Critical UPDATE ->

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Ok well, ... I did some serious digging around for you guys.

There are thousands & thousands of FTC Staff Opinion Letters, the vast majority of which are NOT online. So here's one that should be of profound interest to one and all.


In early 1980 a resident of Prima County AZ, received a dunning notice containing his notice of rights pursuant to § 809. Validation of debts [15 USC 1692g].

The consumer became confused about whether or not a written notice of dispute must be received within the first 30 days or lose their right to dispute at all. The consumer argued that the language in the dun was poorly written and implied something which Congress did NOT mean to imply.

• Side Note: If you've read my work on how Congress operates you would know this does happen from time to time. In fact Congress sometimes PURPOSELY injects ambiguity in law, but I digress.

Seeking clarification the consumer sent the letter to the Atty. for the Prima County, Consumer Protection Division, Mr. Stephen D. Neely. Counselor Neely, unsure of the vitality of the advice he might offer the consumer, forwarded a copy of the consumers letter and the dunning notice to the FTC. In his cover, he probably wrote something like the following;

• It almost seems to suggest that if a letter of dispute is not sent within 30 days of the initial notice, the consumer loses his right to dispute. Therefore, the letter is misleading.
  
  Can you provide clarification on this issue.

Unfortunately we donâ??t have the original dun sent to the consumer, or Mr. Neely's original request for clarification. BUT â?¦ it doesnâ??t really matter anyway, because the FTCâ??s response speaks [intrinsically] for itself.

Obviously Mr. Neely wanted to do the right job for his constituent, so he waited for the FTC to answer.

Staff Atty. Alan D. Reffkin's answer;

• 
  FEDERAL TRADE COMMISSION
  Washington, DC 30560
  
  April 29, 1980
  
  Stephen D. Neely, Esquire
  Pima County Attorney
  Consumer Protection -
  Economic Crime Division
  900 Pima County Courts Building
  111 West Congress Street
  Tucson, Arizona 85701
  
  Dear Mr. Neely:
  
  This will acknowledge receipt of your letter dated April 1, 1980 transmitting a copy of a dunning communication received by a citizen of Pima County, Arizona.
  
  In your opinion the communication misstates the language of the notice required to be provided by the provisions of Section 809 of the Fair Debt Collection Practices Act ("Act") and implies that if the consumer disputes all or part of the debt written notification to that effect must be sent to the collection agency within thirty days.
  
  We agree with your analysis, [that the letter is wrong]. Section 809(c) of the Act provides that failure of a consumer to notify the collection agency within the thirty-day period as provided for in Section 809(b) cannot be construed as an admission of liability by the consumer.
  
  However, the notice in question contains a contrary impression and as such, in our opinion, would be deceptive under Section 807 of the Act.
  
  Additionally the dunning letter fails to give the full notice required by the Act. For example, the notice required under Section 809(5) has not been provided.
  
  The comments furnished are informal in nature and as such are not binding on the Commission. Nevertheless, they do represent the staff's present enforcement position.
  
  Very truly yours,
  
  Alan D. Reffkin
  Attorney
  Division of Credit Practices

We can, if you want, have an analysis on this Opinion. It also [further] substantiates my position [that Iâ??ve had since DAY ONE] that if you get a letter from a CA or Atty, that says â??since you failed to dispute within 30 days, you canâ??t do it nowâ?, IS a violation of;

• § 807. False or misleading representations [15 USC 1692e]

Enjoy.



*****************************************

• PS1. There will ALWAYS be newbies who come along and ask about this 30 day "limit". You should refer them to the WIV Thread (linked at bottom left). Or you can send them here for the short version.
  
  PS2. JDP Pro Se, had a few comments about the WIV thread which indicated that if people followed it's advice he might be mislead about the 30 days.
  
  PS3. Or ... that Hiding90 kept insisting that after the 30 days we were POWERLESS.
  
  This should put the 30 day issue to bed, once & for all

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Thanx OT,

That's EXACTLY right Hedwig.


In fact we are starting to see more and more of this. Who was it that just had a thread called "CA lying about contacting me"?

Not only did the first CA do this but the second also.

However, all is not lost gang.

Here's the bottom line;

If dragged into court, the CA's assertion that "oh yes we did send the notice" is not sufficient to overcome your objection.

They must demonstrate, by a preponderance of evidence, that; 1) they had procedures in place designed to avoid a specific violation, and; 2) their employees adhered to same. So they must lay all that evidence out in court. A good case is Smith v. Transworld Systems Inc. (Unfortunately I can't find it online).


The systemic procedures they have in place MUST rise to the level of "reasonable".


Think about it. It's a HUGE pain in the butt, and very expensive for them to do all this, when they run into an informed consumer.

Demand their training manuals, depose their employees, managers and owners of the CA. discovery, interrogotories, admissions, stipulations, etc., etc., etc..

You could rack up $10,000 - $20,000 grand just having these guy's looking for documents from now till hell freezes over.

Trust me.

They'll be wanting to avoid this if you do it right.



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The US District Court for the Western District of Michigan held that a collection letter, which stated "Under the law, you have 30 days to dispute the balance," gave the false impression to the least sophisticated consumer that failure to respond in that time frame would operate as a waiver of rights under the law and therefore violated 15 USC 1692e (10)

Diamond v. Corcoran, clearinghouse # 48,404 (W. D. Mich. 1992.)

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TY Trish.

 

Doesn't that sound [virtually] identical to the Diamond Case Poochie?

But the language you used IS a little more "iffy". They do lay out the consequesnces, that they can assume the debts validity.

That is NOT an incorrect statement.

The violation comes in when the implication is made that you are not permitted to dispute after 30 days.





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Or that you lose the right to do so after 30 days.

 

Diamond is not Online.




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UUMMM ....

This is a thread about disputing AFTER 30 days.

Not whether or not the notice was sent or received.

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Re: Re: Critical UPDATE ->

LOL

Mahon did not lose his case just because Credit Bureau of Placer County waltzed into court and said;


"Yes your honor, we did sent the notice".


Under your logic ALL these types of cases would not need to be heard. They would just summarily judge against the consumer every time because, well after all, the adversary said so.


Maybe you need to go read it.

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Mahon, actually makes my point beautifully.

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Re: Re: Re: Re: Critical UPDATE ->