Jam and I have been talking about this in another post. When Butch originally posted this letter, there was a big discussion about it, however, when Odessa moved the post to the sample letter forums, the discussion was deleted. Maybe its time to be revisited. Here's the letter, for ease of view: ---------------------------------------- This post was originally contributed by Butch --odessa I've posted much about CA's selling or assigning a debt to a subsequent (unsuspecting) CA because you demanded validation that they cannot provide. This issue affecting a lot of people. Assuming you demanded validation that never came, or was inadequate, I suggest you take it upon yourself to "notify" the subsequent CA of the debts FROZEN status. Send CA2 &3 &4 & whatever, the following letter. Obviously you'll want to customize it to fit your situation. Dear CA#2, It is a well settled legal principle that all opportunity for resolution must be extinguished before legal action can take place. This notice should be considered constructive notice. Ca#1 has sold/assigned ("dumped upon") you a NON-performing, illegitimate debt, the collection for which has already been frozen by my demand for validation, via FDCPA. My demand was sent xx/xx/xxxx and signed for on xx/xx/xxxx by John Smith, at [insert address]. Follow-up letters were sent, blah, blah, blah. Your ignorance of this fact is no excuse. Both you and CA#1 are in violation of Federal Law for (but not limited to) continued collection activity on an alleged debt, the collection for which MUST CEASE until valid proof sent, pursuant to FDCPA § 809. Validation of debts [15 USC 1692g] (b) May I suggest you return this account to CA#1 and demand your money back, or compensation for your wasted time, pursuant to the "qualifying RECOURSE accounts provisions" of your purchase/assignment contract. I further demand that you immediately delete the trade-line you have inappropriately inserted on my credit report. YOU HAVE REPORTED INCORRECT INFORMATION! You have 5 days to cure. OR ... If you report this derogatory item to any credit reporting agency after the tracked and verified receipt of this notice, you may be sued. Any further communication from you before I receive the demanded proof of this alleged debts validity via federal and case law and I will instruct my atty. to begin drafting a formal complaint. Regards, Enclosures: 1) Copy of original and all subsequent val demands 2) Copy of return receipts & green cards 3) My atty. staff Let us know what happens. Butch, And this additional info was contributed by LKH Good letter Butch. In the situation when the acct is assigned rather than sold, you might consider sending the same letter to the oc with a statement that the oc can also be held liable for any violations committed by an assigned ca in attempting to collect the alleged debt.
Where it began today: http://consumers.creditnet.com/straighttalk/board/showthread.php?s=&postid=407340#post407340
And, Jam's intrepretation of the FDCPA, which is not really incorporated into the letter. Originally contributed by Jam Actually, there is something in the FDCPA which specifically talks about the issue in the subsequent CA strategy. quote: -------------------------------------------------------------------------------- (6) The false representation or implication that a sale, referral, or other transfer of any interest in a debt shall cause the consumer to -- (A) lose any claim or defense to payment of the debt; or (B) become subject to any practice prohibited by this title. -------------------------------------------------------------------------------- Since under 809(b) if an account has collection activity prohibited while it has not been validated, it would be a false and misreprentation for anyone to claim that the transfer or sale to anyone allows collection activity to resume. While the actual transfer or sale may be allowed, all the legal rights which are in play from the consumer remain; so if the account was frozen by 809(b), it remains frozen by 809(b). So if the new owner or assign does anything which is collection activity, it is a violation. and how many collection agencies don't begin collection in some way, shape, or form when they receive an account. In the commentary, the FTC made this even clearer that this includes situations when the account is sent back to the original creditor. quote: -------------------------------------------------------------------------------- 1. Referral to creditor. A debt collector may not falsely state that the consumer's account will be referred back to the original creditor, who would take action the FDCPA prohibits the debt collector to take. -------------------------------------------------------------------------------- SO, even if the original creditor recalls the debt in an unvalidated state, one could argue that under 807(6)(B) of the FDCPA, the FDCPA now applies to the OC since the transfer of interest does not terminate the consumers rights under the FDCPA.
When someone buys a debt they not only acquire the privileges and benefits they also inherit the responsibilities and obligations of same. ><- <>- ><- <>
PS Thus if the seller was obligated to validate the debt prior to trying to collect but had failed to do so prior to selling or transferring the debt this obligation would automatically be transferred to the new owner. ><- <>- ><- <> If the new owner attempts to collect without validating it's an automatic $1000 violation.
So then I have 3 cases right now where I asked for validation (received nothing, or next to nothing), sent an Estoppel, and now these three have all dropped collection activity, deleted the tradeline, returned the debt back to the OC's, and I have 3 OC's now reporting the tradelines on our credit reports. I haven't heard from the OC's, and once I saw what was going on I immediately sent them validation letters too. Are you saying that these OC's violated FDCPA by reporting on my credit report after the return of the account from the CA's?
