Again, the superior tactic is not to litigate but achieve oneâ??s agenda nonetheless.Again, the superior tactic is not to litigate but achieve oneâ??s agenda nonetheless. ************************* You are most definitely preaching to the choir with that one, Anthony! LOL LOL LOL LOL
I sentence you to hang from the yard arm at high noon! However, in view of governmental errors that have recently come to light, I will commute your sentence lest you become a martyr.
Anthony: (BTW all, I COMPLETELY agree with Squawkâ??s contentions!) ************************ Well, then I CONDITIONALLY disagree with both of you on the matter about the validation letters at least. ************************ Here is why. From my THEORETICAL viewpoint, a validation letter to a creditor/CA should only be sent in response to a demand for payment from the creditor/CA or as part and parcel of starting a dispute with a CRA, which I now think is (for the most part) a mistake in the first place. Although I haven't completely collected my thoughts on the matter as of yet, I guess that what I am trying to say is that IDEALLY the best use of the validation letter to a creditor/CA is after they have sent a demand to pay letter to you. However, practice and theory are quite often two entirely different matters.
Anthony: The collection agent may opt to send a follow-up letter indicating suit shall be initiated ******************** I was reading some of the FTC website comments on different situations which is on their website a while back and in one of those letters they said that a creditor may not threaten suit unless they have full intentions of doing so, and that in the opinion of the FTC, sending a letter threatening to sue without actually having filed a suit prior to sending the letter constituted violation of that section of the law.
Bill: I presume youâ??re referring to FTC Staff Opinion letters, such as those relating to various aspects of the (FDCP) Act? With that in mind, I also tend to believe your recollections of the facts are not clear. Because merely sending a letter threatening suit, before having actually filed a case is NOT a violation. Sending such a letter without intent or reasonable grounds to actually initiate litigation, however, is a violation of the Act. Therefore, in context with relative portions of this thread, if a consumer were to send a C&D demand? The collections manager could lawfully send a follow-up letter indicating receipt of the consumerâ??s C&D, and an advisory of attorney referral for immediate prosecution. Doing so IS NOT a violation of the Act, but in compliance with it. (Take my word for it, Iâ??ve sent tons of these myself and never had a case lost!) Where the collections manager would fall into the trip-bag, is if a threat of litigation were made and then not followed through. For instance, a threat to litigate over a debt of an unrealistic amount (i.e., $100), when the debt collector (as a company) seldom if ever sues for such sums; would in fact constitute a violation. Yet if the amount at controversy is say 3-grand as in my related post, and the collector regularly sues for recovery of such funds. Then no violation would have occurred because the threat of litigation falls within the scope of common collector practices, whereas it is reasonable to believe litigation would be engaged for such an amount. The key to remember here is INTENT and LAWFULNESS as related to the debt issue. Sometimes a collector (speaking as a company) may intend to sue, but may not have the legal capacity to lawfully do so â?? such as in the case of a stale SOL. Sometimes the reverse is true, but the net affect is still the same. A threat to sue itself is not in violation, but the inability (for whatever reason) to carry out the threat is the trigger for a FDCPA violation. Below is the closest FTC Staff letter I could find related to this subject, check it out? http://www.ftc.gov/os/statutes/fdcpa/letters/fagin.htm
Originally posted by bbauer (Emphasis added) I was reading some of the FTC website comments â?¦they said that â?¦ sending a letter threatening to sue without actually having filed a suit prior to sending the letter constituted violation of that section of the law. Bill: I presume youâ??re referring to FTC Staff Opinion letters, such as those relating to various aspects of the (FDCP) Act? Yes, Anthony. With that in mind, I also tend to believe your recollections of the facts are not clear. Because merely sending a letter threatening suit, before having actually filed a case is NOT a violation. Sending such a letter without intent or reasonable grounds to actually initiate litigation, however, is a violation of the Act. Anthony, that one is very close to the one I read, but it is not the same one. The reply that I read was in just a bit different context. I think I even printed that one out. I'll check on it later as I remember that the link to it was down the page a bit and was on the right hand side of my screen. That positioning don't mean much however because different screen resolutions will mean a different positioning on the screen. Yours may well be different than mine. ************************ Therefore, in context with relative portions of this thread, if a consumer were to send a C&D demand? The collections manager could lawfully send a follow-up letter indicating receipt of the consumerâ??s C&D, Well, sending a C&D demand seems a little pointless to me because sending a demand for validation or making any statement disputing any portion or which seems to dispute any portion almost demands that most communication with the debtor cease until dispute is settled. So, as I see it, sending a simple C&D with no dispute wouldn't do much good, would it? Unless of course, they were doing something which clearly violated the law like (for silly example) calling you up at 3:00 A.M. on Xmas morning demanding payment. ************************* Doing so IS NOT a violation of the Act, but in compliance with it. (Take my