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04.20.2004, 17:35
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Senior Member
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Testing 1 2 3
lbrown some newbies dont understand going to the threads you had posted so I copied and pasted for some to see hope you dont mind.
re: validation
Sometimes folks on CN suggest that one of the famous cases we talk about frequently, Spears v. Brennan, lays out what constitutes validation
. It does not, unfortunately. But this IS a critically important case for it DOES enumerate some of the components that DO NOT constitute proper validation.
It specifically talks about the statement of account. It also mentions that a copy of the contract creating the debt, although one of the components required in validation, does not, in and of itself, constitute proper validation;
target="_blank"> http://www.state.in.us/judiciary/op...260101.ewn.html
GREG A. SPEARS,
Appellant-Plaintiff,
vs. No. 49A02-0003-CV-169
TIMOTHY L. BRENNAN,
Brennan maintains, however, that there was no violation of the FDCPA because he “sent adequate verification of the debt [to Spears] in the October 30, 1996 notice of claim.” Brief of Appellee at 13. Specifically, Brennan claims that a copy of the consumer credit contract between Spears and American General attached to the notice of claim provided sufficient verification of the debt within the meaning of 15 U.S.C. § 1692g(b). We cannot agree. The contract in no way provides sufficient verification of the debt.
You are in fact entitled to see a copy of the original contract that creates the debt. But even if they do produce that, it still does not rise to the level of validation. In my opinion this is the starting point of their attempt to validate. I'll talk more about the original contract here in a minute, but for now let's stick with the statement of account.
The Spears case goes on to discuss what qualifies as a proper statement of account. Generally, we have hammered this issue to death and the general consensus is that a proper statement of account must meet the following;
It must be complete. In other words it starts on the day the account began (or at least from the date the first transaction occurred) and runs until the last penny on the last day was added to the account. This statement is critical because therein lies the exact date when the account went delinquent, immediately preceding a negative action, important verbiage from the FCRA. It must include late charges, fees, collection fees, atty. fees, interest calculations and most especially every single penny you ever paid on the account from day one. (If not, this may also be an FCBA violation for "Open Ended Accounts")
The statement must contain the dates for all these calculations
The total amount on the statement MUST match EXACTLY the amount they are attempting to collect - TO THE PENNY, unless additional fees can be assessed as permitted by state law and may outside the dictates of your contract.
The statement also MUST come directly from the OC. It CANNOT be a mere reprint of what the CA or collection atty. already have in their system of records.
It must have come from the OC within the 30 day period within which the CA must investigate. In other words, it must be FRESH, not some old item that's been laying around in their office for the last 5 years.
Again in Spears:
A review of the document reveals that it identifies only the terms of Spears’ loan, including a 17.99% annual interest rate and the original loan amount of $2,561.59. The loan agreement contains no accounting of any payments made by Spears, the dates on which those payments were made, the interest which had accrued, or any late fees which had been assessed once Spears stopped making the required payments. Indeed, the existing unpaid contract balance at the time Brennan sent the debt collection notice was at least $350.00 more than the original loan amount. Therefore, Brennan violated 15 U.S.C. § 1692g(b) when he failed to cease collection of the debt by obtaining a default judgment against Spears after Spears had notified Brennan in writing that he was disputing the debt but before Brennan had mailed verification of the debt to Spears. [b]We reverse the trial court’s entry of summary judgment in favor of Brennan on this issue.
I respectfully suggest that your next item of homework is to print out this case and study Spears word for word, with multi-colored high lighters.
Continued:
Butch,
"Fire is the test of gold, adversity of strong men".
se not to go to the trouble of looking for yourself.
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04.20.2004, 17:40
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Senior Member
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Join Date: Apr 2004
Posts: 1,022
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Testing 1 2 3
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".
-----> CREDITNET FAQ!
--> ArtOfCredit.com
--> What Is Validation! | Learn Your FCBA! | Rule Of "72" And Your Score!
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05.07.2004, 05:52
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Senior Member
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Testing 1 2 3
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05.15.2004, 21:33
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Junior Member
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Join Date: Dec 2002
Posts: 15
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Testing 1 2 3
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05.29.2004, 08:23
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Senior Member
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Join Date: Feb 2001
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Testing 1 2 3
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06.25.2004, 09:37
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Newbie
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Join Date: Jun 2004
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Testing 1 2 3
Hmmm...that's what I mean by overwhelmed!! *wink*
Okay, so the invoice was NOT validation. There is no social security number listed on the invoice, just my first and last name. In fine print on the back it says:
Unless you notify this office within 30 days of receiving this notice that you dispute the validity of this debt or any portion thereof, this office will assume that this debt is valid.
If you notify this office in writing within 30 days after receiving this notice this office will: obtain verification of the debt of obtain a copy of a judgement and mail you a copy of such judgement or verification.
If you request this office in writing within 30 days after receiving this notice, this office will provide you with the name and address of the original creditor, if different from the current creditor.
This is an attempt to collect a debt. Any information obtained will be used for that purpose.
(according to spell check, "judgement" is spelled wrong on the letter!)
Can someone link me to a "form" validation letter? That sounds like what I need.
