#1 Upon receiving a written request for verification from the consumer within the 30 day validation period, a debt collector must cease collection efforts until verification of the debt is sent to the consumer... Collectors do not have a duty to provide verification for requests received outside of the validation period. Thus, if a collector receives a verification request after the 30-day period has ended or before the validation period begins, the collector is not obligated to provide verification to the consumer, although he may choose to do so. Attitional information regarding requests for verification and what constitutes sufficient verification can be found in E-Compliance, document #75. Published March 16, 2007, ACA International. #2 Verification requests seeking items such as a contract bearing the consumer's signature, the debt ocllector's contract with the creditor, proof that the debt collector is licensed by the authorities of the consumer's state and other such material are commonplace. The consumers often allege that failure to provide the requested material would violate the FCRA, FDCPA and constitue grounds for a state tort claim. The letters demand that the debt be removed from the consumer's credit history and threaten suit should the collector fail to complay wihin a specified period of time. Oftenm these letters are sent after the FDCPA's 30-day validation period has expired, sometimes evenlong after the debt has been paid in full. However, such demands may have no basis in law. Thus, it is important to understand what is required under the FDCPA for proper verification and when such verification must be provided. ..."Verification of a debt involves nothing more than the debt collector confimring in writing that the amount being demanded is what the creditor is claiming is owed; the debt collector is not required to keep detailed files of the alleged debt. See Azar v. Hayter, 874 F. Supp. 1314, 1317 (N.D. Fla.), aff'd, 66 F.3d 342 (11th Cir. 1995) cert. denied, 516 U.S. 1048 116 S. Ct 712, 133 L.Ed.2d 666 (1996). Consistent with the legistlative history, verification is only intended to "eliminate the ... problem of debt collectors dunning the wrong person or attempting to collect debts which the consumer has already paid." S. Rep. No. 95-382, at 4 (1977), reprinted in 1977 USCCAN 1695, 1699. There is no concomitant obligation to forward copies of bills or other detailed evidence of the debt." ACA's FastFax Service, Last Updated 8-22-05. Document # 1126.
#1: The 30 day validation period begins when the consumer receives his letter notifying him of his right to dispute and request validation. http://www.ftc.gov/os/statutes/fdcpa/fdcpact.htm#809 "(3) a statement that unless the consumer, within thirty days after receipt of the notice, disputes the validity of the debt, or any portion thereof, the debt will be assumed to be valid by the debt collector; " Sometimes the reason a debt goes to collection because a consumer has moved. Mailing a notice to an old address might not result in its receipt by the consumer any more than mailing the original bill there would. Nor does mail that does not come back PROVE the consumer got it. #2: That is still not the same as just sending another letter saying "You owe it. This is all we have to send you." If the debt collector sent such a letter WITHOUT determining what the creditor is claiming is owed, what would that letter be? Since, even by the above definitions, it cannot be "validation", it can only be "continued collection", and "deceptive" at that. If the CA SAYS it was obtained from the OC, but it wasn't, then the same applies. Indeed, how can a CA claim they have provided "validation" or "verification" consistent with the "legislative history", when they have done nothing to ensure that either: 1) the proper consumer is being billed; and 2) the amount is in fact owed? This applies especially if the debt records were purchased from some othe CA, and not even directly from the OC. If the consumer knows otherwise, and calls their bluff and sues, the CA's own alleged "validation" would itself be evidence that they made no bona fide attempt to comply with the FDCPA validation requirement before continuing collection, when they had every opportunity to do so. CA letters derived from the ACA position are primarily of use in convincing unsophisticated consumers that they do not have any real right to validation of a debt they may not owe. The main problem, as you are probably already aware, is not collection of assigned accounts from OCs a short time after delinquency, but old accounts sold from CA to CA, with some of them taking "shortcuts" in skip-tracing, collection tactics and validation. Those shortcuts will result in collection activity against people who do not owe debts. The sloppy activities of some CAs was the starting point for the current versions of FCRA and FDCPA that we now have. A few letters sent thru the mail were never intended by Congress as some substitute for a finding of fact by a court, but they were intended to prevent most cases where CAs harassed consumers for debts they did not owe. The largest penalties and court sanctions have occurred when either CA or OC have systematically implemented policies similar to the ACA position, that only a cursory check is required, and that negligence has resulted in egregious but indefensible actions against plaintiffs. The ACA position is no excuse for this. The press has already gotten a wiff of these stories, and found that they sell. Just as the CC companies may find that egregeous credit terms such as "universal default" may bite them in the butt, CAs may find that using non-validation validation letters may result in Congress defining what it really meant.
