There is also a problem with quoting facts or law in great detail. If we post all the legal quotes and cites and references to court cases for every argument/statement we make then we will have the dubious pleasure of watching hordes of glazed over eyeballs rolling upward. We will lose our audience we had hoped to help. I see that happening all the time in seminars. The speaker is making a brilliant presentation to an audience he has long since lost.
Bill, What is your point then? Where are your facts? Why go on with meaningless banter? Just give me the court case that tells where the Debt Collector MUST give you a response in 30 days. You haven't lost me, and we aren't in any seminar. I would LOVE to see that post so that I could sue them for not replying to me. I'm still waiting...
Hey, Hey, Hey, Good to see you here Bill! Butch thanks so much for the excellant post!!! I for one am happy to see it debated. I'd rather have it shot full of holes here instead of in the court room! Hopefully when the smoke clears it will be a fine tuned and powerful tool! Again I thank you Butch and I thank you too Bill....for me I would like to learn why it will, or will not work. So Debate away! Tuit
Helpwanted: Well, all I can tell you is that it is out there on the web somewhere. I even thought I had put it on one of my hard drives and can't find it there either but when you are dealing with as many hard drives of the size that I have its often like looking through a haystack. I've got one machine with 24 scsi hard drives on it and each drive has 40 gigs of disk space just loaded with stuff. I've got a whole library full of CDs with stuff burned on it. So you can see the magnitude of finding things sometimes. The case is out there on the web and either I or someone else will find it again. Do it anyway and let the judge rule on what his intrepretation of the word "reasonable length of time to reply to demand for validation" is. You make the allegation that it means 30 days and not one day more and then its up to them to prove you wrong. Let them do the scrambling to prove you wrong and if they can't do that then you win the day. That's the way the court system is supposed to work.
Hi, Tuit. Validation is not the silver bullet with which to shoot down all the evil dragons although its often touted to be just that. There is no such thing as a magical silver bullet that will kill the meanest of them. While validation is a powerful tool, what I often decry is the fact that I see so many newbies on various message boards and groups that come in looking for help and they are told to send a validation letter which is posted in some repository they can access on the board and off they go happy as a boll wevil in a cotton patch and are back in a month or two crying their eyes out about how that validation letter did not work so now what do they do? In most cases it did work and they were simply not well informed enough to know what should have been desired and expected as a result of sending the validation letter. So they are sometimes told to send out another validation letter which in my opinon is about the worst thing they could possibly do or they are told to send out an estoppel letter also to be found for free in the same repository. And a while later they are back asking what to do now because that didn't work either. Well, sometimes they are told to check out the AG and see if the collector or attorney is licensed and if not file some complaints on them and send them a letter telling the collector that they better get their act together which they presumably do and then go after the poor guy with a purple passion. Or they are told to sue the collector. It is highly likely that nothing could frighten them off more quickly than being told to go sue somebody. They haven't the foggiest idea how to go about it and would probably rather brush their teeth with oven cleaner than even step foot in a courtroom. So what it takes to help folks is not one or two "magical" letters that will surely kill the beast but only ends up with the poor guy shooting himself in the foot most of the time. What is demanded by necessity is a complete system that is well planned out and well tested and proven to work most of the time. And if you ever get that developed and post it on a message board for all to see then all the lurkers and snoops who work for 3rd party collectors, all those who work for banks and finance companies and their dogs will know about it and the magical system will soon cease to be of any value whatsoever. Only those too ignorant to turn on a computer will not know about the system and those kind are getting few and far between and especially so if they work for or are a 3rd party collector or connected with the financial industry in any way. And even they will learn about it from their friends and associates who do know how to use a computer on the internet before the year is out. Most of the posters here know that I offer a free course on validation by autoresponder and all they have to do to get it is to send an email to course1@autobotinfo.com and they get the course free of charge and with no obligation whatsoever. It is unbelieveable how many people who subscribe to the course are those who work for collection agencies, finance companies, mortgage brokers, government employees who work for various enforcement agencies such as the FTC, the justice department, the IRS and other such entities, lawyers and employees of law firms and whatever else you can imagine. So I maintain that posting all we know on this and other message boards can only work to our disadvantage.
