Re: Re: Re: Re: Re: Re: Is this C&D? There are those [The "Naysayers"] who insist (even in the face of proof to the contrary, lol) that the OC can send you demands for payment and are under no obligation whatsoever to prove their assertion that you do owe it. To insist that we, as consumers, have absolutely no rights to demand strict proof of a debt from an OC simply cannot be correct in the world of common sense. The Fair Credit Billing Act provides for a consumer to demand validation from an OC. The FCBA concentrates on correcting a bill with errors. But this assumes the consumer and the OC do in fact have a relationship and that nobody is arguing this point. Suppose however, you insist that the bill is completely erroneous (Such as "I've never done business with you") the contrary must be proven. Think for a moment of what the world would be like if we had no validation rights until an account goes to collections. First, since an account doesn't even go to collections unless the OC sends it there, here's the world we'd be living in. Millions upon millions of OC's would simply send out fictitious bills to millions upon millions of consumers hoping they would be stupid enough to just sit down and write a check. If the consumer argues the debt the OC simply drops the issue. Naturally NOTHING ever gets turned over to collections, where, in the "naysayers" world, you finally are able to exercize some rights. This would be a massive setup for lawsuits to break out all over the country. We'd have to build 100 new prisons to house all the OC criminals. The justice system would implode. LOL Suppose I sent you a bill for $1,000 and demanded it's payment. That would mean you have no recourse against me because I'm not a CA under the FDCPA. ppfff. You have every right to demand that I prove my case. It's just under a different system of law, not the FDCPA. OK, so YOU are too smart because you're a CN member. So then I'll just send out 100,000 fictitious bills, or maybe a million. And of course now that fictitious billing is so rampant people will realize they can get out of legitimate debt just by asserting the debt is bad. See the mess? The fraud would be so rampant it would probably shut down the entire economy. Not to mention all the extra work for the Postal Inspectors, (fraud). Here's a detailed discussion from an Atty. about your rights with the FCBA. http://consumers.creditnet.com/stra...eadid=43909&highlight=learn+AND+your+AND+fcba Notice it distinctly INCLUDES your right to demand proof from an OC that the debt exists. I guess some of you guy's missed this? HTH
Re: Re: Re: Re: Re: Re: Is this C&D? For the benefit of the yeasayers let us examine a few facts about FBCA taken directly from the law itself. 1.The term creditor refers only to creditors who regularly extend, or arrange for the extension of, credit which is payable by agreement in more than four installments or for which the payment of a finance charge is or may be required, whether in connection with loans, sales of property or services, or otherwise. the term creditor shall also include card issuers whether or not the amount due is payable by agreement in more than four installments or the payment of a finance charge is or may be required, and the Board shall, by regulation, apply these requirements to such card issuers, to the extent appropriate, even though the requirements are by their terms applicable only to creditors offering open end credit plans. So, how does the debtor avail himself of all the protecions of FCBA if he is hit with a bill from a creditor who does not regularly extend or arrange for the extension of credit of any kind but does perform service and bills at a later date. All kinds of companies have 30, 60, 90 days or whatever same as cash policy? Or he orders something from some merchant who has a "bill me later" policy? Or one's telephone, electric, gas, cell phone, Internet Service Provider or other recurring monthly billing cycle? In today's economy most bills are still paid by check and not by credit card nor involve any kind of credit at all. Despite the fact that untold billions of dollars are spent using credit cards far more money is spent using checks not to mention cash of course. And if one is delinquent in paying a bill and the creditor refers the matter to a 3rd party collector FCBA does not apply. Let us look at another section of FCBA. ì( a) If a creditor, within sixty days after having transmitted to an obligor a statement of the obligor's account in connection with an extension of consumer credit, receives at the address disclosed under section127( b)( 11) Ahhhhhh! So now we find that once an obligor [debtor] has less than 60 days after the printed date on a statement received from the creditor within which he can avail himself of the protections of FCBA. Counting time in transit via the post office more like 50 days. Apparently if he don't get the protest to the creditor within 60 days after the date on the statement he is out of luck. a written notice( other than notice on a payment stub or other payment medium supplied by the creditor if the creditor so stipulates with the disclosure required under section127( a)( 8)) from the obligor in which the obligoróì( 1) sets forth or otherwise enables the creditor to identify the name and account number( if any) of the obligor, ( 2) indicates the obligor's belief that the statement contains a billing error and the amount of such billing error, and ( 3) sets forth the reasons for the obligor's belief( to the extent applicable) that the statement contains a billing error, the creditor shall, unless the obligor has, after giving such