Re: Re: Re: Re: A little more on validation Butch, While I admire you and others who sue the CA's for violations, I am a bit more cautious. In the hypothetical you present, what violation(s) would you sue for? If the discussion proves that the CA does not have to provide verification if not requested in 30 days time, and no other violations exist, would you still sue? If the amount in question is, for example $3000, would it be prudent to take this position with only 1 or 2 violations? If the CA can validate for a court, you would only reduce your total by the amount you can get for violations, but would now have a judgment if the CA prevails in their claim. A few related questions to validation if I may. Many people state "I have a violation, that's $1000!". Am I incorrect in believing this is the maimum? The amount might be much less. I have also read many posts stating, "send DV, then dispute with CRA. If they verify with CRA they have violated." The FTC opinion is that they cannot place entry after receiving dispute within the 30 day period, but if already reported, must show status as in dispute. Also, the FCRA places a duty on the furnisher to investigate and provide a response. Is this truly a violation? Continued......
Re: Re: Re: Re: A little more on validation Here are some FTC opinions on the 30 day Validation period and related to the questions above. S. Joshua Berger 2) We interpret the "thirty-day period" as a period within which consumers must dispute their debts in writing in order to avail themselves of their Section 809(b) rights, but not as a "grace" period. Miller, 1978 â??As to whether you are required to state that the consumer has 30 days to dispute the debt each time you send a notice, the answer is no, provided you furnish that notice with the initial communication or send it within 5 days thereof.â? The time period is not extended by multiple notices. Fardell, 1980 â??With regard to the first issue, the statute does not assure the consumer that collection efforts will not be undertaken by the collector within 30 days after the sending of the 809 notice. The Act prohibits the debt collector from engaging in any collection practice (until verification of the debt is provided) once the consumer informs the collector in writing of a dispute. However, notification of the dispute must occur within 30 days from the day the consumer receives the notice. (Section 809(b). ) Thus, the consumer is required to trigger the cessation of collection efforts by informing the debt collector in writing if there is a dispute.â? Eckerle, 1981 â??While section 809 entitles the debt collector to assume the debt to be valid if no written notice of dispute is received within 30 days, such assumption of validity is, at least ostensibly, for the principal purpose of relieving the collector of the duties outlined in Section 809 (b). You will further note that Section 809 (c) prohibits a court from construing a failure to dispute a debt as an admission of liability by the consumer. Essentially, the Act only requires a consumer to dispute a debt in writing within 30 days if the consumer wants to be treated as specified in Section 809 (b); there are no other consequences for failure to do so. Finally, nothing in Section 807 (8) indicates that the only â??disputesâ? to which it applies are â??disputesâ? made in accordance with Section 809 of the Act. As such, we believe that the paragraph should be read literally; if the collector knows or should know that a debt is disputed, failure to communicate this fact along with other information regarding the debt would be a violation.â? Weiss, 1986 â??Section 809 (a) specifically requires that the consumer be informed that if he or she disputes the debt, verification will be provided..... In addition, Section 809 (a) requires the debt collector to inform consumers that they have 30 days from the date of their receipt of the 809 (a) notice within which to provide a written dispute or request for verification. Arguably, the proposed dunning notice in question could be construed to suggest that consumers must provide their written dispute or verification request 30 days (or longer) from the date of receipt of the 809 (a) notice. Consumers who act on that interpretation would lose their right to verification. That effect obviously runs counter to the intent of Section 809 (a).â? Luby, 1986 â??Finally, you ask whether you may immediately file suit without the necessity of a demand letter at all. There is nothing in the Act that requires you to send a demand letter prior to suit or that prevents you from filing suit at any time.â?
Re: Re: Re: Re: Re: A little more on validation Ok so if I can jump down here. So much of this stuff is short of court room precedent. Much of it has never been litigated. Any issue which is unclear is ripe for a court action. If you are a "least sophisticated consumer" the standard of behavior of OC's and CA's is very high. The success we derive with credit repair is NOT a perfect understanding of the law, your lawsuit, or your adversaries behavior. The success comes from, like I said, driving up the pain in the ass factor, the Nuisance Value, as Doc would say. Nothing is a bigger pain in the butt to these people than facing a lawsuit from a PO'd consumer. So things are just the way we want them. It's precisely all the ambiguity that exists is why we "need help in making proper interpretations". In other words, take your argument to a "trier of fact", which is a judge or a jury. YOU DON'T NEED A WINNABLE CASE TO FILE SUIT, YOU ONLY NEED A LEGITIMATE ARGUMENT!!! (and that does not mean file for no good reason) It's the trier of fact who must determine who's right and who isn't. In the CA world they know that they can get paid if they just outlast the debtor. If you remain persistent, and just keep hammering away you'll get your deletion. And that's why we're here. .
