I sent a 30-day dispute letter to the attys handling the account. It was sent FedEx and was received within the 30 days. Five days later a suit is filed, we were served today, which is more than a month since they received the letter. I have proof of signature, and that there was nothing wrong with the envelope. In the summons they say we failed to respond under the Federal Fair Billing Act. What now. I'm handling this myself, and it seems they have no right to file this suit. Any help is appreciated.
momkat, Lizardking posted a sample court filing, I think about 30 days or so ago. Do a search using his name. Also go to the court and get copies of the entire file so that you know what documents they filed with the claim. Also if you counter sue file under the same case # that will save you money. Once you know what they filed with the court you will know what your cross complaint will be. Hope this helps some. Tuit
This FTC staff opinion letter may be of some benefit to you re: filing a lawsuit prior to validating, when the request for validation was made within the 30 day period. It is long. I didn't include the second part. Here is the link:http://www.ftc.gov/os/2000/04/fdcpaadvisoryopinion.htm March 31, 2000 Basil J. Mezines, Esq. Stein, Mitchell & Mezines, L.L.P. 1100 Connecticut Avenue, N.W. Washington, D.C. 20036 Dear Mr. Mezines: This is in response to the American Collectors Association's ("ACA's") request for two Commission advisory opinions ("Request") regarding the Fair Debt Collection Practices Act ("FDCPA"), which the association submitted pursuant to Sections 1.1 - 1.4 of the Commission's Rules of Practice, 16 C.F.R. §§ 1.1 - 1.4. The two issues will be addressed in the order in which they were presented. FIRST ISSUE: Does Section 809(b) of the FDCPA permit a collection agency to either demand payment or take legal action during the pendency of the thirty (30) day period for disputing a debt in situations where a debtor has not notified the collection agency that the debt is disputed? "[The] starting point in every case involving construction of a statute is the language itself." Southeastern Community College v. Davis, 442 U.S. 397, 405 (1979) (quoting Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 756 (1975) (Powell, J., concurring)). The language of Section 809(b) provides that, "f the consumer notifies the debt collector in writing within the thirty-day period" that the debt is disputed, the debt collector must cease collection of the debt until verification of the debt is obtained and mailed to the consumer.(1) Where Congress intended that debt collectors cease their collection efforts during the thirty-day dispute period, it so specified: if, and only if, a consumer sends the debt collector a notice in writing. Congress did not specify that collectors must cease collection efforts during the dispute period even if consumers send nothing in writing. The Commission has voiced this opinion in recent annual reports to Congress mandated by the FDCPA. As the Commission stated in the 1999 report, for example, "Nothing within the language of the statute indicates that Congress intended an absolute bar to any appropriate collection activity or legal action within the thirty-day period where the consumer has not disputed the debt." Letter from Chairman Robert Pitofsky to the Honorable Albert Gore, Jr. regarding Twenty-First Annual Report to Congress Pursuant to Section 815(a) of the Fair Debt Collection Practices Act, at 10 (Mar. 19, 1999) ("1999 Annual Report"). Because there appears to be some confusion regarding whether the thirty-day period is a dispute period or a grace period, the Commission has recommended in recent annual reports that Congress clarify the FDCPA by adding a provision expressly permitting appropriate collection activity within the thirty-day period, if the debt collector has not received a letter from the consumer disputing the debt. The Commission emphasized that the clarification should include a caveat that the collection activity should not overshadow or be inconsistent with the disclosure of the consumer's right to dispute the debt specified. 1999 Annual Report at 10-11.(2) Federal circuit courts that have addressed this issue recently have arrived at the same conclusion. In a 1997 opinion, the Seventh Circuit stated that "[t]he debt collector is perfectly free to sue within the thirty days; he just must cease his efforts at collection during the interval between being asked for verification of the debt and mailing the verification to the debtor." Bartlett v. Heibl, 128 F.3d 497, 501 (7th Cir. 1997) (Posner, J.). In the most recent federal appellate court pronouncement on the subject, the Sixth Circuit stated, "A debt collector does not have to stop its collection efforts [during the thirty-day period] to comply with the Act. Instead, it must ensure that its efforts do not threaten a consumer's right to dispute the validity of his debt." Smith v. Computer Credit, Inc., 167 F.3d 1052, 1054 (6th Cir. 1999). The Commission continues to believe that the thirty-day time frame set forth in Section 809 is a dispute period within which the consumer may insist that the collector verify the debt, and not a grace period within which collection efforts are prohibited. In response to the ACA's question, therefore, the Commission opines that Section 809(b) does permit a collection agency to either demand payment or take legal action during the thirty-day period for disputing a debt when a consumer from whom the collection agency is attempting to collect a debt has not notified the collection agency that the debt is disputed. The collection agency must ensure, however, that its collection activity does not overshadow and is not inconsistent with the disclosure of the consumer's right to dispute the debt specified by Section 809(a). By direction of the Commission. Donald S. Clark Secretary
