--> What Is Validation?

Bump for my buddy Andrew.

 

Re: Re: Re: --> What Is Validation?

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Sensus verborum est anima legis. - The meaning of words is the spirit of the law.


It's amazing (and amusing) to me how misused the two words "assume" and "presume" are in the debt collection world. This is trumped only by the misuse of the difference between "validation" and "verification."

Looking back you can see that we've already talked about this issue, but since there are many new members it might be helpful to approach this issue again. Additionally, we seem to be getting a lot of letters from CA's proclaiming that "since you failed to demand val., within the first 30 days, you've lost that right." Or some such nonsense. I love it when we get this in writing. In my opinion that, in and of itself, is a violation of § 807. False or misleading representations [15 USC 1962e].

Let's further the validation discussion by looking at 2 different legal doctrines:

• 
  [*]Law of Assumption
  [*]Law of Presumption
  

First, SKDigital, brings up a great case where we can again address this issue as to whether or not we lose our rights to demand validation if we fail to do so within the first 30 days.

http://consumers.creditnet.com/straighttalk/board/showthread.php?s=&postid=382642#post382642

SKDigital writes:

• 
  

Once again, (to save you from looking for it in this lengthy thread) here's § 809. (That validation section):

• § 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)
  (2)
  (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)
  (5)
  
  (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.
  
  
  

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Re: Re: Re: --> What Is Validation?

Continued:

Law of Assumption:

• 
  Our Definition (dictionary.com):
  as·sume:
  tr.v. as·sumed, as·sum·ing, as·sumes
  To take upon oneself: assume responsibility; assume another's debts.
  
  Legal Definition (law.com):
  assume:
  v. to take over the liability for a debt on a promissory note, which is often done by the buyer of real property which has a secured debt upon it. Example: Bob Buyer pays part of the price of a piece of real property by taking over the debt that Sally Seller had on the property. However, usually the original owner to whom Sally owes the debt must agree to the assumption.

To assume something is to take it upon oneself. Usually the Law of Assumption is used in business and insurance law to determine who is responsible for paying a damage award. In other words who assumes, (and therefore pays) the risk.

If you really want to study this one you can go to the decision which established the whole concept in the U.S., known as the Davenport decision.

http://www.law.sc.edu/opinions/24850.htm



Quickly tho, in the interest of time, here's Cunningham as the court quotes Davenport:

http://www.law.sc.edu/opinions/25575.htm

• Cunningham V. Helping Hands Inc., (talking about what it was like before Davenport)
  
  As a result of her injuries from the accident, Cunningham brought a claim of negligence against Helping Hands. Before trial, Helping Hands moved for summary judgment on the ground that Cunninghamâ??s actions were the sole cause of her injuries. The trial court granted the motion, finding that Cunningham had assumed the risk of injury. The trial court noted that because Cunninghamâ??s action arose and accrued prior to this Courtâ??s opinion in Davenport v. Cotton Hope Plantation Horizontal Prop. Regime, 333 S.C. 71, 508 S.E.2d 565 (1998),[2] the case was governed by the common law principles of assumption of risk existing prior to Davenport. The trial court found Cunninghamâ??s assumption of the risk acted as a complete bar to recovery without regard to any comparative standard of fault.

Law of Presumption:

• 
  Our Definition (dictionary.com):
  pre·sume:
  v. pre·sumed, pre·sum·ing, pre·sumes
  v. tr.
  1. To take for granted as being true in the absence of proof to the contrary: We presumed she was innocent.
  
  
  Legal Definition (law.com):
  presumption:
  n. a rule of law which permits a court to assume a fact is true until such time as there is a preponderance (greater weight) of evidence which disproves or outweighs (rebuts) the presumption. Each presumption is based upon a particular set of apparent facts paired with established laws, logic, reasoning or individual rights. A presumption is rebuttable in that it can be refuted by factual evidence. One can present facts to persuade the judge that the presumption is not true. Examples: a child born of a husband and wife living together is presumed to be the natural child of the husband unless there is conclusive proof it is not; a person who has disappeared and not been heard from for seven years is presumed to be dead, but the presumption could be rebutted if he/she is found alive; an accused person is presumed innocent until proven guilty. These are sometimes called rebuttable presumptions to distinguish them from absolute, conclusive or irrebuttable presumptions in which rules of law and logic dictate that there is no possible way the presumption can be disproved. However, if a fact is absolute it is not truly a presumption at all, but a certainty.

Go ahead and use the word assume, because everyone does anyway, but just make sure you understand the differences. Now we're in a position to take a look at exactly what it means;


"Presumption" has a very special meaning in law. A presumption in law is a logical inference which is made in favor of a particular fact. The Uniform Commercial Code ("UCC") defines "presumption" and "presumed" as follows:

• "Presumption" or "presumed" means that the trier of fact must find the existence of the fact presumed unless and until evidence is introduced which would support a finding of its nonexistence. [UCC 1-201 (31)]

There are, in law, two different kinds of presumptions: a conclusive presumption and a rebuttable presumption.

