How to deal w/ Asset Accept again?

Re: Re: How to deal w/ Asset Accept again?

I'm confused on one thing . . . is this actually a paid chargeoff or was that listed in error on your CR?

 

Re: Re: How to deal w/ Asset Accept again?

no, they told me that it wasn't possible. And I didn't want to continue playing their games.

 

Re: Re: How to deal w/ Asset Accept

http://consumers.creditnet.com/straighttalk/board/showthread.php?s=&postid=352826#post352826

Go to the above link - you will find theads about validation.

 

deal w/ Asset Accept again

1*I paid it long ago
2*I guess my question now is what constitutes valid proof of the debt?
3*Do I send them a letter saying I want a signed copy of the contract and all the accounting from the account?
laurie33
==============
1* & 2* When it's paid there is nothing that is valid proof.
3*What's the point? They didn't have it a year ago and don't have it now.
I would just send ITS.

 

Asset Accept again?

1*Yes, but what they sent was another bill.
2*I didn't feel comfortable sending a letter that states 'your continued silence".
3*If I have to go to court with them, they can always say they did reply to my first letter.
breana902
==============
========================
1*It wasn't validation
2*That's cause you don't understand what silence the estoppel is referring to!
There was a thread recently where this issue was discussed at length which resolved what you're confused about.
3*That's not what the estoppel silence is about so such a reply is meaningless.
THE END ** *** ** LB 59
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I haven't posted in a while but I ran across this post when doing a search on Asset Acceptance and I had to comment.

I agree with you 100% when you say that a bill does not mean you owe something, it merely means someone is asking you to pay something. HOWEVER, the Fair Credit Billing Act states that you have 60 days to dispute a bill that contains an error.

She did not do so. Therefore, after 60 days, the information contained on that bill was assumed to be valid. It then follows that, if they did send her a copy of her last statement, and she did not dispute that statement as invalid within 60 days of the date of that statement, it is assumed to be valid.

I would therefore argue that the statements are proper validation (unless of course she was disputing this was not her account but that isn't the case). The point is that she did not the dispute the final statement with the OC during the time frame required by the FCBA. If the final statement said she owed $100 and she did not dispute it, then by obtaining a copy of this statement, that should be more than sufficient proof to show she owes it (unless of course she had a copy of that statement which shows the copy provided to her was erroneous or she kept very meticulous records and had copies of canceled checks showing she did not owe this amount).

But, that is not the case. So I would argue that copies of her last two statements are sufficient validation and could easily be enough evidence to sue her in court (if it ever came to that) assuming that she did not testify the account was not hers or assuming she did not have undeniable proof that the debt was not hers.

NOW!!!! Before I get any nasty responses saying "WHAT COLLECTION AGENCY DO YOU WORK FOR" or "WHO'S SIDE ARE YOU ON?" Hey, I'm just stating the facts. Sometimes I think that people may be a tiny bit over-realistic when it comes to proving someone owes a debt.

Remember, it is the judge that ultimately determines whether or not you owe it (if it went to court). If the OC can put on a strong case (which they could in this case), they could easily put the preponderance of the evidence on their side to get the judgment.

Furthermore, in a situation such as this where the person is not denying she owes it but is simply hoping to avoid paying it, she would have little recourse.

Last summer, I almost had to sue someone over some work that was never done (but paid for). After 6 months of pleading that this person return my money, I finally wrote him a letter saying pay me or I will sue you in 30 days.

I had no proof that I paid him anything nor did I have any proof we agreed that he would do anything for me. It was a friend of a friend who agreed to do some work on my car. I didn't ever think I would have to take him to court.

The only proof I had was a witness who saw me pay and heard our oral agreement. I was 100% confident that would be enough to sue him and so was he because he ultimately paid. But I had no real hard evidence. Even so, I think with me and my witness in court, I could have showed he owed me the money, especially because he never disputed my letter which stated what I paid him to do and for how much.

You could be picky and argue, yeah but just because he didn't reply doesn't mean he owes it. True..Very True. But, that sure doesn't help him in court. When most people are asked to pay something they don't owe, they immediately call or write and say "WHAT ARE YOU TALKING ABOUT..I DON'T OWE YOU ANYTHING!."

In this case, I think the situation is much more cut and dry.

I am wondering, if the old statements were not validation, what would be validation (pictures of her making purchases at each store leading to the charges on her statement (assuming this was a credit card bill))?

If this was not a revolving account but rather an installment account, the court would want to know a) why she never disputed the bill at the time and b) where is her proof that she paid it. No proof is likely judgment against her.

