I saw your answer in another post: "I assume AFNI is a collection agency. If their "mini miranda" warning merely states: "This is an attempt to collect a debt and any information obtained will be used for that purpose", and omits ANYWHERE in the letter that they are a "debt collector", I'd immediately file suit in federal court for violation of 15 USC 1692e(11)." I was sued by an attorney representing an alleged creditor. Attorney placed within his petition the following: ""Notice to Defendant from Plaintiff: This is an attempt to recover a debt and any and all information obtained will be used for that purpose. We will assume the account is valid unless you notify us in writing within 30 days that some or all of the debt is disputed. If you dispute the account or any part of it in writing within the same 30 day period we will verify the account and send you written verification. Upon your written request within the 30 day period we will provide the name and address of the original creditor if it is different from the current creditor." I sent a letter, within 30 days CCRR, disputing the entire debt and demanding validation of the debt. Attorney did not validate but instead filed a motion for summary judgment 32 days after he received my demand for validation. 1. If this attorney represents an original creditor does he have to identify himself as a debt collector? 2. If this attorney represents an assigned creditor does he have to identify himself as a debt collector? 3. If this attorney represents an original creditor that sold the contract, and then repurchased it 2 years later, does he have to identify himself as a debt collector? Can you help? Thanks. southland2.
Also - if I'm not mistaken, when a consumer reads; "this is an effort to collect a dedt", even a least sophisticated consumer should be able to conclude that the communication is from a collector. So - the fact that the letter does not contain the specific words; "I'm a debt collector", probably would not be actionable, provided the MM is present. .
Thanks, Butch, for the caution and information. I try to take all information from everyone into consideration but I do take it "with a grain of salt". Most information, right or wrong, does at least give me some insight and direction for further research. southland2.
Re: Re: JDP Pro Se - please answer? ""Notice to Defendant from Plaintiff: This is an attempt to recover a debt and any and all information obtained will be used for that purpose. We will assume the account is valid unless you notify us in writing within 30 days that some or all of the debt is disputed. If you dispute the account or any part of it in writing within the same 30 day period we will verify the account and send you written verification. Upon your written request within the 30 day period we will provide the name and address of the original creditor if it is different from the current creditor." Second, this notice of your rights is in violation of 809. If you argue the debts validity, their presumption of the debts validity is removed, WHETHER YOU NOTICE THEM IN WRITING OR VERBALLY. A least sophisticated consumer who reads this may infer that a dispute MUST be in writing, and therefore may be dissuaded. - NOT CORRECT! IE. There are those who cannot read or write. A VERBAL dispute is sufficient to remove the presumption of validity. Actually, the language is completely legal. The FEDERAL APPELLATE COURT case Graziano v. Harrison, 950 F. 2d 107 (3rd Cir. 1991) is directly on point. A debt collection notice that informed the debtor that if he disputed the debt he must do so in writing DID NOT violate 15 USC 1692g(a)(3). Your rights were violated under 15 USC 1692g(b) if the attorney continued suit without validating the debt upon your request before proceeding. 1. If this attorney represents an original creditor does he have to identify himself as a debt collector? It should be clarified that when one references the "mini-miranda" warning, it's in regard to 15 USC 1692e(11), i.e. "This is an attempt to collect a debt. Any information obtained will be used for that purpose." The validation notice under 15 USC 1692g is not referred to as the "mini-miranda" as a matter of custom in the industry. To address your question, under the Amendment to the FDCPA which became effective 1/1/97, the language "This is an attempt to collect a debt and any information obtained will be used for that purpose" is ONLY required in the INITIAL communication with the consumer, be it oral or written. HOWEVER, in all subsequent communications a debt collector must disclose that the communication is from a debt collector. This does not apply to a formal pleading made in connection with a legal action. As some states still require the old mini-miranda warning in all written communications, some debt collectors continue to provide it in all writings and merely add at the end "This communication is from a debt collector."
