Bill: Since your post is so long (not that thereâ??s anything necessarily wrong with that) Iâ??ll only go into portions, because to do otherwise would be getting off-topic too much. Nonetheless, youâ??re talking apples and oranges here to certain extents; Iâ??ll explainâ?¦ Albeit not a strict violation of FDCPA for a collection agent to file suit, while still within the 30-day window following a first dunn or validation notice. Filing and serving the complaint is widely thought in the collection industry to be prone to triggering litigation for alleged violation. Correspondingly, if a collection agent were to threaten litigation in writing within the 30-day validation period; such would fall under the US Supreme Courtâ??s ruling in Hientz vs. Jenkins, as absolutely being a violation. Therefore competent collection agents (meaning those that have their act together, by staying informed of industry trends) do not file for this reason, as well as cost-related ones. Not filing within the validation period has nothing to do with summons dates, nor first hearings or the like. Well youâ??re not wrong, per se, just confusing the issues a bit (again, apples and oranges). What Squawk, others, and myself were referring to are letters FROM consumers TO collection agents demanding performance (from the collection agent) within 30-days. i.e., Records and contracts proving legitimacy of the debt. What I am referring to by the 30-day validation period stems more toward first communications, initial dunns that provide for the written validation notice to consumers per §809 of FDCPA. Because threatening to engage suit or demanding any money within this period, is definitely a violation of the Act. Would be glad toâ?¦ Checkout Miller vs. Payco General American Credit. Inc. if the collection agent in your case asked for or even remotely demanded payment within the first dunn (letter from the agent). Essentially the court ruled words such as â??immediate payment in full,â? â??call us todayâ? and even â??nowâ? â?? within the first written communication â?? constitute violations of FDCPA. In short if any payment was requested, demanded, inferred, or suggested via the first collector letter? Threaten them with a suit for violation of FDCPA, and see if that doesnâ??t shake their tree a bit (quoting the legal cite of course). I have a strong feeling, if your case qualifies; that youâ??ll get some needed attention and cooperation.
Thanks for your answers. Much appreciated. I sent them a certified claiming: This is notice that you have violated FDCPA law. Please send me the name and address of the person listed in your articles of incorportation as authorized to receive service of summons. Signed. That was about 15 days ago, and I still have heard nothing at all. They are ignoring me totally and completely. I don't mind at all if they are communicating with me, but when they just totally ignore me, I don't know what to do next. Beating on a rock don't get much useable results unless you are trying to build roads. Thanks again
Anthony, This is the first time I have heard that a that it is a FDCPA violation for such requests by the CA. What part of the FDCPA was the court referring to when making this judgement? I was looking at some of the duns that were a first attempt at contact in my situation, many of them stated the very things that would be considered violations if this is the case.. As a matter of fact, about 90 percent of the letters I have seen have some form of a violation on their first attempt. Are most agencies ignorant in the law or are they just not inclined to follow it? Thanks in advance.
Well, I'll stick my two cents worth in on this one. I think that for the most part, they probably have at least as good knowledge of the law as a few of us have here. Maybe they even followed the law to begin with in some instances, but if that is so, time seems to have been the mother of Contempt and it's twin, Disregard. In other words, I'd guess that even if they ever did follow the law closely, they have just let their cautions lapse because nobody (debtors) were too ignorant to know their rights under the law, and in this case, the law didn't seem to have much teeth to it anyway, so why bother. They did clean up their act a lot when FDCPA first came into being. They used to do all kinds of nasty stuff before the law came into effect, but they stopped all of that after the law came in. I could easily give you a very long history of some of the abuses that the law put a stop to, but I will refrain even though some of the tales were pretty humorous. So I think what they did was to clean up the real bad parts and then just forgot about the smaller details.
Daddy-O: Iâ??d suggest you review the cases I referred to Bill (above), which should give you a better idea of the concept (as they all relate to Validation under FDCPA §809). Yet the reasons many collection agents donâ??t consider such rulings, and continue to make demands within the first written communication are twofold; probability and risk vs. reward. Collection agents survive on performance, no recovery means no income and hence eventual business death if such a trend continues. It is therefore critical to capture funds owed as soon as possible, even within the 30-day validation period (despite the risks). Since the concept of violation for seeking payment within the validation period, is generally only known to those in the collection business â?? not the public at large. The probabilities are high that the agent can get away with the practice more times than not. There are deeper concepts regarding this issue, albeit you get the general idea. If only 1 out of 100 consumers (and I wouldnâ??t be surprised if the odds were just that) filed suit or complaint, the exposure is still worthwhile. So engaging the practice isnâ??t so much a matter of contempt for the law, but playing the odds such rulings will not be used as a defense by a target consumer.
Anthony, I am a little slow sometimes. When I read it all I get is the fact that they cannot contact you unless they validate first. Can you show me and others where this applies in 809? Here it is for your quoting pleasure..§ 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. Thanks for all of us!
Does the violation occur because the collector is only supposed to provide the information in §809. Is any demand or accusation a violation due to its incoherance with the ACT?
