1) They say you have 30 days from receiving their notice, and the letter is dated from when it was written, but how do they know when you actually "received it" for the time limit to even be controlled? There are x amount of days in the mail, and then the fact of when you actually got it to read it? 2) Is this a good DV reply? I've shortened it from my first draft. Date: Name: Address: CA Name; CA Address Re: account number / name To Whom It May Concern: This is not a refusal to pay nor does this letter serve as a request for proof of my mailing address, but a notice that your claim is being disputed and validation is now being requested. I am requesting that your company submit to me, with irrefutable evidence that this debt is mine and that I am currently under any legal obligation to pay you. I am requesting documented responses to the following: â?¢ An explanation as to what money being claimed as owed, is for. â?¢ A detailed explanation at how you arrived at the amount I currently am told by your company that I owe to you. â?¢ A copy of your license to operate as a collection agency in my state. â?¢ Proof that you, the current collector, legally owns this debt or has legally been assigned this debt; meaning your agency is legally enabled to collect the debt in question from me. â?¢ A complete history of payments beginning with my original creditor. This requirement is established by the case Fields v. Wilber Law Firm, Donald L. Wilber and Kenneth Wilber, USCA-02-C-0072, 7th Circuit Court, Sept 2004. â?¢ Copies of any signed contracts I have made with you in regards to this debt or in any way agreeing to its assignment to you. â?¢ A signed copy of the original credit card agreement. If your office does not comply with my requests within 30 days of your receipt of this letter, I then demand that all references to this alleged debt be deleted from my credit report and that proof of those deletions be sent to me immediately. Should your company be unable to secure the requested documentation, during any period this debt remains invalidated by you, all collection actions on your companyâ??s part must immediately stop including any further attempts to negatively report on my credit report. As per an opinion letter published by the FTC, reporting this collection to the credit bureaus is considered collection activity. I further request, in writing, that no telephone calls ever should be made by your offices to my place of resident or workplace. It is inconvenient for me to receive phone calls. All communications are requested to be performed in writing and sent to the return address posted on this letter. Sincerely, Name
1) Date of receipt is presumed by caselaw as 5 days from the date mailed, unless you can show otherwise... The 30 days is from the date of receipt... One thing that I've started doing, especially if the date on the postmark is not the date on the letter is notating, (1) date on letter (2) mailed/postmark date (3) received date on the envelope. Especially in cases where there is a 3 day (or more) window between the date on the letter, and postmark date, they'll really have problems in court if they try to argue that the 30 days started from the date on the letter, when they didn't postmark the letter until 3 or more days later, and you would have received it 5 days later than that. 2) bullet 3, does your state require licensure? IF they don't and you are demanding proof of a non-existent license, do you see the problem there... bullet 4, the ability to obtain the validation from the original creditor is enough to de facto prove ownership or assignee status for the debt, because they wouldn't be able to obtain that documentation if they didn't have that legal status. ONLY one time was there a situation that I know of personally, where there was any legitimate question as to ownership or assignee status, and that was caused by 4 CAs hot-potatoeing an account within one week, so that CA1 reported on the credit report, after the account had been sold to CA4, and CA4 sent a letter attempting to collect the debt. The overlapping of representation of assignments muddying whether or not which party was the current owner, is the only time that I can think of where that would be questionable. bullet 5, did you read Fields v. Wilber for yourself? The law doesn't require removal from the report, because that is not seen as continued collection activity (UNLESS you do a simultaneous CRA dispute through the CRAs). The next paragraph paraphrases the FTC opinion letter incorrectly... What is continued collection activity is VERIFYING or INITIALLY REPORTING the account after the validation request was received, but before they have OBTAINED and MAILED the validation. Nice phrasing of the inconvenience clause...