Re: Re: Re: JDP Pro Se - please answer? Actually - no it isn't. However, I'd be the last guy on the planet to insist that this issue is uniformly settled among ALL jurisdictions. As evidenced by Graziano, (from 1991) that is not the case either. Fact is ANY JUDGE IN ANY COURT RESERVES THE RIGHT TO BE A BABBLING IDIOT, as we do see from time to time. Remember when the 9th Circuit removed God from the Pledge of Allegience? LOL Once a disagreement ensues, we must turn immediately to the plain language of the statute itself; to wit; § 809. Validation of debts [15 USC 1692g] (a) (1) (2) (3) a statement that unless the consumer, within thirty days after receipt of the notice, disputes the validity of the debt, or any portion thereof, the debt will be assumed to be valid by the debt collector; (4) a statement that if the consumer notifies the debt collector in writing within the thirty-day period that the debt, or any portion thereof, is disputed, the debt collector will obtain verification of the debt or a copy of a judgment against the consumer and a copy of such verification or judgment will be mailed to the consumer by the debt collector; and (5) a statement that, upon the consumer's written request within the thirty-day period, the debt collector will provide the consumer with the name and address of the original creditor, if different from the current creditor. Let's focus on the items 4 & 5. Item #s 4 & 5 begin with language which indicates that if a consumer wishes to avail himself of that section he must do so in writing. to wit; 4: "a statement that if the consumer notifies the debt collector in writing" ... 5: "a statement that, upon the consumer's written request" ... However, in #3: "a statement that unless the consumer, within thirty days after receipt of the notice, disputes the validity of the debt, or any portion thereof, the debt will be assumed to be valid by the debt collector". TELL ME WHERE YOU SEE THE REQUIREMENT THAT THE NOTICE MUST BE IN WRITING! The requirement to provide written notice for #3 was removed on purpose during Congressional hearings in 1976 & 7. Congress doesn't do things by accident, usually. #4 & 5 require the CA to take some form of action, but #3 does not. This distinction means something. Indeed, the requirement to trigger this provision (#3) is NOT predicated upon a written notice, but may be done verbally. Therefore, for a CA to issue notice, telling a consumer that in order for him to trigger #3 he is REQUIRED to do so in writing IS, IN FACT, A VIOLATION. Although JDP found one case, Graziano, which states otherwise, I have 10 cases which conclude in my favor. Moreover, it is the position of the FTC as well. HANG YOUR HAT ON THE PLAIN LANGUAGE OF THE STATUTE GANG.
Re: Re: Re: JDP Pro Se - please answer? Nuance: The fact that this language is in a formal pleading may be an issue. I'll see if I can find something.
Re: Re: Re: JDP Pro Se - please answer? Although Butch may sound sincere, he is unfortunately sincerely WRONG. His implicit assertions that we avoid precedent and "rely on the plain language of the statute" is sadly flawed. "Although JDP found one case, Graziano, which states otherwise, I have 10 cases which conclude in my favor. Moreover, it is the position of the FTC as well." 15 USC 1692g(a)(3) does not, by any interpretation or precedent, act in a "vacuum". It deals specifically with what a debt collector may "assume", but is expanded upon in (a)(4) and (a)(5). While I doubt the poster is accurate in his assertion of FTC position, all know that FTC opinion is not binding and were it so, has been rendered meaningless by case law. Reading (a)(3) alone would stand in threatening contradiction to (a)(4) and (a)(5), and is a well worn point of law. I can assure all that were he so able, the cases would have been cited. And I guarantee you all that he will find no such APPELLATE case in his favor. On the other hand, I will reference Castillo v. Carter, 2001 WL 238121 (S.D. Ind. 2/28/01) - dispute must be in writing; Fasten v. Zager, 49 F.Supp. 2d 144 (E.D. NY 1999) - no WRITTEN request, no validation required nor overshadowing even though debtor DID make oral request; Brady v. Credit Recovery Co. Inc., 26 F. Supp. 2d 201 (D. Mass. 1998) - debt collector may assume debt is valid unless disputed IN WRITING; Sturdevant v. Jolas, 942 F.Supp. 426, 429 (W.D. Wis. 1996) - etc., etc... "HANG YOUR HAT ON THE PLAIN LANGUAGE OF THE STATUTE GANG." ...and you will remain in the dark.
