Should We Sign for Certified Mail?

Discussion in 'Credit Talk' started by lbowman, Oct 12, 2001.

  1. lbowman

    lbowman Well-Known Member

    My husband received a "Sorry we missed you" note from the post office. He has a certified letter from Charter One. I sent a validation to this company on 9/13 and this is the first response back. Should he sign for the letter? Can the company serve you or does it have to come from the courts?

    Advise needed!!
  2. roni

    roni Well-Known Member

    You can be served via certified mail.

    If you sent a validation letter certified mail, it's reasonable to understand they sent the reply the same way. It's within the 30 days. If the post office does not get a signature within 21 days they will return the item.

    If you think it might be a suit, would it be worth a call to ask for a status update?
  3. bbauer

    bbauer Banned

    You can find out from the court house if any suits have been filed on you. All you have to do is to go down and do a search on your name at the courthouse.

    I'd keep on ignoring the Post Office little slips. If the postman brings it to your door and catches you home, don't refuse it, just tell him you will pick it up at the post office "tomorrow", but don't go get it.

    Nothing good ever came by certified mail. Just don't refuse it.
  4. lbowman

    lbowman Well-Known Member

    Thanks for the advice. My husband nor myself is home during the day, so the chances of "refusing" are slim. My mail lady is extremely lazy. She'll just leave the slip and leave it up to us to come and get it. The account in question is a charged off account for $1200.00.

  5. bbauer

    bbauer Banned

    As usual, there are at least 2 sides to every coin.

    I think I'd go check (online or otherwise) to see if any judgments have been filed against you. If not, then you might want to think about actually going and getting the letter and hoping that although they sent you a validation it may contain one or more errors. If it does, then you are the winner.

    IF all 5 indices required by the law are not present upon the face of the document(s) they send you, you would simply proceed immediately with the next step to winning the fight.

    Lack of any one of the 5 indices invalidates the validation they send you, meaning they didn't send you anything at all. So you simply move on to the next phase. They will most likely ignore you or they will send you a letter saying that they have the proof that they sent you their validation letter you demanded. You would then simply move on to the next step which would be to threaten lawsuit and you would point out that their validation letter, although delivered and received by you did not meet the demands of the law and therefore is of no value.

    The chances are that they would disagree with you and one or both of you is going to have to end up filing suit(s), but that was fairly likely to be the end result anyway.

    So what did all that hassle end up getting you? A whole lot, actually, because when you started out, had they taken you to court you would have lost and had a judgment against you which you would have had to do a lot of learning and research to beat. This way, you have the ammunition to fire back at them and the court cites proving you are right, leaving a judge little option but to deny their motion for summary judgment.

    Looking at the date you said you sent the letter, as Bkev has pointed out, there is some chance that it does contain a summons. If so, you ought to be thilled to death. Here is why. They filed a court case & summons against you prior to the expiration of the 30 days after receipt of your demand for validation?????? Woo-hoo!! You have them nailed cold and you are an instant winner! They cannot pass go and they cannot collect $200 (or whatever) and they must go directly to jail. (figuratively speaking, of course) It's against FDCPA to file suit against a debtor within the 30 day period after receipt of debtor's demand for validation.

    I would seriously consider all that in deciding whether or not you should go get the letter. It very well may be the key to your winning and their losing the case no matter what it contains.

    As I said before, you don't have to accept the letter, but you don't want to directly refuse it either if confronted by the postman.
  6. lbowman

    lbowman Well-Known Member


    Thanks for your help, but one more question please. I sent the validation to a CA but the letter is from the original creditor, Charter One. It's for the balance of an auto loan. We were in a no-fault car wreck this year and the other insurance co paid everything EXCEPT $1200.00. I'm tempted to go sign for it because it may be a summons, but can I get it deleted from the report? Is it the CA that must not continue collection actions before validating within 30 days or does it apply to the original creditor also? I don't mind paying the balance if the information that's in the letter is the verification stuff. I just don't want to instead get a summons and find out I have no grounds for a countersuit?