Re: Re: --> What Is Validation? NOW WE'RE TALKIN!!! One thing's for sure Bill, I cannot compete with your typing speed. Let me preface my remarks to the entire board by letting you all know that I have a good deal of respect for Bill Bauer, and I am pleased as punch to see him participating. When I began this thread I had envisioned something which I thought would be of value to the board in a general way. As we have seen lately, we've had an influx of new members. Most of what I've posted so far has been hammered out already but I saw no one single thread or group of threads where a "newbie" could go visit and get a basic foundational understanding, a general (big picture) snap shot of how the system is supposed to work in a perfect world. The problem I've noticed of late is that each person, having a completely different situation, asks his question and all sorts of answers are brought forth. I've seen way too many questions that sound something like this; "Well I just discovered this great board day before yesterday, have been reading ever since, and I already sent my first validation to Equifax. What do I do now?" And way too many answers like; "Send them an Estoppel" My Dad used to teach me to "view your future with Macro-Vision". What he meant was keep your eye on the big picture. I wanted to try and create an over all template of understanding against which each person could "overlay" their personal situation and compare notes. Somewhat like a map over-laid by the clear plastic battle plan. Now the general can see the major components of his battle plan and make necessary adjustments. I believed, and still do, that by doing this most of the basic questions about how validation is "supposed" to work would be answered and thus, allow all of us to concentrate on more detailed issues of the ins and outs, the intricacies if you will, of each situation. In other words elevate the overall discussion around here. Well obviously we don't live in a perfect world and each situation is fraught with danger and potential failure, we already knew that. Certainly there is no "silver bullet" that will solve all our problems, we already knew that too. So there's no question that if you look for it you can many areas to "disagree" with me on. In as much as I would love to debate the microscopic issues with one of your profound knowledge I cannot do so right now, for I am focused on completing this thread. Moreover, I shall not do so at all, until such time as, as Helpwanted has already pointed out, you produce the necessary evidence to back up your positions because quite frankly everyone around here already knows that neither Bill Bauer nor Butch, are ALWAYS right. You said: I can hear it now. "Your Honor", bellows the collection atty., "I DO have proof of this debt somewhere but I just can't find it right now. I even thought I'd put it in one of my filing cabinets downstairs but if you ever saw how many filing cabinets we have you'd understand". "I got me one filing cabinet", continues our adversary, "just loaded with gobs and gobs of stuff but by golly I just can't seem to locate the proof you request, perhaps it's floating around out there somewhere on the internet". Well ... you get the picture. I really don't think you and I are in disagreement, at least not very much anyway. I attribute the slight differences as merely a difference in style of explaining ourselves and a difference in our over all goal. Me trying to focus on Macro-Vision and you examining the finer points, which is of course equally important. In as much as I appreciate the grace with which you find yourself in disagreement with me, I do hope that when the time comes for us to dissect the finer issues of technicality, you'll do noticeably more "scrambling" to prove your points. If you bring forth new items of Law, Case Law, Congressional Testimony and sound, carefully reasoned arguments backed by facts that we can all get our hands on, I'll be as happy as a pig in a poke, even if I am wrong. And I'm sure we can do so respectfully without killing each other, and I'm actually very much looking forward to it. You better stick around Doc, we ALL might need therapy before this is over.