Re: Re: Re: Re: Re: A little more on validation Thanks for taking the time to answer my questions. Things are a lot clearer now. I couldn't see where you were going with this before, but now I believe I understand what type violations you are getting even when it "appears" they may be doing everything right. I forgot to mention something in the earlier post. Although I believe that the 30 day period is not extended, I would encourage everyone here to send the DV past 30 days anyway. I have been very successful getting CA's to remove entries and stop collecting with DV and follow up listing all violations. Many CA's either do not understand the FDCPA or don't want to spend large sums collecting a smaller balance as you suggested. I have never received a letter from CA stating the 30 days was past, but I think we will be seing this more and more from the CA's in the near future. But, now it is much clearer on what steps to take in this situation. Thanks again Butch, for clarifying all my questions. I really appreciate it.
Re: Re: Re: Re: Re: A little more on validation No Prob. I think it was Thomas Jefferson who once said: [color=blue=]"Empty the coins of your purse in to your mind, and your mind will fill your purse with coins".[/color] The smartest thing you [or anyone else on here for that matter] could do is go ahead and take it on the chin for $120 and get the NCLC Manual for FDCPA. The manual itself is about 900 pages, and then there's a CD Rom with at least another 2000 pages. I've never spent a better 120 bux. .
more on validation " ===================== *How ever if the CA avoids validating can't such avoidance lead to court?" -Yes I guess anything can lead to court. -But, using Butch's example, if a consumer is "late" in requesting validation, and they DONT really owe the debt, IF they filed suit (for delaritory relief for instance), a judge would likely say if they had it all the time, why wouldnt they send it to the consumer. -BUT, if the consumer was requesting "monetary compensation", there would be no law which would allow the judge to order it. -Additionally, if the consumer really didnt owe the debt, and the collection agency was served, I cant imagine they would WANT to show up in court, UNLESS IT WAS TO COUNTER-SUE -Which brings me to the point of the same federal laws which PROTECT us a consumers, CAN be used to SUE US, as consumers
more on validation Not all states require a collector be licensed. BUT, including this in the validation request MAY "preempt" the collector from collecting if they are required to have a license and dont. hiding90 ======================== This bring up an interesting question. Can an illegal enterprise create or generate a legally collectable debt?????
more on validation 1*-By them sending the info they did, it pretty much shows they are authorized to collect the debt. 2*A copy of the agreement (if with a client) that grants you the authority to collect on this alleged debt;" -This is considered "confidential" information or "business records" they DO NOT have to send this to a consumer. THEY DON'T EVEN HAVE TO SEND THEM TO A COURT UNDER SUBPOENA. (a custodian of records can bring them and testify FROM them) Hideing ================= 1*Not necessarily: for instance what if they had sold the debt to another? Another for instance the debt may have already been paid. Basically it just shows they have the info. It does not prove they have the right to use it or to collect. 2*You still have the right to know that they have the authority to collect on the alleged debt. If you don't know this before you pay you could end up paying it again if you paid it to the wrong party. -
more on validation 1*Hypothetical: Hiding 90 is a CA collection on a debt he alleges I owe. I demand val. after the 30 days, and he starts in with this business about that I can't do it because it's after 30 days. My Response: "OK A$$HOLE - SEE YOU IN COURT". CLICK!!! 2*The purpose of your validation rights is to avoid court. Hypethetical: I get Hiding (the CA csr) before a Judge, and he says: "Your Honor, yes we have had "proper" validation all along, but FDCPA doesn't require us to send it to the consumer JUST BECAUSE HE ASK'S FOR IT". Judge: YOU MEAN TO TELL ME THE CONSUMER HAD TO FILE SUIT WHEN ALL ALONG YOU HAD PROOF BUT WOULDN'T SEND IT, AFTER HE REQUESTED IT?!?!?! 3*I double guarantee you he will NOT like this. Butch ************************************ 1*I have done this twice with 2 creditors who refused to properly document their claims IE validate - prove. Here is how I got them into court. I simply sued them in small claims for the amount of the debts. 2* So how does it avoid court if they refuse to validate after the 30 days? Doesn't refusal have just the opposite effect? 3*If i was a judge I would like it so bad I'd rule against the OC/CA and for the consumer.I see no excuse for anyones refusal to provide proof of a debt. ><- <>- ><- <> ~~~ ><- <>- ><- <> ><- <>- ><- <> ~~~ ><- <>- ><- <> ><- <>- ><- <> ~~~ ><- <>- ><- <> ><- <>- ><- <> ~~~ ><- <>- ><- <>
Re: Re: Re: Re: Re: A little more on validation whoaaaaaaaaaa, LBrown I'm flying with ya!!!!!!!!! Sassy
Re: Re: Re: Re: Re: A little more on validation I think so! To NOT provide reasonable proof of a debt, whether within the 'validation period' or not, and to continue trying to collect from someone you KNOW doesnt believe the debt is valid (for whatever reason) to me, would be very detrimental to any argument the CA had in court. And it would be a good reason to GO to court in the first place. I mean, its just common sense.