    Advice anyone. PLEASE!!!
  7. lbowman

    lbowman Well-Known Member

    Another thing:

    Where can I go online to find out if my husband has been served? We live in Maryland.

  8. bbauer

    bbauer Banned

    If it's a summons and you win in court there are probably a couple of actions that you can take. One would be to file an answer to the summons and motion for counter complaint/suit. The basis for that would be their violation of FDCPA. So you would then be sueing them in return and I doubt they would want to go to court when the favorite topic of discussion would be why they broke the law. So your move ought to be to attempt a negotiation with them wherein they forget about collecting the debt and delete all mention of it from all records both public and private in return for your dropping your counter suit. That would be the preferential way of handling it in my mind. Better than going to court.
    Yes. Original creditors are protected (exempted) from FDCPA
    That's a separate offensse entirely. 1. Must not continue collection efforts after debtor demands validation. 2. Must not pursue collection efforts within 30 days of mailing first demand for payment letter
    Again, original creditors are protected (exempted0 from FDCPA.
    That's more than likely what it is. But you still would not want to pay them off because you then lose all your protections under FDCPA and you will more than likely have to live with the bad marks for the next 7 years. That's because there would no longer be a collection effort once you paid it. So you pays your money and you takes the hit. Nice thank you note for paying them off, eh?

    If you don't pay them, they will probably end up having to pay you and taking it off your credit report too if you work it right.
    Look at it this way. If it's the validation of your debt which is most likely what it is, you have 5 chances that their validation is invalid and void upon it's face.

    That's because there are 5 indices which must by law appear on the document. Lacking any one of them means it wasn't a validation at all and is grounds for a lawsuit against them. Of course, just because you have grounds for suit doesn't mean you are going to burn the tires off your car racing for the courthouse either.

    2. It's a summons for motion of summary judgment. They have a lot rougher road to hoe if you know what you are doing. There are at least a couple of ways to handle that situation. The first way is to just let them get their judgment. You stand about a 98 percent chance that the judgment will be void upon it's face and therefore easily attackable. So you wait at least 30 days after the judgment is final and then you go back into court and file motion to vacate judgment using the same case number as the original judgment. You don't have to pay any filing fees that way because it's a continuation of the original docket item. You want to wait the full 30 days and then some because the judgment does not become final for 30 days after declaration in most states. If you go back to court during that 30 days, they can amend their motion and refile, correcting their errors. Then you are dead meat.

    Or you can go to court and file an answer and motion for cross complaint and then do a discovery and find out what they have in their filings. I must warn you that discovery is a tricky process and you should never, never attempt discovery without legal counsel. It's sole purpose is to frighten and intimidate and if you are not good at that, you will get stomped on because their attorney will be good at it. But what you want to see is just how much proof of the debt do they have?

    Does their proof of indebtedness have the original contract or a court certified copy thereof included?

    Do they have affidavit of proof of service of summons?

    Do they have affidavit of debt or do they plan to use an affiant who will swear to the indebtedness and the authenticity of the instrument of debt?

    Or does their lawyer just plan to get up there and claim that you owe the debt and hope to get a judgment on the basis of his testimony? You would love to have that happen because an attorney may not give testimony in a case in which he is the attorney. On top of that, an attorney can file a semi-truck load of papers, motions and briefs and he can argue law until the cows come home and it is all meaningless without the proper affidavits to back him up.

    Has the proper afidavit of notice of publicaton been included along with copies of the publication?

    There is a lot more that must be there. It takes at least 18 different indices to make a perfected and completed lawsuit in most states. Lack of any one of them can put the quash to their lawsuit and very well might even give you additional grounds for another lawsuit.

    I just had that happen in an Arizona case for a customer of mine. She got up in court and told the judge that she had no proof that the debt was ever owed even though she had made demand for validation. She swore she had no knowledge of the debt other than what the bill collector had claimed. She stated that she saw no such proof of indebtedness in the court filings.

