Ok so i sent a DV letter CMRR to this CA. I told them i dispute this debt and demand VALIDATION in the 30 day period. They totally blow me off and never reply or send any validation, verification or anything. Also during the 30 days i disputed the debt they never listed the trade lines as "disputed". 3 months later the lawyer that represents the CA sends me a dunning letter telling me he represents both the OC and CA!?!? (he proved that in the validation, it's true) He states since i refused to pay the debt he's pursuing a lawsuit to collect. I never sent payment because they never validated the debt. I send him a DV now, and he validates the living hell out of the debt, he's got contracts, dates, my signature, and a letter from the OC stating he's assigned by them to collect on behalf of the collection agency they assigned...the works. My questions are if the CA never validated the debt, and they were IN FACT assigned by the OC to collect and had this information freely available to them the whole time, why did they not send it to me? Why did they decide to send it to me only after the lawyer decided to come after me in a lawsuit? :roll: They are claiming i'm avoiding responsibility as the reason they are suing me, but the only reason I didn't pay was obviously because they never validated the debt to begin with. Isn't that shady? Does that not smell faintly like a violation? And lastly they never listed it as "disputed" on any of my credit reports that i have printed up from that time during the 30 DV doesn't that make 2 possible violations?
A CA does not have to validate, let alone within 30 days. It is true that they must note your CR that the account is in dispute. Since you are being sued that is a counterclaim. A lot of collection agencies are sending out dunning letters, the consumer disputes, they are forwarding it directly to legal for prosecution.
And that is illegal continued collection activity which should be immediately taken to federal court. Then when the lawyer contacts you by any means whatever that communication should be carefully examined for compliance and a demand for validation should be sent to the lawyer as soon as other conditions and requirements have been met. So what are those conditions? That depends on several factors. (1) Was the initial communication a letter or (2) was it a summons and complaint? If it was a letter and contained the full Miranda notification then a validation letter should be sent immediately. If Miranda was not present then wait 5 days and see if a second letter arrives containing the Miranda. If not then send validation letter. If the initial communication was a summons and complaint check to see if it contains the full Miranda and if so then prepare your response, any motions you might need to file, your certificate of mailing and your validation demand. If the summons and complaint did not contain the full Miranda and you have not received any other communication nor sent a validation letter wait 5 days to see if a second letter arrives and if not then file your response with the court and send everything else to the plaintiff's atty and include your initial discovery demands as well. If you are in small claims court you probably can't use discovery and it is vital that you get it moved out of small claims court and into district court by filing a counter claim against the lawyer and maybe the plaintiff as well. You also need to be wary of any affidavits that might have been filed in the case because if one is present it is probably phony and contains false and misleading information which can be used against the lawyer and the debt collector. The key to determining whether the affidavit is fraudulent or not lies in the notary public's signature as well as in what the affiiant has stated and how it was stated. Getting to the truth of that is probably far too involved to go into here.
No, i sent the lawyer the same letter as i sent the CA 3 months earlier. A DV letter that both asked to validate and that this letter is to dispute the debt. The lawyer validated. Now that he got that out of the way he's trying to serve me. But i think he's jumped the gun, because the CA he represents already violated my rights 3 months ago.
Ditto to what Cap One says. Also check your state's consumer protection laws. In my state, they have a very specific list of what needs to be in the initial communication.
excuse my ignorance but what is the full miranda they need to include? just so i can see if they included it in the validation he already sent me.
If you're even thinking of bringing a suit, you should read the FDCPA and whatever applicable state laws for yourself. The FDCPA is available online from the FTC website and the full "Miranda" is listed in the FDCPA under sub part 809(a). Your state's consumer protection laws are probably online as well.
Pleadings do not need to contain the "Miranda" notice. 807(11) The failure to disclose in the initial written communication with the consumer and, in addition, if the initial communication with the consumer is oral, in that initial oral communication, that the debt collector is attempting to collect a debt and that any information obtained will be used for that purpose, and the failure to disclose in subsequent communications that the communication is from a debt collector, except that this paragraph shall not apply to a formal pleading made in connection with a legal action.
Yes, I sorta goofed on that one. Federal Rules of Civil Procedure also agrees with that. The rule is that if the document is not a motion or a pleading it must contain the debt collector notice but of course not the full Miranda. So all such things such as discovery documents not actually filed with the court must contain the debt collector notice.
debt collectors notice newbie here.....what is the debt collectors notice as referenced in the above post and how does it differ from miranda? thanks
There are two different mirandas. One is the full miranda and says you have 30 days to dispute the debt and the other is called the mini which simply says this letter is from a debt collector and any information obtained will be used for that purpose.
