a bit to fit the new situation.
     
  8. bizwiz41

    bizwiz41 Well-Known Member

    Can you, or have you, contacted DMB for a copy of a "settlement Letter"? I am sure they will still have it on file. I would look to them for a copy of documentation for this. That should settle everything.

    If you have the "green cards" to back up your written requests, I would include copies in your letter. This is an intimidation tactic.

    Also, check your state's legal Statute of Limitations for legal collection for debts. If you paid in 2003, there may be a chance this debt is past SOL, but you must raise this defense. This is a key item to look into.
     
  9. BellaRuss

    BellaRuss Well-Known Member

    Here is WhyChat's web site, which has SOL letters, DV letters, and many other valuable resources. There is no forum for discussion there, but the resources are invaluable.

    http://whychat.5u.com/
     
  10. Sheri

    Sheri Active Member

    I have been working with DMB for awhile on this, and in the "research" department that I have to work with to get this settled I can't actually speak with anyone, its all done by faxing. I was told that they were unable to pull up any information on my account since it was so old. If I have to I'll go back again and demand the settlement letter.

    I am not 100% sure what the SOL is in Wisconsin, I think 6 years, which in that case isn't up yet, but I could be incorrect.
     
  11. Sheri

    Sheri Active Member

    Ah, I understand now.

    How does one go about removing old address from my reports?
     
  12. BellaRuss

    BellaRuss Well-Known Member

    It depends on the CR. With EXP, which breaks the law daily by refusing to investigate incorrect addresses, you must write a letter and start a paper trail. With the other two you can typically call or write and tell them the address " doesn't look right ". They will follow the law and investigate which furnisher is reporting, and delete the address until it is reported again--if at all.

    Wisconsin:

    INTEREST RATE
    Legal: 5%
    Judgment: 12%

    STATUTE OF LIMITATIONS (IN YEARS)
    Open Acct.: 6
    Written Contract: 6
    Domestic Judgment: 20
    Foreign Judgment: 20
    BAD CHECK LAWS (CIVIL PENALTY)
    Amount of check plus actual damages + exemplary damages up to three times value of check. Limited to $300.
    GENERAL GARNISHMENT EXEMPTION
    80% of net pay.

    COLLECTION AGENCY BOND & LICENSE

    Bond: $15,000 min. License: Yes Fee: $1000 - Investigation $200 - Annual

    Exemption for out-of-state collectors:
    Out-of-state agencies do not need to be licensed if

    [1] collecting by interstate means (phone, fax, mail); and
    [2] collecting for an out-of-state client.
     
  13. Sheri

    Sheri Active Member

    Okay..getting ready to send this letter tomorrow to the law firm. Here is the letter I sent originally, obviously with my info filled in.. (Sample letter from the boards). How can I make this tailored to this situation? I want to to sound professional and everything I have tried to come up with, sounds the exact opposite :) The suggestions are wonderful but I just need some tweaking of what I need to put in there in addition, and where to put it in there.

    THANK YOU!

    «Your Name»
    «Address1»
    «Address2»
    «City», «State» «Zip»

    «Company»
    «Address1»
    «Address2»
    «City», «State» «Zip»

    «Date»

    RE: Account #_________/Original Creditorâ??s Name

    Dear Sir/Madame:

    Thank you for your recent inquiry. This is not a refusal to pay, but a notice that your claim is being disputed. This is a request for validation made pursuant to the Fair Debt Collection Practices Act. Please complete and return the attached disclosure request form.

    Be advised that I am not requesting a "verification" that you have my mailing address, I am requesting a "validation;" that is, competent evidence that I have some contractual obligation to pay you.

    You should also be aware that sending unsubstantiated demands for payment through the United States Mail System might constitute mail fraud under federal and state law. You may wish to consult with a competent legal advisor before your next communication with me.

    Your failure to satisfy this request within the requirements of the Fair Debt Collection Practices Act will be construed as your absolute waiver of any and all claims against me, and your tacit agreement to compensate me for costs and attorney fees.

    Sincerely,

    «Signature»
    «Your Name»
     
  14. ontrack

    ontrack Well-Known Member

    The above is a form letter that basically labels you as a consumer who pulls letters off the Internet. I don't see how any of the underlined sentences from it accomplishes what you want.


    "Thank you for your recent inquiry. This is not a refusal to pay, but a notice that your claim is being disputed. This is a request for validation made pursuant to the Fair Debt Collection Practices Act. Please complete and return the attached disclosure request form.

    Be advised that I am not requesting a "verification" that you have my mailing address, I am requesting a "validation;" that is, competent evidence that I have some contractual obligation to pay you.

    You should also be aware that sending unsubstantiated demands for payment through the United States Mail System might constitute mail fraud under federal and state law. You may wish to consult with a competent legal advisor before your next communication with me.

    Your failure to satisfy this request within the requirements of the Fair Debt Collection Practices Act will be construed as your absolute waiver of any and all claims against me, and your tacit agreement to compensate me for costs and attorney fees."