Again, this is not an attack on her or anyone else and it is definitely not an attempt to take down the little guy, but you should always be somewhat realistic In my opinion, the statements were validation and therefore if she attempted to sue the collection agency by stating they attempted to collect without providing validation, I think she would lose.

 

1*HOWEVER, the Fair Credit Billing Act states that you have 60 days to dispute a bill that contains an error.
2*She did not do so.
Therefore, after 60 days, the information contained on that bill was assumed to be valid.
3*It then follows that, if they did send her a copy of her last statement, and she did not dispute that statement as invalid within 60 days of the date of that statement, it is assumed to be valid.
4*I would therefore argue that the statements are proper validation (unless of course she was disputing this was not her account but that isn't the case). The point is that she did not dispute the final statement with the OC during the time frame required by the FCBA. If the final statement said she owed $100 and she did not dispute it, then by obtaining a copy of this statement, that should be more than sufficient proof to show she owes it (unless of course she had a copy of that statement which shows the copy provided to her was erroneous or she kept very meticulous records and had copies of canceled checks showing she did not owe this amount).
But, that is not the case. So I would argue that copies of her last two statements are sufficient validation and could easily be enough evidence to sue her in court (if it ever came to that) assuming that she did not testify the account was not hers or assuming she did not have undeniable proof that the debt was not hers.
SUNHAWK

1* according to her first post she did that about 1 year ago.
(Over a year ago I kept claiming it wasn't mine and of course they didn't have any actual documents from the OC. laurie33)
The 2 statements the CA just now provided have to be at least a year old, so how could she possibly dispute them within 60 days when it took The CA over a year to get them to her?
2*See number one!
3*Again I have to ask how can she be expected to dispute a statement which is over a year old when she just got it today ???
4*This is based on the FCBA in regards to disputing with an OC.
HOWEVER,laurie33s issue is with a CA and validating therefore it falls under the
FDCPA.
Validation consist of a signed contract as well as a complete accurate account history.
Laurie requested this information over a year ago and the CA has provided neither.So no the 2 statements! are not proper or complete validation.! !

THE END ** *** ** LB 59
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Re: Re: How to deal w/ Asset Accept again?

Hi LBrown,

In re: to #1, I think maybe you misunderstood her post or mine. She said "Over a year ago, they [Asset Acceptance] had been trying to collect.....so I kept claiming it wasn't mine."

She notified the CA that it wasn't hers. She did not notify the original creditor that it wasn't hers. The fair credit billing act applies to the OC.

Therefore, since the statements were going to her house (I'm sure they have her address on them) and since she was paying on the account (I am guessing the last two statements show payments), the account was hers.

If the statements did go to her house and the account was not hers, she would have notified the OC within 60 days of this. If she paid on the account, the account must have been hers because she would not pay on an account that wasn't hers.

Therefore, assuming the statements show her address and since she did not notify the OC of any fraud within 60 days of the statements, the account is assumed to be hers so that is not disputable.

In regards to the actual debt, since she did not notify the OC within 60 days of receiving her bill, the debt is assumed to be valid.

It then follows that, since the original statements were not disputed and since the original statements went to her, the bill copies would be sufficient validation.

If she would have notified the OC within 60 days of receiving the statements, it would be a different story.

If she claims she never got them (assuming she made payments on the account), why would she have paid or why would she have not called the original creditor regarding the missing statements and then, once receiving the statements, disputed them then.

Here are all the possible scenarios:

1) Account not mine - I never received any statements even though they have my address on them (assuming she did not make any payments) - This is about her only way out. If this was the case, she could claim the above and fill out a fraud affidavidt. But, since this is her account, I doubt she would risk prison time and commit fraud by doing that. Also, this is really nit picky because if her address is on the statements, it is assumed she received them. If she didn't get the first, it is very doubtful she didn't get both. But again, Asset will say, if this is not proper validation, are you claiming fraud? No, well then pay the debt because you just admitted it was your account and since you didn't dispute it, the statements must be valid.

2) Account not mine - I never received any statements even though they have my address on them (assuming she did make a payment) - Why would you make a payment on an account that is not yours? Since you did and you never notified the OC within 60 days of your statement, the debt is validated once the old statement is obtained.

3) Account mine - I never received the statements though and that is why I never disputed with the OC. If that is the case, why did you not notify the OC that you did not receive two sequential statements? Since you didn't notify them within 60 days, the debt is assumed to be valid once the old statement is obtained.

4) Account mine - I received the statements but I don't believe this is my debt - Again, you did not notify the OC within 60 days so you are out of luck.

Regardless of the scenario, unless she claims fraud, the statements are sufficient validation since she did not dispute with the OC within 60 days.

