Nodding mitchra, There's nothing saying they owe us any piece of paper, only that a reinvestigation be conducted and all information updated or deleted as it can't be verified. However, does it not make sense that, if they are maintaining they did reinvestigate, that the reinvestigation must have been on something, papers, papertrail, documenation -- requesting that documentation seems to me, as a verification of accuracy and/or verification is a reasonable thing to request. Showing a court that you requested it, but they didn't provide it, yet kept verifying the same information that was incorrect, is where I think the request itself becomes valuable. Even if they then say, I don't owe you a response, I am only obliged to respond to the CRA. Chase v Manhattan though, there's others as well, says the FCRA creates a cause of action for us peons, because we are the ones impacted negatively. It either comes down to, the CRA getting sued for publishing the information or the creditor for providing it, or both, either way they have to give up the documentation in their own defense. If we have a right to request validation of the debt in the FDCPA, the FCBA requires it, the FCRA requires absolute accuracy and verification, how then could any of them prove it, the CRA's or the creditors without providing the documentation, and, why would they not when they know these are the standards they are bound by? If they allege you owe something and the standard is accuracy and proof, and want to be paid, why wouldn't they provide it? Sassy
However, nowhere in the FCBA does it prohibit or forfeit the right of the consumer if they dispute after the 60 days. . .whereas, it expressly says the creditor forfeits their rights after 90 days. That's your quote back at ya, marc Nodding, exactly! That's what I think we can use, they've no out but to respond. Their duties and responsibilities, processes to be followed so they can avoid being in violation, are triggered by us initiating them. Sassy
You guys are all on target. Debt collection is a "Paper War". Whomever sends the last demand, wins. Before Estoppel can be understood, you first have to consider what it is that permits the CA to the "assumption" that the debt is valid. ie. "If you fail to respond to this collection notice within 30 days we may "assume" the debt to be vaild and may proceed accordingly." A Prima Facie case is established when you fail to reply. If you fail to reply it's considered obvious that you've acquiesced to the debt and a prima facie case is established. Prima Facie: Latin for "on its face." A prima facie case is one that at first glance presents sufficient evidence for the plaintiff to win. Such a case must be refuted in some way by the defendant for him to have a chance of prevailing at trial. For example, if you can show that someone intentionally touched you in a harmful or offensive way and caused some injury to you, you have established a prima facie case of battery. However, this does not mean that you automatically win your case. The defendant would win if he could show that you consented to the harmful or offensive touching. The CA is entittled to the presumption of the debts validity UNTIL YOU REBUT IT. When you do, that prima facie case is gone. In other words, They send you a dunning notice and you rebut it. Unless they provide proof of their case your rebuttel stands. As surely as the Estoppel by silence doctrine works for the CA it also works for you. If they fail to respond their PF case is invalid and they may not report. (but of course they do anyway)
Because it is adversarial. Plus clerks are typically swamped or to lazy to to bother to send it to you. "why waste our mailing expense on a deadbeat, they aren't going to pay anyway" And if the law does not specifically require them to do something then they may take the attitude "we are not giving you Sh@t, just pay you debt dirtbag" Then if you do sue, they show up in court with all the documentation required to prove they conducted the investigation you initiated. The judge asks them why they didn't send it to you. They reply, the law does not require us to, we conducted our investigation and notified the CRA accordingly - that is our duty under the law. The judge says OK. Further, as I stated earlier, if it is an OC the investigation may only take five minutes. Ie, simply pull you file, review shipping, or POS documentation on a comuter screen, look at some digitally imaged documents, and you're done. Not even time to notify CRA of dispute. If information is verified as a result of their internal investigation then they have satisfied their duty under the FCRA - no communication with CRA is necessary as the information reported is correct in their opinion. What makes sense, or is fair is not at issue, it boils down to a strict interpretation of the law. Under the FCRA if they show up in court with their ducks in a row it would be an uphill battle for the consumer. How could you prove that they owed you an explanation, after all they will argue, "hey, we sent her/him a bill, and several correspondence demanding payment before we reported to CRA, and they choose to ignore all of our correspondence". Remeber we are talking about the OC here, not a CA or third party collecter.
