Verification, Validation & 30days

No answers, just more questions

I wish I'd gone to law school now

Another question to add: I read that debts over 500 require a contract (statute of frauds). True?

So let's take the example of a debt over 500.

When and how do we demand to see proof the debt really exists? Would that be really only to the original creditor??? or when we take a collection agency to court???

When do we have the legal right to demand to see the contract???

Otherwise, I say you owe me 1000. I give it to Coldata. You request validation, I say yes you owe me but I have no proof... done deal???

 

I have argued the very point that you have made before in reference to the FDCPA. You are absolutely correct in you findings as far a the FDCPA goes. What I think these letters that fly around here represent is a form of posturing. One can only hope that this form of "posturing" will bring the desired results. Of course these letter writing techniques are very skilled if you take notice to their format. I also believe that sending them to a collection agency can be empowering to some people who feel lost in regards to their situation. Another thing I believe is that many of these collectiion agencies need to know that the alleged debtor means business. If you send them the letter that asks specifics about their rights to do business in your state or lets them know that "you" know the name of their bonding agent, this lets them know that they may need to hold themselves to a higher standard than what the FDCPA states. After all, if we did go to court they would be required to prove that you owe them money in question. A computer printout without does not constitute proof of a debt.

 

I see where you are coming from. I would think that if you are handling your defenses properly you would be able to find out this through discovery. If you deny their claims they will have to show sufficient proof. For example, not every transaction requires a contract with a signature, although if such a contract would exist in regards to the situation at hand, I dont know attorneys/judges who wouldnt want to look over the contractual obligation if one did actually exist.......

 

But the right to raise the issue of whether or not you even owe the debt certainly can be raised before you're sued.

Otherwise, you're always on the defensive, subject to collection agency abuse until they bother to sue you, and the collection efforts could continue infinitely (with either one agency or by it being passed on and on to different collection agencies).

What if they don't ever sue you???

If you believe that these letters are just posturing, then what do you suggest in these circumstances?

1. You owe a debt but the amount the collection agency is trying to collect isn't correct
2. You don't owe the debt at all

a. the debt isn't yours but under fraud shows under your name (hence a verification would be positive)

b. the debt isn't yours at all, an error of identification, but it still comes back "verified" by the original creditor to collection agency as yours.

What proactive steps do you take other than a cease and desist to stop collection efforts AND to remove all derog credit info?

 

In the present case, Gallerizzo, after receiving assurances from NationsBank that the sums were owed, verified the debt amounts in his January 18th letter to Plaintiffs' counsel and forwarded a copy of the bank's computerized summary of the Chaudhrys' loan transactions. The summary included a running account of the debt amount, a description of every transaction, and the date on which the transaction occurred. See Graziano v. Harrison, 950 F.2d 107, 113 (3d Cir.1991)
(holding that computer printouts which confirmed amounts of debts, the services provided, and the dates on which the debts were incurred constituted sufficient verification).

I sure don't see any way to argue with the court's findings as outlined above.
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Thereafter, in a January 19th letter to counsel, Gallerizzo restated the amount of the inspection fees and indicated that the amounts were correct. Nothing more is required."

That's from Chaudhery v. Gallerizzo, 174 F.3d 394 (4th Cir. 1999).

And that too. So what is your question or point? I have absolutely no argument with any of the above. But you must also note that the creditor was Nations Bank, an original creditor, not a collection agency. It was therefore much easier for them to produce the records which they did produce. And my point has always been that the above is exactly what you don't want to ever have sent to you even though you demand it. You want them to fail because if they do not fail, you have absolutely no where to go and will have to either try to force them into court or you will just have to wait for them to take you to court. Once the above has been delivered in a reasonable period of time, you have nowhere to go.

Also, although the FDCPA does not, as far as I know make any statement that they must deliver within 30 days, but many courts have held that 30 days is a reasonable time within which they should have replied. So you have to get your 30 days from the courts and their decisions rather than from the FDCPA itself.

Your post changes nothing that I can see at this point.

 

1) There is no legal difference betwen "verification" and "validation" for purposes of the FDCPA.
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You are exactly right again. The difference is to be seen in the difference in the standards imposed by FDCPA on creditors and CAs and the standards imposed by FCRA upon credit bureaus. By comparing the two, the difference becomes obvious.

 

I have argued the very point that you have made before in reference to the FDCPA. You are absolutely correct in you findings as far a the FDCPA goes. What I think these letters that fly around here represent is a form of posturing.
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That's exactly what it is, nothing more, nothing less.