word for it, Iâ??ve sent tons of these myself and never had a case lost!) Well, suppose you sent me a letter stating that you were going (intended) to file suit and I raced down to the court house and filed suit claiming you violated FDCPA by threatening to sue without having actual intent to do so? If you had not actually done so, how would you defend? How would you prove that you full well intended to sue? My action would have been (at least for purposes of this discussion) filed before yours was. You claim you proved that by the fact that you actually filed but I claim that you only invented your defense by filing later. How would you prove me wrong and save your hide? ************************** Where the collections manager would fall into the trip-bag, is if a threat of litigation were made and then not followed through. For instance, a threat to litigate over a debt of an unrealistic amount (i.e., $100), when the debt collector (as a company) seldom if ever sues for such sums; would in fact constitute a violation. Yet if the amount at controversy is say 3-grand as in my related post, and the collector regularly sues for recovery of such funds. Then no violation would have occurred because the threat of litigation falls within the scope of common collector practices, whereas it is reasonable to believe litigation would be engaged for such an amount. OK! That makes perfect sense. The amount owed would be a definite factor. So, (argumentatively) let's take a debt somewhere in between, but under $1500. Say $1400 or less. *************** The key to remember here is INTENT and LAWFULNESS as related to the debt issue. Sometimes a collector (speaking as a company) may intend to sue, but may not have the legal capacity to lawfully do so â?? such as in the case of a stale SOL. Sometimes the reverse is true, but the net affect is still the same. A threat to sue itself is not in violation, but the inability (for whatever reason) to carry out the threat is the trigger for a FDCPA violation. Obviously! ****************** Thanks for your reply. Your answers are very informative and I do appreciate them.
This is an interesting theory, although, in my view, it is far from clear that a court would find that the reporting to a CRA of a debt constituted false and misleading representations, as that portion of the statute was clearly intended to cover false statements made TO CONSUMERS, and not to third parties. Unfair practices, perhaps, but it seems to me that you might have to prove an underlying FCRA violation anyway to get there. I would add that I was not necessarily recommending that someone march into court for a decl. judgment (or any other action). Rather, I was simply saying that the option was available if you did want to get into court and the collector wouldn't sue. I think that litigation, like a battle in a war, should be avoided unless you have overwhelming strength on your side. Bill's examples provide interesting challenges. As I said, I haven't had a chance to take a good look at the FCRA caselaw. One statute does prohibit providers of information to CRAs from providing false information. However, it appears to be enforceable only by states attorneys general and the FTC. Moreover, it contains preemption clauses which might eliminate options under state law. When I get another slow day at work (definitely not today, Fridays I'm normally in court all day) I'm going to look into it some more.
I think that litigation, like a battle in a war, should be avoided unless you have overwhelming strength on your side. *********** WOW! Do I EVER agree with you on that one! You are really preaching to the choir with that statement!
Bill's examples provide interesting challenges. As I said, I haven't had a chance to take a good look at the FCRA caselaw. One statute does prohibit providers of information to CRAs from providing false information. However, it appears to be enforceable only by states attorneys general and the FTC. Moreover, it contains preemption clauses which might eliminate options under state law. When I get another slow day at work I'm going to look into it some more. Please do, and thanks in advance.
Something I just now thought of and feel I need to add into this conversation for clarity, especially for those not fully initiated into these processes. ********* It would also make a huge difference who that letter was from and how it was worded. For instance, an attorney stating that he had advised his client to file suit immediately would not be a violation. I remember seeing such a letter years ago. A letter from the CA stating that they had referred the debt to their attorney would be a violation??????????? Or would that even be enough to get all hot under the collar about? Or would one have to entrap them by calling them up and asking them who their attorney was then maybe sending a letter of some sort to the attorney demanding to know if indeed he did intend to file suit? If one did that, and the attorney came back stating they had not yet referred the matter to him, would that be enough to go sue the CA or creditor claiming they violated? You see, once we get this actually nailed down to specifics, then maybe one can figure out how to set up the actual situation and how to make it very likely to happen, then try to beat the attorney into court claiming they violated and never intended to actually sue. Yeah, I know it sounds silly on the surface of it, but I've found that thinking somewhat in the manner of Hollywood setting up a dangerous stunt of some sort actually do pursue this type of thinking in order to make the stunt situation happen without killing somebody. Since fighting a collection agency or creditor over a debt that is legally provable and getting a judgement is so easy, then the only possible way to beat them so that CRAs have nothing to report would be a losing battle indeed if unusual and maybe even bizarre actions are not brought into play. Setting up a trap that they are most likely or almost guaranteed to fall into is the only possible way to get the job done that I have ever been able to think of. And helping to figure out how to do things like that would be a definite advantage to you because someday you might end up trying to collect a debt and due to these discussions, your debtor used one of these tactics against you, you would then be better prepared to defend or fight back or less likely to fall into the very trap you helped design. And don't think it can't happen to you. (hehe)
