Hey guys (and girls), I've kind of hit a brick wall w/ a Nutcase I sent for a paid collection. I know that there is no true 30-day limit that I have to request validation but I can't find an FTC opinion letter that says so, nor can I find the case law. (And imagine the number of results I got when I did a search on "30 day validation"!) Anyway, here's the letter I received. I'm typing up my response and I would appreciate any documentation to back my argument against the 30 day LIMIT to request validation. Thanks! (the letter from the CA follows) ______________________________________ Dear Mr. Amish This letter is in response to you letter received October 17, 2003 in regards to the above reference account. My review of this account shows that CA sent their "first notice" to you on March 12, 2002. This notice informed you of your right to make a written request for validation within 30 days. There is no record of receiving and validation request within thirty days. To the contrary, the first communication from you was on October 14, 2002. At that time you called CA and indicated to a CA representative that you intended to accept their offer of settlement for $XXX.XX. You did not dispute this account in any manner. The account history shows that you made the payment on October 25, 2002. CA then closed out the account and marked it to be reported as paid the the credit bureaus. Federal law provides that a debt collector is not required to provide validation of a debt if the request for validation is untimely. Your request for validation was received over 16 months after the validation period expired. CA is confident that they are in full compliance with all state and federal laws regarding collection and reporting of debt. You are correct in stating that it would be expensive for an out-of-state company to litigate in your state, but the expense would not be borne by CA. Any action you would file against CA would be frivilous in nature and we are confident that a judge would require that you reimburse us for our legal expenses. I hope that I have adequately responded you your letter. Please contact me if I can be of further assistance. Sincerely, Joe Collector, Corporate Counsel _____________________________________ This was what I received after Nutcase 3. One thing that irks me is that I never received a response to the other 2 nutcases. It took the threat of legal action to get something from these guys. Although when he says my req. for val. was received "over 16 months" after the val. period expired, that clearly shows that they got my first two letters and decided to ignore them. Thanks for reading this long post guys (and girls!)
One more peach: Today I checked my EQ report.....this CA's listing is back on (this was the only report I success in getting it removed from). I guess now I wait a few days to see if EQ notifies me and go from there.
809(c) is what you're needing to look at, the only thing that happens on the 31st day is that they are entitled to the assumption that it is valid... How does this sound for a nutcase of the nutcase... "Dear Mr. Collector This is in response to your response to me dated XX/XX/XXXX, and received by me on XX/XX/XXXX. I have no knowledge of any alleged correspondence which you claim that CA sent on March 12, 2002. I hereby demand as a part of the validation requested previously, proof that CA sent the communications which you claimed in your correspondence dated xx/xx/xxxx to have been sent on March 12, 2002, and that this alleged communications was received. If you can not, or refuse to provide proof, I will have no alternative then to assume that your communications dated XX/XX/XXXX, and received by me on XX/XX/XXXX, was a false and misleading representation in violation of the FDCPA."
Right, I read through 809(c) and found the thirty-days merely allows a CA to assume that a debt is valid. I was hoping to find a case law or FTC opinion to bolster my claim that I am still allowed to request validation after the 30 days, even after remitting payment. I don't recall notification of my right to dispute the validity of the debt (although I didn't know my rights at the time anyway) in the first correspondance.
Just wanted to say that I finally found en EXCELLENT post on this subject so you all don't have to waste your time on this any more. Thanks to jam and lb though.
[color=0066FF]§ 809. Validation of debts (a) Within five days after the initial communication with a consumer in connection with the collection of any debt, a debt collector shall, unless the following information is contained in the initial communication or the consumer has paid the debt, send the consumer a written notice containing -- (3) a statement that unless the consumer, within thirty days after receipt of the notice, disputes the validity of the debt, or any portion thereof, the debt will be assumed to be valid by the debt collector;[/color] ... and later: [color=0066FF](c) The failure of a consumer to dispute the validity of a debt under this section may not be construed by any court as an admission of liability by the consumer.[/color] Isn't there a little play with the words here ... FDCPA doesn't actually say the debt is valid in any case. It doesn't even say that the debt could be assumed to be valid if the consumer does not respond in 30 days. It says that the CA must send a [color=0066FF]written notice containing[/color] ... [color=0066FF]a statement[/color] that the debt could be assumed to be blah, blah, blah ... They could assume the same way that you've been on the Moon all that time. Besides, how would the CA prove the date of the [color=0066FF]initial communication[/color], so they can prove they sent the letter 5 days from this date? BTW, did you send the letters CRRR?
http://consumers.creditnet.com/straighttalk/board/showthread.php?s=&threadid=38729 Sorry I didn't link to it.
