Estoppel for OC?

Well...great. I received my letter a month ago. I have yet to respond, but if I did choose to question it, how would you recommend I go about it Butch?

(Not trying to hijack thread...it's very interesting)

 

Marc,

Thanks for bumping this up. I think it's exactly what I need.

 

Oh geez, Sorry RThomas. My puter is acting up so I miss threads. I feel bad about that when someone needs help.

Basically you want to send them a letter back and demand that they abate the tax. I'll look it up tomorrow and get back to you.

In the meantime dig up that old return and redo the math. Make sure there really is a straight return with no mistakes. I suppose it's possible but I doubt it, since these are all done on computer anymore.


Make sure your email is on.

 

bump

 

The estopple letter can only work if you have paid an OC or a CA. IF the OC or CA still ists as bad debt or whatever, you can send the estopple letter to have that changed, because you paid in good faith and they still are making you look bad. Here is a link


http://pub50.ezboard.com/fcreditwrenchfrm2.showMessage?topicID=22.topic

Try this thread, it can be changed and reworded to fit your need.

 

Could you show me where I could find something related to unpaid CA's and OC's. That could be of some use.

 

Okay, I'm going to take a crack at this but I suspect my answer might be a little difficult to understand.

A little background:
There are 2 types of actions you can bring: "actions at law" and "actions in equity".

Actions in law are brought for money damages. (e.g., You've injured me, you can't replace my leg, therefore, the best equivalent we can come up with is a hundred billion dollars.)

Actions in equity are brought when there is something which can be done to remedy the harm. (e.g., Joe keeps drilling on his property at all hours of the night, he's interfering with my enjoyment of my property, therefore, I want the state to tell him to stop doing what he's doing.) The judge will issue an "injunction" which is basically an order telling the defendant to stop doing something or face a contempt charge.

Estoppel is an equitable doctrine. It's used probably 99% of the time in contract and real property cases.

The elements of estoppel are (1) an admission, statement or act (INCLUDING SILENCE) inconsistent with the claim afterward asserted; (2) action by the other party on the faith of such admission, statement, act (OR SILENCE); and (3) injury to such other party resulting from allowing the first party to contradict or repudiate such admission, statement or act. Arnold v. Melani, 75 Wash.2d 143, 437 P.2d 908, 911 (1968)

(very simplistic example) Joe tells me, forget the guy who wants to buy your house from you. Instead of taking $100,000 from him, I'll give you $10,000/mo for a year and you'll be helping me out.

I turn down the buyer and afterwards, Joe refuses to pay. In the meantime, my property has dropped in value. I sue Joe and when we get to court, he tries to say that he shouldn't have to pay me b/c contracts to buy land and any contract performed over the course of at least a year must be in writing (due to the statute of frauds). I will then argue that because of the doctrine of ESTOPPEL, Joe is ESTOPPED from using the statute of frauds defense because he made a promise which he reasonably should have known that I'd rely on, and I did rely on this to my detriment. Therefore, he cannot use the statute of frauds to get out of it. I have ESTOPPED him from using a shield to defend himself. This type of estoppel is known as promissory estoppel, or detrimental reliance. This is an example of when someone is ESTOPPED from using a defense which would otherwise be available to him.

Let's go back to the definition and try to apply it to the reason we're all here, sticking it to a CA for failing to validate.

(1) An admission, statement or act (SILENCE) inconsistent with the claim afterwards asserted.

Hmm...well, what would be the claim the CA would be afterwards asserting? Make sure to distinguish your action against him(you're the plaintiff) v. his action against you.

If you're bringing the action against him(scenario 1), estoppel is only going to keep him from using a defense available to him. The only thing that his silence and failure to validate the debt contradicts is that you actually owe the debt. However, in a FDCPA violation suit, whether you actually owe the debt or not is irrelevant.

If he's suing you (he's bought the debt and is trying to win a judgement) (scenario 2), then I can picture estoppel by silence fitting into this requirement. But you have to have all 3, so let's go on.

(2) Action by the other party (YOU) on the faith of such admission, statement or act.