This position goes against the basic premise of contractual law; to claim that all is required is the correct person and that they have not paid does not support a burden of proof that the consumer entered into a contract, and has therefore defaulted or broken the contract.
"There is no concomitant obligation to forward copies of bills or other detailed evidence of the debt." There is no obligation on the consumer to pay any debt under dispute that the CA has not validated sufficiently to show that it is owed. In fact, under FDCPA, failure to dispute may not be taken by a court as evidence that any debt is owed. Yet CAs will insist on being paid money they may or may not be owed without providing validation. No business, or government agency, would pay on such an unsubstantiated claim.
It's rather difficult to determine when the debtor receives the notice so most agencies will give 15 additional days to cover themselves, if the mail is not returned.
I can understand the position of the collection agency from the perspective that they are acting as an agent of the OC. In the best case, they are hired by the OC to collect on a debt the OC says is owed to them. What has been pointed out in other threads, however, is that who is responsible for the debt is not necessarily relevent to FDCPA violations. The FDCPA describes how a debt collector can (and cannot) go after debtors. If a collection agency doesn't follow the prescribed procedures, they can be in violation of the FDCPA regardless of who really owes what to whom. It also follows that, while a collection agency can comply with the validation described in 15 USC 1692g(b) when (quoted from the FDCPA): the debt collector shall cease collection of the debt, or any disputed portion thereof, until the debt collector obtains verification of the debt or any copy of a judgment, or the name and address of the original creditor, and a copy of such verification or judgment, or name and address of the original creditor, is mailed to the consumer by the debt collector. So the debt collector calls the OC and says: Does John Doe owe $1234 for Acct: 8765?" and the OC sends back a statement with John Doe's name and address and a balance due of $1234.00 (the verification) and the CA mails that statement to John Doe. The verification has been met. The Wollman letter says: Because one of the principal purposes of this Section is to help consumers who have been misidentified by the debt collector or who dispute the amount of the debt, it is important that the verification of the identity of the consumer and the amount of the debt be obtained directly from the creditor. So the creditor sends the statement with the person's name and amount on it. The debtor can see the statement, the address, and the amount and then decide if it's his or not. If it's not, (and I'm not quite sure, here), it would seem that the debtor would need to deal with the OC for fruadulent or erroneous billing or some other cause of action. Unless CA made a mistake in identifying the debtor, it's not the CA's fault if the wrong person was pursued. Wollman goes on to say: Mere itemization of what the debt collector already has does not accomplish this purpose. As stated above, the statute requires the debt collector, not the creditor, to mail the verification to the consumer. So, the CA can't just send a printout from their computer. That is clear, but sending just the last statement (and not a contract, etc.) would be sufficient. Is that sufficient for the FDCPA validation requirement? YES. BUT, is that sufficient to prove, in a separate case regarding the debt itself, that the debtor is actually liable for that contract? Probably not. But that's a DIFFERENT matter for a different case. I've been trying to find the reference, but I read somewhere if a consumer sues a CA for an FDCPA violation, the CA can't countersue over the original debt. Of course they could bring a separate suit for the debt itself, but, again, it's important to keep the responsibility for the debt SEPARATE from the violation fo the FDCPA. Of course, it's in the CA's best interest to obfuscate and confuse the two to make the alleged debtor not feel so self-righteous for having a viable cause of action against them.
If a CA HAS, in fact, obtained validation from the OC in response to a consumer's request for validation, why would they not send it, in a form that the consumer could recognize that it was, in fact, from the OC's records (a statement from the OC), but instead send some letter of their own creation with BS about why that was all they had to do? There is only one reason I can see: They never validated. If they never validated, why not?