(§ 809. Validation of debts [15 USC 1692g]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; We all know what it means to assume. lol
OK Butch, I am glad you brought that up. BTW the thread is addressed to OC's and I'm under the assumption that you have to meet the definition of a third party collector for the FDCPA to apply. Nevertheleess, what if you notify in writing on day 31? How will the court react to that? Is the collector still required to provide validation, or is he relieved of that duty. Is their case law establishing the extension of the validation clause beyod the 30 day window? Does the dislaimer mean the consumer is still entittled to receive validation, or does it simply mean his failure to request validation does not create a prima facia case that the debt is legitimate in a court proceeding. Is any validation proviided beyond the 30 day notification window out of the goodness of the CA's heart to collect the debt? Can the CA successfully argue, "he/she missed the 30 day window, and we were under no obligation to provide validation?" Obviously if they sue to collect they will have to evidence the debt in court, but this is no longer FDCPA rules, this is contract law. One has to prove a valid contract existed in order to sue for breach of it. Please excuse any odd typing, my batteries are getting low and I get a lot of repeats when this happens, ie aaaaaaa.
Butch, In my answer to Sassy, I was specifically addressing an OC under FCRA only. Your replies site the FDCPA rules and CA. I fully understand that is a different ball game, and they are required to provide validation directly to the consumer, at least in the 30 day window. But OC is not covered under FDCPA, or at least that is my understanding.
Also, I am assuming that the information reported is indeed correct, but you are trying to dispute it away, and that the OC is simply refusing to provide you documentation because they're jerks...lol If the information is incorrect, then when they show up at court they will have no documentation, or falsified documentation, and that is a whole 'nother ball of wax.
Yeah - now we're getting into mail and wire fraud. Did you know, for example, that the IRS sends "Mathematical Recomputation" bills out to millions of tax payers each year, knowing fully well they are not legit. Sounds like this: "Upon examining your return from 1997 we noticed you made a math error. So you owe $596". Now how many people will dig out their 97 return? Or for that matter pay $596 to hire a lawyer to fight it? The bills are for $596 in back taxes because they know from experience that this amount is most likely to just be paid rather than questioned. If you do question it they simply write back and say: "Thank you for your response. Please forgive our mistake". But if you FAIL to question it you have aquiesced to it's legitimacy and the PF case is established. At that point they CAN, and will sue you for it. Would YOUR gov't do that? You're damn right they would, and DO, millions of times a year.
Bwaaaaaaaahahahaha, thanks for trying, marc!!!!!!! That will teach me to post when having to hurry and round up the homecoming crowd. Pass me the white-out, please! Nelson, sassy, Nelson -- Chase isn't taking on Manhattan ;-) Sassy
ok, now we are getting into something good. Fraud!! By sending the estoppel letter and continuing to verify with the bureaus, are they committing wire or mail fraud! another point, pretend we are sending the estoppel to the OC, but we are actually suing the CRA based on the premise that the OC does NOT actually have any evidence of the alleged debt. Does that hold more weight?
Wire and mail fraud are criminal matters not civil. So maybe a new strtegy we should investigate would be to contact the FBI or the Post Master General, to report any correspondance the CA has with the CRA's in verifying the info after they have refused to validate. Or, maybe that is a stretch. On top of that we now have RICO (Racketering and organized crime) violations, beacause the CA is conspiring with the CRA to negatively and fradulently report information concerning a consumer to that consumer's detriment in an effort to extort money from consumers that consumers have no legal obligation to pay. "Extortion" (Sounds good) This really is a racket. I wonder if Al Capone started up the credit reporting system...lol
mitchra ============= Basically you are correct on this statement. Although generally OCs do not fall under FRCP They are governed under one or more of the following. 1*Fair billing act 2*Fair credit reporting act 3*Contract law. It seems as how some times folks get Items 1* and 2* confused.
1*Would YOUR gov't do that? You're damn right they would, and DO, millions of times a year. Butch, CFP (email is on) ======================== 1*LOOK who's protecting us with the consumer protection laws -Makes you feel real good doesn't it?