Validation does NOT consist of a signed contract. If I start cable service over the phone and get cable for 30 days but then don't want to pay, I still owe the money. The cable service and I had an oral contract. This is a legally binding contract. Or, what about a credit card company. I apply for a credit card online and get approved. I receive it in the mail and I use up $2000 on the card but then I don't want to pay. Where is the signed contract?

There is not one since I applied over the internet. I have applied for many cards over the 'net and have never had to sign any paperwork. Nonetheless, it is still valid.

Validation only requires a contract, not a signed contract. But, even so, you are saying, she was not provided a contract.

She doesn't have to be in this case. The statements I'm sure have her address on them. Obviously, since she never contacted the original creditor about the statements, she must have had a contract with them, especially if she ever paid on the account.

It is okay for the CA to use her failure to dispute with the OC against her. Just because the CA is not the OC, that doesn't mean that her failure to dispute with the OC cannot be used in her dealings with the CA.

There is no clearcut definition of what validation is. Validation is simply PROOF THAT YOU OWE A DEBT . Based on the above scenarios, those original statement copies prove that and any judge would find in the CA's favor.

The FDCPA only says a contract must exist, not that a contract must be provided when validation is requested.

Although Butch provides good arguments on why a contract is needed, nowhere (that I am aware of) does it say "A copy of the original contract must be presented when validation is requested" because, as I stated above, sometimes there is no physical contract, let alone a signed physical contract.

Validation is simply proof that you owe a debt. A contract does not prove anything hence in Spears vs. Brennan, "The contract in no way provides sufficient verification of the debt."

They did not say "An undisputed original statement copy in no way provides sufficient verification of the debt!"

I know, sometimes, things sound good on paper.

Again, the point of validation is only to prove that a person owes a debt. A contract does not prove that. The statements do given what I stated above.

If only an account history was provided, yes, I would say a contract would be needed. But since she was provided copies of the actual statements with her name and address, a contract is not needed here (assuming they are not attempting to collect other fees (other than interest) in addition to the debt).

Again, you have to ask yourself, if the debt collector took her to court over this, would the judge find in their favor. I say, without a doubt, yes based on all the scenarios above.

If she took the debt collector to court for attempting to collect without providing validation, would she win, I doubt it. Nothing that I know of specifically states a contract is required for validation. If it does, yes, she could most definately win. It is only assumed that a signed contract is required to prove you owe something.

A witness for instance would be sufficient proof to show you owe something if there was an oral contract.

If she were to sue, the judge would probably ask her, did an agreement exist between you and the original creditor...YES...case dismissed. But this is already assumed anyway because if there was not an agreement, she would have disputed it with the OC long ago.

In summary, validation is only proof that you owe a debt. In this case, based on all scenarios above, the statements would meet that proof. Since nothing specifically states a contract IS required validation, a contract does not need to be provided if other documentation can show this was her account (which the address on the statements show alon with possible payments by her).

Suing a CA over validation issues is really meant for people that really don't owe a debt and are being unfairly persued by a creditor, not for people that are trying to get out of a debt and are simply trying to avoid it. A judge will look right through a suit like that (or at least I hope, especially if I was representing the defense).

If something did specifically say a signed contract was required for validation, I would agree with you but I am not aware of anything that does.

Like I said above, most credit cards obtained over the internet do not require any signed contracts at all. That does not mean that you don't owe what you charge to those cards and you are not liable for charges you make if the CA can't show a signed contract.

If she would have disputed with the OC, this would be an entirely different story but she didn't so that is used against her.

Oh, and in regards to your statement that the account history must be complete from the date the account first opened is false (at least in this case). Again, if she did not contact the OC when she received her final statement to dispute it, then that final statement was assumed to be valid (including anything owed). It therefore follows that that debt was then sold. Once she requested validation and the final statement was provided, this proves she did have a debt with the OC in the amount requested because a dispute was never filed with the OC during the 60 days required under the FCBA.

This is not directed at you personally so please don't take offense but sometimes I think people blindly take Butch's validation thread to be the end all thread on exactly what validation is.

Since there is not a formal definition of validation and since validation is simply meant to prove you owe a debt, I then look at a given situation through the eyes of a judge which is the guy who ultimately determines whether you pay!

While I do agree that a contract is required when validating in certain cases, I don't believe it is necessary in this case.

<CONTINUED>

 

Re: Re: How to deal w/ Asset Accept again?

In certain situations it would be required like if collection fees or attorney fees were added (and state laws didn't specifically allow for these by the CA) or if no payments were EVER made which may indeed prove you had no knowledge of this account or if only a complete account history was provided with no information linking you to the account (ie. a piece of paper with dates and a bunch of payments and charges that was printed out from a computer).