    When she called me, she was estatic because she said that the judge looked at the lawyer and asked him where the proof of the debt was. He said he didn't have it with him and that he would have to get it. The judge asked him if he wanted the court to wait while he ran over to his office and got it. If so, the court would consider a motion for a 10 minute recess.

    The lawyer then asked for a continuance. The judge looked at the lady and said "I think you ought to sue this man." and then he said, "I am going to dismiss this case with prejudice." The lawyer got all upset and asked, "But your Honor, what about my judgment? Can't I have a continuance?" The judge replied that he could continue the case for 1 year if that would make the lawyer happy.

    Then he again looked at the lady and said, "I really think you ought to sue this man immediately." He dismissed the case with predjudice and then repeated his statement that the lady really ought to sue the lawyer. He said it 3 times.

    Under all normal conditions, judgments are not to be feared. That's because most lawyers just fly by the seat of their pants and soon enough get sloppy and don't dot all the i's nor cross all the Ts. That's especially true of collection lawyers. Those who successfully represent themselves win because they do a lot of homework and they are usually scared to death they will get beat so they do their research and find out what it takes to beat the professionals and they seldom miss any tricks.
  9. lbowman

    lbowman Well-Known Member


    I understand and appreciate your feedback. However, one thing remains unclear: I sent the validation letter to the CA that was listed on my husband's credit report. The original creditor is the one that sent the certified mail. So, I don't know what I'm dealing with here. If the CA had sent the certified mailing, I wouldn't have a problem signing for it. But since the original creditor is protected, what should I do?

    My cut and dried question: If I sent a validation request to a CA and get a certified letter from the original creditor, if I sign for it and it's a summons, do I have grounds to sue/get deletion or is the original creditor protected??

    who's very confused.
  10. bbauer

    bbauer Banned

    OK, now I understand a bit better.
    You would have no grounds to sue that I can think of.

    But now that you have clarified it, you have told me what it almost assuredly has to be.
    It's your validation and here is why I can be so sure of myself on that point now.

    Here is what happened. The creditor turned it over to a 3rd party collector and you demanded validation. The 3rd party collector did as he was supposed to do under law and contacted the creditor demanding validation. The creditor did not do as he was supposed to do which was to send the validation letter to the 3rd party collector who was supposed to send it to you. Instead of obeying the law, the creditor sent it to you and he wanted to make sure you got it, so he sent it certified. Problem is, when he did that, he hung his collection agency out to dry. The law says that the validation must come from the 3rd party collector and he must have it in your hands within 30 days. If not then he violated FDCPA.

    And you are an instant winner. All you have to do is wait the 30 days and let him in on the facts of life and what it's going to cost him. Naturally, the least settlement you would want to accept in lieu of sueing him for his criminal failure to obey the law would be for him to pay the bill plus any and all interest, fees, penalties and late charges demanded by him and remove it from all records both public and private.

    I'd say that since we now know with almost positive certainty what it is in the envelope, I would not go get it. Here is why. If they take you to court, you have the excuse that you didn't go get it because the creditor had turned it over to a 3rd party collector and the matter was therefore out of his hands by contract with the 3rd party collector. You had demanded validation from the 3rd party collector who had the legal obligation to provide you with the validation demanded and to do it within the 30 days allowed him by FDCPA.

    Since both you and your husband have to work all day and would have to take time off from work to go get the certified letter and you knew that it could not be either a summons or the validation from the 3rd party collector that you had demanded and that he had the legal obligation to deliver to you, you thought it might have just been some advertising or something.

    But while you don't have legal gounds to sue or counter sue on yet, you sure would have after 30 days because the 3rd party collector isn't going to send you a validation. He probably figures the creditor sent it to you and he is in the clear.

    WOW! Is he going to be in for a surprise when he finds out it's him that has to deliver it to you and not the original creditor. The law demands that the 3rd party collector personally sends you the validation because he has a contract to collect with the creditor so it's his obligation, not the creditors to provide the validation.