Re: Re: Re: JDP Pro Se - please answer? I'm curious on the FTC as well, you find an opinion letter, interpretation, or judgment somewhere, Butch??? For you, from Edelman: RELATIONSHIP BETWEEN §§1692g AND 1692e(8) Cases are divided on whether an oral dispute prevents the collector from assuming that the debt is valid. Jolly v. Shapiro, 237 F.Supp.2d 888 (N.D.Ill. 2002); Graziano v. Harrison, 950 F.2d 107, 112 (3d Cir. 1991); Sturdevant v. Jolas, 942 F.Supp. 426, 429 (W.D.Wisc. 1996); Castillo v. Carter, 99-1757, 2001 WL 238121 (S.D.Ind. Feb. 28, 2001) (all requiring writing); with Spearman v. Tom Wood Pontiac-GMC, Inc., IP 00-1340-C-T/K, 2002 WL 31854892 (S.D.Ind., Nov. 4, 2002) (no writing requirement). Section 1692g is related to §1692e(8). Under §1692e(8), if a consumer disputes a debt, either orally or in writing, Brady v. Credit Recovery Co., 160 F.3d 64 (1st. Cir. 1998), the debt collector cannot report it as undisputed to a credit bureau. Thus, if the consumer orally disputes the debt, the debt collector cannot assume that the debt is valid or report it as undisputed to a credit bureau, but need not provide validation information to the debtor. JDP, for you to say absolutely that the language is completely legal is misleading: You cited a case from 1991, again without a link (because the court only has cases online beginning in 1994), and the CA's 2nd fave case to cite (batting 2 for 2 there). I agree that failure to state the communication was from a debt collector is a violation. This too, I think it a violation: "Notice to Defendant from Plaintiff: This is an attempt to recover a debt and any and all information obtained will be used for that purpose. We will assume the account is valid unless you notify us in writing within 30 days that some or all of the debt is disputed. If you dispute the account or any part of it in writing within the same 30 day period we will verify the account and send you written verification. Upon your written request within the 30 day period we will provide the name and address of the original creditor if it is different from the current creditor." The wording should be: disputes the validity of the debt, or any portion thereof. The difference in wording removes the option that perhaps the CA is dunning the wrong person, one of the purposes of the validation notice. There is a huge difference between verification of the debt or judgment and verifying an account. Agreed as well, the attorney should not have continued suit, without having provided the required validation. Sassy
Re: Re: Re: JDP Pro Se - please answer? My assertion that the FTC maintains this position comes from the NCLC Manuals. Even Collectors know I'm right on this. And I DID say there was NOT a uniform resolution. (That means courts disagree, for those in West Palm Beach, Broward or Dade Counties) JDP tells us he came to us from the CollectionIndustry.com board. The board owner and Admin. is Bill Lindala. Here's Bill's comment on the same issue as it was discussed in July of last year. http://www.collectionindustry.com/forum/messageview.cfm?catid=9&threadid=278 It has been my understanding for many years, that even though the FDCPA states that a dispute should be in writing, that a verbal dispute should also be taken to heart and reported as such to the credit bureau. ACA sent out an "ACA Alert" some years ago, stating that some courts have found that a verbal dispute is just as valid as a writtent dipute. I couldn't find that document, but this is posted on ACA's website: January 2002 District Court Decisions In re Sanchez, 2001 WL 1456942, -- B.R. -- (N.D. Cal. Nov. 9, 2001). A law firm sent a collection letter to a consumer, which included the statement, "You may dispute the validity of this debt, or any portion thereof, by sending our office written notice within thirty (30) days after receiving this notice�" (emphasis added). The consumer filed an advisory complaint in a chapter 13 bankruptcy filing arguing Section 809(a)(3) of the Fair Debt Collection Practices Act (FDCPA) does not require that a consumer dispute a debt in writing and consequently, the letter violated the FDCPA. Section 809 (a)(3) of the FDCPA provides