California OC's validation

Does that mean only if you and the OC are in California, or is it just the OC that has to be there? If so, what do you do when the OC doesn't validate?

 

NervousNuB,

OC's are exempt from the validation requirements --they do have to abide by the State's FDCPA, just not that particular section.

Sassy

 

Actually, I don't believe that you're correct here. California state laws are more stringent than Federal laws and generally when in conflict the statute that gives greater protection wins. This is clearly spelled out in the FCRA and is alluded to in the FDCPA.

 

California's statutes afford protection to those who have a mailing address in California.

It's definitely worth taking the time to check into your own state statutes to see if there is anything that might be helpful to you. I have had great success utilizing state statutes.

 

Re: Re: California OC's validation

and

California's statutes exempt OC's from the validation requirements of California's civil code.

OC's do have to abide by all other aspects of CA's statutes, just not validation, that is specific to 3rd party collectors "debt collection agency" in California.

The definition does not include original creditors.

State law can never trump Federal law, but California doesn't try to anyway, it specifically exempts original creditors from the validation provisions of it's civil code.

I'm sorry you've received inaccurate information and decided to reply upon it without checking for yourself.

Pages 3/4, A summary, from the California Department of Consumer Affairs:
http://www.dca.ca.gov/legal/dc_2.pdf

California's Civil Code:
http://www.leginfo.ca.gov/cgi-bin/calawquery?codesection=civ

Check for yourself.

Sassy

 

Re: Re: Re: California OC's validation

My fault for being unclear.

You are absolutely correct that 1692g is not included in the CA statutes. This is not the statute I use to demand validation.

I use CCRAA 1785.30 to demand validation. (Before you go off on me, I know that it does not say that a creditor must provide validation, but it does say that a creditor must acknowledge and investigate a consumer dispute addressed directly to a creditor. I understand that this may or may not be the same thing as validation.) It has worked EVERY SINGLE TIME that I have used it -- because a creditor did not address the dispute (i.e., validate in any manner whatsoever), the CRAs have deleted whatever derogatory info I have been disputing. Once again, this has worked several times.

I have not had to even threaten to sue, so I'm not sure how well my dispute = validation argument might work in court, but frankly, at this point I don't care.

And finally, state law does not trump federal law -- I once again was unclear. From the text of CA AB 969: "A state law is not inconsistent if the protection such law affords any consumer is greater than the protection provided by the federal Act." I.e., if the intent of the federal and state law is the same, but the state law provides greater protection, then the consumer is afforded the greater protection of the state law.

I have a feeling that Sassy and I aren't going to see eye to eye on this one -- and that's okay. My basic point was that consumers should not ignore their state laws when fighting the fight.

Sassy -- you are incredibly knowledgeable regarding consumer law and I always read your input with great interest.

 

Re: Re: Re: Re: California OC's validation

Merlin,

We don't need to see eye to eye, I'm not in California. I only wanted to clarify the common misconception that in those state's that subject OC's to their FDCPA that it includes the validation provisions -- OC's are specifically exempted, in all states and if you understand the intent of validation you can clearly see why. That doesn't take away their responsibilities under the FCRA however.

I wish more states would look to California as a model.

Use your statutes too, that provide for specific notification before something is furnished for reporting to the CRA's. That is also provided for all of us under the newly amended FCRA, the provision isn't yet effective however.

Use a sure thing when you can, Merlin, bluffing may backfire, the protection you are looking for exists, just in other laws.

Sassy

 

Re: Re: Re: Re: California OC's validation

California OC's validation BUMP

 

Re: Re: Re: Re: California OC's validation

From the Federal FDCPA:

6) The term "debt collector" means any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another. Notwithstanding the exclusion provided by clause (F) of the last sentence of this paragraph, the term includes any creditor who, in the process of collecting his own debts, uses any name other than his own which would indicate that a third person is collecting or attempting to collect such debts. For the purpose of section 808(6), such term also includes any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the enforcement of security interests. The term does not include --

(A) any officer or employee of a creditor while, in the name of the creditor, collecting debts for such creditor;



From the California Civil Code

(c) The term "debt collector" means any person who, in the ordinary course of business, regularly, on behalf of himself or herself or others, engages in debt collection. The term includes any person who composes and sells, or offers to compose and sell, forms, letters, and other collection media used or intended to be used for debt collection, but does not include an attorney or counselor at law.


It appears to me that while the Federal FDCPA specifically excludes OCs, California included them in the definition of a "debt collector." Maybe I am missing something. Can you point out to me the section of the Civil Code that specifically exempts them?

 

Re: Re: Re: Re: California OC's validation

Suppose an OC receives a dispute from a consumer, requesting documentation about an "open" transaction.

If it were a CA we would call that "validation".

An OC is exempt from the validation requirements of the FDCPA, but to say (or imply) that they may ignore your request (just because they're not covered by FDCPA) for documents is simply not accurate.


It it were, I'll just become an OC and bill everyone for a million dollars. Then when they demand info on the alleged debt I can just tell em to screw off?

LOL

Nub,

Is this an open account?

???

 

Re: Re: Re: Re: Re: Re: California OC's validation

Nub,

Nopie. [giggle] Normal mistake.


I mean is it an "open" account. As in like a Credit Card, or revolving account.

As opposed to for example an installment loan, like a car note.

It's go to know it's closed tho.



.

 

Re: Re: Re: Re: Re: Re: Re: California OC's validation

With an "OPEN" account, the DF IS required to answer your request for documentation. It's just not in the FDCPA.

• 
  
  15 USC 1666(2) A reflection on a statement of an extension of credit for which the obligor requests additional clarification including documentary evidence thereof.
  