Re: Re: Re: --> What Is Validation? Well, Butch, despite any issue I may have had about anything else, I've consistently maintained that you are one of the best credit advice-givers and serious issue debaters on this board. And I'm with you again, Butch (sorry George, lol), as many know I've always respected Bill as well. In fact, it was Bill's excellent counsel and visceral debating that helped me to fashion the original Nutcase letter, so I have literally benefitted financially (lower mortgage APR) from my association with Bill -- and, while I'm mentioning it, from the incredible wealth of information I learned from Marie, marci, and Lizardking -- not to mention some needed emotional support breeze gave me in another internet forum at a critical time a long time ago. These are people to whom I owe a debt of gratitude, and Doc never forgets... Alas, I digress again, lol. Ok, that almost qualifies as a thread hijack except it lacks a question that would invite others to join me in my dissociative trail. I won't ask that question, lol... so I'll now return this thread to the smarter minds toiling on topic. Doc
Re: Re: Re: --> What Is Validation? By the way, although I have some respect for B Bauer, but his reluctance to suggest any advice when dealing with CRA's is absurd. In fact, dealing with CRA's is the only real way to remove satisfied Tax liens, judgments, and other items, contrary to his advice of only dealing with creditors. Additionally, his methods of dealing with CRA's are only mediocre in effect unless one is willing to go to court, which is unlikely for people who have real jobs. My guess is that he had his file blocked or something by the CRA's after posting file advice that really counted on CreditWrench.com
Re: Re: Re: --> What Is Validation? kemcos, consider the idea that CRA-direct interventions just aren't Bill's thing since his major interest area is in helping people get rid of abusive collectors rather than focusing upon what credit reports look like. Just my guess. By the way, I agree with you that CRA-direct techniques are important; we just have to learn about them from others who care about such things. Doc
Re: Re: Re: Re: --> What Is Validation? NOT THAT I HAVE EVER HAD MAJOR PROBLEMS...but I only have had sucess with CRA'S...the credit card companies have totally ignored me like I asked them to send me money...ALL I WANTED WAS MY ACCOUNT TO REPORT 100% CORRECTLY!!!
Re: Re: --> What Is Validation? Tell you what, Butch. In all that long lengthy post I can't find one single thing to pick a fight with you about!!! Darn!!! (LOL)(LOL)(LOL) One thing about that comedy of errors in court you mentioned, it isn't funny! Just how do you imagine this country and our judicial system has ended up with an estimated 50 million or more void judgments if what you portrayed wasn't just about almost totally and completely the truth of the matter??? HUH? (LOL) How else would you account for the fact that only about 20% of all judgments are ever collected? Somebody sure has lost it and probably what you protrayed just about hit the nail right on the head. On to a slightly more serious note and where you again hit on the truth of the matter. You want to build an overall battle plan, a template so that "the general" of the battle can see where he is going and why and when. That's a great idea. But before the general can put together and army and send it marching off to battle he first has to assemble his troops, make sure he knows how they are going to get fed, clothed, armed, transported off to the battlefield, the wounded cared for and the dead buried. He's got to fit them out with all manner of weaponry and he has to make sure its the latest and the best he can get to put into their hands and then he has got to train them how to use them. The list of things he has to do is beyond his wildest imagination. He has no possible way to even dream of all the problems he and his troops will encounter just getting to the battlefield, let alone winning the war. That's why he draws up his battle plan is what you will say. Guess what? Can't be done that way. Or if it can it's going to be a real headbreaker because he can't possibly know all the twists and turns his war will take before its over and done with. Only hard experience can tell him that. But that's not to put your idea down at all because your vision absolutely must be done as well. Its imperative in fact but until you have the details down pat you can't really put that overall battle plan into effect. And the general has to have a lot of troops willing to help him as well. If they are all off fighting with each other instead of the enemy or playing craps he is beat before he starts. Its a lot like the story of the old man who went out to the forest and cut all the lumber to build him a house. Even the shingles. And it took him years to do it. When he finished his house a neighbor asked him how he ever did that all by himself. He replied, "One board at a time." Now then, let's focus all that down to some practical levels. First of all one absolutely has to have a clear and concise record of what he has done, good-bad-indifferent. Whatever. So he needs a diary so he can record each and every event as it happens and like a good general he has to plan for the future so he is going to need a calendar so he can see