Re: Entrapment For CBR Fix First, the fact that other sections of the FDCPA -- like § 1692g(b) -- explicitly impose a writing requirement suggests that Congress's omission of such a requirement in § 1692e(8) was not inadvertent. Moreover, a closer examination of the purposes and effects of the two provisions further supports our conclusion that Congress intended to require a writing under § 1692g(b) but not under § 1692e(g). Under section 1692g(b) a consumer must dispute a debt in writing , within an initial thirty-day period, in order to trigger a debt validation process. See 15 U.S.C. §1692g(b). Once a consumer exercises this right, a debt collector must cease all further debt collection activity until it complies with various verification obligations. See id. Section 1692g(b) thus confers on consumers the ultimate power vis-a-vis debt collectors: the power to demand the cessation of all collection activities. See id. Recognizing the broad consumer power granted by this provision, Congress expressly conditioned its exercise on the submission of written notification within a limited thirty-day window. See id. In contrast, § 1692e(8) does not affect debt collection practices at all. See 15 U.S.C. § 1692e(8). Instead, § 1692e(8) merely requires a debt collector who knows or should know that a given debt is disputed to disclose its disputed status to persons inquiring about a consumer's credit history. See id. Given the much more limited effect of this provision, Congress's decision not to condition its exercise on the submission of written notification makes logical sense. Our conclusion that § 1692g(b) does not define "disputed debt" for the entire FDCPA is further supported by the language of § 1692e(8) itself. If the meaning of "disputed debt" as used in § 1692g(b) carried over to § 1692e(8), then, in order to trigger the limited protection of § 1692e(8), a consumer would be required to submit written notice to a debt collector within the initial thirty-day period. See 15 U.S.C. § 1692g(b). But the plain language of § 1692e(8) requires debt collectors to communicate the disputed status of a debt if the debt collector "knows or should know" that the debt is disputed. See 15 U.S.C. § 1692e(8). This "knows or should know" standard requires no notification by the consumer, written or oral, and instead, depends solely on the debt collector's knowledge that a debt is disputed, regardless of how or when that knowledge is acquired. See id. Applying the meaning of "disputed debt" as used in § 1692g(b) to § 1692e(8) would thus render the provision's "knows or should know" language impermissibly superfluous. See United States v. Bailey , 516 U.S. 137, 145 (1995) (quoting Ratzlaf v. United States , 510 U.S. 135, 140-41 (1994) ("Judges should hesitate . . . to treat [as surplusage] statutory terms in any setting . . . ."). While it can an most probably will be argued that I am taking the ruling out of context with good reason, it cannot be logically argued that the portions or sections of the ruling and the law which deal with the question at hand, i.e. can the collection agency report (verify) to a credit reporting agency that the debt is valid? The court and the law both answer that question when they state that indeed they can do so but only if they also include the statement that the debt is being disputed. I quite simply eliminate that problem when dealing with a credit bureau by never disputing the report of the credit bureau nor the debt listing with the credit bureau when asking of the credit bureau that they verify the debt. In doing so, I then know immediately who it is that claims that the debt is disputed as is usually reported by the CRA. If they state on their report that the consumer disputes the debt, I make them prove who said that since it obvously was not I. If only they said it, then clearly the collector of the debt has violated the law. And the courts back me up on that quite clearly. And it can easily be imagined that the argument may be soon forthcoming that it is impermissable to deliberately set out to entrap another. That is indeed a valid argument, but the question then must become, "How are they going to prove that in a court of law?" Does the mere fact that I sent a validation demand letter to a collector and then at some later date decided to take a peek at my credit filse constitute proveable entrapment? I think not.
More Contradictions? Yes, its clear whose word is good for what around here. PS: If readers are interested in clarification(s) of the why, where, and how the above author is mistaken? Post specific question(s) with appropriate reference, and Iâ??ll respond accordingly. Because addressing such otherwise, will only feed neurotics!
Re: More Contradictions? Alright! I'll play your silly game. Why is it that you have such a long history of turning everything into personal slams and personal attacks instead of just answering questions?
Re: More Contradictions? Another question, Anthony. In 15 U.S.C. 1692(e) it specifically states: This clearly makes the point that the law seeks and intends to put debt collectors who use abusive debt collection practices at a competitive DISADVANTAGE compared to those debt collectors who refrain from using abusive debt collection practices. In an earlier post, you stated Question: By what reasoning do you equate the section of a law specifically forbidding abusive debt collection practices by debt collectors to actions taken by a debtor designed to stop the abusive actions of a debt collector and to resolve the issues in an amicable way rather than to invoke court action against his abuser? Questiono you mean that those who attempt to resolve an instance or instances of abusive debt collection practice(s) by a debt collector are well meaning but sorely misinformed, i.e. that they have no idea of what abusive debt collection practices are or whether or not they have been abused by the debt collector?
