I have many accounts that went into arrears but with the help of family members I am trying to get things straighted out. Right now I need help with one CA. First let me say that I know in my state a CA is required to have a bond posted according to http://www.state.nj.us/treasury/revenue/collagency.htm I received a collection notice from LVNV Funding regarding a alleged account with Citi cards. I sent a letter for validation to them and also contacted my state at the above address. I have not heard anything from that state agency but did receive a letter today regarding validation. I am not certain that what they sent me is really validation. The first page says Resurgent Capital Services LP with an address in Greenville SC. It is dated 1-29-08 Previous Creditor: Citibank Current Creditor LVNW Funding LLC Account #___________ Balance ______ Dear (My Name) This account has been placed with Resurgent Capital Services LP Enclosed please find an original validation of the debt that verifies the debt If you have any further questions please contact one of our Customer Service Representatives toll free at 1-866-464-1187 Then it has the boiler plate about 30 days to dispute The second page says Validation of Debt January 29,2008 (My Name) Account number (edited) for (my name) acquired from Citibank is now owned by LVNV Funding LLC At the time the account was acquired from Citibank, Citibank advised that the balance owing was $542.65 Wince that the additional interest, fees, payments credits and offsets if applicable, have been allowed for a current balance of $587.85* * Please not that any additional interest, fees, payments, credits, and offsets made within the past 30 days may not be reflected in the above mentioned current balance The third page is a privacy notice page on behalf of their related companies. I'm not going to list them all but the blanket is "Sherman Companies" Added Info----I'm not expecting any response from my state regarding the bond info request because I've sent others to them in the past and never heard anything. Any ideas on how to track down a contact #?
So if I understand you correctly and what you said confirms what I've been told I need them to send me something from Citicards that shows the account information. If I further understand what I've read I should not contact them to inform them of their mistake but wait 30 days from the date of their mailing and if they pursue collections at that time I have a FCRA. I say 30 days from the date they mailed the letter because my original letter to them was not sent registered so I have no proof when they received it other than their dated letter to me in response to my request.
You'll need to send another request for validation to Resurgent, staing this was not full and proper validation (as received). However, I doubt Resurgent will ever send full and proper validation. You'll need to prepare for legal action against Resurgent. Also, knowing how Resurgent works, are you sure this is your debt?
I will send a new letter today or tomorrow. Should the new letter be sent registered? Also do they get another 30 days from the date of receipt of the new letter or is the clock still ticking? I am a little concerned about going to court over this because it is very likely that I did owe a debt to citicards but I don't know if the amount they are requesting is what is really owed. I know that for each violation of the FCRA I am entitled to damages of $1000.00 I am just afraid that if it goes to court a Judge will rule I owe them more than they owe me.
Always send CMRRR when dealing with a Collection Agency. As for the 30 day rule, technnically they do not have to respond, but they cannot continue "collection activity", which includes reporting to your credit reports, or verifying if you dispute. If you think this is your debt, there is a good chance you can settle this for less money, an offer of 50% would probably be accepted.
Keep in mind that the debt and the collection of the debt are legally two completely separate events. That you may or may not owe them money doesn't excuse any FDCPA violations. If you, in fact, owe someone money, they have to demonstrate that is the case and that they are the ones to collect on it (usually by way of a law suit if you really press the matter). Using the debt as a defense in an FDCPA case won't get them very far. Of course, they could file a separate action to recover the debt, if they felt so inclined, but that's just more legal fees for them that they may or may not recover. You have to decide how you want to play it. I don't thing the FCRA has a statutory damage provision like the FDCPA (unfortunately). For the FDCPA, whether it's $1,000 per action or per violation is still fuzzy. But, because it's fuzzy, if I were the defendant, I'd ask for it "per action" and let the judge decide...if it goes to a judge. You might look up your CA to see how they settle their cases. Most don't go to trial because it's cheaper to settle than to take to trial.
50% of what though the amount owed before they took the account or after they tacked on their fees? So I think my line attack on this problem is 1) Send a new letter to them CMRR saying I have recieved their letter but it does not meet the validation requirements 2) Pull my credit report and if there is an entry from them dispute it 3) If the dispute comes back as verified politely inform them of their violation and offer not to pursue the matter in court if they agree to remove all record of the this from my credit file
They don't need to attach an original contract. They need to show that you are the correct person, they need to show how the amount was computed (interest and rate, fees, etc) and that they are authorized to collect the debt.