the future. In comes one of those dratted letters from a collection agency. He immediately gets out his expanding file folder and finds an empty compartment to put that letter and it's envelope into. He carefully staples the two of them together. Then he notes it's arrival in his "dear diary" and marks the date on the letter on his calender which is one of those desktop calendars or better yet the same kind of thing with the squares he can put notes in and he looks at the date on the letter and projects that ahead 25 days and notes on that square that he has to get that validation letter out that day so it gets there within the allotted 30 days for sure. The fateful day arrives and he has his letter all ready to go. He already has a supply of PS 3800 and PS 3811 forms from the post office on hand and some long postage prepaid envelopes on hand so he sits down and writes his validation letter, prints it out or whatever and he signs it and he puts it in the envelope and addresses it carefully so that the recipients name and address is quite a bit further to the right than normal so the clerk at the postoffice has room for that extra postage stamp that goes on the right side of the letter. He fills out both forms and at the top is a little strip with the tracking numbers on it which he peels off and places on the green card where its supposed to go. He then peel the strips off the sticky on the green card and slaps the green card on the back side of the envelope and peels off the sticky on the white form folding it so the part on the top side of the form goes over on the other side of the envelopes. Fold on the dotted line up there type of thing. Now he goes to the post office and hands it to the clerk who does his thing and gets his white form and the postal receipt. He is probably only in there a few minutes and he did all the nasty stuff in the comfort of his home over a cup of coffee or whatever. Now he goes home and staples his postal receipt and the white form to the extra copy of the letter he made for his records. He jots down the last 4 numbers of the tracking receipt in his diary and also in the notations in his calendar. And now he awaits the return of the green card. When it comes in he staples it to the copy of the letter he stapled those other forms to and he again notes the diary and the calendar and also projects forward to the date that is 30 days from the date on the green card and puts the last 4 in the square for that date so he knows when to send out that estoppel letter. And when the estoppel letter time is at hand he repeats the above proceedure all over again so he is ready to fire the next round across the pirates bow when the time comes to do so. He has his act all together, he keeps an accurate record of what he has done and he just keeps on marching them right down the road to their doom. Kinda like the picture of the German soldier marching people off to the death camps at the point of a bayonet, poking them every step of the way. The reason he does that is because he knows that his "target" is quite used to shoving the debtor down a well planned path towards a date certain that will result in getting paid. A good collector shoves and shoves hard and we all know that. So turn the table on him and start him marching down the path to doom. Blows his mind! He just didn't expect that the tables would ever be turned on him. I'm quite sure it is just as demoralizing to him as it is to us. Yes Butch. You are absolutely correct. You got to have an overall battle plan, a template as you say. It's absolutely essential but in order to successfully build that template, that battle plan you have to do it one step at a time else you will never get it done. And what do you do when you run out of ammo which is bound to happen? Been there, wore that dirty T-Shirt for sure. Well, just like you, LKH, Whyspers, Lizard King, Christine Baker and a multitude of others on this board and many others have preached forever, SUE THE BASTARDS!! But before you burn the rubber off your tires getting to the court house you had better be sure that you have all your ducks in a row because those boys down at the court house play might rough and you absolutely must be better prepared than they are or you might as well hang your coat on the outhouse door instead of the courthouse because you will get better relief in the outhouse than you will in the courthouse if you aren't better prepared than they are. But even if you aren't all that well prepared you just might get lucky and bluff the enemy out before you actually have to go sue him. It happens more often than not. After all, they don't want to go to court at all if the topic of conversation before the court is not of their choosing. They don't go to court if all they can hope to do is lose and pay the piper for doing so. So do the troops want to fight among themselves or do they want to win the war? Do they want to argue and fuss about who has the proof of what they say or do they want to pitch in and help find those proofs if necessary? And maybe get a feather in their cap for proving me wrong? Either way, what difference does it make if I'm wrong if I win the battle? And as I've said many times before those who prove me wrong are my best friends, not my enemies because they have taught me something I didn't know before.
