A charge off does not mean you no longer owe the OC. It means they have declared it uncollectable. They are still within their rights to sue you directly for the balance (Discover and MBNA both do this). They are also free to sell the debt to a debt buyer. Charge off is nothing more than a declaration that the account is "uncollectable," not a forgiveness of the debt.
I didn't understand that about the charge-off. Thanks for the explanation.Still though... the contract must be worded in such a way that its legally permissible to sell. And if it is sold, proper paperwork would go with it. Isn't that so?
That is exactly what I said in the beginning, and what I've been saying all aloing. They need to prove that the debt is yours, how the balance was computed, and that they have a right to collect. That's all.
Hedwig,"You have to understand that theory and reality often don't meet." I've certainly learned that this past two weeks. Regarding the selling of contracts again... When a contract is sold, its provisions are binding on the purchaser. If the purchaser doesn't have the contract, he doesn't know what the provisions are... so in a legal transfer, the contract MUST go to the purchaser. In addition, there would have to be an addendum of some sort that would list EVERY account name and number that was being transferred. Given those two things... the debt collector would HAVE to have the paperwork to show. Yet they don't. The only logical reason is that it is NOT a valid debt owed to THEM, and therefore they have no paperwork to prove it.
Not meaning to harp on this... just trying to work it all out. My original post was really in regards to the fact that the FDCPA has much less stringent and/or fuzzy rules on just what validation is. But the law has quite stringent rules on it, the most important being Best Evidence Rule.
Well, under the FDCPA, the CA is to obtain the proof from the OC and provide it to the debtor. And remember that law is not only what is written, but what the courts have interpreted it to be. That is why studying case law is so important.
My point is they need the contract or billing statements to prove the debt is yours. I do not know how you prove the debt belongs to someone without them. I do not think a letter saying "I contacted the OC and they said its yours" suffices. But maybe it does.
To meet the requirements of the FDCPA, the CA has to obtain some proof from the OC and then send that information to you. Some proof meaning; verification of the debt or any copy of a judgment, or the name and address of the original creditor (per the FDCPA). It doesn't take much, but it does have to come from the OC and the CA (not the OC) has to send it to you. They don't need to provide any contracts or months of invoices or any of that to meet the validation requirements of the FDCPA. Now that information may not be sufficient proof to you to show that this is your debt (and not your neighbor's, grandmother's, or deadbeat who lived in your apartment before you got there) however, it IS enough to start collection activities again. Rules of evidence don't really apply here because you're not in court. I suppose you can take it to court, and many people have had luck in doing that, but, unless you're an attorney, that's a lot of hassle for the average person (I suppose it's a lot of hassle even if you're an attorney, but I can't say). At this point you come down to a game of chicken to see who'll flinch first (i.e. pay or leave). Sometimes, if you fuss enough and ask for this, that, and some other thing, they'll go away...or they may go to court. Either option is within their rights. Sometimes you (the debtor) will get tired of dealing with them and agree to some settlement. It all depends, but all of this is legal, once they've sent you the required shreds of documentation. Now, if they go away, you're off the hook until they sell it to someone else and you start the game all over again. Or, if they go to court, you're on the hook to deal with a law suit. Again, you may prevail (by having the facts and the law on your side or just by being a big enough pain in their back-sides) or not, in which case they'll have a judgement against you for the debt, their fees, and anything else they can convince the judge to include. But the point is that the validation required to meet the FDCPA requirements may or may not be sufficient for you to know if this is yours and that you should pay it.
I had a similar (generous) misunderstanding as well until I read the FDCPA (for the 9,000th time) and reviewed some cases. The italicized text in my post is pulled from the statute.
Interesting conversation! So if they comply with FDCPA rules and give some proof, coming from the OC and sent to you by the DC, that gives them the right to attempt to collect the debt. But, when you get sued, thats where the law gets strict. You're now under federal/state/local laws with different requirements for proving ownership of the debt. This validation and proof thing is heavily debated on every forum I've seen!
Then, if the burden of proof is on the Plaintiff (DC), they must, in court, comply with the federal/state/local laws. And if that's the case, they must comply with the Best Evidence Rules. As far as the FDCPA rules, they are ONLY rules, not laws. You can get judgments for violation of those rules, but laws take precedence as to whether or not you actually owe a debt to THEM.
I'm not sure I follow all that. Practically, what the plaintiff must do depends on the judge and the rules of the particular court. You might be able to make some headway on appeal if you think the judge didn't follow the rules or the law, but that's for the appellate court to decide. The FDCPA is part of the United States Code. I'm pretty sure that counts as a law. But remember: An FDCPA suit has no legal connection to a debt collection suit (even though the debt collection is what might precipitate an FDCPA suit). They are two distinct and separate causes of action. Likewise, that you may owe a debt is not a defense for an FDCPA violation nor is an FDCPA violation a defense against a debt obligation. Legally they have nothing to do with one another (in spite of the fact they are frequently mingled to confuse the issue).
You need to read a lot of case law. In these cases, the FDCPA is the standard the judges usually use. And what we've stated here is what has been decided by courts previously.
I think thats kind of what I'm saying too. Its two separate causes of action: 1. Do you legally owe the debt to the DC? -- Under federal/state/local laws -- common law applies, including Best Evidence Rules -- original documents proving ownership of the debt. 2. Did they violate FDCPA rules? -- Under FDCPA rules -- FDCPA guidelines apply -- "evidence of debt" may be enough... fuzzy.
Hedwig,You're basically saying that no matter what common law states, judges are pretty much working right around that, right?Being new to the forum and not having much time left before doing my papers, is there one thread here that gives all the cites? Sorry to ask but I'm hoping you know offhand where I might find that. If not, I'll search.
Although they are separate causes of action, it is common to use the threat of a FDCPA action to settle on an account.