To me authorized to collect the debt includes an original contract or billing statements from the original creditor along with the assignment contracts from original credit all the way down to debt collector.
Most of the case law is gearing toward a $1,000 per action for statutory damages. Some of the cases go as far as to say $1,000 per action in cases involving multiple defendants (which I think is clearly absurd).
Authorized to collect the debt means that it has either been assigned to or sold to them, it has nothing to do with whether or not the underlying debt is valid. This just proves that they aren't collecting on something that hasn't been assigned to them.
If they sue in court, they are effectively saying you have breached a contract. In order to collect on it, they bear the burden of proof that you did, in fact, have a contract WITH THEM, and/or that there was a contract between them and the original creditor that gave them the legal right to collect from you. In common law, there are three key elements to the creation of a contract 1. offer and acceptance, 2. consideration (services, loan, etc)3. intention to create legal relations"Best Rule of Evidence" states that ORIGINALS MUST be produced, except under very special circumstances. These debt collectors, in most cases, don't have the originals, because they aren't purchasing a valid debt. They're purchasing "Evidence of Debt."Some people say that the debt collector doesn't have to come up with this information. In a way that's true. If you are only going for FDCPA violations, the FDCPA rules are not very clear on exactly what is needed to verify the debt. However, local, state, federal rules, for the most part, say you need more than that. According to law, any party alleging to be creditor must:1. Prove standing (i.e. provide verifiiable proof that the debtor has a contractual obligation to pay debt collector)2. Enter the account and general ledger statement into the record through a competent fact witness.3. Follow FDCPA rules (state and federal). See Memorandums of Law: http://www.kapowwie.com/legal/cc/MemorandumsOfLaw.doc
However, it's not necessarily a written contract that is required. If they have proof that you signed sales slips, for example, that is considered that you have accepted the contract. These days, accounts are opened online with no actual signature. So there would never be a signed contract, but there is proof that a contract exists.
Those are good points. But even if they don't have a "written" and "signed" by hand contract, there is STILL a contract, and you did electronically sign that. The original creditor would have that information, and if they legally transferred the debt to someone else, that information would have to be transferred too, along with the general ledger info and affidavit by competent fact witness (someone who actually worked on the account on a daily basis). Most of these credit situations are already charged-off. Any signed sales slips would have been with the original creditor, with their name on it (account # or whatever) and your signature. There would be nothing on that signed sales slip to indicate that you owe to the debt collector, only the original creditor.
Exactly. They are to obtain the validation from the OC and forward it to you. The assignment or sale of the debt gives them the right to collect on it. But saying that you need a signed contract is not true. You need, as I originally said, proof that the debt is yours and that the entity making the claim has the right to collect on it.
You may be right that you do not need an original contact for validation purposes. I have not throughly researched it. I always insisted upon seeing at least the billing statements. However, no debt should ever be settled without seeing the billing statements and a calculation at how the collector (including a OC) came up with the balance.
In the United States the rule has been codified in the Federal Rules of Evidence as rule 1002: "To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules or by Act of Congress."How can they prove they have the right to collect on it, unless they can show proof that the debt was legally transferred to them (contract) and that you signed (electronically or whatever), gave them permission to, transfer that debt, in your agreement (contract) with the original creditor?The debt with the original creditor is most likely not in contention. Nor is the fact that there is a contract with the original creditor in contention. The question is now, WHO, if anyone, legally owns that debt? If the original creditor has charged it off, he has received compensation for it in the form of tax credits and insurance payoffs, and has done that willingly... accepting those amounts for recompense. If he now turns around and sells it as "evidence of debt", and does not legally transfer the contract, the debt collector is buying a "risk" on the hope that he can collect on it... illegally or not.Since "evidence of debt" is not real debt, the original creditor doesn't pass on the contracts and account and general ledger statements. All the debt collector gets is "copies" (not legal under the Best Evidence Rule) of things like monthly statements. In my case those monthly statements show only liability to the original creditor, and are clearly marked "duplicate statement" and "VOID."