But I don't believe in all validation cases, a contract MUST be provided to show proof that a person had an account with the OC (example, this case).

 

The FCBA
states that you have 60 days to dispute a bill that contains an error.
2*She did not do so.
3*. Therefore, after 60 days, the information contained on that bill was assumed to be valid. It then follows that, if they did send her a copy of her last statement, and she did not dispute that statement as invalid within 60 days of the date of that statement, it is assumed to be valid.
4*I would therefore argue that the statements are proper validation (unless of course she was disputing this was not her account but that isn't the case).
5*The point is that she did not the dispute the final statement with the OC during the time frame required by the FDCPA.
SUNHAWK
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1*Yes but she is dealing with who is regulated by the FDCPA rather than F C B A.
2*Yeah she did right here.
Over a year ago I kept claiming it wasn't mine and of course they didn't have any actual documents from the OC. So they agreed to remove laurie33.
3*From an OC under FCBA,but not with Asset Acceptance a CA governed by FDCPA.
4*Again the FCBA don't apply here because we are dealing with validation under FDCPA.
5*How could she dispute within 60 days of the statement date when it took the CA over a year to get them to her?
THE END ** *** ** LB 59
""""```--~~~~~~~~~--```'""'''

 

PS


Also what about this.?

The only thing I have that I could possibly use is an old copy of a credit report from Experian that lists my OC account as a Paid charge off.
laurie33
I paid it long ago
laurie33

 

Re: Re: How to deal w/ Asset Accept again?

1*Yes but she is dealing with [the CA] who is regulated by the FDCPA rather than F C B A.

Exactly!!!!!. The FCBA only applies to the OC, not to the CA. It is the FCBA that allows Laurie to dispute the validity of the bill, not the FDCPA. The FDCPA states that Asset Acceptance must obtain original account records from the OC to support the debt before they continue collecting. They have done this. Laurie lost her right to dispute the actual debt itself when she failed to contact the OC when she ORIGINALLY received her bill.

2*Yeah she did right here.
Over a year ago I kept claiming it wasn't mine and of course they didn't have any actual documents from the OC. So they agreed to remove laurie33.

I have addressed this comment a few times now. She never disputed the bill with the ORIGINAL CREDITOR within 60 days of ORIGINALLY receiving the bills. Therefore, the bills are deemed to be valid. It is under the FCBA that she has the right to dispute the bill itself. It is under the FDCPA that the CA has the right to persue the debt assuming they have original account records to support it. THEY DO.

Over a year ago she contacted ASSET ACCEPTANCE claiming it wasn't hers, not the ORIGINAL CREDITOR.

Under the FDCPA, her dispute with the CA simply means that the CA must obtain proof of the debt before they can continue collecting. Under the FDCPA, she does NOT have the right to dispute the debt itself. She can show proof that she paid the debt or she can request a fraud affidavidt stating she didn't open the account, but she can't say "This debt is not valid" (after the original statements have been presented to her) because she had to do that with the OC under the FCBA, not with the CA under the FDCPA.

Her failure to dispute the debt with the OC under the FCBA meant that the statements were deemed valid. The CA now then has to simply produce the undisputed statements which they did and can now continue collecting given the reasons stated in my previous post on why a contract is not required in this case.

3*From an OC under FCBA,but not with Asset Acceptance a CA governed by FDCPA.

Exactly!!!!!.

4*Again the FCBA don't apply here because we are dealing with validation under FDCPA.

Exactly!!!!!. All the CA is required to do is produce original account records (which they have) to meet the validation requirement. Laurie may not dispute the debt itself with the CA, only with the OC. But she had to do that with the OC within 60 days of receiving her bill which she did not. She only disputed with the CA which means the CA only has to produce the ORIGINAL UNDISPUTED BILLS which they did.

It doesn't matter that it took them a year to get the bills. They did NOT collect during that time.

5*How could she dispute within 60 days of the statement date when it took the CA over a year to get them to her?

I am not referring to disputing with the CA within 60 days of the statement date! I am referring to disputing with the OC with 60 days of the statement date! How could she do that?

Simple. When the OC sent her the bill ORIGINALLY, she had 60 days from that point to then dispute the debt with the OC but she did not. Therefore, the bill is deemed valid.

Again, it doesn't matter how long it took the CA to get them to her. She had to dispute with the OC within 60 days of ORIGINALLY receiving the bill. SHE DID NOT.

Obviously, she could not NOW dispute the bills with the original creditor when it took the CA 1 year to obtain the bills from the original creditor. She had to dispute the bill with the original creditor when she ORIGINALLY received the bill which was shortly after the statement date.

