I have a time sensitive question that I would appreciate any response to. I am currently suing a CA and their defense is that they sent me a letter and I didn't dispute within the 30 day window (They say I disputed 38 days later!! LOL). I thought I saw either an FTC opinion or case where it was suggested that the 30 day window could start from whenever a consumer initiates a request for validation, not only within 30 days of the initial contact? They made around 5 violations after my request for validation and that is the basis for my suit. However, I need to get through their defense that I didn't respond within 30 days and thus their violations weren't violations because the account wasn't actually in dispute. I know they can't prove their date of initial contact as there was no CMRRR...I can prove mine because mine was CMRRR. I am currently discussing settlement out of court with them but I need to deflate their argument that they weren't in violation because I didn't dispute within 30 days of their initial contact. If anyone could point me to a case or FTC opinion so I can refer their counsel to it I'd be grateful. Thanks!!
Also read the other validation post by HumbleMark found in the hall of fame thread. The CA don't have a 30 day defense.
Thanks for the tips. I have read both several times and will re-read them..although they are huge they are classics and really the foundation of much success. I just want to be clear about which 30 day timeframe I'm talking about -- not the one in which a CRA has to investigate, but rather the one the consumer has to dispute per the FDCPA that triggers the CA having to stop collection efforts until they provide sufficient validation. I know they don't have to provide validation as long as they don't continue to collect. My question is about the FDCPA's 30 days it gives a consumer to dispute the validity of a debt. The CA I am suing says basically if the consumer doesn't request validation within 30 days of the inital communication that a validation request doesn't trigger any need for them to stop collecting/reporting etc...in other words, if a consumer tries to request validation 33 days after initial communication from the CA the CA isn't obligated to cease collection. Again, if anyone can point me to the case law or FTC opinion that clearly refutes the CAs position I would be indebted. In the meantime I'll go back through the above mentioned posts looking to see if they address it.
Re: Re: Need Help Soon RE: 30 day window WRONG My understand of this is as follows: The First communication from the CA includes a notice that the consumer has 30 days to dispute the validity of this debt, etc, etc.. What this means is that the CA cannot commence any collection efforts during these first 30 days. If the consumer fails to notify the CA in writing that they dispute the validity of the debt, then the CA can assume that the debt is valid, and use any method they normally use to try and collect on the debt once these first 30 days have passed. All this means is that the CA has been allowed by law to assume the debt is valid If the consumer elects to request validation from the CA at some time past the first 30 days, then the CA is required under the FDCPA to cease all collection activity until they have provided the consumer with adequate proof that the debt does indeed belong to the consumer (VALIDATION) They must also notify the CRA's that the consumer is disputing the debt. Failure of the CA to comply with the above is grounds for a lawsuit for violation of the FDCPA
Re: Re: Need Help Soon RE: 30 day window Pd11604, Unfortunately the FTC opinion letter I found contradicts the assertion that they can't collect within that initial 30 days : "Where Congress intended that debt collectors cease their collection efforts during the thirty-day dispute period, it so specified: if, and only if, a consumer sends the debt collector a notice in writing. Congress did not specify that collectors must cease collection efforts during the dispute period even if consumers send nothing in writing. The Commission has voiced this opinion in recent annual reports to Congress mandated by the FDCPA. As the Commission stated in the 1999 report, for example, "Nothing within the language of the statute indicates that Congress intended an absolute bar to any appropriate collection activity or legal action within the thirty-day period where the consumer has not disputed the debt." So, therein lies my problem. The FDCPA states: "If the consumer notifies the debt collector in writing within the thirty-day period" that the debt is disputed, the debt collector must cease collection of the debt until verification of the debt is obtained and mailed to the consumer." It doesn't specify what happens if a consumer requests validation outside of that 30 day window. In my specific case I feel pretty good since we're talking 38 days from the date they allege they SENT me a letter- but I'm wondering about all the people who send DVs long after the debt collector starts to collect. I've always assumed that at any point I could DV and start a 30 day timeframe when they needed to cease collection...I'm just looking for something that supports that in the law or FTC opinion and can't find it.