Here's what I plan on sending, feel free to comment: October 27, 2003 Joe Collector, Corporate Counsel Kollekshun Ajensee 1111 Street Road Collectorville, USA 99999 RE: Account# XXXXXXXXX. Dear Mr. Collector This facsimile is in response to your undated letter received on October 22, 2003. Let me begin by saying that I am disappointed that you did not extend the courtesy of a response to any of my requests for validation until your silence forced the pursuit of legal action. Obviously, if one does the math using your stated â??â?¦16 months after the validation period expiredâ? one would come to the conclusion that you have received my earlier requests for validation of the alleged debt. While Federal law [15 USC 1692g (b)] does mention a 30-day validation period, you are incorrect in stating that, after said 30 days, I lost the right to request validation of this alleged debt. In fact, in the very next section of the Fair Debt Collection Practices Act [15 USC 1692g (c)] it states: (c) The failure of a consumer to dispute the validity of a debt under this section may not be construed by any court as an admission of liability by the consumer. You are correct in stating that â??Federal law provides that a debt collector is not required to provide validation of a debt if the request for validation is untimely.â? This is accurate because Federal law does not require validation of any debt to anyone, at any time. It also, however, provides that should a debt not be validated, all collection activities, including the reporting of inaccurate information to consumer reporting agencies, shall cease. Furthermore, I have no knowledge of any alleged correspondence that you claim CA sent on March 12, 2002. The fact that I was unaware of my rights under the FDCPA and paid $XXX.XX on October 25, 2002 in order to halt CAâ??s collection activities does not constitute an agreement, on my behalf, to the validity of the alleged debt. I hereby demand, in addition to the validation requested on three previous occasions, proof that CA sent the communications that you reference in your correspondence received on 10/22/2003 as having been sent on March 12, 2002, as well as a copy of said communication and proof of receipt. If I do not receive this information by November 14, 2003 I will be forced to take legal action. If you can not, or refuse to provide such proof, I will have no alternative but to assume that your undated communication, received by me on 10/22/2003, was a false and misleading representation in violation of the FDCPA. Sincerely, Amish B. Mad
Be wary here. If you sue, they may very well argue that your request for validation and your lawsuit are frivolous because your payment to the CA concedes your liability. Further, they might argue that your request for validation is moot since your payment suggests (a) that the debt exists; (b) that it is yours and; (c) the amount is correct. Your Honor, we contend that after Amish made payment, there was nothing left to validate. If they're successful in getting the Court to consider this, the Court may begin to look at you (the one with the burden of proof) as the bad guy and not the victim. If it starts to smell like that, the Court could very well award them costs and attorney's fees especially if they're out of state.
There is always the arguement that he just paid them to shut them up, under the good faith belief that when they received the payment they would remove themselves from his credit report... look at how many people are forced to pay accounts that aren't theres, or that are in disputes, just because they want to close on a mortgage...
Re: Re: Brick Wall Off to what is validation. I like SK's letter too. But I think you say a little too much SK. I wouldn't tell them they're correct about ANYTHING except when to take their next potty break. .
Re: Re: Brick Wall Wow thanks for that link Amish. I forgot about that one. I've been talkin about this for a year? ppfff, how time flies. .
Re: Re: Brick Wall Yes, there was great discussion on that post. Almost "sticky worthy" if you ask me.
Re: Re: Brick Wall 1*There is always the arguement that he just paid them to shut them up, under the good faith belief that when they received the payment they would remove themselves from his credit report... 2*look at how many people are forced to pay accounts that aren't theres, or that are in disputes, just because they want to close on a mortgage... jam237 ============== 1*Just cause something's paid don't make it legit. 2*Extortion Blakmail and rip offs at their finest. THE END ** *** ** LB 59 """"```--~~~~~~~~~--```'""'''
Re: Re: Brick Wall 1*There is always the arguement that he just paid them to shut them up, under the good faith belief that when they received the payment they would remove themselves from his credit report... 2*look at how many people are forced to pay accounts that aren't theres, or that are in disputes, just because they want to close on a mortgage... jam237 ****************** 1*Lots of reasons why paying something don't mean you really owed it. 2*Right : Paying a blackmaiker don't prove you owed it!
