Re: Re: Re: --> What Is Validation? These are the kinds of threads that give "Power to the People"!!! Tuit thanks you!!!!
Re: Re: Re: --> What Is Validation? Another excellent post by Butch who most assuredly has not posted anything with which I disagree in the slightest. He has lent a strong argument in favor of my statements that the limit of time allowed them to respond to one's demand for validation to have been perfected is 30 days. Some may say that even what Butch has said about it is not sufficient to prove the statement "30 days and not one day more" and I would agree with that as well. So what is needed is for someone or other to stumble across the ruling of some court of inferior jurisdiction stating exactly that. And he again correctly couches his statements in term of that initial 30 day period after the debtor's receipt of the collector's initialcontact. Much hinges on that single word in this context. But it does not mean that after that 30 day period the debtor loses his right to demand validation. What it does mean is that the collector may not proceed with collection during that 30 day period. And he may not proceed with collection if the debtor disputes or demands validation and they are not one and the same thing although the difference is not discussed in any place that I have seen. The "fact" that a difference exists is pretty much my own invention as far as I know and to make that claim I rely on both Miranda and FDCPA. And the reason I make the distinction is based on the fact that the law says that in that first written communication with a debtor he has 30 days within which to dispute the debt or any part thereof and I maintain that it is the original creditor as well as the 3rd party collector and only those parties who have the information which would enable the debtor to avail himself of the right to dispute the debt or any portion thereof. And so before he can mount a dispute the debtor must be supplied with each and every element of the debt or he is denied his (due process?????) rights. Due process is not just a term invented by one internet glueru as the name of his website. It is indeed a somewhat complicated doctrine that even goes back into jurisdiction of the courts for if the court has denied the defendant his due process rights under the law (whatever they may be) they have not the jurisdiction to proceed. There are many ways in which the court may lose it's jurisdiction and end up with void judgment but that is another whole discussion. But in truth, 30 days or not, the "debtor--->defendant" never, never loses the right to demand proof of the debt. Only when he becomes defendant does the process required to demand proof of the debt change and get really difficult to enforce. Definitely not worth the time, trouble and expense unless by rare chance he can prove some material fact which would have changed the outcome of the trial if it had been brought forth at the time of the hearing. And that usually only results in a voided judgment, not a void judgment and there is a huge difference between the two. A voided judgment action has to be brought within a certain length of time while a void judgment is null and void upon it's face and as a nullity was never a judgment in the first place therefore motion to vacate void judgment has no statute of limitations. The issue could be raised a hundred years later and it would still be a void judgment. Void judgments are those rendered by a court which lacked jurisdiction, either of the subject matter or the parties. Wahl v. Round Valley Bank 38 Ariz, 411, 300 P. 955(1931), Tube City Mining & Millng Co. v. Otterson, 16 Ariz. 305, 146p 203(1914); and Millken v. Meyer, 311 U.S. 457, 61 S. CT. 339,85 L. Ed. 2d 278 (1940). I can go into void judgments at great length with enough court case cites to make anybody's eyes glaze over but I shall refrain. Let it be said that the really big deal with subject matter jurisdiction is that it can never be presumed, never be waived, and cannot be constructed even by mutual consent of the parties. Subject matter jurisdiction is two part ; the statutory or common law authority for the court to hear the case and the appearance and testimony of a competent fact witness, in other words, sufficiency of pleadings. Subject matter failings are usually the following: (1) No petition in the record of the case, Brown v. VanKeuren, 340 Ill. 118,122 (1930). (2) Defective petition filed, Same case as above. (3) Fraud committed in the procurement of jurisdiction, Fredman Brothers Furniture v. Dept. of Revenue, 109 Ill. 2d 202, 486 N.E. 2d 893(1985) (4)Fraud upon the court, In re Village of Willowbrook, 37 Ill, App. 3d 393(1962) (5)a judge does not follow statutory procedure, Armstrong v. Obucino, 300 Ill 140, 143 (1921) (6)Unlawful activity of a judge, Code of Judicial Conduct. (7)Violation of due process, Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019(1938);Pure Oil Co. v. City of Northlake, 10 Ill.2d 241, 245, 140 N.E. 2d 289 (1956);Hallberg v Goldblatt Bros., 363 Ill 25 (1936), (8) If the court exceeded it's statutory authority. Rosenstiel v. Rosenstiel, 278 F. Supp. 794 (S.D.N.Y. 1967) In all, there are 22 indices which tell us whether or not a court had subject matter jurisdiction and when examining a judgment one has to know each and every one of them by heart. If he knows them by heart he can go through a judgment like Sherman going though Georgia and point out all of the errors which might make the case a void judgment, null and void upon it's face. Now then, I ask you who are the audience just how many lawyers do you think know all of those indices and make absolutely certain that their cases are perfected and fully valid? (LOL) No wonder there are more than 50 million void judgments out there just waiting for their victims to wake up and go get them voided and then sue the pants off the lawyer who violated their rights. I always offer to look judgments over for people to see if their judgments can be vacated as void judgments and I do it for free. No cost, no obligation to me whatever. All they have to do is to go to their local court house and get court certified copies of all paperwork in the judgment file and then go get photocopies of those and send them to me by whatever means. I'll tell them my opinion and if they want to get something done I have a friend of mine who can teach them how to go do it to it. But he don't work for free so I'll probably get hooted at for even mentioning that fact even though he don't give me a crying dime for referalls. Anyway, Butch. You are doing a fine job. Keep it up.