written notice and before the expiration of the time limits herein specified, agreed that the statement was correct ( A) not later than thirty days after the receipt of the notice, send a written acknowledgment thereof to the obligor, unless the action required in subparagraph( B) is taken within such thirty-day period, and ( B) not later than two complete billing cycles of the creditor( in no event later than ninety days) after the receipt of the notice and prior to taking any action to collect the amount, or any part thereof, indicated by the obligor under paragraph( 2) either It also pretty well states that about all the creditor has to do is to determine that he feels the billing is correct and the debtor is completely and totally out of luck. See, it says that right here. After complying with the provisions of this subsection with respect to an alleged billing error, a creditor has no further responsibility under this section if the obligor continues to make substantially the same allegation with respect to such error. So you complain and the creditor says his billing is correct and not in error and FBCA is gone. POOF! And to make matters worse, we see the following. Nothing in this section shall be construed to prohibit any action by a creditor to collect any amount which has not been indicated by the obligor to contain a billing error.So on top of having to inform the creditor within a very narrow window of time he also has to tell the creditor exactly what is wrong with the billing but the creditor can do anything he wishes about the rest of the bill including sending it to a 3rd party collector or immediately filing a motion for summary judgment on the debtor. Seems obvious that in your rush to condemn the naysayers you are reading an awful lot into a weak sister that is applicable to a very limited set of circumstances and only for a very limited amount of time under which one can exercise his few rights.
Re: Re: Re: Re: Re: Re: Is this C&D? I sure do wish you guys had a leg to stand on but so far it don't seem like you do. I do appreciate your posts and comments because they cause me to research things even more and by doing so I just might have found a powerful new tool. At first glance I had hoped you would come up with something that would be worthy of adding into my new newsletter which started going out nationwide yesterday thanks to the efforts of grendel. If it had not been for him it probably never would have happened. I've named it DEBTOR CHATTER and so I'll need lots of material to add to it and I surely do thank you for your comments and posts even if I couldn't add this material in the next issue.
Ok, I am getting back into this against my better judgement but here goes: From my Alma Mater: http://www4.law.cornell.edu/uscode/15/1666.html You forgot one piece, Bill: (ii) s"end a written explanation or clarification to the obligor, after having conducted an investigation, setting forth to the extent applicable the reasons why the creditor believes the account of the obligor was correctly shown in the statement and, upon request of the obligor, provide copies of documentary evidence of the obligor's indebtedness. In the case of a billing error where the obligor alleges that the creditor's billing statement reflects goods not delivered to the obligor or his designee in accordance with the agreement made at the time of the transaction, a creditor may not construe such amount to be correctly shown unless he determines that such goods were actually delivered, mailed, or otherwise sent to the obligor and provides the obligor with a statement of such determination." They do have to for all practicel intents and purposes validate. The 60 days can be thrown right out the window in any court of law. They would have to prove in most states that you received the intial bill.
Also about Spears vs Brennan not being about validation? They talk an aweful lot about it in the case notes: http://www.state.in.us/judiciary/opinions/archive/03260101.ewn.html They address the need for validation before going to court. I understand the initial case wasn't remotely close to validation but it ended having a LARGE affect on it. In enacting the FDCPA, Congress stated its findings and declared the purposes of the Act as follows: (a) There is abundant evidence of the use of abusive, deceptive, and unfair debt collection practices by many debt collectors. Abusive debt collection practices contribute to the number of personal bankruptcies, to marital instability, to the loss of jobs, and to invasions of individual privacy. (b) Existing laws and procedures for redressing these injuries are inadequate to protect consumers. (c) Means other than misrepresentation or other abusive debt collection practices are available for the effective collection of debts. * * * (e) It is the purpose of this subchapter to eliminate abusive debt collection practices by debt collectors, to insure that those debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged, and to promote consistent State action to protect consumers against debt collection abuses. Ziobron v. Crawford, 667 N.E.2d 202, 205 (Ind. Ct. App. 1996) (quoting 15 U.S.C. § 1692), trans. denied. â??The FDCPA is a broad statute that was designed to â??protect consumers from a host of unfair, harassing, and deceptive debt collection practices without imposing unnecessary restrictions on ethical debt collectors.â??