FDCPA Violations By Creditor

Discussion in 'Credit Talk' started by epazuti, Dec 3, 2014.

  1. epazuti

    epazuti New Member

    A law firm that buys junk debts sent me a letter to collect on a debt I never heard of. I sent them a reply that I am the victim of identity theft along with a police report and request for basic debt info like: 1.) when was this debt opened? 2.) who is the original creditor? 3.) send me proof that you have the right to collect on this debt? They would only tell me the original creditors name and the amount owed. Then they had a court summons served to my front door! Here's the rub, I found out the creditor name they provided is false, the debt statute of limitations is expired, and they never sent me the other info about their right to collect, or proof of assignment. I go to court on this Dec 22, but it seems to me they don't have a case since they violated at least three federal and state debt collection laws, plus it's not my debt and I can prove it! Their apple had a worm in it before they contacted me, right?
  2. epazuti

    epazuti New Member

    Okay, after reading some of the other threads I have a question about SOL. If the debt was opened in California in 2006 and the debtor lives in Colorado now where they want to sue, is the SOL based on California or Colorado statute?
  3. jam237

    jam237 Well-Known Member

    You want to make sure that you use the right term.

    CREDITOR typically refers to the original person whom the account was with. EXCEPT for very few instances, the FDCPA specifically exempts creditors from the FDCPA, because they are not debt collectors.

    A company that buys debt is referred to as a JUNK DEBT BUYER, or JDB. A JDB is just a special type of collection agency, and they may or may not attempt to collect the debt for themselves.

    The law is mute on what is considered validation. Unfortunately, validation could be providing the name of the original creditor and the amount owed. In your case, however you did make a request that validly makes the burden a little bit higher. (The ID theft alert, and copy of the police report.) It doesn't necessarily require that they obtain anything with the debt opener's signature, but it should put them on notice that there are problems with the account that the basic information doesn't satisfy.

    #3 does not fall under validation, even though the form letters that you see include it, if they can obtain from the original creditor the documentation to satisfy validation, they have the authority to collect the debt.

    When they mailed the information in response to your written request for validation, they completed validation, unless you write them again telling them that it was insufficient, again because of the identity theft victim status.

    When they've completed sending validation, they can resume collection activity, including the filing of a lawsuit.

    NOW, here's the rub.

    Are you 100% sure that the SOL expired? IF you are, then you, in your answer (or when you appear) you want to raise that as your defense to their claims. You will also want to have the police report for the ID theft, and a copy of the letter that you provided to them with the copy of the police report.

    For FDCPA violations (and if they knowingly filed a FDCPA case that was time-barred, it would be a violation for misrepresenting the amount, character, and legal status of the debt, and the threat to take any action that cannot legally be taken or that is not intended to be taken) you would want to file in FEDERAL COURT, you could do it as a counter-suit in the same court that they are suing you in, but local courts typically know a lot less than the Federal Courts about the FDCPA.

    You will want to talk with an attorney about the SOL issue, because it can get messy.

    #1 SOL is from the date of the default, not the date of opening.
    #2 SOL typically freezes when you leave the state in question; i.e. if you move out of the state one day before the SOL expires, typically the SOL doesn't expire until you come back to that state, then the SOL resumes where it left off.

    The reason they filed in CO is because they are required under the FDCPA to file in YOUR CURRENT JURISDICTION. They could try to have the CO court use CA's SOL including the freezing of the SOL when residency changed.

    I guess my question would be, what state was residency at the time of the default? If at the time of default, residency was CO, I would argue that CO's SOL was the only relevant SOL and if that SOL expired, the SOL is expired. But that's only a lay-opinion of how I would argue it.
  4. credit guy

    credit guy Member

    you should get paid

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