I sent the first Debt Validation letter to Financial Credit Services (FCS) and below is the poorly drafted, notorized response that I received from them. ********************************************** Affidavit and Assignment I, Jeremiah Bishop, being duly sworn, deposes and states that I am a custodian of records that were purchased from C.A.H. Inc., and is an authorized agent of FCS, Inc., herein called the "Assignor", which is doing business at P.O. Box 1211 Palatine, IL 60078 and that I am authorized to make statements and representations herein. Examination of the records maintained in the ordinary course of business show there is due and payable from: Account Name: Citibank Account Number: xxxx-xxxx-xxxx-xxxx Principal Amount: $979.00 Name: LD FCS File #: xxxxxx-01 File ID Number: XXX6 This account was hereby sold, assigned, transferred and set over unto FCS Inc., Inc. with full power and authority to do and perform all acts necessary for the collection, settlement, adjustment, compromise or satisfaction of said claim. Futher, the affiant states that to the best of the affiant's knowledge, information, belief and examination of this accounts records show there are no unaccredited payments, counterclaims or offsets as to said debtor. Further, the undersigned acknowledges that in make this assignment, FCS Inc. is now the owner thereof, and they have complete authority to settle, adjust, compromise and satisfy the same and that the assignor has no further interest in said debt for any purpose. Affiant: Financial Credit Services Date: 06/06/2007 Operations Manager: Jeremiah Bishop Subscribed adn sworn to before me this 6th day of June 2007 Notary Signature and Seal ***************************************************** From my research, it looks like FCS is really bad news. Plus, this account is really old (1991) so I want to sock it to 'em good. I'm not an expert, but the response doesn't seem to fit the requirement of a validation, but since they did respond, I'm not sure which letter would be appropriate to send next. Any help would be most appreciated!
If the account is from 1991 and nothing has reset sol,just inform them of expired sol and tell them to go away.
This notorized response was a scare tactic, designed to make you think they will "have you". If the debt is truly from 1991, then respond with the fact that their letter did not fulfill your request for validation of debt, (requesting proof that you are legally obligated to pay this debt, and that it indeed belongs to you.) Also request verification of their legal ability to conduct business in your state. State in your letter that this debt is past SOL for legal remedy, and that you will raise this defense should further collection activity continue. Detail that any reporting of this account to the CRAs will be taken as "continued collection activity" and a violation of the FDCPA, for which you will pursue legal remedy for damages. End with a formal request of "Cease & Desist" for further collection activity. But, be aware that with all the above done, they wil most likely just sell the account to another CA, and you may have to go through all of this again! So, if it is worth it to you, see if you can settle for some ridiculously low amount to put an end to this item. That is your decision, for the peace of mind of putting this fully behind you.
Just be careful... Make sure that they agree that whatever payment you negotiate is "Payment in Full" and completely satisfies the debt (I'm not sure what the legal wording for that is so, perhaps someone can help me out, here). Otherwise, they might settle with you and then sell the balance to someone else.
If the debt is from 1991 then it is Out of Statute in all but a couple of states, so why settle with them at all? Regardless, it is OOS as far as FCRA is concerned, so they can't (legally) put it on your credit file. The affidavit they sent you is all smoke and mirrors. All it says is they bought a debt and believe it is accurate. It proves nothing, since the person who made the affidavit is not testifying to anything that happened before they bought the debt. There is, however, a serious Chain of Custody issue they must deal with if they want to pursue this matter. Let's say they call you on the phone: Collector: Mr LD, are you going to pay this Bill? LD: No. Collector: You owe $XXXX LD: No I don't, I paid that off many years ago. Collector: Prove it. LD: Prove I owe you anything. Collector: We bought a debt. You owe that debt. LD: You bought a paid debt. I fought with OC many years ago to get the final payment credited properly. Collector: Then we will sue (FDCPA violation - cannot threaten suit on an OOS debt) LD: The debt is Out of Statute. Sue and I countersue. Collector: You can't countersue. LD: Watch me. Collector: Then we will report it to the Credit Bureaus and ruin your credit. (another FDCPA violation - it is too old to be reported and to get it on your credit file they would have to re-age it which is a FCRA violation) LD: Do it and see what I do. Collector: What will you do? LD: that's for me to know and you to ponder. All I can say it you will not like it. You get the idea. Stand up to them - the law is on your side.
The aff you received is a Chaudry response... Basically, ACA has over-simplified one ruling to make their members believe tht validation doesn't mean that they have to contact their client for anything. Just sign an aff, saying "Yep, you owe $xx.xx for account y, now pay up."
The only reason I offered the suggestion was to end the "reselling and fighting" side of the issue. You are absolutely correct about all of the legal aspects, but if it becomes a low enough dollar amount to make it go away forever, then that becomes a personal value decision. Also, if the debtor truly owed the amount, often there is the psychological value of paying it off, and putting it behind you. I know many of us have been there.......
Thanks for all the feedback. I did put together a letter that outlined many of the suggestions that were made. I politely thanked them for their quick response to my request, however, the Affidavit didn't provide evidence that I had a contractual obligation to pay them, that it only stated that they bought an account from C.A.H. Inc, who I never heard of or have done business with. I told them that to establish validity of their request for payment that they will need to provide the following: - Itemized account statements from the OC or; - Copy of the original signed Citibank loan app or CC application that bears my signature. AND - proof that said account has been assigned by Citibank to FCS. I closed with if they are unable to furnish the information, I will consider this matter closed and wish to have no further contact with their organization. Hopefully this is the last that I will hear from them. But if they somehow miraculously pull a rabbit out of their hat (or a signed app out of their @ss) I will play the OOS card. Thanks again! Lisa
Chaudhry I had to look up the Chaudhry case so, to save any other curious soul the trouble, the complete opinion is at http://pacer.ca4.uscourts.gov/opinion.pdf/981024.P.pdf. The good part is on page 13 and states: The bold text is what is often returned by CAs when they say they don't have to provide any more information than a confirmation in writing. The "unbolded" text, however says that such confirmation is sufficient if the OC has provided a running account of the debt and a description of every transaction. It always pays to go to the source document and to not take legal advice from the opposing party.
Forgive me, but I have a hard time wrapping my brain around legal stuff. Does this mean that FCS has no obligation to furnish proof through copies of the OC's statements or a copy of the loan or CC app that bears my signature? I know for a fact that this account has been sold at least three times because I have a validation letter that I sent to Merchant's Credit Guide in 2004 and I received a letter from another company about two months ago for the same account that offered me one of those deals where the balance owed would be the credit limit on a CC and when I paid it off, I would have a credit card. Yeah, right. I would think that CA have to show you some kind of proof. I mean, you're not going to just hand over money to someone without proof that you owe it.
Lazy CAs Some CAs like to use Chaudrhy to say they don't have to do anything but say that you owe them money. If you read just the bold part of Chaudrhy, you could see how they could come to that conclusion. However, the FDCPA (15USC 1692g(b)) says (emphasis added is mine): The full text of Chaudrhy agrees with this in that the CA obtained verification in the form of detailed records from the OC and passed them along to the Chaudrhys. Just a note from the CA (notorized or not), in and of itself, does not satisfy this requirement. Of course, you might need to settle this in court.