And that should lead anyone with at least the common sense God gave an army mule to realize that letters such as any I have ever seen so far which are basically nothing more than "Ill huff and I'll puff until I blow your house down", i.e. filled with 40 feet of blanks for them to fill out in response to questions which are definitely do not require answers under any law or regulation are nothing more than hype and bluster and equally likely to get you your head handed to you on a platter as they are to get the desired results while a letter that gets right on the point and stays on the point and looks at least half-way professional is much more likely to get the desired results.

Most anyone with half their brain tied behind their back would take one look at that kind of folderall and just chunk it and wonder what kind of fool it takes to write something like that. To have even a crying chance, it has to at least look like the author knew what he was talking about.

In actuality, however, I'm looking for much more serious violations of the law to occur than anything that I've ever seen discussed in any forum to occur, and they usually do. If I end up not getting what I am really seeking, then I might have to make do with trying to hang them with the 30 day rule or failure to validate at all.

But I'm actually hoping for much worse violations than that to hang them with. They usually never let me down.

 

If you send them the letter that asks specifics about their rights to do business in your state or lets them know that "you" know the name of their bonding agent, this lets them know that they may need to hold themselves to a higher standard than what the FDCPA states.

No, I don't want them to be aware of any of the above and asking about their right to do business in your state is also silly if not worse. I may very well want to know about that, but I'm not about to ask them for the info unless it is in the discovery process and then I'm already going to know the answer anyway. So if I demand that in discovery, it's only going to be to cause them surprise and more grief and molestation. Even there, I would not ask them to provide the demanded info in exactly those words. I'd demand their articles of incorporation as filed with the Secrretary of State in their home state, and that's all I'd ask them for in that area.

Anthony pointed out the uses and definitions of Ultra Varies in another post a couple of weeks ago, and so I'm just going to make them go get their articles of incorporation for my review. Any useful info actually gleaned from that would be reserved for actual court room surprises. In the meantime, I'd just let them stew as to the reason for the demand. It's one of those irritation factors, especially if their home state is a long ways off and they have to go home and get them and then bring them back to a second round of discovery only to have to still sit there and wonder what the heck I demanded them for.






After all, if we did go to
court they would be required to prove that you owe them money in question. A computer printout without
does not constitute proof of a debt.

 

Squawk1200,

Gotta agree with you, but what about the signed contract or agreement being the only valid proof of indebtedness.

A computer print out is enough for validation or verification under FDCPA, but when you actually get into the courtroom, I have my doubts that it's enough

Of course, that is going to depend upon the type of indebtedness involved. Sure wouldn't cut the mustard for proof of a mortgage on a home or a car or anything of great value.

For peanuts stuff, I'd say yes, it does.

 

bbauer,
You know, I have to agree with you on the points you made. I only give certain "posturing information "when the time is right. The first or second validation letter is definately not the time to be pulling out the big guns. I have learned this first hand from my own experiences. Secondly, I do have a different way of going about my credit repair process than most. From reading your posts, I get the idea that your process would be very effective also. Mine is a little huff and bluff and puff. Yours seems to be some of that, with a mischevious twist. You like to corner them, with their own mistakes. This would be a lot of fun. Obviousily they must both work, because the premise I used has been used time and time again. Yours would work on pure logic, due to the fact that if they screw up, it will almost be impossible to validate any claim, due to their incompetence. I am not saying that I have your plan of attack figured out, but I do have a really solid idea of where you come from.

 

a. the debt isn't yours but under fraud shows under your name (hence a verification would be positive)

Go right to the creditor, face to face if possible, and if the matter isn't resolved then either threaten to sue or actually do it for defamation of credit if your state actually has that statute. I think most do, but I'm not at all sure of that. Not defamation of character.

b. the debt isn't yours at all, an error of identification, but it still comes back "verified" by the original creditor to collection agency as yours.

Same as answer to A.
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What proactive steps do you take other than a cease and desist to stop collection efforts AND to remove all derog credit info?

Cease and desist won't do you any good. You have to go to court to get an actual cease and desist. Since I'm not an attorney, I am probably way wrong with this, but as far as I know, cease and desist is usually a remedy for civil matters that deal with people fighting such as in matrimonial relationships. I know there are other situations where cease and desist orders are issued by judges in many types of situations, but how many different types of situations there are where the individual can go to court and ask for cease and desist is another matter, and I have not the foggiest idea how many different situations there may be where the individual can go ask for it. We would have to get someone like maybe Anthony or Squawk1200 who are actual practicing attorneys to answer that question for us. I'm just guessing.

 

Bill:
Well, you are incorrect as well as correct to certain extents. You see in context with FDCPA a collection agent must cease certain activity when the consumer makes a C&D demand, but this doesnâ??t apply to all activity! For instance, if the consumer owes (lets say) $3,000* and issues a C&D. The collection agent may opt to send a follow-up letter indicating suit shall be initiated, or the agent may memorialize another pending action(s).

