I sent a validation letter, referencing the FDCPA, to all of my creditors on my report, most of which are CA's. However, one was an OC and they responded with a letter stating that since they are not a CA the FDCPA does not apply to them. My first question is; is this true?...are they not governed by the FDCPA? Second of all, if it is true, what should be my response? Is there a section of the FCRA that I can counter with to ask for validation of a debt that they are reporting? Certainly there is some law somewhere that says they must prove, not just by verifying my address or social sec number, but actually validate the account if I request them too right???
No offense, but you should read and understand the law you are quoting in your letters. Just copying letters off the internet doesn't do much for your credibility and it might actually weaken your position (of course, it still doesn't alter the CA's responsibilities under the law). But, more to the point, what are you trying to accomplish with your efforts?
Good point. For instance, part of a debt validation demand letter copied from a very popular message board has the following phrase in it. That phrase is very common on forums all over the internet but the Fair Debt Collection Practices Act does not define what constitutes validation of a debt. The closest it comes to doing so is a clause that defines the 5 indices that must be included in the INITIAL contact letter sent to a consumer. This was also stated in Spears v. Brennan and several other such cases. Cease & desist letters are also very dangerous if you actually do owe the debt. If you actually owe the debt you should never send any letter which even contains the phrase "cease & desist" as it is likely to cause them to file a lawsuit against the sender. Many advise that it is acceptable to use the phrase in a "partial cease & desist" sense. They will say that it is acceptable to state that the debt collector must "cease & desist" from contacting the consumer by phone or at their place of employment. The debt collector can easily interpret that as an excuse to cease all communication and file a lawsuit even though the sender didn't intend it as a full cease and desist letter. There is no such thing as a partial cease & desist clause in FDCPA. Under FDCPA it is either a cease & desist letter or it is not. Forums or individuals who advocate the use of cease & desist letters or even partial cease & desist clauses in letters are dangerous teachers indeed and should be avoided. After all, if they are so mis-informed as to advocate cease and desist one should question how much more of their advice might also be false and misleading or dangerous to use. Another warning sign that a forum is a dangerous place is finding estopple letters on them. The idea of sending estopple letters was first advocated many years ago and was very effective for a long time but those kinds of letters have never been anything but a bluff and most debt collectors know that these days. Many forums also teach that debt collectors must reply to a demand for validation within 30 days. That is also a myth because there is no requirement in FDCPA that they validate at all. They can completely ignore validation demands with impunity but once a validation demand has been received it must be complied with before any further collection activity can proceed.
Further collection activity means things like reporting your account to the CRA's or suing you. It is has been my experience that some collection agencies just drop your account and 3-6 months later a new collection agency contacts you. A 100% Cease and Desist letter forces the CA to decide to sue you or go away. This is very risky. A limited Cease and Desist can legally request that all further contact take place in writing.
15USC1692c(c) says that if you tell them to stop contacting you, they must stop, except to send you a summons. So far, so good. There's nothing in the FDCPA that says the consumer can force the CA to communicate only in writing so there's no legal grounds for the CA to be compelled to comply with a limited C&D. IMNLO (in my non legal opinion) a limited C&D will either be ignored because it has no teeth or treated as a full C&D to be safe (and they'll decide to sue you). From what I've seen, the best way to get them to stop calling is to apply 15USC1692(a)(1) by telling the CA (in writing) that "it is inconvenient for me to accept any telephone calls at any number at any time." Then you have evidence (from the CMRRR post card) that the CA knows such calls are inconvenient and therefore in violation of 15USC1692(a)(1).
I read the FDCPA but didnt understand that it was intended only for CA's and not OC's. It seems to me Americans should have the right to ask for validation of an alleged debt someone is claiming against them regardless of the source of the debt is an OC or a CA... But thats obviously JMO and apparently isnt true. After further reading it seems its really just a matter of semantics; I should have used the term "investigation" instead of "validation" with the OC. But to answer your question; my goal is to get the negative item removed from my reports and also to stop the lawsuit this creditor has filed (I received the summons the day after I sent the useless validation letter).
If they've already sued you, it's too late to worry about a validation letter, anyway. You need to answer the summons. You need to do discovery, which is where you ask them to prove that the debt is yours and how they arrived at the balance. While an OC is not subject to the FDCPA, they do have to respond to discovery once the case is in court.
There is a law that prescribes that an OC must provide "verification" of a debt. It is the FACTA amendments to the FCRA. However, it provides no private cause of action thus, it is largely worthless. In any event, the time for communications is over except for a dispositive motion or responsive pleading.