It seems to me like you are taking the stance that she never received the bills originally so, after the CA got them 1 year later, she was receiving them for the first time and therefore how could she possibly have contacted the OC within 60 days of the statement date if indeed she never received the bill until the CA presented it.

If this is your stance, I already addressed this argument in my previous post!

From my previous post:

3) Account mine - I never received the statements though and that is why I never disputed with the OC. If that is the case, why did you not notify the OC that you did not receive two sequential statements? Since you didn't notify them within 60 days, the debt is assumed to be valid once the old statement is obtained.

AND

2) Account not mine - I never received any statements even though they have my address on them (assuming she did make a payment) - Why would you make a payment on an account that is not yours? Since you did and you never notified the OC within 60 days of your statement, the debt is validated once the old statement is obtained.

Regarding your last statement, The only thing I have that I could possibly use is an old copy of a credit report from Experian that lists my OC account as a Paid charge off.

I would definately try to use that as proof to avoid paying the debt but knowing Asset Acceptance quite well, I really doubt that will do anything.

Here is why: An inaccurate entry is an inaccurate entry regardless of whether that entry is positive or negative.

We have no idea who made that inaccurate entry. It could have been Experian or it could have been the OC. But, the point is, the entry was a mistake. So, you can't use a mistake against them because it was just that, an inaccurate mistake.

But what happens if she says, it wasn't a mistake? Good idea. You can take that stance but the problem is that, she has no evidence at all to support that listing (ie. cancelled checks showing she paid).

So, Asset Acceptance will forward the OC the report and state, why did you send us this debt if it was paid. The OC will double check their records and state Experian must have screwed up because our records show it was not paid. If it was paid, have her show us proof of this. Asset will ask for proof and she will have none so they will resume collection activities.

If the company that originally put the PAID notation is stating it is a mistake, it no longer has any weight. They will claim it is was just that, a mistake by Experian (or them). But a mistake does not excuse the oustanding debt. They will say, if she did pay, then show us proof because the OC is stating that, for whatever reason the PAID notation got on there, it was incorrect.

Why is it that people always like to assume that a negative entry on a credit report is always invalid whereas a positive entry is always valid?

It doesn't work that way. An inaccurate entry is an inaccurate entry, positive or negative. With that being so, both negative and positive entries are required to be valid as required by the FCRA.

Just like a negative entry, a positive entry is also required to be supported by some sort of evidence. If the company that put the paid notation on there has no evidence to support the paid notation but they do have evidence to support the chargeoff, the paid notation is no longer valid. And if the consumer has no evidence to support the paid notation, it is no longer valid nor can it be used against the OC.

Again, there is DEFINATELY no harm in trying but knowing Asset, I don't really think that will work.

 

Re: Re: How to deal w/ Asset Accept

Also, you are being misleading with your quotes from her.

She states very clearly, in reality, "No, it wasn't paid." 8/12/03 posting.

You only quote:

I paid it long ago
laurie33

When, the entire quote, is actually:

The only thing I have that I could possibly use is an old copy of a credit report from Experian that lists my OC account as a Paid charge off. Would that work to try and say I paid it long ago and have no idea why they're trying to collect from me again?

That type of quoting is something a local news station would do when trying to spin a story in a certain (misleading) direction!

She actually did not pay this and she has no proof to support the mistaken paid notation.

Now, she does make an excellent post by stating:

I'm not sure why the statements from the OC would not be considered validation. What do I say? That's my name, my address, but not my debt? That doesn't make any sense to me. NOR DOES IT MAKE ANY SENSE TO ME And if I say I paid it long ago but can't prove it, then what THEN YOU ARE REALLY STUCK IF THEY DON'T ACCEPT THE REPORT!!!!? How does that help me? I'm not interested in going after them for any violations they may or may not have done. I just want rid of this.

To me, it seems like she is thinking very realistically and knows exactly what situation she is in!!!!

She also states:

I'm going to try sending them the old CR page (with everything else that's not their business blacked out of course). I'll keep my fingers crossed that it works. The CR is from 1999 so my hope is that since it's so long ago that I "paid" it, it's believable that I wouldn't still have any other documentation to prove it.

It can't hurt to try this and like I stated in the previous post, I would try it. But this is quite different from misquoting her as making it look like she REALLY paid it.

The point of all my posts was to address your comment that they still have not provided proper validation when indeed they have. She knows she is stuck and so do I.

I applaud (and recommend) that she continue to do whatever is necessary to avoid the debt but Asset has done nothing wrong!

The key is that she got their credit report entry and inquiries removed. I am pretty confident that they will not attempt to persue this debt through the legal system (unless the debt is extremely large!).