This is excerpted out of a collection letter that I received. "Risk Management Alternaives, Inc. has purchased the above past due account from (Creditor). Please remit the full balance to Risk Management Alternatives, Inc." It was the very first couple of sentences. Then the letter talks about the 30 day validation. Is this a FDCPA violation? Thanks, Cyprigirl
Daddy-O: My friend I donâ??t understand your second question, specifically reference to â??incoherenceâ? so Iâ??ll address the first one. That may in-turn answer the second portion, or at least I hope anyway. Albeit in so doing Iâ??ll go over some basics so everyone is on the same page, lessoning confusionâ?¦ The written validation notice is required to be issued within five (5) days from the first contact with a debtor, usually initiated by phone. The notice is the one indicating that the consumer has 30-days in which to dispute the debt (or a portion thereof), or the collection agent may consider the debt â??validâ? (meaning legitimate). In the Miller case (mentioned, above, in this thread) what the court found was that an attempt to compel collection (payment) within this 30-day period, thwarts the intent and spirit of §809 (FDCPA). This applies even if the consumer DOES NOT dispute the debt, nor responds in any way. In fact the court felt that certain language in a first dun (â??immediate full payment,â? â??now,â? â??phone us today,â? etc.) flatly contradicts the 30-day validation period, and therefore violates FDCPA at §809 â?? being (in part) an unfair and deceptive practice. Hope this addresses your concern satisfactorily. [;-) ********************************************* NOTE TO ALL: Before attempting to apply this defense, consultation with competent legal counsel should be obtained! Engaging the above-argument must be done in a certain way that complies with legal procedure, and may not apply to your individual situation. Misapplication of a claim for violation of FDCPA could result in fines or sanctions and payment of opposing party attorney fees, caution and diligence is therefore required! *********************************************
Anthony, Perhaps I was a little "incoherent" myself at 4:00am when I replied to your post. Anyway, as always you have brought me up to date and clarified what I wasn't sure of. Your point got me digging out all of my old duns that I had received in my days of being financially challenged. This info would have been quite useful in my circumstances. I hope that it helps someone in a similar situation who may be perusing the board for answers.
Incoherence? We donâ??t need no stinkin, incoherence! [;-) Hay I see Iâ??m not the only one burning the candle at both ends, shesh Iâ??ll tell ya! My staff has GOT to take on more responsibilities if Iâ??m going to survive the development stage of CDâ?¦ Trouble is, they usually end up asking me what the heck is going on anyway, so often itâ??s easier just to do it myself! Anyway (Iâ??m done venting), glad I could be of some help.
I think the distinguishing factor in Miller is that the court said "screaming headlines, bright colors and huge lettering 'all point to a deliberate policy on the part of the collector to evade the spirit of the notice statute, and mislead the debtor into disregarding the notice.' " Further the court said that "Payco need not cease its collection efforts in order to abide by the statute, it simply needs to convey effectively the validation notice without contradicting it." I think that is the key, if the letter is contradictory in substance and the unsophisticated debtor felt the urgency to pay without exercising their right to validation, then the court may find a violation against the CA. Cyprigirl
Great synopsis Cyprigirl, I was reading it this afternoon and thinking similiar thoughts. These tactics render the uneducated consumer defenseless as the collector consumes the debtor in its attempts of trickery..
Cyprigirl: Iâ??d have to agree, at least in part, because the principle of least sophisticated consumer IS the yardstick by which such cases are measured. Doesnâ??t truly matter if the plaintiff is herself a sophisticated person, only what the least sophisticated consumer is likely to believe (as determined by the court). But hay, what do I know? Iâ??m just here for the laughs! [;-)
Anthony: Keep on laughing, then. I for one really enjoy your laughter. It's very informative and always on point with good answers. Call it laughs if you want to. I am sure you do get a few grins out of those of us like me who are always coming up with some off the wall idea. That's fine. Keep on laughing, because I doubt anybody minds even one little bit.
It was just food for thought. I agree with someone's earlier statement that CAs are playing against the odds of going up against a savvy consumer like most of the people on the board and will violate the FDCPA with their initial letters in their demand for payment and try to pass it off as a valid letter by wrapping their assertions around the 30 day validation notice. Cyprigirl
Well, I have yet to see a first collection letter that was anything but a bare-faced demand for the money. I have never seen one that offered anything even remotely resembling a validation letter.
Cyprigirl: Frankly, your thought is a pretty savvy one at that! Iâ??m VERY pleased to see that both you and Daddy-O have taken the time to read the Miller case, and can only hope others do the same. You know itâ??s funny but I learned of this little morsel (in relation to demands within the validation period), form a consumer who threatened litigation against an original creditor where I was managing (years ago). At first I thought the guy was full of it, blowin smoke to divert attention away form his deficiency (the loan was a car deal gone bad). Yet because the lender had acquired the deal after it had defaulted, with a bulk purchase, I knew we were under FDCPA restraints so I checked out the claimâ?¦ Opps! It ended costing us a grand in compensatory discount (which Iâ??d have probably given him anyway), and was a great learning experience. Needless to say, this issue never came back to bite me again! In any case, you keep thinking sharp, because Iâ??ve got news for yaâ?¦ Far too many collectors now-a-days are lazy and certainly donâ??t! [;-)
Bill: Please donâ??t take this the wrong way, butâ?¦ A first dun is not a â??validation letterâ? per se but contains the validation notice, as required by §809 of FDCPA. Yeah, yeah, â??Iâ? know what you meant but others may not and as you know this stuff CAN get confusing in a hurry, soooo. Just thought a bit of clarification was in order, thatâ??s all.
Many initial CA letters violate the FDCPA, but how many people actually realize this violation? They know this and will continue to do this until enough people call them on their violation. Remember there are many ruthless and unscrupulous CAs and all they want is to collect the money and if they can get away with sending threatening letters that are illusory at best regarding credit laws, you can bet they will. So my point to all this is either learn the fine points of the laws to arm yourself when negotiating with a CA or find a very good attorney who is ready to do battle with the CAs. Cyprigirl