Bill: You may recall Iâ??m not a proponent of sending C&Ds anyway, yet in the context you mention (last sentence) a C&D would be somewhat appropriate. The superior use of a C&D demand is as a put-up or shut-up foil, like in the case of a collector threatening suit on a stale SOL. As to your second contention of beating the collector to the lawsuit punch, easy defense! Iâ??d simply file a cross-complaint then a motion to strike the whole of your complaint or move to dismiss as non-suit. Simply because a consumer would have filed a lawsuit before the collection agent, does not in itself prove non-intent on the part of the collector. The collectorâ??s follow-up suit would thwart the consumerâ??s argument, and also possibly subject them to sanctions for abuse of FDCPA authority. Simply put litigating isnâ??t so much a matter of who files first, but supporting oneâ??s allegations. If a consumer were to allege violation of FDCPA for idle threat, yet failed to allow reasonable time for the collector to carry out the threat by filing suit first. Theyâ??d not only be going to guns prematurely, but shooting themselves in the foot while trying to quick-draw! Take my word on this one, Bill. When it comes to tactics and counter-measures concerning debt collections, Iâ??ve never (in almost 20 years in the business) been out-gunned by a consumer! Thatâ??s no brag, just the way it isâ?¦ I always made a habit of saving my backside, by firstly being fair and secondly attacking with overwhelming strength when forced to. Itâ??s a win by attrition thang, applied only when warranted! [;-)
Squawk: I hear what youâ??re saying albeit my particular bend was toward leverage, not actually litigating the subject issue. Itâ??s like this (speaking from some degree of first hand experience)â?¦ If a collections manager believes a consumer is sophisticated enough to prosecute a claim, then the perception is reality â?? irrespective how a court may or may not rule. Itâ??s a carrot and stick angle certainly. Nonetheless, in context with your statement (above) Iâ??d agree with your assessment. Yet frankly, a claim in context with a purported violation of FDCPA §807 or §808; would probably NEVER get to court anyway â?? relative to amounts in controversy. The credible threat alone is far more likely to produce results, especially if the end consumer goal is a credit report redress.
Great post! Great advice well taken. But it still leaves me wondering how in the world one would be able to mount an credile offensive based on the "having no intent fo actually file" concept. I realize that the FTC thing is more slanted toward helping the creditor than toward helping the debtor, but one of us gotta get some relief somehow. Maybe we just need to be barking up another tree on this one. A totally different approach to the problem.
On the FCRA issue (got in to work early and took a look at cases) --- I couldn't believe it when I first read the statute, but, believe it or not, consumers cannot recover against CAs or creditors for reporting false information to CRAs. "Providers of information" are goverened by 15 U.S.C. 1681s-2, and their duty to provide accurate information is governed by subsection (a) of that statute. Subsection (c) of that statute provides that the FCRA's provisions for consumer suits for violations does not apply to this section, and 15 U.S.C. 1681t(b)(1)(F) provides that no state law action can brought against providers or information. Some courts have permitted consumer suits against providers to proceed for a violation of 1681s-2(b), which requires providers to investigate reports from CRAs of consumer disputes (the FTC believes that consumers retain the right to sue pusuant to that section, as well, but their opinions are not binding on the courts), but other courts have held that consumers do not have standing to sue pursuant to that provision because the duties that provision imposes on providers are owed to the CRAs, and not to consumers. For a recent example, see the recent opinion in Jaramillo v. Experian Information Solutions, Inc., No. Civ. A. 00-5876 (E.D. Pa. May 21, 2001). For anyone out there with Westlaw access it's at 2001 WL 568988. All comments welcome.
Ooops -- let me be the first to comment and add one thing -- In two states (only) you can still sue despite all of the above, because the federal law (15 U.S.C. 1681t(b)(1)(F) explcitily exempts certain of those states' statutes from preemption. Those states are: (i) Massachussets, where you can sue pursuant to section 54(a) of chapter 93 of the Mass. Annotated Laws as it was in effect on September 30, 1996; and (ii) California, where you can sue pursuant to section 1785.25(a) of the California Civil Code as it was in effect on September 30, 1996 So woo-hoo for citizens of those states.
Well, lots of knowledgeable people have already stated in comments that the FTC and the laws we are discussing are just about nearly but not quite totally and completely useless. I've also seen "toothless" as a comment. Seems we are not the only ones using huff, puff and bluster at times.
Ok! But we have strayed from the topic back up on post 15 or 18 or so where we were wondering what could be done about the creditor/ca who refuses to answer your letters nor send you any bills nor make any communication whatever but still keeps on getting verified by the CRAs. So what to do to force them to get off the pot and do something so we can get rid of the listing by whatever hook or crook
