a collection agency/law office does not validate a debt to your specifications {as stated in your debt validation letter} or not validate at all {ignoring your request} can they still go forward with a lawsuit? If so, how can the non-validation {request} be used against them? Background Info/My other post/thread on this topic: Link
If the validation request was within 30 days of their initial contact letter, then a law suit might constitute continued collection without validation, and a violation under FDCPA. The FDCPA violation issue is separate from the issue of whether the debt is in fact valid. There was some case law on this. See, for example: http://www.state.in.us/judiciary/opinions/archive/03260101.ewn.html It may not be as clear cut if their initial contact was a summons. Whether their validation was adequate or not is a matter for the court to decide. The above case found the claimed validation deficient when it included a copy of the contract, but no accounting for payments made to arrive at the amount claimed due. (I am not an attorney.)
Okay, the initial contact was not a summons this time around but a letter stating they will file a lawsuit if the debt is not paid within 30 days or if I don't dispute the debt within 30 days. So, I'm sending a debt validation letter. If they don't validate at all and continue with a lawsuit, then that is a violation, correct or no? If they did validate and it was not sufficient then proceed to file a lawsuit, then it is up to the court to decide right? Just making sure I'm comprehending correctly...
That is my understanding of the matter. Although if they provide inadequate validation, such as in the case above, I would also dispute that validation. As in the case above, a contract plus a claimed amount is not enough to determine what is currently due and owing under the contract. Note that they were careful not to overshadow your 30 day period to dispute by threatening to sue in less than 30 days. Filing suit before the consumer had disputed within the FDCPA specified 30 day period is one of the reasons the appellate court sent the case back to trial court in the above case, overturning the lower court decision. About how much is this alleged debt, and how long since the last payment? Is it within your state's SOL for this type of debt? Knowingly suing, or threatening to sue, on an out of statute debt is itself an FDCPA violation.
Re: Re: Scenario: What if... Right, the validation should include past statements, itemized charges if its a credit account right? Okay, you're right they contained a warning but also gave me the chance to dispute. I glanced at the case you provided with a link but I didn't read it thoroughly...I think I will need to. Thanks. Okay, this is not the first time I was almost sued for the same account. The last time around, I received a summons-which I answered. I don't remember a warning letter but then again I just could have ignored it. Most of the background info. about this account is in the link I provided in the first post of this thread. The debt is a little under 2k now thanks to interest charges and court fees. The SOL is coming up soon...but apparently they are trying to win the case before that happens since they still have quite a bit of time. I was informed that the SOL is the last time a payment was made on the account or the last time I used the account whichever first. Is that correct?
Re: Re: Scenario: What if... "I was informed that the SOL is the last time a payment was made on the account or the last time I used the account whichever first. " I believe it is whichever is more recent. "The last time around, I received a summons-which I answered. I don't remember a warning letter but then again I just could have ignored it. Most of the background info. about this account is in the link I provided in the first post of this thread. The debt is a little under 2k now thanks to interest charges and court fees. " What court fees? Did they obtain a judgement? If so, they can typically collect on a judgement for a certain number of years depending on state law, independent of when the account went delinquent. Depending on state law, judgements may also be renewable to extent this time. The SOL on the original debt is not longer an issue. (I am not an attorney.)
Re: Re: Scenario: What if... Well, from what I remember the court fees were from the last time when the creditor hired the first attorney. I called this week to check on whatever happened because I never received anything about a court date and no judgment was listed on my credit report...anyway, the local court verified that nothing else came of that first summons/suit after I "answered".