Re: Re: --> What Is Validation? Bill, you typed probably the second longest post in history, and didn't say much at all but a few old stories my grandpa used to tell me about the good old days. Let me sum it up for you... Thanks for the enlightening wisdom Bill, but your point is? Really, can anyone else understand what he is talking about? Talk about a Seminar?, now you are putting me to sleep! ZZZZZZZZZZ If I go to Court and sue for violations of the FDCPA, I have to prove MY POINT, are we in agreement here? How can I prove my point, if they can disprove MY POINT?So please point me to your court case that PROVES that they MUST respond within 30 days or I can sue them. I've already proven to you that the FDCPA doesn't state anywhere that they must respond. I point you again to FTC Opinion letter to Cass: "...there is nothing in the FDCPA that requires a response to a written dispute if the debt collector chooses to abandon its collection effort with respect to the debt at issue. See Smith v. Transworld Systems, Inc., 953 F.2d 1025, 1032 (6th Cir. 1992)." I came here hoping to read some valid arguments, but your rants and raves from one topic to the next have helped me absolutely ZERO. Please Butch, post a new topic and have an open debate/discussion that doesn't involve Fairy tales and "one time at band camp" stories. I apologize to the readers for being so rude, but I've had enough of Bill Bauer's disagreements with himself. I'm still waiting on Court Cases, now we seem to have gone onto who is more correct Bill Bauer or Whyspers, Christine, Lizardking etc. Who do you think people here have learned more from?
Re: Re: --> What Is Validation? Well, while you were snoozing you missed one important little item. I pointed that out to you before but apparently you were snoozing then too. Again. If and only if he chooses to abandon his collection efforts. That is the operative phrase. It does not address what he must do in the event that he continues with his collection efforts. This discussion is not about what happens if he abandons his collection efforts. Can we please stay on topic? Difficult to find arguments valid or otherwise if you are snoozing, isn't it? I too must apologize for being rude but I've had a belly full of snoozers, ad hominum attackers and various and sundry funny bunnies who obviously can't stay awake long enough to understand what they read or don't read at all. Why? Is it that you would far rather snooze away and demand that others buy you your lunch and serve it to you on a silver platter and all for free?? I see you didn't read what I said there either. I said they were the pioneers. The people who led the way and cleared the path, not I. I didn't say I taught them anything. Au contrare, it was they who taught me. They and many, many more far more capable than even they are. People who actually go out and give seminars and classes teaching what they learned the hard way too. And I didn't learn by snoozing either. I learned by paying attention to what they had to say. May I respectfully suggest that you try it some day. Listening to what others have to say is what works even if they are your adversary. Even if they are wrong. Even those who are completely wrong have a lesson to teach. If I remember correctly it was F. Lee Bailey who said that he learned more from analyzing the cases that lost than he ever did from the cases that won.
Re: Re: Re: --> What Is Validation? Kemcos: That comment is partly right. It certainly applies to tax liens and bankruptcy and other public records that cannot be attacked successfully. It does not apply to judgments which are usually null and void upon their face and therefore fairly easily attackable. And your statement is also correct in another way. There is no perfect method. Nothing out there works all the time for all situations. One must have an answer for all the situations he possibly can. I most respectfully beg to differ with you there. Like you and most others I have only the dispute method of dealing with credit bureaus. Same as anybody else. I just don't care for beating dead horses any more than necessary. And disputing isn't beating dead horses, but going over the same ground time and time again when it is so well and thoroughly discussed on every message board on the internet as well as countless numbers of published books is, in my opinion, beating a dead horse. I have absolutely nothing to add to the subject. Hardly! My credit files have never been blocked. As I understand it that often happens when one is accused of doing credit repair by the bureaus, file alteration tricks, sueing the credit bureaus and other such activities which I have never participated in. Matter of fact one of the reasons I never participated in them is because I understood that such is what can happen to those who engage in such activities. Seems I read about that in some book or other years ago.
Re: Re: Re: --> What Is Validation? Wow, so you answered every one of my questions/statements with a snoozing joke of some sorts........ hmmmm So on to the big IF What constitutes "if the collector abandons its collection effort?" If you unscramble these letters is this where you see the "THEY MUST RESPOND IN 30 days? Let me guess, its another conspiracy... Stop grasping for air and smell the roses. You've lost this debate because you haven't quoted a single case or law to back up any of your points.
