Re: Re: --> What Is Validation? Critical Update! Recently I've seen a few people run into a problem. We've been getting letters from atty's. who claim, at the top of their voices, that beyond the first 30 days, absent a demand for validation, the CA is NOT required to provide validation documentation because; "you missed the validation [30 day] window". Before we look at a case lets look at a definition of "Judicial Activism". In a paper called "Judicial Institutions and the Evolution of Independent Courts in New Democracies" detailed discussions of the pro's and con's of Judicial Activism and why courts engage in this behavior are exhausted. It's boring reading but here's the pertinent part" http://www2.isp.msu.edu/cers/randazz.htm A Western definition of activism refers to situations in which the judiciary nullifies laws or decrees because they are unconstitutional. ... Courts in these countries rarely strike down entire laws as unconstitutional. Instead, judges often opt for more strategic behavior, including striking down portions of the law as unconstitutional or unlawful, or declaring the legislation unlawful for procedural reasons. Judges likely employ these strategies because they do not have the prestige and legitimacy associated with judges from more established democracies. They act to "transform public policy disputes into questions of constitutional interpretation that can be decided by texts, procedures, principles, and rules that are generally accepted as legal and not political" (Schwartz 2000, 5). In other words they re-interpret/change existing law to suit themselves and their own vision of what they believe the world should be like. Ndguy's dilemma [Sun May 25, 2003 11:16 pm]: http://www.creditboards.com/phpBB2/viewtopic.php?p=21337#21337 At issue: 1) What about demanding validation past the 30 day window. Is it true that Mahon says we cannot 2) What happens if an appeals court rules against our position, and how much weight does that decision carry 3) How to handle any adversary who cites this decision The first thing you should do is break here and go read the decision. Fortunately it's not very long, but the Mahon decision does appear to pose a problem for us. Go here, (compliments of Manequinne): The Mahon decision is a 9th Circuit Court decision. The best news is that anyone who cites an opinion by the 9th is obviously extremely desperate. The rest of the courts in the country understand that too. The 9th Circuit has worked diligently to earn their rightful reputation as the most baffling joke in the entire country. Their continuous string of judicial nitwittery is world renowned. Indeed, they are the laughing stock of the entire planet. People the world over joke about this pathetic example of responsible decision making. Sounds like I hate the 9th, alas, I do not. Most of you know me by now and know that I don't engage in hurling silly insults without substance. I'm assuming you've studied this thread up until now, (minus the superfluous bantering) and have gained a basic understanding of how validation works. But now comes the 9th, to throw their monkey wrench into the works, so it would appear. You know it is our contention that a demand for validation can be made at any time. With that in mind lets re-iterate what we find in the Mahon case: U.S. 9th Circuit Court of Appeals MAHON v CREDIT BUREAU 9717298v2 C. The Adequacy of Verification - S 1692g(b)4 [7] The Mahons also contend the Credit Bureau failed to verify their debt as required by 15 U.S.C. S 1692g(b). Under this section, a debt collector must provide verification of the debt to the debtor, upon written request made by the debtor within 30 days after receipt of the initial Notice. 15 U.S.C. S 1692g (b). If no written demand is made,"the collector may assume the debt to be valid." Avila v. Rubin , 84 F.3d 222, 226 (7th Cir. 1996); 15 U.S.C. S 1692g(a)(3). ... [9] The Mahons argue that their receipt of the September 21, 1995 Notice cannot be presumed because, they contend, a genuine issue of fact exists as to whether subsequent letters sent to them by the Credit Bureau were returned as undeliver- able. We reject this argument because it is contrary to the evidence and fails in any event to rebut the presumption of receipt of the September 21, 1995 Notice. Mr. Bellisario's deposition testimony and the Credit Bureau's business practice established that no letters sent to the Mahons by the Credit Bureau were returned as undeliverable. Moreover, even if letters subsequent to the September 21, 1995 Notice had been returned, without any evidence that the September 21, 1995 Notice was returned, the inference would be that it was not returned. This would tend to establish its receipt by the Mahons, apart from the common law Mailbox Rule presumption; and, in any event, that presumption is not rebutted by the absence of proof that the September 21, 1995 Notice was returned to the Credit Bureau. [10] We conclude the evidence established, without a genuine dispute of any material fact, that the Notice sent to the Mahons on September 21, 1995 was received by them shortly thereafter. They did not request verification of the debt to Dr. Bowen until June 5, 1996, almost nine months later. For their request to have been effective, it had to be made within thirty days from the date they received the Notice from the Credit Bureau. 