There was no correspondance sent beforehand? A friend was served by a ca without ever being notified of the debt. I noticed on the paperwork they had the wrong address, but it is an address that she has never heard of therefore does not know why or how they had this. Also how do you think this should be answered? I cannot provide much information b/c all the summons says is that it is for a medical debt from 01 and a medical debt from 02, no other specifics and she does not really know what it could be for. She did call the collection agency after receiving the summons and tried to make a paymrnt arrangement and they simply told her no all or none. She also told them that she wanted proof of this debt and they told her they could simply provide her with an itemized printout, which obviously is not validation. ALL HELP IS APPRECIATED!!!
I see no reason why they can't sue her on the debt. Now, if she requests validation, I do believe that the CA should stay the hearing date (postpone it) until the CA validates. Excuse me for not having my case law database available this very second, but I do believe that was what Spears v. Brennan was about in part. Brennan filed suit, Spears requested validation, and Brennan "violated 15 U.S.C. § 1692g(a) when he scheduled the November 27, 1996 hearing on the debt collection claim and obtained a default judgment against Spears on that date." Not gonna do the cite, it is a popular enough case that someone here should have a link. Hey, maybe if she lets them get a default judgment, then they walk right into a Spears violation? I dunno...sounds a lot like it though! LOL good luck w/it.
The thing is she does not know enough about the debt to send validation letters, I mean what would she say, (and I am being serious not sarcastic) 'I am demanding validation of the debts that you filed against me for?'. I just sent a buch out on her behalf to this company b/c they are reporting a bunch of medical collections on her report but these amounts do not match any on her reports, but I guess it could be those plus fees and all, we really do not know.
Just a thought, food for thought if you will...ask them to validate: "any and all debts that are the subject of case #....filed with ......on (date)" Something like that, so it is clear that by going ahead with the litigation, they are conducting collection activity. This is really "rolling the dice" so to speak, because if she's wrong, it's a default judgment. I dunno, I just threw it out there cuz it is a Spears v. Brennan scenario...will let other post here as I have already been accused of being a "collection agent spy." LOL, good luck with it.
Isn't sending the 30 days to request the validity of the debt thing REQUIRED first? The mini miranda and all of that.
Good point, yes. Delivering a summons would certainly seem to qualify as making an "initial communication." Once the CA obtains the proof of service, then they KNOW that their initial communication is received and the 5 day window is triggered. That is how it seems...if you want me to look for some case law on the subject, I will see what I can find (if you want). Mention the state that I should be searching for as well, if you like. See, I don't see anything in the FDCPA that prevents a CA from filing suit and lettting the summons function as the "initial communication." However, it is clear that they have 5 days to mirandify (provide validation notice) after establishing that intitial communication.
We are in MS. She is to appear in court Mon. She definately does not want a default judgment, she has too many already and trying to buy a house. I am trying to help her file an answer, I have been helping her and her husband with their credit and know more about it than she does, which is not saying much.
>bump< for additional help... They will not provide the name of the original creditor (as required if you request it)? Want to countersue for $1,000? If all they have is a printout with a wrong address, they are fools to actually sue. Are you sure it is a real summons? Is suing considered "collection activity" which must be stopped during the validation period? Radi8
Hi T, Yes, your friend should have received notice of her val. rights. You didn't say whether or not this is listed on her CR, but if it is THAT is their intitial contact. So they'd already be in violation. If your friend has no idea what these could be for the only way she can respond is to demand proof of the debt as filed. She wouldn't be able to give more info. because she doesn't have it. You may be able to get through this with the "Wrong Address" issue, as per FCBA. Let us know.
Has she reponded to the summons? If not, she's staring at a default judgment. Medical debt is easy to collect. As Whyspers has pointed out a few times {and a lawyer I know that collects medical debt confirms} a computer printout and a statement from a health care provider that services were preformed on a certain date that matches the computer printout is all that is needed. The theory courts work under is that insurance companies accept computer printouts as proof of services rendered on a routine basis and remit money to providers. Courts will accept this procedure as well.
T The first thing I noticed in your post was the apparant lack of any prior attempt to communicate. Also, as others have pointed out, there appears to be no Mini-Miranda. This would seem to me to be a violation of FDCPA. The first thing I would suggest is to send a validation letter. The template letters that are located on this board are generic enough that no mnatter how the CA responds, it will allow your friend (or you) to file a followup validation to continue the process. Since this appears to be first contact, you friend has 30 days from initial contact to require validation. During this period, CA can not continus collection activities and that would include the filing for judgement. Just my thoughts and I hope this helps. fla-tan
I don't know about this. Anyone can sue...they don't consider filing a civil suit as continued collection activity and a request for validation does not prevent them from filing suit. One of the attorneys in my office does a little collection work (very little) and I just pulled up the summons and complaint that we use and it appears that we don't put a mini miranda on the pleadings. I dunno... L
Whyspers Without taking the time to look up the caselaw to be exactly sure, and I know that this is a state case, not Federal which also matters, but isn't default judgement for debt collection specifically covered in Spears v Brennan? I think, again going off memory, that the appeals court found specifically against Brennan because the court considered obtaining a default judgement while within the 30 day validation period continued collection activity. fla-tan
tnobles, Search on BumbleBee, this was exactly her situation, well her hubbies, only the summons did contain the mini-miranda -- there's some FTC opinion letters on that. Either way that's the initial communication -- it just doesn't override the court process or deadlines as I understand it so you get yourself on separate but overlapping date tracks. Don't miss a court deadline for the validation demands -- however, the validation deadline should fall within the court deadlines. Do search on BumbleBee, tons of good information. Don't let her call that CA again! Sassy
I just don't know, fla-tan. The collections he does is mostly like a company that rents to businesses and the businesses don't pay their rent and every so often it will be something like a contractor does work and doesn't get paid, etc. I don't really do any of this sort of thing, so I really don't know. It was my understanding, though, that the courts do not consider a lawsuit continued collection activity. I could be way off on this though. Has happened before L
http://www.ftc.gov/os/2000/04/fdcpaadvisoryopinion.htm FTC Staff Opinion letter regarding a summons being the initial contact. "If an attorney debt collector has had no prior communications with a consumer before serving a summons or other court document on the consumer, that document would constitute the "initial communication" with the consumer if it conveys information regarding a debt. The attorney would therefore have to include the written notice mandated by Section 809(a) (often referred to as the "validation notice") in the court document itself or send it to the consumer "within five days after the initial communication."" But I wonder if having to appear in court before her 30 days given in the mini-miranda overshadows her ability to dispute the information? Anyone have any thoughts?
