How does a debtor know a ca has purchased a default account from a oc or from another ca?Some ca sends you a letter stating you now owe them x amount of money?Then they won't/don't send a validation request and the debtor should just send them a check for the amount they say the debtor owes?The debtors only recourse is to show up in court before tha ca will disclose this fact?If debtor does not show up in court to get this validation they are given a default judgment?Something don't seem right here.Why should a debtor have to go to court to get validation that they owe this ca the amount they say?Someone says you owe them money they won't send you any proof of this and the only way they will show you proof is in court?
If the consumer timely requests validation; and the CA sues following that, without providing the validation, the suit is continued collection activity. You do need to ALWAYS show up in court, but show up with a counter-claim for violating the FDCPA, and if they don't show up, get the default judgment in your favor.
I would love for an "unknown" CA to take me directly to court. In my state, I would have no qualms about checking my "answer" on the back of the summons as "I do not owe this debt to this party." Without validation and an accounting for payment history, I would wonder whether the CA would even show up to court. If they do, they would be well-advised to have all their sh*t together. Common pratice here is that the judge sends both parties to mediation, small and large claims. During the mediation, everyone gets to show their hands (their own records). I can see why debt that has been passed from one CA to another makes it harder and harder for the current CA to dig up correct information related to the OC. Its no wonder the bottom feeding CA's don't often go to court.
Query for Jam jam, do you have a reference (case law, etc) that refers to court action on unvalidated debt as continued collection activity? I'm just wondering. What if the CA simply shows up with validation. Or, is your point that without You receiving validation, you have a legitimate "answer."
Keep it simple and separate If they show up at court and said: "Look, your honor, here' the validation!" that might support their claim that you owe the debt but, if anything, that would also support YOUR claim they continued collection without validation. i.e. you're in court because they filed a suit and served you a summons yet they didn't show you the validation prior to your hearing. Remember that their claim that you owe them money is separate and distinct from your claim that they violated the FDCPA by continuing collection activities without providing validation. Don't let them get tangled up as in "because we have the validation, the FDCPA allegation no longer applies." A counter claim and a defense are two different things.
The supreme court when they ruled on Heintz v. Jenkins answered this. The previous version of the FDCPA had a "LITIGATION EXEMPTION" for attorneys, when the current version of the FDCPA was passed, the litigation exemption for attorneys was removed. So, litigation is now under the FDCPA continued collection activity. The FDCPA commentary has never been updated since Heintz v. Jenkins, but there are informal opinion letters which do respond to the post-Heintz v. Jenkins interpretation. If the consumer demands validation, and the CA decides to sue after the demand, they've violated the FDCPA for continuing collection activity on an unvalidated account.