that "within five days after the initial communication in connection with the collection of any debt, a debt collector shall send the consumer (3) a written notice containing a statement that unless the consumer, within thirty days after receipt of the notice, disputes the validity of the debt, or any portion thereof, the debt will be assumed to be valid by the debt collector." The court noted that the plain language of this section does not require that a dispute be in writing. The court further noted that if a notice of dispute (written or oral) is received within 30 days, the debt collector may not assume the debt is valid. However, a verbal dispute does not trigger the validation requirements of §§ 809(a)(4) and (a)(5). The court found two purposes that a non-written § 1692g(a)(3) dispute would serve. The first purpose the court noted was to provide an informal red flag to debt collectors. While the collector would not be required to cease communication or send verification, the collector would be required to find some evidence beyond a mere assumption that the debt is valid. The second purpose was that such a non-written dispute would provide limited protection to consumers. A consumer who is unable to communicate in writing, or a consumer who wishes to quickly and informally clear up the matter would be afforded the limited protection of preventing the collector from assuming the debt is valid. Again, the court noted that the collector would be required to find some evidence beyond the mere assumption that the debt was valid. The court refused to find that § 809(a)(3) requires a written notice of a dispute and remanded the case for further proceedings. I have always stood on the side of caution in this area and if a verbal dispute is received, I would notify the credit bureau. I suggest for JDP's further edification he go read his own board. Beyond that, this issue needn't be beaten like a dead horse. Anyone who relies on a verbal dispute, (as opposed to CRRR) will probably get what they deserve anyway. . .
Re: Re: Re: Re: JDP Pro Se - please answer? "For you, from Edelman:" Who is Edelman? Is this the class action law firm in Chicago, Edelman and Combs? "Section 1692g is related to §1692e(8)." "JDP, for you to say absolutely that the language is completely legal is misleading" I disagree. The underlying question was whether or not the provided VALIDATION NOTICE was legal, not if a debt collector had a duty to comply with e(8) upon an oral request. I have filed lawsuits in the past where an agency did not update my credit report as a dispute merely upon my oral notice. That wasn't the subject. I am not dissuaded from my opinion. "You cited a case from 1991, again without a link (because the court only has cases online beginning in 1994), and the CA's 2nd fave case to cite (batting 2 for 2 there)." I cited the ONLY Appellate Court decision on the subject of which I'm aware. It happened to be in the Third Circuit where I file. I don't have any "links" and wouldn't know how to post them if I did. I missed the point of the "2nd fave case to cite". What's the first? Is it an Appellate decision? "The wording should be: disputes the validity of the debt, or any portion thereof." There is no set terminology to convey the validation notice. Most adopt that provided by the ACA which you reference. In Smith v. Transworld Systems, Inc., 953 F.2d 1025 (6th Cir. 1992) they also "paraphrased" the standard ACA suggested language. A letter that stated "all portions" of a debt could be disputed rather than stating "any portion" was NOT a violation. "The difference in wording removes the option that perhaps the CA is dunning the wrong person, one of the purposes of the validation notice." I don't see how it removes any option. Maybe I missed something. "There is a huge difference between verification of the debt or judgment and verifying an account." I think this is a stretch. The notice does look at the terms synonymously with "the account is valid unless you notify us in writing within 30 days that some or all of the debt is disputed", referencing the account as a debt. But, there have been pettier issues litigated so I will stand corrected.
