Need help/advice with Fraud Affidavit

Was it your account, or can you determine that?

 

You requested validation, and you disputed the debt. Did they send validation? Validation is documentation of the debt obtained directly from the OC and sent to you. You should be able to determine from the validation if it is your debt, and how they arrived at the amount of the debt. Did they mark their TL on your reports as "disputed"?

One of the ploys that apparently has become common among some CAs who may have no intention of "validating" anything, (particularly JDBs who collect on old debt), is to answer dispute and validation letters with either an "affidavit" from someone not an employee of the OC with direct knowledge of the OC's records, or with a fraud affidavit, instead of actually sending validation as required by FDCPA.

The intention is apparently to convince the alleged debtor that they have no right to any real validation, or that unless they are willing to file a fraud affidavit on a debt for which they have been provided no information, they have no right to dispute the debt. Many consumers consider this threatening, particularly if they may have had some debts in the past for which they have no records anymore, but here comes some collector claiming they owe something but they have no way to be sure they even owe it without validation. This is a pretty spurious interpretation of the debt collector's obligations under FDCPA. In most cases of misidentification, or even id theft, the consumer will have NO information on the debt. You should contact your state AG, or an attorney, if you receive either response.


Fraud affidavits (and affidavits in general) are usually filed under penalty of perjury. Whether doing one on a debt, if you knew it was yours and you still owed it, would bite you in the a$$ would depend on what they had in their records, how far they wanted to push it, and whether a DA wanted to mess with it. Of course, if they had some proof of the debt in their records, you would expect them to have sent it, but usually their records are just data files, with the original records still held by the OC.

What if the information they provided on the debt was deliberately limited? What if, as is common, they did not send legitimate validation, perhaps telling you they had no obligation to do so, or refusing to provide you the actual OC, the original account number, or the time when the account was opened, or went delinquent, or just sent you their own affidavit by their own employee with no direct knowledge of the debt? If you relied on what they provided to base your fraud affidavit on, I doubt if they could then claim "perjury", particularly if they were playing the common abuse and harassment games in place of actually sending reasonable validation. In fact, that would appear to look more like additional FDCPA violations for deceptive and abusive collection, failure to validate, threatening legal action they could not take, threatening arrest or imprisonment to collect a debt, etc.

Erroneous Police complaints willfully filed can have their own penalties, but if you reasonable have no way to know the account was actually yours, and your complaint reflected your knowledge or lack of knowledge at the time, would you be subject to them? I doubt it.

I would be inclined to push on the fact that you disputed and requested validation, and that what they sent was NOT validation. The affidavit they sent may be an attempt to divert you from your FDCPA right to request validation. They will probably claim that you claimed it was fraudulent, but since you didn't send in a fraud complaint, they can continue collecting and reporting anyway, even though they never sent validation.

I would also be inclined in dispute/validation request letters to phrase them in as simple of a form as I could, probably matching some of the wording in the FDCPA. FDCPA does not require that you provide anything in your letter to justify your dispute or validation request. If you later go to court, you want it to appear to a judge that you were exercising your rights in accordance with law, and that they did not respond properly.

Note: I am not an attorney. Perhaps you should consult with one.

 

If they are a CA, you can push on validation.

If they are an OC, they are not covered by FDCPA, so they have no specific obligation to validate.

They do have an obligation to report accurately, so if it is not your account, whether due to id theft, or misidentification, they have an obligation to remove it.

I don't think your letter advances your case any, since they have already sent you a fraud affidavit in response to your earlier letter.

If you know the account is NOT yours, that you did not open it, and did not benefit from it, is there any reason not to file a police report, and send it with a fraud affidavit to both OC and CRAs?