Continued:


Now I think we are in a position to get back to the original contract that created the debt in the first place.

One is perfectly entitled to see a copy of this contract. In fact, in my opinion, NOTHING needs to happen until they produce said contract. This is the beginning point of your demand for validation.

[ Side Note: Also, as silly as it sounds I would request the contract, as opposed to a copy of such. I heard of one case where the obviously very young and inexperienced CSR actually sent the original contract, not a copy. Probably a one in a million shot, but hey, who knows. ]


The FDCPA states:

§ 808. Unfair practices [15 USC 1692f]

A debt collector may not use unfair or unconscionable means to collect or attempt to collect any debt ... the following conduct is a violation of this section:

(1) The collection of any amount (including any interest, fee, charge, or expense incidental to the principal obligation) unless such amount is expressly authorized by the agreement creating the debt or permitted by law. PERIOD!!!


No contract, no payment, no negotiations - end of story. Thus is my approach to a CA or collection atty.

In Mecro's case I dare say the CA and collection atty. are hard pressed to come up with this information or they would not have been in such a rush to knock off $4,700 - so be it.

Also, "PSP IN NM" stated that Midland is undergoing a BK proceeding. In these cases it's tough for them to find their respective butt's with both hands let alone a contract from years ago. But a contract they must produce nonetheless.



After all, how does one know that;




The interest accrual is calculated according to the default provisions of said contract?


If the contract allows for collection fees to be included, how would you know if they are correct?


If the contract allows for atty. fees to be included, how would you know if they are correct?


How would you know if ANY of the items I listed as necessary components of a correct account statement are correct without seeing the contract?


How would you know that the contract allows for the OC to forward your personal financial information to a 3rd party for collection unless so stipulated - IN THE CONTRACT?


Etc., etc., etc.



Furthermore, without it they lack proper standing in judicio, (proper standing in court, federally speaking).

According to the Federal Rules of Civil Procedure (FRCP) you have a legal right to demand the original and they have 15 days to produce it or there is NO DEBT.


FRCP - Rule 1002. Requirement of Original

To prove the content of a writing, recording, or photograph, the original writing, record, or photograph, is required, except as otherwise provided in these rules or by Act of Congress.

FRCP - Rule 1003. Admissibility of Duplicates

A duplicate is admissible to the same extent as an original unless (1) a genuine question is raised as to the authenticity of the original or (2) in this circumstance it would be unfair to admit the duplicate in lieu of the original.


And again, in the Uniform Commercial Code (UCC) Section 1-201 (3)

(UCC) Section 1-201 (3)

"Agreement" means the bargain of the parties in fact as found in their language or by implication from other circumstances including course of dealing or usage of trade or course of performance as provided in this Act (Sections 1-205 and 1-206 ). Whether an agreement has legal consequences is determined by the provisions of this Act, if applicable; otherwise by the law of contracts (Section 1-103 ). (Compare
"Contract ".)


So as you can see law is replete with insistence that your right to see an original contract is carved in stone.

Although what does constitute validation is not clearly articulated in law or case law, and for very good reason, the burden of proof to which a collector or OC must rise, before discussions can even begin, is high.

A 3rd component is the agreement between the OC and the CA that names the CA as an "associated entity" and empowers them to even send you a bill in the first place. This element is necessary though, ONLY to the extent that it becomes necessary to deal with the CA. A CA's assertion that you have no choice but to deal with them is nonsense without this agreement. You simply have no reason to deal with them until you get your copy of same. My argument on this point is simple with them and goes like this; "If you insist I have an obligation to deal with you show me this agreement or I will NOT deal with you, no if's and's or but's about it. I hereby unilaterally terminate your association with this account and will be dealing directly with the OC". - PERIOD!!!

There are other factors involved as well. Is the CA licensed to practice in your state and in every other state within which collection activity was attempted, and is such license required in these states? In my state, Ohio, it is not, unfortunately.

Is the Atty. licensed in your state, or his own state, for that matter?

These factors, taken together with the fact that CA's are lazy, apathetic and generally not all that bright in the first place and you have the makings of a situation whereby you can prevail, if handled with the extreme care it deserves.

Which brings me to the next point I'd like to mention. In the good old CN days we used to take one fine point in the law and hammer it for days. We moaned, groaned, argued, posted case law, FCRA, FDCPA, FCBA, FTC Staff Opinions and argued some more. Sometimes issues culminated in a general consensus and sometimes they didn't. These are things I don't see that much of lately.

Kathycmh recently said; "I spent my entire Saturday digging through the law to find one thing". She continued; "I must be crazy".

No she's not crazy, she's dedicated, and in my opinion a prime candidate to become a credit correction champion. I see the same dedication from others as well. So sorry for not mentioning you here. But many need to get back to basics. I only know what I know because I studied hard and foresook many weekends.

Please take this comment in the true spirit in which it is intended. Just a gentle nudge to some to help stay on track, because I do know that if I can do it so can you.


In conclusion (thank God :))

I do wish I could just tell Mecro exactly what to do next, but I cannot. He/She has other things to worry about too. For example, just because they can't "seem" to come up with a contract or a statement doesn't mean this material doesn't exist and won't be forthcoming at the last minute. This is never a problem of course unless the debt is legit. I believe I can help Mecro best, and the rest of the board too, by outlining this general approach to validation. There's a heck of a lot more to this case than what is posted here so far but perhaps this is a good beginning.

If Mecro sticks to his guns and insists upon proper validation, continues with letters up to a point and waits it out, I bet they'll settle for FAR less than $3,000. At that point we have a payment strategy which should allow you to come back around, after the debt is absolved, and sue with an offer to drop the suit in exchange for a deletion.

I hope this helps.

:)

Butch,

"Fire is the test of gold, adversity of strong men".
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