Re: Re: Re: Re: JDP Pro Se - please answer? Well, ... duh!!! If the val. notice can be "paraphrased", why is it necessary to state EXACTLY that the communication "is from a debt collector"? It's true. There is no legally prescribed language which must be emulated, EXACTLY, with regard to the val. notice. The requirement is that the notice of rights be "effectively conveyed", without being overshadowed, or distorted". If a paraphrase is good the goose, (as in val. notice) it should also be good for the gander, (as in "from a debt collector"). I'd be reluctant to insist, in court, that; "This is an attempt to collect a debt. Any info. will be used for that purpose" would FAIL to adequately deliver the message (Although admittedly [slightly] paraphrased) that the sender is a debt collector. another issue bites the dust. .
Re: Re: Re: Re: JDP Pro Se - please answer? I am familiar with Mr. Lindala's postings and hold him in extremely high regard, however, I believe he is merely a senior member of the forum, not an "owner or Administrator"; in other words, he's just like a "Butch" is here, only a bit more sophisticated. I would like to remind readers that this issue arose from Butch claiming the notice "a violation of 809", which is 15 USC 1692g. I disagreed and cited the only FEDERAL APPELLATE court decision on the matter. The issue was NOT that a consumer could not orally dispute a debt, but whether the NOTICE was legal under 1692g. I have sued agencies in the past for violation of 15 USC 1692e(8) for not acknowledging my oral dispute with an update of my credit report. However, the violation was for e(8), NOT 1692g which was the argument of Butch. I still maintain that the validation notice is legal, and use the only APPELLATE court decision in support (I've little choice; Graziano is a Third Circuit opinion which is my venue). I will await the results of the remanded case's further proceedings.
Re: Re: Re: Re: JDP Pro Se - please answer? That's a great point JDP. I've not purposely sidetracked the issue, but merely attempted to get you to agree that a verbal dispute is valid. Now we can proceed. If a verbal dispute IS valid, how is it that a notice which, quite clearly states; "You may dispute this debt, but only if you do so in writing" NOT be misleading? And if a notice is misleading how can a "least sophisticated consumer" NOT be mislead? HHMMM? And yes, I know I "paraphrased" the notice. Which states: "We will assume the account is valid unless you notify us in writing within 30 days that some or all of the debt is disputed." I'll give ya this much JDP. I may lose my argument in court but I'd LOVE to push the argument anytime. I'd be confident. .
Re: Re: Re: Re: Re: JDP Pro Se - please answer? "If the val. notice can be "paraphrased", why is it necessary to state EXACTLY that the communication "is from a debt collector"?" This is because 1692e(11) was specifically amended for that purpose. The old mini-miranda does neither implicitly nor explicitly convey that the communication is from a "debt collector" [as debt collector is defined in 15 USC 1692a(6)]. It could be an attempt to collect a debt by an original creditor. "I'd be reluctant to insist, in court, that; "This is an attempt to collect a debt. Any info. will be used for that purpose" would FAIL to adequately deliver the message (Although admittedly [slightly] paraphrased) that the sender is a debt collector." The purpose of the amendment to 1692e(11) was to give leave to debt collectors to include the language you posted in EVERY communication. The language you reference is only required now in the FIRST communication. Why Congress felt compelled to ADD that debt collectors were now required to notify consumers in ALL further communications that they were debt collectors I do not know. But the revised mini-miranda speaks for itself: 1692e(11): (11) The failure to disclose in the initial written communication with the consumer and, in addition, if the initial communication with the consumer is oral, in that initial oral communication, that the debt collector is attempting to collect a debt and that any information obtained will be used for that purpose, and the failure to disclose in subsequent communications that the communication is from a debt collector, except that this paragraph shall not apply to a formal pleading made in connection with a legal action. It states specifically that the old language you suggest is adequate is in fact not. I do believe that e(11) can be paraphrased in the sense that you can have "debt collector" under the signature line on a dunning notice, or after the agencies name in the title say "professional debt collectors" or the like, but merely using the old e(11) is inadequate.