    Address your letter to the issues, in your own words, and keep it short and direct. Your audience is both the recipient, and possibly a court judge.


    You settled this debt in full by paying ck#nnnnn for $xxxx to YYY on xx/xx/xx. (If HSBC has acknowledged the settlement, include that.) They are attempting to collect on a debt you do not owe, and they have refused to provide any validation that any debt is still owed. Either provide validation thru competent evidence from the original creditor that an outstanding debt still exists, including proper accounting for all payments and settlements made, or cease collection and remove all credit reporting.
     
  15. jam237

    jam237 Well-Known Member

    #1 -- the only mistake you made in Jan was calling, instead of sending the dispute in writing.

    #2 -- You don't want to use sample letters, especially with a complicated dispute.

    Here's where they're in a caveat (but the case-law is a dual-edged sword.)

    Their letter said you had 30 days to dispute it, *THAT WOULD BE* a false and misleading representation; since now, in writing they're refusing to provide the validation that their letter originally said that they would send to you.

    Here's where the case-law cuts against us as well though; I've seen a few cases where the court has held that the second validation notice was extraneous. But, I'm not sure if the plaintiff argued that it's inclusion was a false or misleading representation.

    Also, if the letter from DMB states that the agreement was a complete settlement... Remember the cardinal rule, it's their job to prove the debt, not ours...

    ***** IF THIS WERE ME *****

    $350 (the federal court filing fee) is the cheapest resolution; when it gets to discovery *THEN* disclose the letter citing that the account was settled for the amount paid.

    Their false and misleading representations are...

    #1 -- that as of the 2nd notice, you still had 30 days to dispute.
    #2 -- that as of this letter, they are claiming that it wasn't settled for the full amount. IT'S NOT YOUR JOB FOR YOU TO PROVIDE THEM WITH THE PROOF OF THE SETTLEMENT. If they want to make it your job, they can pay you a $1,000.00 processing fee... :)

    If the two people you talked to in Jan would have put it in writing (THIS IS WHY YOU NEVER CALL); or you had MEMORIALIZED the conversation and sent it to them certified; you would have those employee's claims that that was the end of it as false and misleading representations too...

    You do want to track down the letter from DMB though, you will need it for evidence...
     
  16. Sheri

    Sheri Active Member

    I know thats my biggest mistake, and this sucks :(

    I guess I'll attempt to send them a letter CMRRR to them in my own words about this, and in hopes that they will end up dropping it.

    Would something like this be acceptable?

    Dear Sir or Madame:

    This is in response to your letter dated April 10, 2007 in reference for my request for validation.

    As stated in the letter I recevied from you dated February 26, 2007 I was given notice of my rights as a consumer, within thirty days after receipt of that notice that I am able to dispute this debt, and I did so within that 30 days of receiving the letter.

    I have settled this account with Direct Merchants Bank for $5,000.00 in October of 2002. Either provide validation thru competent evidence from the original creditor that an outstanding debt still exists, including proper accounting for all payments and settlements made, or cease collection.

    Thank you,

    Signed

    I hope you don't mind Ontrack, but I used your words you provided from your post.

    If you could check this over and let me know if this is an acceptable letter, I truly would appreciate it. This yet again is making me sick to my stomach, especially since I have turned my credit around now thanks to these boards and we are looking to purchase a home in the next 6 months.

    Thank you to everyone!!
     
  17. ontrack

    ontrack Well-Known Member

    Looks OK to me. Any comments, Apex?

    Since they created an ambiguity regarding their obligation to comply with FDCPA by sending two letters, it is your choice which letter your rights are based on. FDCPA is a consumer protection law, designed to provide consumers the right to dispute and request validation of debts. They should not benefit from the ambiguity they themselves created, or alternatively, they deliberately created it to deceive you, or they waived any right to assume the debt was valid 30 days after the first letter when they sent the second letter.

    Your position is that you requested timely validation on a debt already settled and no longer owed, based on the date of their letter. They refused to validate, and further said they did not have to, and could continue debt collection, in direct violation of FDCPA, and they further represented that they could legally do that to you, which would be use of deception to collect a debt.

    FDCPA dispute rights are inferred from FDCPA wording requiring them to send consumers notification of them. They sent you such notice, you relied on it. If their intent was that you would lose your dispute rights, as they now claim, then their second letter was deceptive, or their claim that you could now not dispute is deceptive, take your pick. (Attorneys might call this an issue of "equitable estoppel", but I am not an attorney.)

    All those arguments at this point should be saved for court. Your most direct path to assert your request for validation is to ignore the existence of the first letter, and refer to the date of the second letter, and the date you received it. Include a copy.

    Do they feel lucky?

    Might as well put it in writing, since you want no ambiguity should you have to sue under both FDCPA and FCRA. That is probably your next step, if you can't otherwise resolve this, after getting whatever you can out of HSBC.

    Having settled the debt with HSBC, what is this outfit even doing with it? That would be a breach of your settlement agreement with HSBC.

    Did HSBC sell it, or assign it?
     

Share This Page