That would depend on what the debt was, and what the nature of the dispute with the consumer was. If the dispute was over the amount owed, then a statement of the services provided, and the charges for those services, obtained from the dental provider, would support that. The statement would imply that there was a contract, possibly oral, regardless of whether there was a separate written signed contract. It might still not accurately determine the amount owed, if say, there were questions of payments made, insurance payments and agreed terms, etc. And if the consumer was the wrong consumer, it would prove nothing at all. Again, this case has the same problem as Ghaudhry, particularly if read as "that's all that was required in this case, so that's all that is required in every case." Chaudhry actually received written, itemized validation sent by the debt collector/attorney, obtained from the creditor/bank. The court's decision was regarding whether a failure to provide attorney billing, and future billing for charges not yet incurred, as part of that validation, violated FDCPA validation requirements. The court's excerpted definition of validation must be read in the context of the plaintiff's claim that validation lacking such details violated FDCPA. Neither of these courts set out to provide a general set of guidelines on what was and was not validation under FDCPA, usable in all circumstances. They were deciding specific cases, based on the circumstances of those cases. It was entirely rational in Chauhdry that the court did not find that the attorney violated FDCPA for failing to include billing information whether as privileged attorney/client product, or due to it not yet having been determined. It would also be entirely rational to support a dental bill with a statement of the charges, services, and dates of service. Neither of those cases supports the ACA position that the only obligation any CA has in all cases is to send another letter saying that the debt is owed.
the "computer printout" I was talking about was the summarized one that is sent by the collection agency, not a computerized invoice or statement from the OC. In the "spirit" of Wollman, the objective of the validation is to prove (or demonstrate) that the person being purused is in fact the person on the invoice. It does NOT establish that the person on the invoice has or doesn't have any contractual obligation with the OC, nor does it seem that it was intended to. What the validation requirement would do, is identify cases where further action is required (against somebody, but not necessarily the CA).
Furthermore, if in response to a request for validation, a CA sent ONLY a printout from its own computer, and a consumer then checked with the OC and found that no unpaid account was owed, or that there was no account in their name, would not that then leave the CA with not even a fig leaf in an FDCPA suit for deceptive collection? The above scenario is not just hypothetical. See, for example, some of the complaints against Afni, and the "validation" they are alleged to have provided.
Unless you notify this office within 30 days after receiving this notice that you dispute the validity of the debt or any portion thereof, this office will assume this debt is valid. If you notify this office in writing within 30 days from receiving this notice that you dispute the validity of this debt or any portion thereof, this office will obtain verification of the debt or obtain a copy of a judgement, and mail you a copy of such judgment or verification. If you request this in writing within 30 days after receiving this notice, this office will provide you with the name and address of the original creditor if different from te current creditor. http://thomas.loc.gov/cgi-bin/query/z?c108:H.R.3066.IH:
To use AFNI as a "worst-case scnario:" 1) AFNI gets a list from who-knows where and sends collection notices to whoever they see fit. 2) Unsuspecting person receives this letter and requests verification in writing. 3) AFNI, to abide by the FDCPA, must go to the original creditor (Verizon, for example) and obtain "verification" At a minimum it must contain: the name and address of the original creditor, and a copy of such verification and mail that information to the consumer. 4) OK, the original consumer gets that info and it lists an address that they never lived at. It seems that this was what the FDCPA verification was intended to flush out. But, the question that is not answered it, "so now what?" Do you respond to the Collection agency? Not if they've provided the requisite verification. If they haven't responded or sent one of the "incomplete or insufficient" forms of verification, then, YES, because they haven't done what they must under the FDCPA. But what do you do if they DO provide the verification AND it's not you? You might complain to them, but is it their problem? It might be if they are skip tracing to find you and it's not really you. Getting them to believe that might be more of a challenge. But it seems like any "mistaken identity" problems would need to be taken up with the OC, or whoever is responsible for the original debt. If the debt's been sold, then that's not the OC, anymore. I think that's where things get confusing: when the debt "belongs" to the CA (e.g. a JDB or something) When it can still go back to the OC, then the CA is just working for the OC so you need to work with the OC, I would think, to resolve mistaken accounts, fraudulent charges, etc. and the OC would square things away with the CA. When the CA actually owns the debt, then it goes back to them and in AFNI's case it looks like the fold up and blow away if you push back hard enough. It sucks that you have to push back, however.
" This office will ASSUME this debt is valid" I ASSUMED the Challenger would make it to orbit. I ASSUMED we would win in Iraq quickly I ASSUMED the Cowboys would make the Super Bowl So did I make the wrong ASSUMPTION? I think not!
Collectman, I'm curious as to why you posted this. You did not state your purpose behind posting this.
No specific reason, just found it in a stack of paper work on my desk. There have been a lot of questions recently about validation and verification so I thought I would re-type what the ACA thought for comments.