This is getting tougher. You'd have to have taken some action, relying on his silence as an admission of something. What action could this be?

Again if you're suing him for a FDCPA act, your actions are irrelevant really. He is perfectly able to violate the FDCPA act without you doing anything except requesting validation. I don't see this requirement being satisified in an offensive action either.

However, now you're on defense and the CA is suing you for something. Now I can see how someone would say "Your honor, my INACTION in paying the debt was based on his silence. One who has a valid debt to collect should be able to show why the debt is valid." Again, looks okay to me if you're on defense and not okay if you're on offense.

(3) Injury to the other party (YOU) resulting from letting the other party (CA) act in such a way as to repudiate his earlier action (SILENCE).

Well, again here, if you're on offense, yeah you're allowed to bring the suit against him for violating the FDCPA. But really, the one with a beef against him is the gov't. He violated their law directly, and your rights as a consequence. The "act in such a way" part of this requirement is the CA saying "he owes the debt". Again though, whether you owe the debt is irrelevant to whether he's violated the FDCPA. I don't think estoppel works here.

Flip sides: you're on defense. Now, if we let the CA "act in such a way...." here, we are letting him assert that you owe the debt. But, if we let him act this way, he is contradicting his earlier action (inaction) which is silence, and thus injuring you.


I guess to summarize, I don't think estoppel by silence can be used against a CA when you bring a FDCPA violation action against him, but I think it probably can be used if you are ultimately sued by the CA directly or by the OC (since the CA is their agent).

I should add here that I just finished law school in July, my legal opinion could be completely off and I haven't had a chance to really research this. This post is just my thought process through what I understand the doctrine of estoppel to be as applied to the actions of CAs.

Copyright patentatty, 2002. =)

 

Patent,

Thanks!!!!!!!!!

The doctrine of estoppel by silence, as we use it here, versus the link that was posted by Mr. Bauer, is part of a validation series. Bill Bauer used to be an active poster here and as I understand it never agreed with the way estoppel by silence was applied on this board, thus his linked letter from the post above.

Anyway, here, the estoppel letter is part of a series of validation letters, here's the nutshell version, all are available in the sample letters section:

The first letter requests validation

The second letter states you've received no response or partial response and restates the validation request.

The estoppel or third validation letter says in essence, you've not responded to my requests for validation, your silence allows me to presume that no debt exists. It goes on to restate the validation request, as an act of good faith, this time giving 15 days to provide the documentation.

Here's a link to this board's estoppel letter: http://consumers.creditnet.com/straighttalk/board/showthread.php?s=&pgnum=1&postid=85492#post85492

We've discussed the case citation before, it's old and not available online and appears to be related to a property dispute resulting from the railroad. Whether the citation is valid, we've never resolved, that's where the bouncing around of the principle itself comes in.

The validation series, above, has evolved to be considerably shorter than it first started out, each of those letters allowed 30 days with the final allowing 15 days for the validation to be provided.

So, I guess my question is this, and you seem to be the person to answer it, if you are making a validation request, certified mail so you know they've received it, that is not responded to (though they are required to provide the validation or cease collection activitity), then you mail the estoppel letter saying in essence, I believe, should you not respond to this final request for validation, I will rely on your silence under the doctrine of estoppel by silence to presume that no debt exists and/or that the proof cannot be provided and therefore the debt can't be reported.

Then, if they still didn't have the item deleted and kept on reporting, and you filed suit for inaccurate reporting or failure to validate or defamation, would the reliance on that silence be enough?

OHHHHHHHH, I just realized something (THANK YOU) it doesn't matter whether you relied on the silence or not really, the violation is the same either way. You've requested validation and can prove it, it's not been provided, yet they keep on reporting.

However, if they've received your requests and then decide to file suit against me to collect, does the estoppel as a principle prevent them from doing so?

Hmmmmm, well no, I suppose, their response then wouldn't be silence, it would be the act of filing against me -- however, the validation still hasn't been provided.

O.k., so much for talking to myself ;-) . I guess what I really want to know is, is the principle of estoppel by silence, as it is used in the sample letter linked above, valid?