Re: Re: Need Help Soon RE: 30 day window when they needed to cease collection.. kiddjason ==================== There is no 30 day time period for the CA to cease collection attempts after receiving a validation demand because it's instant. THE END ** *** ** LB 59
Re: Re: Need Help Soon RE: 30 day window From the "What is Validation?" thread (about 3 pages in). It seems to very specifically address your question. . . .So now we can bounce back to the FDCPA and see what it really says about this first 30 days. But this time try and figure out what it literally says about it. Again; § 809 states: § 809. Validation of debts [15 USC 1692g] (a) Within five days after the initial communication with a consumer in connection with the collection of any debt, a debt collector shall, unless the following information is contained in the initial communication or the consumer has paid the debt, send the consumer a written notice containing -- (1) the amount of the debt; (2) the name of the creditor to whom the debt is owed; (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. (b) If the consumer notifies the debt collector in writing within the thirty-day period described in subsection (a) that the debt, or any portion thereof, is disputed, or that the consumer requests the name and address of the original creditor, the debt collector shall cease collection of the debt, or any disputed portion thereof, until the debt collector obtains verification of the debt or any copy of a judgment, or the name and address of the original creditor, and a copy of such verification or judgment, or name and address of the original creditor, is mailed to the consumer by the debt collector. (c) The failure of a consumer to dispute the validity of a debt under this section may not be construed by any court as an admission of liability by the consumer. Paraphrasing 5(c): Failure to dispute the debt during the first 30 days does NOT mean you acquiesce to its validity and thus, lose your rights from that point forward to put up a rebuttal argument. Indeed, if that were the case no CA would ever actually send that first notice informing you of your rights. They would just pretend they did and then proceed 31 days later with #2 in their letter sequence. Looking first at § 809 (B) "If the consumer notifies the debt collector in writing within the thirty-day period", etc. 809 B only seems to suggest that your dispute MUST occur within this time frame. So it's quite natural to expect a CA to latch onto this language to dissuade you from exercising your rights. It is conspicuously absent, even dead silent on the issue of what happens when the consumer FAILS to dispute WITHIN the first 30 days. The statute fails to articulate any consequences of attempting to dispute OUTSIDE the first 30 days. As I've stated earlier, and believe you me, if Congress intended for you to have no rights after the first 30 days it would have so stipulated. They not only DID NOT so stipulate they went out of their way to ADD Section 5(c) telling you the exact opposite. Or maybe Congress did say more about the issue than it appears. It is a well-settled principle in statutory interpretation that the first step is to look at the actual language of the statute itself. If and when a statute is unclear or dead silent on an issue, and prior to speculation or "drawing inferences" (they call it) you must first look elsewhere to other portions of the act to see if clarification can be found. So, lets try that and see what happens. Let's back up just a little and examine the recommended language of the notice to the consumer of his rights. Remember Congress is the entity who recommended this language. (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; What that says to me is simply this: If you fail to rebut their claim that you owe a debt they may assume it to be valid. And since this is the only consequence articulated, then I'm entitled to assume it's the ONLY consequence that occurs. LOL Congress and how it works is not a simple matter. Often it's a lot easier to simply add a section to an existing Act, than it is to go back and reargue existing language in order to change it. So recognizing the confusion here Congress sought to clarify the issue by simply inserting section 5(c) For case law on the issue, let's revisit the Spears case and see what it says about the IL Circuit; Spears V. Brennan "In deciding that consumers cannot waive the protections afforded by 15 U.S.C. § 1692i, the Illinois district court concluded that requiring an unsophisticated consumer to â??exercise his rights under the FDCPA immediately or lose them" is contrary to the basic premise of the Act, which is to protect unsophisticated debtors from debt collectors who may use the legal system, about which the consumer has little knowledge, to bludgeon them into submission." The IL Circuit was referring to 1692i, an unrelated section. But the gravity of the statement could be carried over into other areas too. Notice IL said: "The Premise Of The Act", not "The Premise of This Section". A CA's insistence that you've lost your rights because you didn't exercize them within a certain time frame is merely an attempt to "bludgeon you into submission". It's also unfair and unconscionable for them to tell you this because it's simply not the truth. Meaning - they LIED! § 808. Unfair practices [15 USC 1692f] A debt collector may not use unfair or unconscionable means to collect or attempt to collect any debt. Recently I've seen numerous posters say that they actually received a letter from the CA