  § 162. Regulation of credit reports
  
  (a) After receiving a notice from an obligor as provided in section 161(a), a creditor or his agent may not directly or indirectly threaten to report to any person adversely on the obligor's credit rating or credit standing because of the obligor's failure to pay the amount indicated by the obligor under section.
  
  161(a) (2) and such amount may not be reported as delinquent to any third party until the creditor has met the requirements of section 161 and has allowed the obligor the same number of days (not less than ten) thereafter to make payment as is provided under the credit agreement with the obligor for the payment of undisputed amounts.
  
  (b) If a creditor receives a further written notice from an obligor that an amount is still in dispute within the time allowed for payment under subsection (a) of this section, a creditor may not report to any third party that the amount of the obligor is delinquent because the obligor has failed to pay an amount which he has indicated under section 161(a) (2), unless the creditor also reports that the amount is in dispute and, at the same time, notifies the obligor of the name and address of each party to whom the creditor is reporting information concerning
  the delinquency.
  
  (c) A creditor shall report any subsequent resolution of any delinquencies reported pursuant to subsection (b) to the parties to whom such delinquencies were initially reported.
  

Read up, and see if this applies.



.

 

Re: Re: Re: Re: Re: California OC's validation

Exactly herauntsis,

However, the section specific to validation in the CA Civil Code (CA's FDCPA) applies specifically to "debt collection agency" NOT "debt collector."

The links are in my previous post above.

Butch,

You are quoting the FCBA, yes?

http://www.ftc.gov/os/statutes/fcb/fcb.pdf

It is only applicable within a certain specific timeframes and specific to open-ended accounts.

I believe it is 60 days from the mailing of the information (statement) that contains the error -- it addresses billing errors.

Too late for using once an account has been closed, collection, or the like.

OC's are covered under the verification provisions and section 623 requirements of the FCRA, you can't force them to respond and provide documentation outside of legal proceedings, but you can hold them responsible for the information and a court can force them to provide the information.

Sassy

 

Re: Re: Re: Re: Re: California OC's validation

Sassy,

I have read the Civil Code until my eyes crossed, and I can't find what you are talking about. Can you quote me chapter and verse, please? I live in California, so I need to know this stuff, and it drives me crazy that I can't find it.

Thanks

 

Re: Re: Re: Re: Re: California OC's validation

CA Civil Code:
http://www.leginfo.ca.gov/cgi-bin/displaycode?section=civ&group=01001-02000&file=1788.10-1788.18

1788.17. Notwithstanding any other provision of this title, every debt collector collecting or attempting to collect a consumer debt shall comply with the provisions of Sections 1692b to 1692j, inclusive, of, and shall be subject to the remedies in Section 1692k of, Title 15 of the United States Code. However, subsection (11) of Section 1692e and Section 1692g shall not apply to any person specified in paragraphs (A) and (B) of subsection (6) of Section 1692a of Title 15 of the United States Code or that person's principal. The references to federal codes in this section refer to those codes as they read January 1, 2001.

FDCPA, 1692e, subsection (11):

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

http://www.ftc.gov/os/statutes/fdcpa/fdcpact.htm#807

(11) The failure to disclose in the initial written communication with the consumer and, in addition, if the initial communication with the consumer is oral, in that initial oral communication, that the debt collector is attempting to collect a debt and that any information obtained will be used for that purpose, and the failure to disclose in subsequent communications that the communication is from a debt collector, except that this paragraph shall not apply to a formal pleading made in connection with a legal action.

FDCPA, Section 1692g:

§ 809. Validation of debts [15 USC 1692g]

http://www.ftc.gov/os/statutes/fdcpa/fdcpact.htm#809

(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 --

(1) the amount of the debt;

(2) the name of the creditor to whom the debt is owed;

(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;

(4) a statement that if the consumer notifies the debt collector in writing within the thirty-day period that the debt, or any portion thereof, is disputed, the debt collector will obtain verification of the debt or a copy of a judgment against the consumer and a copy of such verification or judgment will be mailed to the consumer by the debt collector; and

(5) a statement that, upon the consumer's written request within the thirty-day period, the debt collector will provide the consumer with the name and address of the original creditor, if different from the current creditor.

(b) If the consumer notifies the debt collector in writing within the thirty-day period described in subsection (a) that the debt, or any portion thereof, is disputed, or that the consumer requests the name and address of the original creditor, the debt collector shall cease collection of the debt, or any disputed portion thereof, until the debt collector obtains verification of the debt or any copy of a judgment, or the name and address of the original creditor, and a copy of such verification or judgment, or name and address of the original creditor, is mailed to the consumer by the debt collector.

(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.

§ 803. Definitions [15 USC 1692a]

http://www.ftc.gov/os/statutes/fdcpa/fdcpact.htm#803

(6) The term "debt collector" means any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another. Notwithstanding the exclusion provided by clause (F) of the last sentence of this paragraph, the term includes any creditor who, in the process of collecting his own debts, uses any name other than his own which would indicate that a third person is collecting or attempting to collect such debts. For the purpose of section 808(6), such term also includes any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the enforcement of security interests. The term does not include --

(A) any officer or employee of a creditor while, in the name of the creditor, collecting debts for such creditor;

(B) any person while acting as a debt collector for another person, both of whom are related by common ownership or affiliated by corporate control, if the person acting as a debt collector does so only for persons to whom it is so related or affiliated and if the principal business of such person is not the collection of debts;

Sassy

 

Damn, the language of the law is turgid to say the least. Working my way through that paragraph gave me a headache, and it turns out you are absolutely correct, Sassy. I prostrate myself corrected.

 

LOL prostrating wasn't necessary, Cali gives me a headache too!!!!!

Passing the tylenol ;-)

Sassy