Re: Re: Re: --> What Is Validation? How about this: You guys are missing the one idea though that disputing within the first 30 days is the only real way of preventing the derog. info from being placed in your credit file, as ...'all collection efforts must cease' and placing a report in a credit file is considered by the FTC to be a collection effort. Otherwise I agree on all points. I have a huge AMEX deal going on, and they are asserting that when an account is OPEN, they have to validate in 30 days, and when it has been closed, they have 90 DAYS to validate under law. I asked for them to cite, but no luck so far. Bill B. you'll like this: I am suing them! What's your bet, do they even show up or do they just blow that off too? I'm just doing the small claims Def. of character and FCBA violations.. My theory is, they never billed me at home as the corp. AMEX card bills went to the office only, so if they never sent ME a bill, how was I ever liable to pay under the FCBA?
Re: Re: Re: --> What Is Validation? I'm not so sure we are missing the point as much as just haven't got there yet. I'd bet a dime to a donut that Butch has not been in the dark on that point nor have I. In fact, I just got done with a client interview in which the client brought in a letter from Credit Protection that contained the copy of estoppel that he sent and in which Credit Protection stated that they were removing on grounds that "they were in errror" and that they were sorry for any inconvenience that they had caused. He had brought me the original bill from Cox Cable and we were well within the initial 30 day time period. So they did in fact put the hickey on his report prior to the end of the 30 day period although we had never seen the report but were working from Credit Protection's initial communication. He had just gone delinquent in December. In fact, I've seen quite a few instances in the recent past where it could easily be traceable to estoppel having been sent. In view of the fact that I have always said that estoppel has no real basis in law, seeing the indisputable fact that it does work sometimes leaves me a bit red faced but I can live with that. (LOL) As many of us know, things often work for no explicable reason. So be it. If it works who cares. On the other hand I've seen about as many cases where it didn't work too. Wrong on both counts.[/quote] I asked for them to cite, but no luck so far. Bill B. you'll like this: I am suing them! What's your bet, do they even show up or do they just blow that off too?[/quote]Don't try to make a liar out of me. (LOL) Interesting theory. Let us know what happens.
Re: Re: Re: Re: --> What Is Validation? Wrong again, Bill a collector CAN proceed with collection during the 30 day period. He can also report it to the CRA's as a chargeoff, AND the collector can file a suit against a debtor during this 30 day period as well. The only time they must cease collections is IF they receive written dispute from the consumer! To prove it, just read the FDCPA. Its in black and white. You may want to study it more instead of dropping opinions that confuse the people here. The difference is discussed all over the FDCPA and Opinion Letters, Bill! As was the "the cases exist out there somewhere". One more time... In an FTC opinion letter to Krisor the FTC writes and I quote. "Section 809(b) of the Act provides that if the consumer disputes the debt or requests identification of the original creditor in writing, the collector must cease collection efforts until he verifies the debt, or identifies the original creditor and mails a response to the consumer. If the consumer's request for verification of the debt was made in accordance with Section 809(b) of the Act, the collector need not supply the documentation but only so long as collection efforts are not resumed. Section 809(b) requires that "the collector cease collection of the debt, or any disputed portion thereof, until the debt collector obtains verification of the debt . . . and a copy of such verification . . . is mailed to the consumer by the debt collector." In situations contemplated by Section 809(b), the Act imposes the obligation to furnish verification before the collector resumes collection efforts. In the event the collector decides not to pursue the collection efforts, there is no requirement to furnish the documentation of the indebtedness to the consumer. In the event that collection efforts are resumed, the requirement to furnish verification to the consumer prior to resumption of collection remains." DID YOU SEE 30 days anywhere in there? Nope, It just says they must cease collection and at any time that they decide to resume collections, they must first supply the consumer with proper documentation. 30 days is NEVER discussed. The difference here is that you have no idea what we are discussing. We are talking here about 30 day validation period covered under Section 809(b). This 30 days covers the time from the initial communication to the response from the consumer. Once you have passed this 30 day validation and haven't yet answered the debt collector, there will no longer be a mention of 30 days..... Please, stop your "OWN INVENTIONS" and spare us the hassle of having to read anymore of your unfounded claims.