Where youâ??re correct is that an order from the court would have to issue, expressly prohibiting (cease and desistance) from specific conduct. Such orders are mostly issued by the FTC, in relation to collection agents, and may not require hearing for OSC. In some states, however, courts do not grant C&D protective orders when debt is at controversy.

(BTW all, I COMPLETELY agree with Squawkâ??s contentions!)

* $3,000 is used as an arbitrary amount as such would be likely profitable to litigate for recovery.

 

OK, Anthony, Thanks for your reply.

Now then, in this or some other thread, I forget which one, people were talking about what can be done by a debtor if a collection agency has listed you with the CRA(s) but refuses to sue or at least does not, most likely because it's too small but for WHATEVER reason, sane or insane, the debtor actually want the agency or creditor to go ahead and sue.

Is there any way that the debtor could actually go to court and force the creditor/ca to sue?

Let us assume that the creditor/ca sends no bills, due notices, demands for payment or anything else even though the debtor has sent them a validation letter and say an estoppel letter (for whatever either may or may not be worth) but the creditor/ca still refuses to communicate in any way shape or form, yet verifies and re-verifies to the CRAs every time they request validation?

I mean, given that kind of situation, the debtor has no way in the world to ever get it off his credit report in less than the 7 years.

I've seen that happen in more than one occasion.
What can be done to get the sucker to do something or get off the pot?

 

Alright! I can understand that, but if they showed up to fight the claim, and brought the proof in say a legal document such as a contract, you would lose the case. Couldn't they then POSSIBLY come back and sue you for having filed a false or frivolous lawsuit against them.

Also if they proved it in court, would it then become a judgement in their favor?

I have two ongoing situations that are similiar but not exactly alike.

One situation is an old credit card debt with Orchard Bank and the collection agency can't seem to come up with any verification (or validation, whichever)at all and they are refusing to answer after having received my validation letter.

In another case, it was a hospital bill for $69.00, I got a letter from them stating that they had called the creditor on the phone and the creditor said I owed the debt. Now $69.00 is nothing, but the joker is that the bill was for my son's care and he has been on SSI since age 7 and had full medical coverage guaranteed him. So I didn't pay because of that. The govt should have paid the bill and the hospital was too stupid to look on their own records to get his medical records and put i a claim even though they had treated him on prior occasions and had his records on file.
Worse, it's a state owned children's hospital and they deal with disabled kids by the hundreds daily.

I even very recently called them up and told them that if they would send me a bill, I'd go ahead and pay it, but if they kept on fooling with the collection agency, I'd fight them all the way into court. They weren't even smart enough to go ahead and send me the bill.

And the collection agency won't answer any of my letters to them either even though the last one I wrote them, I told them I wanted the name of the person duly authorized to receive service of summons for their company.

Those kinds of loggerheads would make a preacher cuss.

 

Bill:
Your question is rather bizarre in that it would be ludicrous for any consumer to want another party to litigate, unless they had clear and convincing opposing evidence or desired to test a particular claim. Truly any time litigation can be avoided everyone (except the lawyers) wins; yet I grasp your sentiment, to move the creditor/collection agent off the pot (so to speak).

Unlike Squawk I would not suggest that a declaratory hearing be sought, the aim being (in context with your question/concern) isnâ??t necessarily to litigate but promote some type of responsive action. This is far better achieved by engaging FDCPA, which certainly does govern third party agent conduct â?? irrespective the level collection activity or lack thereof. (Meaning, I do not agree with Squawkâ??s statement as quoted above.)

Although unusual behavior, when a collection agent takes no action other than reporting: no effort in a due diligent attempt to collect. It stands a clear risk of violating FDCPA §807 and §808, False or misleading representations and Unfair practices, respectively. Even the threat of these is far more likely to produce better results than say, a claim for declaratory relief. Simply put collection managers implicitly understand FDCPA, yet may not grasp the significance of a threat for declaratory relief.

Again, the superior tactic is not to litigate but achieve oneâ??s agenda nonetheless.

 

Bbauer,
You know, hopital bills are a funny thing. Many of those bills out there are from emergency room visits, where the insurance company or goverment agency was not billed or they never took care of it. I think it is kind of funny how they will come after you with collection and never show proof. After all, the only thing that they have is the admission form you signed when you went in. The seperate doctors have their own billing departments and they dont usually keep a copy of your admission form on file. Also, even if they did, they would still have to prove that services were rendered. I got out of paying a doctor who gave me a misdiagnosis, all because of their faulty system. They even tried to take me to court, It was fun.....