Confused??? Hey! You aren't the only one. Poor old Anthony is so confused that he readily imagines himself to be an internet garbage disposal unit. (LOL)
Re: Confused??? I guess there's just too much information on this thread to consume.....I know I was confused like...well, 20 POSTS AGO!!!!!! LOL
Liability and litigation 15 USC 1692k is titled Civil liability. It mentions the liability of "any debt collector who fails to comply with any provision of this title with respect to any person." So, I can win a case about any failure (no matter how minor) of a collector to follow the law. But, after that, it says, "A debt collector may not be held liable in any action brought under this title if the debt collector shows by a preponderance of evidence that the violation was not intentional and resulted from a bona fide error notwithstanding the maintenance of procedures reasonably adapted to avoid any such error." It seems that the defendant either has to prove their incompetence, or take their lumps.
Re: Liability and litigation That's just about right in most cases, Greg. So if you are going to sue someone, the best way to go about it is to figure out what it is you wish to complain about, cite the law you are relying on and then try to come up with 1 or more case cites in which the judge ruled in the way you think the court you are addressing should rule. When you go to court, be sure that you have some notes with you that contain the relevant case cites and the laws that you rely on. If you can't come up with any case cites in which another judge has agreed with your position, then you may be attempting to tread new legal ground, and that's never a good position to be in.
Re: Liability and litigation Greg: Thank you! Your clarity is refreshing, albeit bear in mind that if a collector is inappropriately pushed; s/he could essentially choose to hold ground and wait for the fight. The issue I take with some â??tacticsâ? being espoused, is when and how to push. If a consumer has limited financial resources, and/or the case merits are such that consumer oriented lawyers wonâ??t assist? Then inappropriate action is dog that donâ??t hunt, and never could! Simply put, if one is going to play a game of chicken? Itâ??s first best to determine what the other guy is driving, a scooter or Mac truck? Establishing such requires accurately analyzing several factors, the proponents of sheer bluff DO NOT comprehend. Therefore, making inappropriate demands is an accident waiting to happen.
Re: Liability and litigation What accident is waiting to happen? The debtor/would-be-plaintiff bluffs, the collector/would-be-defendant calls the bluff, and then what? The collector sues the debtor for bluffing? I'm sure that kind of retaliation would go over real well in the press (read: Not likely to happen). And, I don't believe Congress' intent in enacting consumer protection laws is for them to be outside the means of the average person.
Re: Liability and litigation Greg: Those who imagine themselves wearing "cheep suits" while "rumbling" and looking for others to "waste" are also quite capable of imagining themselves careening around in Mack Trucks with an evil grin on their faces all the while abusing others to their hearts content. They imagine themselves to be above the law, somehow magically able to avoid it's consequences. They attempt to make light of those who find humor in their antics or make fun of them, saying that it is nothing but buffoonery, however it is a quite well proven fact that such "buffoonery" has very valid uses when dealing with the bottom-feeding slimeballs who rumble about in their cheep suits trying to waste everybody they can. It makes them exceedingly angry and they often explode in fits of uncontrollable rage thereafter committing all manner of gross blunders such as using foul and abusive language, demanding immediate payment prior to the expiration of the 30 day period alloted the consumer in which to dispute, threatening to do things not allowed by or expressly forbidden by law and just about anything else their warped minds might conceive of. In fact, it's quite conceiveable that they might even go to court and try to convince the judge that they were somehow "entrapped" by the debtor and that they have very strict maintenance procedures in place that are designed specifically to control their fits of rage. I'll bet they would even try to complain that they were tricked into making the phone call by the debtor in the first place. If they had enough brains to get that done, they ought to put them to better use than making life miserable for others and go get a decent job.
Re: Liability and litigation I am getting a headache simply IGNORING the bickering. LOL Do the readers of the above posts think in any way shape or form that the authors of the above posts will ever agree? On anything? Hmmmmmmmm, Me thinks it aint gwanna happen. Intelligent people know when to spell NO. -Peace, Dave
Re: Liability and litigation Greg: Iâ??ve started a new thread on the main board (Titled: â??Whatâ??s Wrong With Bluffing?â?), and responded to you there, as others may find this of sub-thread of interest. Check it out there, please? Dave: Whoâ??s Bickering? I thought Greg and I were exchanging conversation, after all; shouldnâ??t â??intelligent peopleâ? be able to tell the difference? Although it could also be said that â??intelligent peopleâ? know where the IGNORE button is, as well as how to use it. [;-)
Validation letter Many conversations in this forum concern the validation letter. What is the big interest in them? Is the letter a panacea?
Re: Validation letter Greg: LOLâ?¦ I wouldnâ??t characterize the validation letter as a cure-all, but one method Where folks get the wrong idea about it is by misunderstanding FDCPA intent, as well as the actual leverage against collection agents the device provides. For example it is widely rumored here (so much it makes my head spin sometimes) that the consumer somehow has a RIGHT, to more material under FDCPA §809 than the Act states. Additionally, some think of the validation letter as a stall-device (which it certainly isnâ??t).
