I received a response to a recent validation request I sent to AFNI. The letter reads, in part: Now, obviously, this is not the validation I requested and that they are obligated to provide. Here's what I've got ready to go back to them. Of course, much of it is borrowed from other letters posted here on the board, and I'm thankful that others were willing to share. How does this look?
They are not required to provide what you are asking for. You need to read some more, and look at the actual case law that has been established. In most cases they do not need to provide original bills or any contract with your signature. They are supposed to obtain the information from the original creditor and provide it to you, but for the most part, printouts of account statements will suffice.
I'm not sure if what you have received is, or is not, valid in the eyes of the FDCPA. I would, in any case, suggest that you read the FDCPA and the supporting opinions and annotations for yourself and not take as gospel whatever downloaded, boilerplate letters you got off of the internet (even from this site). The fact is, to verify a debt in accordance with the FDCPA requires very little information. It does not require any "...other documentation, copies of any original bills describing the charges, as well as a copy of the original contract or document bearing my signature which established this debt.among other documentation, copies of any original bills describing the charges, as well as a copy of the original contract or document bearing my signature which established this debt." The LeFavre opinion is in reply to a CA that sent a copy of the CA's debt spreadsheet that contained the plaintiff's debt. That is NOT verification. The FDCPA says in 15 USC 1692g(b) that a CA may not continue collection activities on a disputed debt: Also, there is no statutory "30-day" time limit (in fact there is no time limit whatsoever) on when the CA needs to reply to a verification request. The only limit is that they can't continue collection activity between the time of the dispute and the mailing of the verification. To "corner" a CA into a violation after receiving a "you owe us money" letter, you need to: a) send a request for verification CMRRR b) after they have received the letter (and you have the green card), dispute the tradeline in the credit report(s) that show it. c) if they validate the tradeline to the CRA before they send you the information, that's an FDCPA violation (continued collection activity). They should delete the tradeline during this period. d) if they call you during this period, that is an FDCPA violation. e) if they delete the tradeline and do nothing for the rest of your life, that is NOT a violation of the FDCPA. f) if you get another letter from another CA after you've sent your request for verification letter, that is NOT a violation. It is just time to start all over again with a new CA. Finally, if you are convinced (after reading the statutes and case law, not just reading some posting on an internet board. Even this one), that the CA has violated the FDCPA, don't waste your time with strongly worded, "shape up or I'll sue" letters. IMO, those are a complete waste of time and postage. Sue them or don't. The letters (even the "I'm going to sue you" ones) go to some underpaid call center operator in a third-world country. The summons go to the legal dept. If you want to get their attention and get it fast, file a suit, pro se, in Federal District Court. It costs $250-$350 just to file, but you'll get their attention and possibly a couple of grand after the dust settles. (Make sure you have a solid case and solid evidence, first.) If you just want to annoy them back, file a suit in Small Claims Court for a couple of grand in statutory violations. They'll at least have to send a lawyer out to answer the claim and file the paper work. It all depends on what you hope to accomplish.
Hmm... that changes things a bit. I thought that full validation had to included an accouting of the charges, from the date of first delinquency forward. I also thought that they had to have some proof the debt was mine, which was usually in the form of a signed contract or similar. So, Let me fill in some backstory and see how far off base I am in the other things I've come to understand. This debt is from a cell provider. I have never had a CA initiate contact with me, they simply reported it to the bureaus. Years ago, I requested validation from the CA who had reported it, and received copies of every bill from the first delinquency and a copy of one of the initial contracts for the service. From that point forward, I have taken no action, and have received no further communiation from the agency. I intended to simply wait them out, as the debt was already 4-5 years old at that point. Fast forward to this year. The original bills I was sent showed the first delinquency was in October of 2001, and no payments were made since then. I pulled a report at the beginning of the month to see if it was still listed, and found it listed both with that agency and with a new agency, AFNI. The entries for this debt show that it will be another 2 years before it's scheduled to fall off. It was my understanding that the tradeline must be removed 7 years from the date of last activity, or in this case the date of first delinquency, since there were no payments made after that. Is that not correct? I figured the simplest way to start things with this new CA was a validation letter. The response I received is the one I described in the OP. My goal at this point is simply to get all references to this debt removed from my credt reports. What do you think?
If you go to court, then different, and possibly stricter, rules apply. For the FDCPA, the bar is pretty low. (Yet, some CAs still manage to go under it. Go figure.) Dispute the old agency trade line with the CRA. If they've sold or transferred the debt, they'll have to remove their tradeline. If you have some documentation that the DOFD is in 2001, then you can dispute this with the CRA showing that the debt is too old to report. The CA can still try to collect, which they can do until the end of the world or it's paid, whichever comes first, the CRA just can't report it on your credit report after 7 years. Some CA or JDB can sue you for it as well, however, you may be able to offer an affirmative defense of it being beyond the SoL. But YOU have to respond with that defnse. It won't just goes away all by itself. Then again, it might. With AFNI, their reputation is to push pretty hard, but they'll fold if you put up a fight. Re-aging the debt (changing the DOFD) is a common, yet illegal, practice. If you have evidence of that, you might try to "update them" with this evidence, or just sue them over it. Of course, if you sue them first, they'll most likely claim it was just a clerical error so my strategy would be to "inform them" first, then they can't fall back on that if they don't change it. You should do this through the CRA. Dispute the tradeline entry has having an incorrect DOFD and attach one or two pages of evidence showing this. If it gets corrected, it'll fall off when the time is up. In the process of correcting it, the CRA will notify AFNI of the error. If they reconfirm the later date, then you have them on a violation.
