Need advice on maybe CA lawsuits ~

Wait for the 30 days. Then, assuming they haven't validated, send them a demand letter. Demand they remove the accts from the cra's and close their bookds on the "alleged, unprovable" debts. Advise them they are in violation of the FDCPA for continued collection activity after receiving, but not responding to your validation request.

Suggest, that if they comply with your demands, the complaints you are about to make to the BBB, state atty general (yours and theirs), and whatever org. monitors ca's in your state, will be set aside. And, if they comply, the lawsuit you are about to file also will not be done. But, should they fail to follow your demands, each and every one of the above will immediately be done.

You might get 1 or 2 to give in. If not, be prepared to go.

 

You have every right to have the debt and amount proven. That is what the FDCPA is there for, partially anyways.

A ca has eithere purchased the debt or been assigned the debt by the oc, to collect. They absolutely can sue you on behalf of the creditor, or themselves if they own the debt. Depending on the amount of the debts, they may or may not.

If you bring suit for ca violations of the FDCPA, they cannot countersue for the debt in that case. They would have to file a new case. The suits you may have to bring are for violations of your rights and the debt, per court decisions, has nothing to do with the violations. They may try to bring it in, but a competent judge, with your assistance of case cites and ftc opinion letters, will prevail.

 

Re: Re: Need advice on maybe CA lawsuits ~

Hey LKH,

Can you elaborate on why they could not countersue for the debt in that case?

I am getting ready to bring about a lawsuit against a CA who has been ASSIGNED a debt for FDCPA violations. Now, I have heard mixed commentary regarding whether an ASSIGNED CA can sue. I would think not since they don't own the rights to the debt.

But, based on your post, even if they could, you state they can't counter...why is that?

 

Re: Re: Need advice on maybe CA lawsuits ~

Sunhawk,

LKH means they can't crossfile and get the judge to hear the evidence against you for the debt at the same hearing you are presenting your evidence of FDCPA violations. They would have to file a lawsuit of their own and it be tried independently of your suit for FDCPA violations.

 

Re: Re: Need advice on maybe CA lawsuits ~

Yes but why? This is what I am trying to figure out. I understand that they apparently can't but in case they do, I would like to know what to bring up to the judge to show that they can't do this.

Because, if I do state, they can't do this, the judge is probably going to say why not?

 

What state are you in? If the debts are about 4 years old they may be geting close to Statute of Limitations. One SOL has passed you can tell them to do whatever they want and jump off whatever bridge they want.

 

Re: Re: Re: Need advice on maybe CA lawsuits ~

If you sued the CA for violations, they would be precluded from countersuing you for the debt IF they did not own the debt or hold the debt in subrogation. They would have to be a real party in interest to be able to sue you for the debt. They could, however, buy the debt from the OC after being served with your complaint and before the hearing. In this instance, they could countersue to the extent that they can validate (if it's an unpaid debt).

Be on guard. If they're bold enough to countersue, then they probably believe that they can validate.

 

The debt is only a couple years old and is less than $100. In Michigan, the SOL is 7 years.

I offered to pay the debt IF they remove it from my credit reports but they have refused. So, I figure, at least I can sue them for their violations.

 

Re: Re: Re: Re: Need advice on maybe CA lawsuits ~

I agree with you 100%. If they don't own the debt, they can't sue for the debt regardless. However, the way LKH stated it, regardless of if they own or don't own the debt, they can't countersue for the debt in a case about FDCPA and FCRA violations. They have to bring about a completely seperate suit. I am trying to figure out WHY this is the case. Why can't they countersue assuming they own the debt.

The debt is less than $100 so I'm not too worried about them coming after me for it. They have actually done an excellent job of validating EXCEPT they still have not produced any contract showing I agreed to the terms creating the debt. Although this might not hold up in court, it is still a defense since the FDCPA does states that the collection of any amount must be authorized by the agreement creating the debt.

But, with the debt being less than $100, you have to figure, with the cost of small claims court, it wouldn't be worth their time assuming they had to file a completely SEPERATE suit against me and would have to fly in from another state a second time to attempt to get the debt.

It just won't happen. But they MAY attempt to countersue while I am suing them for the violations of the FCRA and FDCPA. This then goes back to my original post. If, by some odd chance, they buy the debt, why could they not countersue at the same time I sue them as LKH states?

 

The debt is only a couple years old and is less than $100
SUNHAWK
=====================
Is the amount you're suing them for greater than $100.oo.
If so why worry about them counter suing??????????????:
THE END ** *** ** LB 59
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The debt is only a couple years old and is less than $100
SUNHAWK
=====================
Is the amount you're suing them for greater than $100.oo?