Re: Re: Re: --> What Is Validation? Jlynn brings up an excellent issue concerning the first 30 days and what happens beyond it. Since this does have everything to do with your right to demand validation, we continue. She writes: http://consumers.creditnet.com/straighttalk/board/showthread.php?s=&postid=305319#post305319 Jlynns issue brings up the following: What happens and why, if one fails to demand validation within the first 30 days? What does that first 30 days really mean? Can one demand validation outside this first 30 days? And finally, who say's? This is covering a lot of stuff so be prepared for another of Butch's diatribes. It will be necessary to bounce around a little but by the time we get through this discussion I hope a lot of stuff will be much more clear about this mysterious first 30 days. Before we can even begin to talk about the first 30 days, we must first grasp a critically important legal concept that has to do with evidence, the weight of evidence, the presentation thereof and where it all starts. I've posted much about something called "Prima Facie Evidence" and what it means. First, it's the next weakest most insignificant form of evidence there is. Only one step above a verbal assertion but it IS the starting point. Let's first go look at some legal dictionaries; Definition "Pima Facie Evidence" - {Latin for "on its face."} A prima facie case is one that at first glance presents sufficient evidence for the plaintiff to win. Such a case must be refuted in some way by the defendant for him to have a chance of prevailing at trial. Prima Facie http://www.law.cornell.edu/lexicon/prima_facie.htm Latin for "At first sight." A prima facie case presents enough evidence for the plaintiff to win the case barring any defenses or additional evidence presented by the defendant. see, e.g. Hernandez v. New York, 500 US 352 (1991). And again: Reference: Black's Law Dictionary Fifth Edition © 1979 West Publishing Co. http://www.gerryarmstrong.org/50grand/legal/a1/prima-facie.html Prima facie[/b] /práyma féysyshiy(iy)/. Lat. At first sight; on the first appearance; on the face of it; so far as can be judged from the first disclosure; presumably; a fact presumed to be true unless disproved by some evidence to the contrary. State ex rel. Herbert v. Whims, 68 Ohio App. 39, 38 N.E.2d 596, 599, 22 0.0. 110. Prima facie case. Such as will prevail until contradicted and overcome by other evidence. Pacific Telephone & Telegraph Co. v. Wallace, 158 Or. 210, 75 P.2d 942, 947. A case which has proceeded upon sufficient proof to that stage where it will support finding if evidence to contrary is disregarded In re Hoagland's Estate, 126 Neb. 377, 253 N.W. 416. (Black's is the premier legal dictionary in the legal profession) One more time: General Definitions And Principles Of Interpretation: Uniform Commercial Code. General Definitions: http://www2.law.cornell.edu/cgi-bin/foliocgi.exe/ucc1/query=[jump!3A!271!2D202!27]/doc/{@40}? UCC § 1-202. Prima Facie Evidence by Third Party Document: A document in due form purporting to be a bill of lading , policy or certificate of insurance, official weigher's or inspector's certificate, consular invoice, or any other document authorized or required by the contract to be issued by a third party shall be prima facie evidence of its own authenticity and genuineness and of the facts stated in the document by the third party. I don't want to get to technical here but as we read these various definitions of what "Prima Facie" means one primary theme seems to stick out like a sore thumb. If a document proclaims something to be a fact, it is generally accepted AS FACT in the absence of a counterclaim. Go to Google and do an advanced search on "Prima Facie". You'll get a lot of very interesting stuff. In practical terms in the debt collection industry here's how it works; The day you receive a Dunning Notice is the day the establishment of the Collectors Prima Facie case begins. So far, (within the first 30 days) the CA is not entitled to presume that the debt is indeed valid because a "reasonable" amount of time should be, and is permitted to see if you are going to put up an argument, (Your Counterclaim). It is generally understood by both Law, and Case Law that a reasonable period of time is 30 days. In fact the establishment of 30 days as a "reasonable amount of time" goes way back to old English common law and is several hundred years old, but I digress. Here is the first important component, after this first 30 days has elapsed and you've failed to put up an argument, it now becomes obvious "on it's face" (by your own behavior) that the plantiffs assertion (in this case the CA's insistence that you owe money) is the correct one. In other words the CA