Re: Re: Re: Re: --> What Is Validation? There is nothing in the FDCPA that forbids a collector from reporting derog information within this 30 day period. (As long as they have NOT received your notice of dispute).
Re: Re: Re: Re: --> What Is Validation? This is true, yet the allowance of a 30-day period for disputing the debt implies that a consumer will have that long before it is reported. Most CA's I speak with, as a policy, do not report until after the 30 day dispute period has passed. My assumption is that courts would favor the consumer over the CA in a case involving reporting during the 30-day period. Furthermore, even if it was reported during the first 30 days, it would have to be retracted immediately following receipt of a dispute if that was also within the initial 30 days, so therefore it would just create more work and havoc for the CA's to try reporting it in the 30 day period to begin with...
Re: Re: Re: Re: --> What Is Validation? also, AMEX reports having "never" received my dispute although I have 3 separate signed, RR, certified mail copies. So this is a sticky point.
Re: Re: Re: Re: --> What Is Validation? jlynn started her 1st validation request with "This is the first communication I have received from you"
Re: Re: Re: Re: Re: --> What Is Validation? Please show me the law that states it will NOT be reported within this 30 day dispute period? NO WHERE IN THE FDCPA does it say that an account can NOT be reported unless it is validated or the consumer believes it is not theirs. Also, if it IS reported during the 30 days, the FDCPA doesn't say that it must be retracted. Please show me the proof, otherwise it is all opinions! FTC opinion letter to Cass "Is it permissible under the FDCPA for a debt collector to report charged-off debts to a consumer reporting agency during the term of the 30-day validation period detailed in Section 1692g?" Yes. As stated in the Commission's Staff Commentary on the FDCPA (copy enclosed), a debt collector may accurately report a debt to a consumer reporting agency within the thirty day validation period (p. 50103). We do not regard the action of reporting a debt to a consumer reporting agency as inconsistent with the consumer's dispute or verification rights under § 1692g.
Re: Re: Re: Re: --> What Is Validation? Kemcos: I must agree with you and I also believe that the FTC opinion letter CASS also backs up your contention and mine as well. Let us see what they have to say. And isn't it strange how one person finds one section of CASS that says yes and another person finds another section in the exact same letter that seems contradictory? So what is the answer to that quandry?
Re: Re: Re: Re: Re: --> What Is Validation? The OBVIOUS (maybe not to you) difference here is that either the consumer HAS responded with a dispute, or HAS NOT. Therefore the law says that they can report it as a debt during this 30 day validation period as long as the consumer has not disputed the debt (IN WRITING). Easy enough for me to understand, but I know some are grasping for air on this point! Taking things out of context will inevitably point you in the wrong direction. Make sure you are reading the full question Bill!
Re: Re: Re: Re: Re: --> What Is Validation? Quite true, Helpwanted.. Excellent advice coming from an expert in such matters such as yourself. So what is the answer to that quandry? Well, the answer to that is simple indeed. The part of CASS that says YES deals only with the eventuality that the collector has not received a dispute from the debtor and the second part deals with the eventuality that a debtor does demand validation or make dispute within that 30 day period. So there is no riddle at all. So if the debtor waits say 20 or 25 days from the date on the face of the collector's initial contact letter and then dispute the debt then pulls his report and finds the collector has put a derogatory comment on the debtor's file then the collector could find himself in a bit of an unpleasant situation. And you just happened to get your post in before I could get the portion above put in. I edited and got hit with a timeout.
Re: Re: Re: Re: Re: --> What Is Validation? Bill, Glad to see we could finally agree on something! I wish they were more clear on the reporting of a debt once the consumer disputes. I would agree that it would seem that it SHOULD be removed, but it doesn't specifically state anything of the sort. I always see people write "THEY MUST PLACE THE ACCOUNT IN DISPUTE", but I didn't ask for that when I sent my validation out, I asked for a full deletion as they hadn't responded with any validation. So my interpretation would be the same as yours seeing as there is NO specifics in the FDCPA or the staff opinion letters. They say that it can NOT be reported, I say, that means it MUST be deleted- not listed as disputed!
Re: Re: Re: Re: Re: --> What Is Validation? Ok my attention span obviously isn't very long, so if this has been covered I apologize (I can't stand to read through all the dribble to get the good points). It can be reported, sued for, and collected upon within the first 30 days provided the debtor in question has NOT requested proof. I agree with Helpwanted here in regards to interpreting the FDCPA, however I believe there is a Staff letter that says if validation is requested within the first 30 days, collection activity must cease, and that reporting it to the CRA's is considered collection activity. I believe if you are past the 30 days (for this case lets say 3 years past) and it's already reported, if you request validation all they have to do is mark it as "disputed by consumer". Now people, I'm not 100% positive, pretty close but not 100%. For some reason the Wollman letter is jumping out in my mind, but hell it might not be it. Sorry for the rambling....I hate reading it as much as the next guy/girl.