If so why worry about them counter suing??????????????:
~~~~~~~~~~~~~~
THE END ** *** ** LB 59
"""""""""```~~~```'"""""""""

 

I'm not really worried about them countersuing in this particular case. I am still just trying to get an answer to LKH's original post which said they CAN'T countersue. I could care less if they do or if they don't.

I am just trying to investigate why he said they CAN'T. If they do try, why not bring up whatever LKH's point is. I don't want to just give anyone $120 if I don't have to.....especially if they aren't allowed to counter.

Like I said though, they don't own the debt nor would the debt probably be anything worth a suit over but I would still like to find out why they CAN'T countersue (if they did own the debt).

 

A) I gave them 30 days to validate. They screwed up and VIOLATED.
1* So, what do I do now?
Wait until the 30 days up and see how many violations I can get them on
2*THEN send the intent to sue letter?
3*Or go ahead and file suit?
B) 4*How much should I go for if they do not validate and continue with the collection activity?
girliegirl
==========
1*Y E S
2*No this one> Estoppel Letter
DON'T CHANGE
Send CRRR

Your Name
Address
«City», «State» «Zip»

Company»
Address
«City», «State» «Zip»

«Date»

RE: Dispute Letter of <insert date>

Dear Sir/Madame:

As I have not heard back from you in over 30 days regarding my notice of dispute dated <insert date>, and you have not supplied the demanded proof of the alleged debt, under the doctrine of estoppel by silence, Engelhardt v Gravens (Mo) 281 SW 715, 719, I may presume that no proof of the alleged debt, nor therefore any such debt, in fact exists.

In a good faith effort to resolve this matter amicably, I restate my demand for proof of the debt, specifically the alleged contract or other instrument bearing my signature, as well as proof of your authority in this matter. Absent such proof, you must terminate this collection action and correct any erroneous reports of this debt as mine.

For the record, I state again that as I have no account with you, nor am I your customer, nor have I entered into a contract with you, I must ask for the following information:


Please evidence your authorization under 15 USC 1692 (e) and 15 USC 1692 (f) in this alleged matter.

What is your authorization of law for your collection of information?

What is your authorization of law for your collection of this alleged debt?

Please evidence your authorization to do business or operate in the state of _________________.

Please evidence proof of the alleged debt, including specifically the alleged contract or other instrument bearing my signature.


You have fifteen (15) days from receipt of this notice to respond. Your failure to respond, on point, in writing, hand signed, and in a timely manner, will work as a waiver to any and all of your claims in this matter, and will entitle me to presume that you sent your letter(s) in error, and that this matter is permanently closed.

Your continued silence is unacceptable. Either provide the proof or correct the record to remove the invalid debt from my credit files with the three primary credit-reporting agencies. You are currently in violation of the Fair Credit Reporting Act and the Fair Debt Collection Act.

Failure to respond within 15 days of receipt of this registered letter will result in a small claims action against your company. I will be seeking $___________ in damages for the following:


Defamation

Negligent Enablement of Identity Fraud

Violation of the Fair Credit Reporting Act


After obtaining the judgment against your company, I will obtain a Writ of Execution from the Sheriffâ??s office in your county and I will begin the process of attaching property or funds to satisfy the judgment.

For the purposes of 15 USC 1692 et seq., this Notice has the same effect as a dispute to the validity of the alleged debt and a dispute to the validity of your claims. This Notice is an attempt to correct your records, and any information received from you will be collected as evidence should any further action be necessary. This is a request for information only, and is not a statement, election, or waiver of status.

I affirm under penalty of perjury under the Laws of the Land for the United States of America, that the foregoing is true and correct, to the best of my knowledge and belief.

Sincerely,

Your Name DON'T SIGN

""""""""""""""""""""""""""""""""""""""""""""""""""

3*You have 2 more steps befor doing that.
4*$1000.oo for each collection effort.

THE END ** *** ** LB 59
"""""""""```~~~```'"""""""""

 

I am trying to figure out WHY this is the case.
1*Why can't they countersue assuming they own the debt.

It just won't happen. But they MAY attempt to countersue while I am suing them for the violations of the FCRA and FDCPA. This then goes back to my original post.
2*If, by some odd chance, they buy the debt, why could they not countersue at the same time I sue them as LKH states?
SUNHAWK
*************************
1*Because these are 2 separate issues.
2*Because your are sueing the CA for breaking the law.
The CA would be suing for non payment of an alleged debt.
These are 2 separate and unrelated events or cases.

THE END ** *** ** LB 59
"""""""""```~~~```'"""""""""

 

Sunhawk,

Because it is a strict liability statute, the FDCPA, and whether the underlying debt is valid or not isn't relevant to the actions that were the violations.

I know there's a reference in Spears v Brennan that gives other cases as well.

It's been discussed here too, other citations, before Spears came.

Don't think they won't try though, some have, and you have to be prepared to raise it as a defense.

I'm thinking Mommy2Cats had the same deal with Cap 1, they did counterclaim. You might find the references looking for her stuff too. She settled though, so that was never addressed by the judge.

Sassy