We've had attorneys say yes, others say no, nonetheless, it works most of the time. I don't know that anyone has ventured into court with it though. I'm not putting you on the spot or asking a legal question of you, NO PRESSURE ;-) just your opinion as a fellow c-netter.

Sassy

EDIT: Actually, I think you already answered, and I only understood it while talking to myself:

"I guess to summarize, I don't think estoppel by silence can be used against a CA when you bring a FDCPA violation action against him, but I think it probably can be used if you are ultimately sued by the CA directly or by the OC (since the CA is their agent)."

 

Patentatty,
I understand consumer law isn't your particular field, but have a question anyway.
If a CA violates the FCRA or FDCPA in the course of collecting a debt, could "Doctrine of Unclean Hands" be used as an equitable defense if they sued over the same debt? Or the OC for that matter if they violate the FCRA.

Thanks in advance.

Gib

 

Personally, I don't believe that "estoppel by silence" helps you at all when you are bringing an action *under the FDCPA or the FCRA*. I think it may be VERY useful if a CA brings an action against you. If an OC brings a suit after their CA assignee has failed to validate a debt, the issue is a lot blurrier. Then you get into all kinds of agency issues, etc which I won't even embarrass myself by trying to talk about.

Now, what I've thought about today is this: If a CA fails to validate an entry that they've listed on your credit report, what about bringing an action IN EQUITY, *entirely independent of the FDCPA*, asking the court to enjoin them from continuing to report (or verify) a debt that they cannot validate. Of course this has less teeth, the court can just say no and there's no bite into the pocketbooks of the CA. However, if the "silence of the CA" (as opposed to "estoppel by silence" which I've already explained is no good in an offensive action, IMO) was ever going to work in terms of getting things removed, I think it would have to be in this scenario. And of course, you still get to drag the CA to your backyard to defend this suit. If he doesn't show and the court agrees with you, then they must comply with the court order or be found in contempt. And if the CA is found in contempt, the court can fine them and do a bunch of other unpleasant things to them. The practical side of this is that in most jurisdictions, actions at law (for money) and in equity are heard in the same building, sometimes by the same judge. I believe TN is the only state that actually has separate physical courts of equity and law. Anyway. A good one-two punch might be to bring your FDCPA violation at law AND file your action in equity simultaneously. Theoretically, since these are independent of each other, you could win one without winning the other. You could also theoretically schedule these cases for trial on separate days, increasing the costs for the CA to defend both and thereby increasing the odds that they just decide to settle. You may also be entitled to separate discovery too...it's all going to depend on the civil procedure rules for your state, it might be worth a half hour with a local atty to get the details.

Finally, as an aside, when you file an action at law, you are filing a "Warrant in Debt". When you file an action on the equity side of the house, it's a "Bill of Complaint". You can probably search on both of these on google to get samples or ask the civil clerk for samples.

 

hmmmm patent, ok,

I'm seeing now why law school is so expensive ;-)

What about an injunction? Is that a possibility?

Sassy

 

I think that if you can convince the judge that they are reporting the collection without being able to validate it (I'm talking 4 or 5 letters and no response or a flimsy response), and show the Cass or Wollman? letters, reference the Spears case, you may be able to get him to order the CA to remove it. Again, I've never seen this done, but I see no legal barrier to it working. If there are others with exp in this lurking, please correct me if this isn't right.

 

Very cool!!!!!!!

I don't think anyone has tried it. It seems like LizardKing was thinking about it and bouncing it around a few months ago though. I hope he sees your response.

Thanks patent, you've been a big help.

Sassy

 

Hi,

I really don't know enough about the unclean hands doctrine to form an opinion, but my gut tells me that somehow it's going to hinge on whether the judge believes that the FDCPA violation and the contract suit against you for not paying the debt are tied together tightly enough. Also, the fact that a FDCPA violation is on the CA (unless you can tack it to the OC under some agency theory) and the OC is suing you on the contract itself will probably complicate things. Short answer, I don't know but I wouldn't bank on that theory working. I think if you're on defense in a CA suit, I think some sort of estoppel argument could be made. I'm hoping other people with legal background can chime in....