15 U.S.C. S 1692g(a)(3). The Mahons' tardy request for verification of the debt, therefore, did not trigger any obligation on the part of the Credit Bureau to verify the debt. Astonishing! This court answered their own question, and that is; "What happens if the Val. demand is tardy"? They still cannot see the obvious answer to their own question and proceed to inject their own warped opinion. "(b). If no written demand is made,"the collector may assume the debt to be valid." Avila v. Rubin , 84 F.3d 222, 226 (7th Cir. 1996); 15 U.S.C. S 1692g(a)(3)." We already agreed to that. There exists no argument on this fine point. If (and I say IF) an account goes beyond the first 30 days without demanding val. the collector may assume the debt to be valid. BUT THAT'S ALL THAT HAPPENS !!! But the 9th goes on to re-interpret the rest of Sec. 809 to mean that, and if I may paraphrase; "If one fails to demand val. within the 30 days he loses his right to do so forever more". lol If this were the case folks it would be established that after 30 days you owe the debt and there's nothing you can do about it. The CA's would file immediate liens on your property and begin aggressively confiscating your assets to effect immediate collection. We also know that proof that you actually received the first notice containing your right to dispute need not be proffered. They need NOT prove that you received it, only that they did in fact "send" it. This is at least one area where the 9th is correct. The "their word against mine" argument will NOT carry the day in court. Since this is the case, and we know that your dispute rights are required ONLY in the first notice, stop and think about what would happen if the 9th were correct. First of all the CA's would conveniently FORGET (which they are doing now with increasing regularity) to send that first notice knowing that all they have to do is "SAY" they sent it, wait 31 days, and then send a Sheriff out to your house to collect. Leave it up to the 9th and a Sheriff would be knocking on every 3rd door in neighborhoods all across the country. Why don't they do that? Because they 9th is dead wrong. Courts do make wrong decisions sometimes. A classic example is the Florida Supreme courts ruling that Al Gore won the 2000 election. Simply put, he did not. So the Supreme Court overturned their decision. They are today known laughingly as "The Florida Supremes". lol That's why we have a Supreme Court. Continued:
Re: Re: --> What Is Validation? Continued: Before we look at the 9th's histerical (I mean historical) decision making prowess, lets look at another silly interpretation. The Mahon court was also asked to address whether or not Credit Bureau did in fact provide proper verification: ... (3) holding that the Credit Bureau adequately verified the debt, as required by 15 U.S.C. S 1692g(b). We have jurisdiction under 28 U.S.C. S 1291, and we affirm. ... ... The Mahons' tardy request for verification of the debt, therefore, did not trigger any obligation on the part of the Credit Bureau to verify the debt. Even if it did, however, the Credit Bureau, when it received the June 5, 1996 request, promptly contacted Dr. Bowen's office, verified the nature and balance of the outstanding bill, learned that monthly statements had been sent from Dr. Bowen's office to the Mahons for over two years, and established that the balance was still unpaid. The Credit Bureau then promptly conveyed this information to the Mahons, along with an itemized statement of the account. Although the Mahons did not request verification of the debt within the time provided by the statute, the Credit Bureau properly verified the debt anyway So we see that, according to this illustrious court, the mere conveying of a simple statement is sufficient to properly verify the debt. ABSOLUTELY PREPOSTEROUS!!!! The court fails miserably to draw the important distinction between "verification" and "validation". Case evidence abounds that a mere statement in and of itself does not constitute validation. Yet the 9th, in it's infinite wisdom proclaims otherwise. The 9th also appears to imply that this statement need not originate from the OC but may emanate directly from the CA. But hey, at least they were "prompt". LOLOL We know better don't we? Rather than dwell on this point I'm just using it here to illustrate that these people are simply not the brightest bulbs on the tree. Again, section (C) of 809 was inserted to cover this point of the 30 day window. § 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. ANY COURT! Not even the 9th. This little tidbit appears to be a mere afterthought and is conspicuously absent from their opinion. Well ... don't take my word for it. Lets look at yet another episode of intellectual brilliance by the 9th. And also take a look at what some others have had to say about this magnificent court. http://www.foxnews.com/story/0,2933,56310,00.html SAN FRANCISCO â?? Politicians on both sides of the aisle decried a federal appeals court's declaration that reciting the Pledge of Allegiance in public schools is unconstitutional because of the words "under God" inserted by Congress in 1954. The Wednesday ruling, if allowed to stand, would mean schoolchildren could no longer recite the pledge, at least in the nine Western states covered by the court. Critics of the decision were flabbergasted and warned that it calls into question the use of "In God We Trust" on the nation's currency, the public singing of patriotic songs like "God Bless America," even the use of the phrase "So help me God" when judges are sworn into office. The case was brought by a California man who objected to his daughter being compelled to listen to her second-grade classmates recite the pledge. In a 2-1 decision, the 9th U.S. Circuit Court of Appeals said the phrase "one nation under God" amounts to a government endorsement of religion in violation of the separation of church and state. Leading schoolchildren in a pledge that says the United States is "one nation under God" is as objectionable as making them say "we are a nation 'under Jesus,' a nation 'under Vishnu,' a nation 'under Zeus,' or a nation 'under no god,' because none of these professions can be neutral with respect to religion," Circuit Judge Alfred T. Goodwin wrote. In Canada, where President Bush was taking part in an economic summit, White House spokesman Ari Fleischer said: "The president's reaction was that this ruling is ridiculous." "The Supreme Court itself begins each of its sessions with the phrase 'God save the United States and this honorable court,'" Fleischer said. "The Declaration of Independence refers to God or to the creator four different times. Congress begins each session of the Congress each day with a prayer, and of course our currency says, 'In God We Trust.' The view of the White House is that this was a wrong decision and the Department Justice is now evaluating how to seek redress." The ruling was also attacked on Capitol Hill, with Senate Majority Leader Thomas Daschle, D-S.D., calling it "just nuts." After the ruling, House members gathered on the front steps of the Capitol to recite the pledge en masse â?? the same place they defiantly sang "God Bless America" the night of the Sept. 11 attacks. And senators, who were debating a defense bill, angrily stopped to unanimously pass a resolution denouncing the decision. The government had argued that the religious content of "one nation under God" is minimal. But the appeals court said that an atheist or a holder of certain non-Judeo-Christian beliefs could see it as an endorsement of monotheism. The 9th Circuit covers Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington state. Those are the only states directly affected by the ruling. However, the ruling does not take effect for several months, to allow further appeals. The government can ask the court to reconsider, or take its case to the U.S. Supreme Court. Sen. Kit Bond, R-Mo., was one of many lawmakers who immediately reacted in anger and shock to the ruling. Harvard scholar Laurence Tribe predicted the U.S. Supreme Court will certainly reverse the decision unless the 9th Circuit reverses itself. "I would bet an awful lot on that," Tribe said. The 9th Circuit is the nation's most overturned appellate court â?? partly because it is the largest, but also because it tends to make liberal, activist opinions, and because the cases it hears â?? on a range of issues from environmental laws to property rights to civil rights â?? tend to challenge the status quo. And Again: http://www.foxnews.com/story/0,2933,56322,00.html The Senate voted 99-0 on Wednesday to condemn the 9th Circuit Court's decision ... On Wednesday, about 100 members gathered on the steps of the Capitol to pledge their allegiance and immediately followed the recitation of the pledge with a chorus of Irving Berlin's "God Bless America." "The view of the White House is that this was a wrong decision and the Department of Justice is now evaluating how to seek redress," he added. Congressional reaction was sharp, immediate, and unkind. "Just nuts," Senate Majority Leader Tom Daschle, D-S.D., said. "Stupid, stupid," echoed Sen. Robert Byrd, D-W.Va. "Disgraceful," said Sen. Zell Miller, D-Ga. "Political activism run amok," decided Sen. George Allen, R-Va. "27 