Validation March 3, 1992 Mr. John D. Krisor, Jr. Krisor and Nusabaum P.O. Box 6200 South Bend, Indiana 46660-6200 Dear Mr. Krisor: This is in response to your letter of October 9, 1991 wherein you pose two questions: (1) If a debt collector ceases collection activity, must the debt collector send documentation of the indebtedness to the debtor? (2) Can a debt collector charge for copies of the documentation of the indebtedness? 1. Section 809(b) of the Act provides that if the consumer disputes the debt or requests identification of the original creditor in writing, the collector must cease collection efforts until he verifies the debt, or identifies the original creditor and mails a response to the consumer. If the consumer's request for verification of the debt was made in accordance with Section 809(b) of the Act, the collector need not supply the documentation but only so long as collection efforts are not resumed. Section 809(b) requires that "the collector cease collection of the debt, or any disputed portion thereof, until the debt collector obtains verification of the debt . . . and a copy of such verification . . . is mailed to the consumer by the debt collector." In situations contemplated by Section 809(b), the Act imposes the obligation to furnish verification before the collector resumes collection efforts. In the event the collector decides not to pursue the collection efforts, there is no requirement to furnish the documentation of the indebtedness to the consumer. In the event that collection efforts are resumed, the requirement to furnish verification to the consumer prior to resumption of collection remains. 2. A collector may not charge (the consumer) for copies of the documentation of the indebtedness mailed in response to the collector's obligations under Section 809(b). To do so could constitute an imposition of a fee or service charge in violation of Section 808(l) of the Act.(1) The cost of obtaining documentation referred to in your letter is more appropriately a cost of doing business by the collector in the same manner as is postage and telephone charges. I hope this information will be helpful. The views expressed herein represent an informal staff opinion. As such they are not binding on the Commission. They do, however, reflect the staff's current enforcement position. Sincerely, Roger J. Fitzpatrick Attorney Division of Credit Practices
Re: Re: Re: Re: Re: Re: --> What Is Validation? Isn't this it Kellie? December 23, 1997 Robert G. Cass Compliance Counsel Commercial Financial Services, Inc. 2448 E. 81st Street, Suite 5500 Tulsa, OK 74137-4248 Dear Mr. Cass: II. "Is it permissible under the FDCPA for a debt collector to report, or continue to report, a consumer's charged-off debt to a consumer reporting agency after the debt collector has received, but not responded to, a consumer's written dispute during the 30-day validation period detailed in § 1692g?" Is it permissable to do EITHER one of two different things: Report, OR continue to report. As you know, Section 1692g(b) requires the debt collector to cease collection of the debt at issue if a written dispute is received within the 30-day validation period until verification is obtained. Because we believe that reporting a charged-off debt to a consumer reporting agency, particularly at this stage of the collection process, constitutes "collection activity" on the part of the collector, our answer to your question is No. Although the FDCPA is unclear on this point, we believe the reality is that debt collectors use the reporting mechanism as a tool to persuade consumers to pay, just like dunning letters and telephone calls. Of course, if a dispute is received after a debt has been reported to a consumer reporting agency, the debt collector is obligated by Section 1692e(8) to inform the consumer reporting agency of the dispute. The collector may do neither of the two different things, IF during the first 30 days a val. is received. But after the first 30 days and IF it has already been reported they must notify the CRA of the dispute. Just a thought. LOL
Re: Re: Re: Re: Re: Re: --> What Is Validation? WOW- May brain is buzzing! So let me see if I get this right; When you receive a letter from a CA, and the info has not been posted, and you respond in 30 days, proper validation would be for them to produce some type of original documentaion in 30 days? This rarely happens. If they post the information without validating the debt, they have violated the law. The second they post the debt to the CRA, they fall under a new set of laws through the FCRA. It would be very important to keep an accurate paper trail here as the violations would be speedy. Like Butch said, the point is not to say the debt is not yours, but to make it not worth the CA to collect because of all the violations. I am sure most violations would warrant a deletion and a nice check very easily.
Re: Re: Re: Re: Re: Re: --> What Is Validation? Good letter, LKH. Incidentally, people sometimes say that FTC letters don't enjoy the weight of a court decision, etc., and while that's true it is also true that the FTC staff is viewed as "authoritative and expert" (quoting my brother the attorney who I just woke up, argh, lol). Doc P.S. Kellie, I think I'm clearly struggling far more than you in keeping current with this thread, lol.
