Clarifying some Confusion

I want to see if I can add some clarification to an area that has been asked about several times in the last few days. Since this is war, let's eluminate the terrain in which we find ourselves deployed. Lol


Sam1014 asked in: http://consumers.creditnet.com/stra...=&postid=186819&highlight=failure#post186819, about the 30 day time limit in § 809.

He said: "This does not mention anywhere that the CA has to validate after 30 days. The way I read it is that I have 30 days in which to request validation. Where does it say in here that I can ask for validation at anytime?"


Just today GirliGirl asked in: http://consumers.creditnet.com/straighttalk/board/showthread.php?s=&pgnum=1&postid=188140#post188140

"Are you out of luck if ... .... if you don't dispute a debt with a collection agency within the first 30 days of their initial notification? I have disputed with two collection agencies, only to have them write back to me saying that they do not have any obligation to validate anything, as I waived my rights to dispute because I didn't do it within the first 30 days. Heelllllllpppp!"

Both great questions because at first glance it is a little confusing. I'm concerned because these vermin are latching onto this area of confusion to confound their enemy, YOU! So let's take a closer look:


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

(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;

[Self explanatory]

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

[Self explanatory]

(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;

[The first mention of the 30 days. You've heard much about the concept of estoppel by silence. Just as you can use it against them they can also use it against you. This segment says only that the CA is entitled to assume the debt to be valid (starting on the 31st day) IF they do not hear from you within the first 30 days. By not responding you have acquiesced to the debts validity by your silence and they can now proceed with collection. THIS HAS NOTHING TO DO WITH YOUR RIGHTS! IT HAS TO DO WITH THEIR'S.]


(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

[ Key words: A statement ]

(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.

[ Key words: A statement ]

[ This section is merely saying that the CA must provide you with "a satement" of what I just said. Otherwise how else would you know. It is "requested" that the CA, after the initial contact with you, hold off on further collection activity to allow YOU 30 days to exercise your right to demand validation. Naturally they sometimes disregard that and attempt to collect immediately but they are supposed to wait. If you think about it most of the CA's that send you your first communication DO wait 30 days before the next notice or the phone calls start. That statement may also include "unless we hear from you within 30 days we may assume the debt to be valid". ]


(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.


[ This section simply says that if the debt collector is notified within that first 30 day "waiting period" they may not resume collection activity at all until they produce the validation requested. Here's the key: EVERYTHING IN THIS LAW THAT YOU'VE READ UP TO THIS POINT APPLIES TO THE CA NOT YOU. ]



(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.


[ This is the part that DOES apply to you. It means whether you exersize your rights within the first 30 days or not doesn't matter, and it does NOT mean you have waived any rights. In an ideal world (lol) it works like this: The CA notifies you of the debt, complete with the required explanation of your rights. If you want to excersize them please do it within 30 days. They should wait to see if you do. If you don't they will proceed under the assumption that the debt is valid, (estoppel by silence). A prima facie case is created that the debt is owed and the CA proceeds with collection and may continue to until such time as YOU dispute the debt.

NO MATTER WHEN THAT MAY BE.

See?

{ ps. Estoppel and Prima Facie is found in the Uniform Commercial Code, UCC. But we don't wanna go there. LOL }

My take and I Hope this helps,









This does not mention anywhere that the CA has to validate after 30 days. The way I read it is that I have 30 days in which to request validation. Where does it say in here that I can ask for validation at anytime?


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

(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.

 

I know I know, I'm trying not to get too technical.

 

Oh het Sassy,

Which staff opinions are they? I forgot. I was looking for them. I think FTC commentary speaks to this issue too, if I'm not mistaken, (which is quite possible).

 

NOOOO That's not what I'm saying. I'm saying they are not permitted - aarrgg

Nah change that: They are not entittled to assume the debt is VALID until 30 days has elapsed. That does not mean they won't try to collect. They do it all the time.

It already has been established that 30 days is a "reasonable" time frame - right? OK this first 30 days is just a reasonable time frame in which you must dispute the validity of the debt before they may assume the debt to be valid. The CA is not statutorily barred from collection activity during this time, (as per Sassy).

 

Absolutely,

 

Can you imagine how expensive it would be if CA's where required to send all dunning letters via crrr?


Big Bux!

 

Required reading. Thanx Sassy,

Both opinions specifically reiterate that the CA may attempt collection during that first 30 days. Unfortunately very silent on whether or not the consumer wiaves his rights if he has not notified the CA with that time. And beleive me if it was meant to be a waiver after 30 days it would say so.


I think this is unfortunate that they don't clerify this for the consumer. I really think I saw something that did. I'll keep lookin.

Also, Do read the staff commentary on the FDCPA, At: http://www.ftc.gov/os/statutes/fdcpa/commentary.htm#805

It States:

"FDCPA Section 807(10) prohibits the "use of any false representation or deceptive means to collect or attempt to collect any debt or to obtain information concerning a consumer."

4. Misrepresentation of law. A debt collector may not mislead the consumer as to the legal consequences of the consumer's actions (e.g., by falsely implying that a failure to respond is an admission of liability)."

If the debt collector told you that you've waived your rights to demand validation because you waited longer than 30 days he has lied about the law. Don't forget to include this one in your ever growing list of violations.

snort

 

I think I get too technical for my own good sometimes.

~