â? Blakemore v. Pekay, 895 F. Supp. 972, 977-78 (N.D. Ill. 1995) (citations omitted) (also observing that Act was designed to reach â??very broad spectrum of abusesâ?). Spears maintains that the trial court erred when it entered summary judgment in favor of Brennan on his complaint alleging violations of the FDCPA. In particular, Spears contends that: (1) Brennan misrepresented the amount of attorneyâ??s fees to which he was entitled for the collection of Spearsâ?? debt in violation of 15 U.S.C. §§ 1692e(2)(B) and 1692f(1); (2) Brennanâ??s debt collection notice to Spears did not comply with 15 U.S.C. § 1692g(a); (3) Brennan violated 15 U.S.C. § 1692g(a) when he scheduled two hearing dates on the debt collection claim and obtained a default judgment against Spears within the thirty-day debt validation period; and (4) Brennan violated 15 U.S.C. § 1692g(b) when he obtained a default judgment against Spears after Spears had notified Brennan in writing that the debt was being disputed and before Brennan had mailed verification of the debt to Spears. We address each of Spearsâ?? contentions in turn. Issue One: Misrepresentation of Attorneyâ??s Fees
Nothing unusual about that. It isn' t that I forgot about a piece, I just don't always think of a piece. (LOL)
Re: Re: Re: Re: Re: Re: Re: Is this C&D? well, I am glad I could get your off your a$$ about something, Bill. It's too bad you can't see what we're talking about here. The FCBA is a tool you can use when you've exhausted FDCPA and kicked it back to the OC. Or hell, even use it before getting to a CA. If you can't see that, then the debate is over. It's also too bad that you're not posting ALL the relevant material when you cite something, because others are just losing out. The FTC obviously thought it was important, or they wouldn't have ruled on it. Your arguments against the Privacy Act by linking the Freedom of Information Act; I wonder about. You seem to think they're the same thing. They are not. Yes, you can invoke the Privacy Act against creditors. Especially student loan holders and the like. Again, this isn't a "silver bullet" against all OC's, CA's or all debt scenarios. However, everything has a purpose and a place. By pulling my words out of their correct place, you cheapen both of us. They have relevance in their syntax. When I spoke on CRRR about using the FBA, I was speaking about validating the OC. I also spoke about validating the CA with FDCPA. Each set of laws is applicable to a specific scenario, as you know. My audience there was trying to validate OC's with the FDCPA. Oranges and Apples and I was pointing that out. You seem to like crossing them over in your paraphrase. You also seem the like being the victim yet you cast the first stone. We all live in glass houses Bill. Yes, I have a true MBA from a true University that I worked very hard to get. I felt it was applicable in this discussion. Also, the fact that I am a Paralegal is applicable as well. I fail to see how web technologies were applicable when we're talking about kicking it back to the OC?
No, I didn't forget that piece, I just failed to see where it had a lot of significance. So let us examine it again keeping in mind that first of all this has to take place within 60 days after the initial billing and not after it has been sent to a 3rd party collector as a delinquent or charged off account. Please understand that about 99% of the time I deal with a person long after they had any chance to avail themselves of FCBA and have almost always tried all the credit repair tricks they could think of or learn about from this or other message board or friend or relative or after one of my real estate brokers has tried all the tricks they knew of to get them qualified for a home. So from my viewpoint relief under FCBA would have long since been gone and over with. You may very well be working with "fresh meat" and that would put us at opposite poles just to start off with. It could very well mean that we are both correct in our positions. It could very well be the reason why I say you are wrong when in actuality such is not really the case and vice versa. So let us try to remember that if such is the case. Most of the time I get the "hopeless" cases after everybody else tried and failed. Be that as it may, let us continue. send a written explanation or clarification to the obligor, after having conducted an investigation, setting forth to the extent applicable the reasons why the creditor believes the account of the obligor was correctly shown in the statement and, upon request of the obligor, provide copies of documentary evidence of the obligor's indebtedness. You see, grendel the important point here is that a disagreement about some item on the billing must be under dispute. When I deal with a problem there is normally no dispute about any item on the bill. In most cases the debtor does not have the funds with which to pay or for whatever reason he has no intention of paying any of the bill or for whatever reason he may not even have any idea who the creditor might be or why he got billed in the first place. He suddenly ups and checks his credit and sees that at some time in the past a derogatory remark showed up on his credit report that may be well over a year old. I fail to see where FCBA could possibly help people in those circumstances. And what about one who suddenly wakes up and finds out he has been the victim of identity theft? Or someone has stolen his credit cards? The more I think about it the more clearly I see that we are arguing apples and oranges here. That's our basic problem here. The more I think about it the less reason I see for me to continue the discussion. It isn't that you are so wrong. Its the fact that as far as I can see FCBA arguments against a creditor would be time barred for those situations I deal with. Or am I still missing something here?