Re: Re: Re: Re: Re: A little more on validation "2* So how does it avoid court if they refuse to validate after the 30 days? Doesn't refusal have just the opposite effect?" -"Refusal" infers there was a "duty" or "requirement" to reply. In this case, there is no such duty or requirement. "3*If i was a judge I would like it so bad I'd rule against the OC/CA and for the consumer" -MOST judges feel the same. Unfortunately, there is that little annoying thing called the law "I see no excuse for anyones refusal to provide proof of a debt." -"Again, refusal" infers there was a "duty" or "requirement" to reply. In this case, there is no such duty or requirement.
Re: Re: Re: Re: Re: A little more on validation "I had an MBNA account of $5400 go to collections and was contacted by a collection agency that i owe this money" -Was this the INITIAL COMMUNICATION from the collection agency, AND did it contain the validation notice as spelled out in FDCPA 809 (a) 1-5? http://www.ftc.gov/os/statutes/fdcpa/fdcpact.htm#809 "It is still with in the 30 day period and i am about to send them a validation letter" -See above. "there is the entry from MBNA saying it was sold off and sent to collections. My question i guess is if i end up settling with the CA will they be able to take off the MBNA entry or will they end up putting another entry on with there name instead stating it was payed in full." -The collection agency can only "change" their entry. They can "request" the original creditor to delete it however. Also, should i be going back to MBNA and trying to settle instead of the CA?" -You can. "Can the bad mark from MBNA be changed to positive or do i have to wait 7 years even if i pay it?" -Paid collection is the only hope you have if they dont agree otherwise "I just want to make it right but also want to be able to settle for the best amount i can." -Start negotiating lol "lately the CA made a couple threats concerning sueing me and garnishing my wages." -LASTELY????LASTELY THIS IS "FIRSTLY" !!! "I even heard one agent say in the backround that they had the lawyer on the phone regarding my right then and if i didnt pay them something they were gonna sue me." -JUST THE LINE "IF YOU DONT PAY RIGHT NOW WE ARE GOING TO SUE YOU" violates are least 2 secttions "The CA also contacted my parents after they had spoke with my wife and found out that i lived at the phone number they had called." -If this was for location info, it is not a violation. HOWEVER, if it was AFTER they HAD YOUR LOCATION INFO (and your not a minor) IT CAN BE A VIOLATION "They also called my work at two locations and told them to get a hold of me and call them after i had already spoken with them and verified my number" -Unless you tell them not to call at work, or they somehow "know" you cant get calls, it is not a violation, YET "They also called my house 3 times in a short period of time when my [wife] hung up on them after she told them to talk to me. Are these violations? what can i do? " -Probably not since it was a "phone error" -MY LORD SON...you appear to be better off than you thought LOL -The best reaction to a collection agency threatening to sue you, is to respond with a sumons lol
quote: -------------------------------------------------------------------------------- Doesn't refusal have just the opposite effect? -------------------------------------------------------------------------------- 1*I think so! To NOT provide reasonable proof of a debt, whether within the 'validation period' or not, and to continue trying to collect from someone you KNOW doesnt believe the debt is valid (for whatever reason) to me, would be very detrimental to any argument the CA had in court. And it would be a good reason to GO to court in the first place. I mean, its just common sense. crowmom ~~~~~~~~~~~~~~ They can't collect untill they do provide it. ><- <>- ><- <> ~~~ ><- <>- ><- <> ><- <>- ><- <> ~~~ ><- <>- ><- <> Re: Re: Re: Re: Re: A little more on validation
quote: -------------------------------------------------------------------------------- Doesn't refusal have just the opposite effect? -------------------------------------------------------------------------------- 1*I think so! To NOT provide reasonable proof of a debt, whether within the 'validation period' or not, and to continue trying to collect from someone you KNOW doesnt believe the debt is valid (for whatever reason) to me, would be very detrimental to any argument the CA had in court. And it would be a good reason to GO to court in the first place. I mean, its just common sense. crowmom ~~~~~~~~~~~~~~ They can't collect untill they do provide it. ><- <>- ><- <> ~~~ ><- <>- ><- <> ><- <>- ><- <> ~~~ ><- <>- ><- <> Re: Re: Re: Re: Re: A little more on validation