809(b), the right to have collection activity ceased under the FDCPA when you request validation is a right under the ACT. 807(6)(B) protects your rights under the FDCPA even when the account is transferred, and the FTC Commentary specifically includes the OC in their interpretation of it. If you would sue under the FDCPA, they would argue the OC exemption, you would argue that 807(6)(B) only provides for that exemption prior to the beginning of third party collections; after which if the OC regains the file, all your rights under the FDCPA remain in force. Otherwise, you would have no rights, because as soon as you requested validation from any CA, they would hand the account back to the OC, and the OC would transfer the account to the next CA on their rolodex.
Jam can you point me in the right direction to read the commentary. I don't doubt you, I just want to read for myself I lost alot of my bookmarks a while back and have had a devil of a time rebuilding them.
*gasp* I'm hurt, you would think that I'm trying to get through years of CA, CRA programming... "YOU HAVE NO RIGHTS..." http://www.ftc.gov/os/statutes/fdcpa/commentary.htm
Yowsers was I typing way too fast when I typed that... I didn't even notice the typo until just now... misreprentation... Now that's a new word...
Re: Re: Subsequent CA Strategy Just like in the FCRA case Johnson v. MBNA; we've long known that "That's what they say, that their computer says" didn't pass the muster for verification; we just didn't have applicable case law to PROVE it beyond a shadow-of-the-doubt until after Johnson v. MBNA was decided, and affirmed. So, what we need is for a company to so aggregiously violate this provision so that the consumer would have a federal case large enough to be appealed by the company. Say a consumer requests validation for a large debt, the CA bows out, hands the file back to the OC who begins collection activity, in their own name, the consumer applies for a mortgage for a home, the only negative trade line is the OC's trade line for the disputed account, which they only listed after the CA bowed out because they.couldn't provide validation. The consumer disputes the trade line with the CRA's citing the need for the DF to verify based on their original documentation, according to the Johnson v. MBNA standards. The DF verifies incorrectly while the account is in dispute, and doesn't notate the dispute. Now, the consumer has FCRA violations in concert with comparable FDCPA violations, and real damages for both. Remember, 807(6)(B), the sale or transfer itself is not the violation; the resulting violations resulting from the sale or transfer is. 807(6)(B), just gives you the ammunition to say that ignorance of the accounts status, or your rights under the FDCPA are no excuse. In the example above. FDCPA - continued collection activity - Section 809(b) FDCPA - furnishing incorrect credit information - Section 807(8) FCRA - verifying incorrect information - Section 623(B) And the FDCPA violations would be violations of - Section 807(6)(B), because they are through their actions implying that your rights under the act don't exist... BUT, if you can actually get them in writing to say something to that effect, its all the better, because then you have a writen false & misleading representation to hang your hat on. That may require some good old fashioned hocus pocus to acquire, but keep in mind that companies tend to try to defend themselves, and when they do they at times tend to put their foot in their mouths by hastily defending themselves before reviewing everything. Say, if they pulled a copy of your credit report, and they claim the PP is Collection Activity, even though the debt was frozen with another CA... That is a direct misleading representation in writing that your rights are not in effect, in direct disagreement with 807(6)(B). Now, if the OC does their collection activity by passing the account to another CA, then this is even better for you, because since its another CA, the OC exemption is off-the-table, so they can't even try that arguement.
(OT) Re: Subsequent CA Strategy "Ignis aurum probat, miseria fortes viros" I know no Latin. However, it would appear that all language interactions come to a point where someone, with knowledge of a FEW other languages, can somehow make out what it means. "Ignis" - Ignite? "Aurum" - Aural, or to hear? "Probat" - obvious 'probate', or 'probability', or 'problems'? "Miseria" - Sadness? "Fortes" - strength (think fort) "Viros" - Life, living Or... When you beging to listen (xxx), sadness strengthens life. Help me out here college folks!
Ignis aurum probat, miseria fortes viros (Fire is the test of gold; adversity, of strong men) my favorite latin saying: "Semper Letteris Mandate" (Always get it in writing!)
Re: Re: Subsequent CA Strategy The OC is definately liable. Check out: Creditor Held Liable in FDCPA Class Action http://www.bankersonline.com/lending/mbg_fdcpacase.html Nielsen v. Dickerson, et al
*bumping* an oldie but a goodie... I just got a letter from a law firm which received my ITS... Ironically, in all of their vigorous arguments that they didn't violate 15 USC 1692e(6)(B), they once again violated 15 USC 1692e(6)(B); not to mention that they didn't even touch the unsigned "Ask for Ms. D. S-DA - Account Rep" signature - yes, not even a signature from a non-attorney, not even a facsimile signature from an attorney, just completely unsigned, being a false and misleading representation that the letter was from an attorney.
The attorney is relying on Jacques v. Solomon & Solomon PC, 886 F. Supp. 2d 429 - Dist. Court, D. Delaware 2012 to support their rebuttal of the Subsequent CA Strategy. The difference is the plaintiff made no argument that the defendant knew, or should have known about the subsequent CA dispute. (In the case of a law firm, HAD the law firm performed the requisite determination that legal action was warranted - which their letterhead implicitly infers - they should have known.)