Re: Re: Is this C&D? Actually, I think you could throw the 60 day dispute right out the window. In order to keep that time frame, they would have to prove that you got the bill(s) that you're disputing. It's shakey territory, but it has been argued and won. As long as the OC has the account, then the FBA applies. I've never said your methods were wrong. I've never said you were wrong. I think I even posted that on the third page. Just if for any reason the OC gets or keeps the account, you can validate. You can request all the records the OC has! There's how you validate an OC. If the OC can't validate, they can't report. End of Story. Heck, you can even sue the OC for 100-1000 dollars. They also can't report while it's in dispute. If they can re-age this dead meat on us, we can do the same to them. It works, I've done it! However if it never gets back to the OC, the of course all the FDCPA battles begin. I advocate that pretty well, too.
Re: Re: Re: Re: Re: Re: Re: Is this C&D? Where am I missing the point here? What I have seen so far is that the debtor has only 60 days from the date on the creditor's original monthly billing statement to have his dispute in the hands of the creditor. That's what I see. Please show me where I am wrong on that point. I can now understand how you and others could feel that if you can hang a C&D on the CA and get him to throw up his hands and return it to the creditor then the FCBA process could be invoked again. I can see how one might believe that. But if that is so then where can I find it in the law or in some court ruling that would support that belief? Oh yes! Long before the creditor ever even thinks about sending it to collections. Not so fast if you will please. I'm not so damned bullheaded I'm not willing to listen to your points. Far from it. I'm all eyes, but so far I haven't seen where it can be applied to the situations I normally have to deal with.
Re: Re: Re: Re: Re: Re: Re: Re: Is this C&D? Sorry, I edited my post to clarify my thought processes. I've posted the requirements for validation under the FBA. http://www.ftc.gov/os/statutes/fcb/fcb.pdf § 161. Correction of billing errors § 162. Regulation of credit reports I understand if there is no chance of hitting it back to the OC, then hit with the FDPA. I also understand we have to attack these issues where we're most comfortable. Your arena is FDCPA and others, while they're with a CA. There is power under any law we can leverage. I hit both, using anything I possibly can. Also, in order for them (the OC) to claim time barred defense on the 60 days required by FBA, they have to prove that you received the notices. Mail gets lost. I've had small claims court judges say, yeah, time is an issue, but prove this is their debt. That is a fair request. OC records suck just as much as ours do! If you exhaust one, switch tactics. This is all I have ever said.
Re: Re: Is this C&D? First of all, I won't take the attitude that has been thrown at me so many times in the past, i.e. either prove it or shut up, and I don't expect others to do my research for me either but it would be helpful if you happen to be able to point me to a court case or two where that argument has been won. I really hate that "shakey territory" stuff but if it works then so what?
Re: Re: Re: Re: Re: Re: Re: Re: Is this C&D? Sorry, that should be FDCPA. Fingers aren't working well, lately.
Re: Re: Re: Is this C&D? Well, I understand that attitude of prove it with case law or shut up. I really don't like shakey territory either. But at least this seems reasonable and logical. I'll see what I can do to scan my documents and post them. Again, this was small claims court against a local company. I doubt that the small claims court has somethhing online.
Re: Re: Re: Re: Re: Re: Re: Is this C&D? Well, as I said before when I did a Google search using each term I got back a whole slew of links all indicating they are one and the same so what am I supposed to think? Please teach me where they are not the same. Tell me where one is 5 USC whatever and the other is 105 USC or whatever. Then I will learn that Google has lead me astray and how. I can easily understand how it would hold rock solid on student loan holders and the like. No problem there at all. And if in fact FOIA is codified differently than Privacy act then both would apply. Now then if you are speaking about Privacy Act coming under HIPAA then again it is a different can of worms and you would be correct under that scenario.
Re: Re: Is this C&D? LOL You are more correct on that than you probably realize too. (LOL) But I sure do shudder at the thought of using a cease & desist in order to get the job done. In my way of looking at it that's about as safe as doing the Indian rattlesnake dance with one big rattler in each hand. (LOL)