is now entitled to the presumption that the debt really is valid. I think, at this point it might be a good idea to have a little fun with this. Let's see if we can reduce these concepts to the simplest form by way of example. Suppose you and I are facing each other in the midst of a crowd of 100 people. At the top of my voice I proclaim to the world, that "YOU ARE A WIMP"! Here, you have 2 choices: You can hang your head in shame and walk away silently in disgrace, or; You can shout back with equal volume, force and conviction that; "No I'm not a wimp. And if you call me that one more time I will proceed to beat you senseless. If you chose option #1 the crowd is entitled to presume, and rightfully so, that my assertion that you are a wimp is obviously accurate. You demonstrated by your own behavior and lack of rebuttal that you are. It has now been established and is obvious, taken at face value, that a wimp you are indeed. But if you chose #2 by immediately screaming back "NO I'M NOT" a legitimate argument ensues and the crowd will refrain from passing such judgement upon you pending the outcome of the argument. The argument remains unresolved and equally stagnant as the "burden of proof" shifts back and forth until either you or I enter into evidence some sort of proof that yours' or my argument is the correct one. So I say "ok here's a signed document from your best friend that says you are a wimp." you again, have 2 choices: Now you can hang your head in shame and walk silently away in disgrace, or; You can demand to see this mysterious document in disbelief, and once examined you can proclaim the document is a fraud. "That's NOT my best friends signature" you exclaim. "Moreover it's not even notarized". So the argument (Burden Of Proof) shifts yet again as each side introduces items of evidence into the argument, in ever increasing weight and value until some ones evidence is so overpowering that it's conclusion is unmistakable. We call this "A preponderance of evidence." This is exactly why some loan sources are now taking finger prints on the loan app. Or let's look at it another way. I've posted a lot of information in this thread. So far nobody has come along to argue against (rebut) my points. Does that mean by every ones silence that my arguments are correct? Well ... you be the judge. [ Note: that last paragraph was written before Wed. when Bill Bauer appeared. Now that Bill has shown up to rebut some of my points you have to be asking yourselves: "Who provides the preponderance of evidence to substantiate his position? ] But don't you see, that's exactly what a real judge has to do. Continued:
Re: Re: Re: --> What Is Validation? Continued: And so it goes with a CA's insistence that you owe a debt, your rights to rebut that assertion and thus extinguish their Prima Facie case. Once the recipient (you) place the prima facie evidence of the debt (the bill) into question the collector may NO LONGER operate as if the debt is valid and is, from this point forward, required by law to prove it's validity. The second important component here is that it matters not WHEN you dispute, just that you do. EVEN IF IT IS BEYOND THE FIRST 30 DAYS! YOU DO NOT LOSE YOUR RIGHT TO PUT UP A FIGHT JUST BECAUSE IT TOOK YOU 31 DAYS TO DO IT! (Or 100 days for that matter. It's because of this concept congress included the language in 5(c) below (in red)). So now we can bounce back to the FDCPA and see what it really says about this first 30 days. But this time try and figure out what it literally says about it. Again; § 809 states: § 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. Paraphrasing 5(c): Failure to dispute the debt during the first 30 days does NOT mean you acquiesce to its validity and thus, lose your rights from that point forward to put up a rebuttal argument. Indeed, if that were the case no CA would ever actually send that first notice informing you of your rights. They would just pretend they did and then proceed 31 days later with #2 in their letter sequence. Looking first at § 809 (B) "If the consumer notifies the debt collector in writing within the thirty-day period", etc. 809 B only seems to suggest that your dispute MUST occur within this time frame. So it's quite natural to expect a CA to latch onto this language to dissuade you from exercising your rights. It is conspicuously absent, even dead silent on the issue of what happens when the consumer FAILS to dispute WITHIN the first 30 days. The statute fails to articulate any consequences of attempting to dispute OUTSIDE the first 30 days. As I've stated earlier, and believe you me, if Congress intended for you to have no rights after the first 30 days it would have so stipulated. They not only DID NOT so stipulate