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07.23.2004, 16:08
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Senior Member
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Join Date: Feb 2001
Posts: 17,877
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Testing 1 2 3
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07.25.2004, 14:15
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Senior Member
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Join Date: Feb 2001
Posts: 17,877
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Re: Testing 1 2 3
Validation & Estoppel letters 7-25-4
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
Here is the Validation Letter you want to send by CRRR.
Don't make any changes on it and don't hand sign it.
Your Name
Address
City State Zip
Company
Address
City State Zip
Date
RE: Account #_________/Original Creditor’s Name
Dear Sir/Madame:
Thank you for your recent inquiry. This is not a refusal to pay, but a notice that your claim is being disputed. This is a request for validation made pursuant to the Fair Debt Collection Practices Act. Please complete and return the attached disclosure request form.
Be advised that I am not requesting a "verification" that you have my mailing address, I am requesting a "validation;" that is, competent evidence that I have some contractual obligation to pay you.
You should also be aware that sending unsubstantiated demands for payment through the United States Mail System might constitute mail fraud under federal and state law. You may wish to consult with a competent legal advisor before your next communication with me.
Your failure to satisfy this request within the requirements of the Fair Debt Collection Practices Act will be construed as your absolute waiver of any and all claims against me, and your tacit agreement to compensate me for costs and attorney fees.
Sincerely,
Your Name don't sign
- - - Include the following on a separate sheet of paper - - -
CREDITOR DISCLOSURE STATEMENT
Name and Address of Collector (assignee): _________________________
Name and Address of Debtor: ____________________________________
Account Number(s): ____________________________________________
What are the terms of assignment for this account? You may attach a facsimile of any records relating to such terms.
Have any insurance claims been made by any creditor or assignee regarding this account? YES/NO
Has the purported balanced of this account been used in any tax deduction claim? YES/NO
Please list the particular products or services sold by the collector to the debtor and the dollar amount of each:
Upon failure or refusal of collector to validate this collection action, collector agrees to waive all claims against the debtor named herein and pay debtor for all costs and attorney fees involved in defending this collection action.
________________________________
Authorized signature for Collector
Date_______/_______/_______
Please return this completed form and attach all assignment or other transfer agreements that would establish your right to collect this debt. Your claim cannot be considered if any portion of this form is not completed and returned with the required documents. This is a request for validation made pursuant to the Fair Debt Collection Practices Act. If you do not respond as required by this law, your claim will not be considered and you may be liable for damages for continued collection efforts.
^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^
Send this letter next if you don't get validation in 30 days.
Estoppel Letter
DON'T CHANGE
Send CRRR
Your Name
Address
«City», «State» «Zip»
Company»
Address
«City», «State» «Zip»
«Date»
RE: Dispute Letter of <insert date>
Dear Sir/Madame:
As I have not heard back from you in over 30 days regarding my notice of dispute dated <insert date>, and you have not supplied the demanded proof of the alleged debt, under the doctrine of estoppel by silence, Engelhardt v Gravens (Mo) 281 SW 715, 719, I may presume that no proof of the alleged debt, nor therefore any such debt, in fact exists.
In a good faith effort to resolve this matter amicably, I restate my demand for proof of the debt, specifically the alleged contract or other instrument bearing my signature, as well as proof of your authority in this matter. Absent such proof, you must terminate this collection action and correct any erroneous reports of this debt as mine.
For the record, I state again that as I have no account with you, nor am I your customer, nor have I entered into a contract with you, I must ask for the following information:
Please evidence your authorization under 15 USC 1692 (e) and 15 USC 1692 (f) in this alleged matter.
What is your authorization of law for your collection of information?
What is your authorization of law for your collection of this alleged debt?
Please evidence your authorization to do business or operate in the state of ____________________ .
Please evidence proof of the alleged debt, including specifically the alleged contract or other instrument bearing my signature.
You have fifteen (15) days from receipt of this notice to respond. Your failure to respond, on point, in writing, hand signed, and in a timely manner, will work as a waiver to any and all of your claims in this matter, and will entitle me to presume that you sent your letter(s) in error, and that this matter is permanently closed.
Your continued silence is unacceptable. Either provide the proof or correct the record to remove the invalid debt from my credit files with the three primary credit-reporting agencies. You are currently in violation of the Fair Credit Reporting Act and the Fair Debt Collection Act.
Failure to respond within 15 days of receipt of this registered letter will result in a small claims action against your company. I will be seeking $____________ in damages for the following:
Defamation
Negligent Enablement of Identity Fraud
Violation of the Fair Credit Reporting Act
After obtaining the judgment against your company, I will obtain a Writ of Execution from the Sheriff’s office in your county and I will begin the process of attaching property or funds to satisfy the judgment.
For the purposes of 15 USC 1692 et seq., this Notice has the same effect as a dispute to the validity of the alleged debt and a dispute to the validity of your claims. This Notice is an attempt to correct your records, and any information received from you will be collected as evidence should any further action be necessary. This is a request for information only, and is not a statement, election, or waiver of status.
I affirm under penalty of perjury under the Laws of the Land for the United States of America, that the foregoing is true and correct, to the best of my knowledge and belief.
Sincerely,
Your Name DON'T SIGN
===================================
Quote:
Originally posted by lbrown59
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04.10.2006, 12:59
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Senior Member
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Re: Testing 1 2 3
Bumped
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