I have done this. The CRA at first sent a form letter stating 'already investigated', but after I called them they 're-investigated' and sent a response 2 days later saying it was verified. So, if my next step is to sue, I guess I need to know where to begin. (Seems like the faq linked in the stickies is no longer there?) I understand I should file in the local branch of the federal circuit court, as a small claims case, correct? Am I suing AFNI, Experian, Sprint, or some combination thereof? I would think all 3, since AFNI claims to have verified the date with Sprint, and Experian claims to have verified with AFNI, even after I sent experian copies of the original bills as proof of the date of first delinquency. Am I suing for statutory damages against each, in addition to correcting the dofd on this entry, or something different?
First, understand that when dispute with the CRA, all they do is ask the CA, "Is this correct?" and the CA says "Yes." Then, to the CRA the matter is closed and after that you're just annoying them. The CRA doesn't look into anything beyond sending what amounts to an e-mail to the CA. Second, the re-aging would be an FCRA/FACTA violation, however, unless you've suffered some tangible monetary damages (e.g. you lost your deposit on a home purchase offer or couldn't get as good of an interest rate on a loan), you really can't recover much if you sue over this. You could get them to delete and correct it and, if you file pro se, you might get court costs, and unless you can prove willful noncompliance (which you might if you've given them lots of warning), there are no statutory damages for FCRA violations like there are for FDCPA violations. So, you have to ask yourself what it's worth to you to proceed. You can file your suit in practically any court, but each has it's pros and cons. Federal District Court would get there attention and cost you $350 (or so, IIRC) just to get started. Small claims court costs much less, but may or may not raise any eyebrows. In my state, Small claims courts can only award monetary judgments so they couldn't demand that AFNI do anything but pay money. Who to sue? AFNI and the CRA(s) (and if you're like some, their officers, their families, their dead relatives...) but, the CA and the CRAs you disputed with should be fair game. However, before filing suit, you should do some research and see how previous suits went to see if you have a case. Good luck!
Again, my goal is to have the line removed from my report. If I don't make money from suing them, that's fine, but I'd rather not lose a bunch of money on it either. What does it take to show 'willful noncompliance'? I've disputed it with them, including disputing the exact date. I've sent disputes through the CRA twice, including copies of two bills which show the date the account first became delinquent. I can send the CA a copy of the front page of every bill from the date of first delinquency until the account was closed, but am not sure if I should provide them any information, since they're the ones supposed to be verifying that their info is accurate. So not the OC? Is there a faq or such around that discusses how to go about filing suit and what you need to prepare first? I would expect it to be pretty cut and dried that they're in violation, if I can show the original bills establishing date of first delinquency, wouldn't it?
I don't know of any such faq that discusses how to go about filing a suit or what you need to prepare first. I can tell you that the first step is to obtain an informational filing packet from the local federal court. Then you would do well to see if your local federal court has a Pro Se Advocacy office or not. A few do but most probably don't. If the court has one they can be helpful to you. Next I'd write up a complete history of what happened, when it happened and how it happened. I'd use my audio recordings of any phone calls that might have been involved use all of that to formulate my complaint. Then I'd start on my memorandums and tables of authorities. Once I had all that done then I'd start preparing my case. I'd start out by naming the defendants then establish jurisdiction then move on to my causes of action. Once I had that all done I'd prepare my summons and get that ready to go. I'd want to prepare notice of hearing and certificate of mailing. That should at least be the minimum preparation that I would need to do. It gets lots stickier after that.
That's where the research comes in. You'll have to rummage through some case law to find some examples and see where your experience stacks up. It's not clear they've done anything wrong or even have any business relationship with you any more (Depending on whether they hired AFNI to collect or sold the debt). The Federal Rules of Civil Procedure (while ginormous to read) are pretty straight forward and easy to follow (in that legal sort of way). If you want to take a shortcut, look for a case that is similar to yours (and there should be plenty with AFNI) and see how those were filed. A subscription to PACER Service Center Home Page will come in very handy. The good news is that the defendants in these types of cases rarely lift much of a legal finger on these cases. If your case has any merit, they'll try to bluff you into withdrawing and then if you don't back down, they'll offer a settlement to make it go away. Few go to trial. The few (with merit) that actually do go to trial can get pretty expensive for the losing defendant (especially if you have a high-priced law firm helping you out). Just make sure you follow the procedures. You don't want to lose on a technicality. If you put together a good, solid complaint. Things will happen.
Would it do any good to file a complaint with the FTC or the state attorney general? If I am not comfortable filing suit pro se, and decide to hire a lawyer, could AFNI be forced to pay my lawyer's fees as part of a settlement?
Filing complaint with the FTC will get you nowhere at all but filing with your state AG might. Worth a try even if it don't get you anywhere. And yes, if you hire an attorney they have to pay attorney fees if you win. If you want to hire an attorney I'd recommend getting a NACA attorney if at all possible.