that says they have no right to dispute beyond the initial 30 days. Their elevators often fail to reach the top floor. LOL Suffice it to say I wish they'd send me one. Do not stand for this I say. Pound it right back down their respective throats !!! But keep this in mind, and this is the 3rd important component about this whole discussion. Since our court system works on a preponderance of evidence this does have a profound impact on all that I've posted about how validation is supposed to work in the perfect world. Just because your adversary cannot produce one or more of the items listed, which makes for perfect validation, does NOT mean you can just waltz into court and win. What if, for example, after you proclaim the account as not yours and then your adversary presents checks with your signature affixed. Now you have a whole new problem. And this is essentially what Bill B. has been trying to tell you, (and which I'd planned on telling you anyway). There just is no Silver Bullet because a judge is charged with the responsibility to be fair and impartial in his attempt to balance the scales of justice. Jlynns Practical Application: She wrote: quote: -------------------------------------------------------------------------------- I received a collection notice In December. It wasn't the first-according to the letter I received. -------------------------------------------------------------------------------- Usually the subsequent notices begin with the following remark, or something similar. "You have ignored our/all previous correspondence". The implication here is that this is at least #2 or later, in the order of succession of notices to be sent to the consumer. If Jlynn fails to counterclaim this assertion it stands that she did in fact receive a prior notice. And this notice, they will insist, is the one that contained her right to dispute. As earlier stated, my purpose for examining each of these points is to help you develop your argument as you go along. Should you and your adversary appear in court I hope I've helped you be noticeably more prepared for battle. Correcting your credit really does require tremendous planning and a well grounded understanding of the law. Each of the intricacies of your individual situations needs to be very carefully considered. But at least now, if they try and screw with your right to demand validation, you can tell them to pound sand. Butch,
Re: Re: Need Help Soon RE: 30 day window Thanks Lbrown and Merlin. I love Butch's post and certainly the section you highlighted speaks to a consumers continued right to request/demand validation. I agree wholeheartedly with his position. I guess my problem is just a bit more specific. It's not about my right to demand validation, but rather, has a CA committed an actionable offense if they don't fail to cease collection even if the consumer's DV comes after that initial 30 days from the CAs first contact. I am trying to sue, not just request validation. The basis for my suit is that after receiving my DV they continued collection activity...my assumption used to be at least that no matter when I sent a DV if they tried to collect before providing me with proper validation that they had committed an actionable offense and I could sue for $1k per offense...however, I need to find some FTC opinion or law that clarifies that a CA is still bound to cease collection EVEN IF THE CONSUMER sends a DV after that 30 days is up. I'll keep looking and I'll be sure to post a link or quote if I find it before someone else. In the meantime I continue to appreciate all the advice, feedback and expertise shared by everyone on here.
Re: Re: Need Help Soon RE: 30 day window Definitely not a legal expert, but my reading of Butch's post is this: ** There is a 30-day window in which the CA cannot assume a debt to be valid without giving the consumer a chance to dispute ** If the consumer does request validation within the 30-day window, a series of requirements come in force by which the CA cannot assume the debt valid until they have fulfilled the requirements (i.e., validation) ** Following the 30-day window, if the CA does not hear from the consumer, then they can assume the debt valid and proceed with collection activities ** However, the last section which Butch discusses specifically indicates that if the consumer does not request validation within the first 30-days, but does so later, the CA cannot assume the debt to be valid. It seems to me that is where your arguement comes in. The law is pretty clear -- if the validity of the debt is in question, collection activities must cease until the debt is validated. My guess is that there is little (or no) mention of validation following the 30-day window because the section about not giving up your right to validate following the 30-day window was added to the statute at a later date. Now, the good news might be that there very likely isn't any statute indicating directly that CAs DO NOT have to cease collection activities following a post 30-day validation request. You might consider using much of Butch's arguement verbatim (with his permission, of course) because in a court of law it is the interpretation of the law that is important. If you can make a meaningful arguement that Butch's interpretation is reasonable (which it sure seems to be), you can prevail -- without a direct statute addressing the post 30-day window. Hopefully you can find something more specific in your searches, but if not, I still think that you have an extremely compelling arguement vis-a-vis Butch's thread.