This is my first reading of Fields v. Wilber, so if I am in error, that's how I learn... (I am writing this to put into type my initial impressions after reading this case for the first time, not providing a professional legal opinion of this case, because standard disclaimer #1, I am not an attorney, I never played one on TV, I am not providing legal advice.) Fields incurred veterinary charges in the amount of $122.06, signed a contract which included a vaguely worded clause for being responsible for collection costs, should the account go to collection. Wilber sent a dunning letter from his law firm, reviewed and signed by a living breathing attorney (gasp), in which Wilber stated the amount owed was $122.06, + $250 in attorney fees, and an amount of 'interest'; collectively labeled as "ACCOUNT BALANCE", the individual line items apparently were not broken down to be able to be discerned why the $122.06 debt, ballooned to $388.54, overnight. Field's argued that (a) Wilber misrepresented the amount of the debt by including a flat-rate attorney's fee in the ACCOUNT BALANCE which was over 200% of the balance of the account, (b) and the reasonableness of the attorney's fees being demanded. The difference being that it misrepresented the amount of the debt by including the ballooned-up ACCOUNT BALANCE figure. The court stated that the Field's case differs substantially from the Veach that precedent was based on, because in Veach there was only a worst case scenario of what the amount of the legal fees could be, not a specific amount for services rendered under Field's. Some amount of legal services were rendered, there are some attorney's who may charge $250 an hour (I wouldn't be using one, but there are lawyers who have offices in Times Square NYC, which command that high of a price), the challenge was to the reasonableness of the charges, since they amounted to over 200% of the amount of the debt. My interpretation would be that what Fields states is as follows, the debt needs to be broken down in a way to clearly say what the ACCOUNT BALANCE and the major portions comprising that account balance. Saying the ACCOUNT BALANCE is $388.54, for a debt that was originally $122.06; without stating that the debt was $122.06, with accrued interest of $16.48, and legal fees are $250.00 was misrepresenting the amount of the debt. If Wilber broke the ACCOUNT BALANCE accordingly, Fields would have been able to send a validation letter demanding to know why they felt that 200% of the debt was a reasonable amount for the legal fees; and if Wilber didn't feel they wanted to negotiate that amount, then Fields could have sued to try to have the court determine a reasonable amount for the legal fees.
I was planning on sending a depute to the CRA's if it shows the collection before they have validated with me, also if the CRA's say its been verified but they have not validated with me first I've read that as a validation. If they send nothing in response, and it doesn't show in collection, I was planning on trying to resolve with the OC. The letter just says it has been "referred" to them for "their client"" the OC, so doesn't seem like the debt was sold. The rest is just notify within 30 days if you dispute language. The state would be TX, from what I can tell a license is needed but I'm not 100% sure.
As far as the about on the notice, its the same as the OC is reporting. I can remove that part as I think simple is better. Maybe this is a good like to use in a DV where it seems the amount has really ballooned with little or no explanation. In this particular case, the collection notice says it a credit card bot the OC says: Check Credit Or Line Of Credit
I removed the case info first the first letter about all the payment history for now as its likely not needed at this step and also shortened the ending so the FTC opinion makes sense saving if they don't validate, and I'm disputing it basically, continuing to report would be continued collection.
A validation letter can be as simple as "I have no idea what you are talking about." There is a great thread started by Butch! (Miss you!) http://consumers.creditnet.com/Discussions/credit-talk/t-what-validation-42188.html The best analogy, courts really haven't said what validation is, making validation like obscenity, "you know it when you see it". Essentially, per the FTC, validation has two purposes, if your requesting something that can be justified to a judge as answering one of those two purposes, you're request would be reasonable to expect of validation. 1) I am not the debtor you are looking for. 2) This is not the balance you are looking for. (yes, I couldn't resist trying the Jedi mind trick for those. ) So, you can see that bullets 4, 6 wouldn't meet those, bullet 3 while it doesn't meet those does go towards discovering whether their dunning notice is a false or misleading representations § 807; 15 USC 1692e (5) "The threat to take any action that cannot legally be taken or that is not intended to be taken." The last one, may more than likely today be e-signed or voice consented, as opposed to physically signed; but it does go towards establishing whether any of the charges are unfair practices" § 808; 15 USC 1692f (1) The collection of any amount (including any interest, fee, charge, or expense incidental to the principal obligation) unless such amount is expressly authorized by the agreement creating the debt or permitted by law."