they went out of their way to ADD Section 5(c) telling you the exact opposite. Or maybe Congress did say more about the issue than it appears. It is a well-settled principle in statutory interpretation that the first step is to look at the actual language of the statute itself. If and when a statute is unclear or dead silent on an issue, and prior to speculation or "drawing inferences" (they call it) you must first look elsewhere to other portions of the act to see if clarification can be found. So, lets try that and see what happens. Let's back up just a little and examine the recommended language of the notice to the consumer of his rights. Remember Congress is the entity who recommended this language. (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; What that says to me is simply this: If you fail to rebut their claim that you owe a debt they may assume it to be valid. And since this is the only consequence articulated, then I'm entitled to assume it's the ONLY consequence that occurs. LOL Congress and how it works is not a simple matter. Often it's a lot easier to simply add a section to an existing Act, than it is to go back and reargue existing language in order to change it. So recognizing the confusion here Congress sought to clarify the issue by simply inserting section 5(c) For case law on the issue, let's revisit the Spears case and see what it says about the IL Circuit; Spears V. Brennan "In deciding that consumers cannot waive the protections afforded by 15 U.S.C. § 1692i, the Illinois district court concluded that requiring an unsophisticated consumer to â??exercise his rights under the FDCPA immediately or lose them" is contrary to the basic premise of the Act, which is to protect unsophisticated debtors from debt collectors who may use the legal system, about which the consumer has little knowledge, to bludgeon them into submission." The IL Circuit was referring to 1692i, an unrelated section. But the gravity of the statement could be carried over into other areas too. Notice IL said: "The Premise Of The Act", not "The Premise of This Section". A CA's insistence that you've lost your rights because you didn't exercize them within a certain time frame is merely an attempt to "bludgeon you into submission". It's also unfair and unconscionable for them to tell you this because it's simply not the truth. Meaning - they LIED! § 808. Unfair practices [15 USC 1692f] A debt collector may not use unfair or unconscionable means to collect or attempt to collect any debt. Recently I've seen numerous posters say that they actually received a letter from the CA that says they have no right to dispute beyond the initial 30 days. Their elevators often fail to reach the top floor. LOL Suffice it to say I wish they'd send me one. Do not stand for this I say. Pound it right back down their respective throats !!! But keep this in mind, and this is the 3rd important component about this whole discussion. Since our court system works on a preponderance of evidence this does have a profound impact on all that I've posted about how validation is supposed to work in the perfect world. Just because your adversary cannot produce one or more of the items listed, which makes for perfect validation, does NOT mean you can just waltz into court and win. What if, for example, after you proclaim the account as not yours and then your adversary presents checks with your signature affixed. Now you have a whole new problem. And this is essentially what Bill B. has been trying to tell you, (and which I'd planned on telling you anyway). There just is no Silver Bullet because a judge is charged with the responsibility to be fair and impartial in his attempt to balance the scales of justice. Jlynns Practical Application: She wrote: Usually the subsequent notices begin with the following remark, or something similar. "You have ignored our/all previous correspondence". The implication here is that this is at least #2 or later, in the order of succession of notices to be sent to the consumer. If Jlynn fails to counterclaim this assertion it stands that she did in fact receive a prior notice. And this notice, they will insist, is the one that contained her right to dispute. As earlier stated, my purpose for examining each of these points is to help you develop your argument as you go along. Should you and your adversary appear in court I hope I've helped you be noticeably more prepared for battle. Correcting your credit really does require tremendous planning and a well grounded understanding of the law. Each of the intricacies of your individual situations needs to be very carefully considered. But at least now, if they try and screw with your right to demand validation, you can tell them to pound sand.
