I just got served a small claims summons. I was served on 10/17 and have 14 days to respond. The day before receiving the summons I actually sent off "validation letters" to many of the creditors on my credit report. This was one of them I sent to. They had not received the letter yet obviously and had actually filed, according to the "file date" on the summons, several days prior to this. My question is this; since I did send the request for validation, certified return receipt, the day before I was served...can I use this as my rebuttal to the suit? Can I ask that the suit be thrown out or suspended pending the receipt of the validation I requested from the creditor??? Can I use the FDCPA, stating that untill they validate as I requested they must suspend all collection activity, including the lawsuit?
More info, please. Did you send your validation requests within 30 days of the collector's first contact with you? If so, then yes, it should affect the lawsuit. I'm not certain whether the suit will be dismissed without prejudice or simply stayed. Maybe a more senior member could clarify. Regardless, it is up to you to respond and assert your rights. There's a common misconception that the debt collectors are not permitted to take any collection action within the first 30 days. This is incorrect; they can do whatever they want (as long as it's legal). The only have to suspend once they receive that validation letter, and only if it's within the first 30 days.
No! You said it all when you said that they had not received the letter prior to filing. They could not possibly have known about your demand for validation when they filed. Even so, now you should also send a validation demand to the plaintiff's attorney. However that will not constitute a proper response to the complaint nor will it serve as any kind of rebuttal. The question before the court is whether or not you owe the money and if not why not. You must respond to that question. Even if they violate federal law complaining about that does not answer the question before the court. No, that isn't a defense either. If they violate the law in some way that would materially affect the outcome of the trial you might be able to use that in a counterclaim but if they violate in some way that would not materially affect the outcome of the trial then you will have to file a totally separate case against them in order to address those issues. The normal way to respond is to deny all their allegations even if they are true.
I havent had any contact at all with this creditor for several months, almost a year. They called me constantly when the debt first went past due.
Is it the creditor, or a collection agency suing you? If its the creditor, the validation isn't worth the paper it was printed on, and collections don't have to stop.
Just FYI, the validation is only really useful when it's sent within 30 days of first contact and via certified mail with a signature receipt. It sounds like you sent the validation several months ("almost a year") after first contact, which means that for all intents and purposes it's worthless.
What is apparently being overlooked here is the fact that service of summons has been within 30 days. If that summons was the first contact from the lawyer or if their first contact was less than 30 days ago then sending validation to the lawyer would be in order.
If AFNI (as an example) contacts a consumer in January 2007 about a debt, and the consumer doesn't respond, and AFNI retains a lawyer to sue the consumer on AFNI's behalf, then does the lawyer now cound as a debt collector, separate from AFNI? It certainly can't hurt to try, but I didn't think it would be relevant since the lawyer is only being used to facilitate AFNI's efforts, much like the postal service is being used to send AFNI's mailings.
This is the OC. I have since posted another thread on how I screwed this up by sending the validation request to an OC. I also responded to the summons and cited the validation letter I had sent the day before, so I may be seen as completely incompetent and get a judgement thrown in my face now. The lessons of a newbie Btw, they are not using an attorney, atleast one is not notated on the summons, only has the creditor name. I'm crossing my fingers that they were just hoping for me not to respond and get a default judgement. Hopefully the court wont award it by default (even though my response was wrong) and the creditor will not persue it further. (probably wishfull thinking I know)