    I think you are an instant winner!!

    But don't blow it by going to get the letter.

    See how the tiniest detail can completely change the course of action you should take?
  11. lbowman

    lbowman Well-Known Member


    Thank you so much for your help!!! I agree with your analysis. I will NOT go and sign for the letter. Just one last question, Does the law say that the CA must validate within 30 days or does it say that they cannot pursue legal actions before validating? or OR do I wait 30 days and if they send a letter to collect I then demand removal because they violated the law or can I demand removal after they don't respond within 30 days?

    Hope this isn't too confusing.

    ps. Can you point me to a website that explains this law? Thanks again.
  12. roni

    roni Well-Known Member

  13. bbauer

    bbauer Banned

    Yes it does.
    You are starting to tread deeper water here
    You could, but I wouldn't recommend doing it just exactly that way
    Now then, let's get down to what the law does say. It's kinda tricky. First, there is a 30 day window starting from the time the 3rd party collector FIRST notifies you of his intent to collect a debt during which time you must send demand for validation. He must not make any move towards active collection efforts involving courts during that 30 day period. If he does, he violates the law.

    That 30 day window never closes as far as your ability to demand validation but after the FIRST 30 days he may continue with collection efforts even though you have demanded validation but he must also comply with your demand for validation simultaneously.

    While he may continue with whatever efforts he may choose to take regarding collection, he may not (logically) proceed with any court action absent validation (proof of indebtedness) because in order to have a valid case he must present sufficient evidence of indebtdness to the court in the form of proper affidavits, written or testimonial.

    {Self invented standard disclaimer follows}
    Now then, please understand that while all of the above might make it sound like I'm sum kinda lawyer, I'm not. That's just what I read into FDCPA. So if you are in any doubt, I'd suggest you read the FDCPA for yourself and draw your own conclusions or see a competent attorney who does know the law and see what they have to say about it.
  14. lbowman

    lbowman Well-Known Member

    Thanks bkev and Bill. I'll look into the websites and do some research before exploring my next option.

    Thanks again for the great help.
  15. roni

    roni Well-Known Member

    ALWAYS glad to help... Do unto others.... :)
  16. lbowman

    lbowman Well-Known Member

    The kicker:

    My husband's father co-signed on the loan and Charter One sent the validation info to him too. Guess what? He signed for it!!! Now, we have to pay the a@@sholes!!! Should I offer a settlement?

  17. bbauer

    bbauer Banned


    Here is just one reason just for starters. The validation sent by Charter One is totally invalid no matter what it said or didn't say. Here is why.
    When Charter One sent the validation letter, no matter to whom they sent it, they caused the CA a violation of FDCPA. Now you have an action against the CA who has an action against Charter ONE if the CA cares to pursue the issue and well he might. Charter One may have even violated their contract with the CA. (I wouldn't know about that, it's just a possibility)

    You might ordinarily have problems dealing with your husband's father, since he is probably ticked off at you two for failing to pay the debt and putting his credit at risk. But I'd like to think that if you explain to him that they have violated the law and your civil rights and that you are thinking about taking them to court for their violations of the law then he might just take a different point of view. I'd tend to think he might be properly outraged to think that some company had violated the law and your rights and you have legal reason to complain.

    The courts have ruled that the validation MUST come from the CA and not from the creditor. They have also ruled that the validation MUST bear 5 separate indices upon it's face and all 5 MUST be present. I'm willing to bet a dime to a donut that their validation does not come anywhere close to having all 5 indices present.

    I'd advise that if you take this course of "attack" or "placation" with your father-in-law, you had better have all your ducks in a row and have the proof of what you are saying with you when you go. You are likely to need them to go up against the CA too, because you don't want to say the wrong things to them and come out the little end of the horn.

    You will now have to go get that certified from the Post Office too. You don't have any choice in the matter now because it will look bad on you if you don't. But what's the difference now anyway. You know what is in the letter for sure. It's exactly what I told you it was.

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