A conclusive presumption is one for which proof is available to render some fact so "conclusive", it cannot be rebutted. To "rebut" a fact is to expose it as false, to disprove it.

• re·but ( P ) Pronunciation Key (r-bt)
  v. re·but·ted, re·but·ting, re·buts
  v. tr.
  To refute, especially by offering opposing evidence or arguments, as in a legal case.

Note that you may rebut a presumption 2 different ways. You may provide evidence to the contrary, OR you may ARGUE to the contrary.

• Black's Law Dictionary, Sixth Edition, defines "presumption" as follows:
  A presumption is a rule of law, statutory or judicial, by which finding of a basic fact gives rise to existence of presumed fact, until presumption is rebutted. ... A legal device which operates in the absence of other proof to require that certain inferences be drawn from the available evidence.

Now, the battle begins in earnest as the burden of proof shifts again to the accuser to prove, with evidence which outweighs your verbal argument, that the debt IS in fact correct.

Many of you need to go back and study this thread, especially the part on how accusations and burden of proof shift back and forth like your childâ??s swing, until someone proffers sufficient evidence to prove their case.

THEIR ACCUSATION THAT YOU OWE MONEY AND YOUR REFUSAL TO ACCEPT THE ACCUSATION CARRY EQUAL WEIGHT IN LAW. They are exactly equal.

SEE?


A presumption, (or assumption if you wish) does NOT equate to an irrefutable or unarguable FACT, which is what nitwit collector here seems to believe.

• Federal Rules of Evidence:
  
  http://www.law.harvard.edu/publications/evidenceiii/ftindex.htm
  
  Article 3, Rule 301
  Presumptions in General in Civil Actions and Proceedings:
  In all civil actions and proceedings not otherwise provided for by Act of Congress or by these rules, a presumption imposes on the party against whom it is directed the burden of going forward with evidence to rebut or meet the presumption, â?¦..

If your adversary construes their Presumption as a "conclusive presumption" it must be based upon solid proof sufficient to establish the presumption as FACT. In this case before the collector may do this the SOLID PROOF must be presented. It is not. She says in here letter "we are working on it." Well â?¦ exccuuuuse me but "working on it" does not establish something as factual. Therefore, her presumption is NOT "conclusive", it is arguable (rebuttable) because she lacks the evidence that rises to what's acceptable in court.

In the second case (refutable presumption) it is arguable because the evidence doesn't exist.

CRITICAL -> In EITHER case (conclusive OR rebuttable) your adversaries entitlement to the presumption of the debts validity is DESTROYED the MOMENT you say it is. In the first instance, (conclusive) because he does not have all the evidence in front of him as he makes his allegation, in the second, (rebuttable) because said evidence does not exist.

It's truly that simple.

It's at this precise moment when, as Sherlock Holmes used to say:

"The game, she is a-foot."


Not only is SK's collector wrong, but she has also (albeit perhaps inadvertently) misrepresented SKDigitals legal rights. The insinuation here is that since SK failed to demand val., within 30 days, he loses his right to do so. Thus, VGhost's excellent spot on the violation of § 807. False or misleading representations [15 USC 1962e]

Since I began this discussion Amish, brought up exactly the same issue:

Amish:

http://consumers.creditnet.com/straighttalk/board/showthread.php?postid=382561#post382561

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Re: Re: Re: --> What Is Validation?

Continued:

So just for fun, let's re-write § 809, thusly:

• § 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)
  (2)
  (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 rebuttably presumed to be valid by the debt collector;
  (4)
  (5)
  
  

Every time you read it that's what you need to see. See?


And finally,

To make absolutely certain you and/or your adversary don't misunderstand all this, Congress inserts the following section:

• § 809. Validation of debts [15 USC 1692g]
  
  (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.
  
  

Enormous Kudo's to Jam237, for articulating this so succinctly, even I understood it:

Go to Google.com and then to "advanced search";
In the exact phrase window type:

-> law of assumption

And then the same exercise for;

-> law of presumption

111, and 163 hits respectively.



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Re: Re: Re: --> What Is Validation?

Hey by the way - did you know there is absolutely NO WAY for you to lose the rights you have in FCRA & FDCPA?

Even if you signed a document that says you waive them, you don't waive them. You CAN'T.

I just can't remember the case where I saw that.




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OH yeah.

You're right Vlad.

These statutes do need a lot of clarification. The FTC has asked Congress to clarify a number of issues but they just keep ignoring the chore.

I'm running out right now, but here's a good exercise;

Go to google.com and then to advanced search. Type in;

"law of presumption" - enter, = 161 hits.

It's actually not the law of "assumption" we need to look at but rather the law of presumption.

Be back soon.



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woops.

Ya mean the one about 809?


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Re: Re: --> What Is Validation?

So your thinking is that if they comply by sending the 5 items of information they have "complied" with validation?


That's an argument which is starting to emerge.

 

Re: Re: --> What Is Validation?

If you want to post your email here Vlad.


We can work it over. We won't be teachin them anything they don't know.



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