of 29 9th Circuit decisions HAVE BEEN OVERTURNED so that tells you that the 9th Circuit is out of step with the rest of the federal judiciary," said Sen. Charles Grassley, R-Iowa. "I've been searching for a nice way to put it since I first heard about this ... There isn't. This is idiotic," said Rep. Bob Barr, R-Ga. I've been searching for a nice way to put it too. Here's my bottom line on the 9th, and posited as kindly as I can make it; THESE PEOPLE ARE ENTIRELY TOO STUPID TO BE ENTRUSTED WITH THE AWESOME RESPONSIBILITY OF DECIDING WHEN TO TAKE THEIR NEXT POTTY BREAK, LET ALONE SIT ON AN APPEALS COURT !!! In fact, as indicated above, out of the last 29 decisions this court has been overturned 27 times, (not a misprint). And that's NOT counting the Pledge of allegiance decision. The court saw what was coming and suspended enforcement, "pending further review". LOL I love that, "pending further review". Believe me I could go on and on. But I shant belabor the point. Exercise: Go to www.google.com and click on "Advanced Search". Insert the following criteria: With ALL of the words: "overturned" With the EXACT phrase: "9th circuit court" What to do, what to do: Continued:
Re: Re: --> What Is Validation? Continued: Well ... I'm not gonna tell ya. Actually that ought not be very hard to figure out at this point. Once your adversary knows that you know how rediculous his Mahon cite is he'll back off, trust me. I don't want to tell you what to do. I want you to figure that out for yourself. Suffice it to say you have ample ammunition to have one hell of an interesting convertsation with your adversary about his Mahon quote. Whether you address it in written form (which I would do) or verbally, make sure he understands these few talking points (although perhaps not in so many words): 1) You must think I'm an idiot 2) I don't like it when people assume I'm an idiot 3) You are the one who looks like an idiot 4) Wanna make yourself REALLY look like genius bring it up to the judge you and I get, he'll get a real kick outta this one. The Jury will get a kick out of it too 5) You surely must be in dire straights to rely on the 9th ciruit 6) Granted the 9th ruled in your favor, so what. Perhaps it's now time to have this issue reheard, this time by a REAL/RESPONSIBLE court And my personal favorite: 7) You would have gained far more respect from me had you quoted Homer Simpson rather than the 9th Circuit Besides, as Pam so rightly points out most of us are not bound by the 9th anyway. In the good ole days we'd have to take this nonsense lying down and just suffer the consequences. Today however, thanks to CreditNet and CreditBoards you are no longer the victim. We remain at the forefront of credit correction evolution technology and there's not a damn thing they can do about it.
Re: Re: --> What Is Validation? fave Butch growling dude, I can't disagree with a thing you said, EXCEPT, if you live under the jurisdiction of the 9th District (which I and most other west coasters do, AHEM), save moving, you still have to pay attention to their brain-sets even knowing eventually they will be overturned -- one nation under God! You knew I couldn't resist that! I don't think it is fair to site the Mahon case without also mentioning everything subsequent to that ruling that negates it and provides an argument, WHICH, the Mahon's via their attorney DIDN'T do. The Mahon's argument was that they never received any statements from the doctor, who says he sent statements for 2 years before turfing it to a CA, and that they never received anything from the CA either. That's it, their whole argument, I didn't get anything. The problem with that is, they lived at the same house and address for 45 years! The Mahons never raised or disputed whether the CA sent them the required Notice (ONLY that they didn't receive it)and offered no evidence that the CA failed to follow its ordinary business procedure in sending them the Notice. Living at the same place for 45 years, coupled with those 2 things, I don't think it was a stretch for the even loopy 9th Circuit to rule based on the information provided by the CA on it's procedures that the letters were mailed. If you can determine they are mailed then the common law mailbox rule kicks in -- there's the delivery. And that's just what the Court found. The Mahon's were basing their case on not having received anything (which they offered nothing to support -- only requiring the CA to convince the court that it did) and the CA refuted that. Because they never presented anything or questioned the system of the CA at all, it was never argued. The court only rules on what it is presented -- That was the Mahon's own fault I say for not presenting anything. They were only saying that the CA had no PROOF of the mailing, and indeed they didn't, they only had their computerized system which was accepted by the court because the Mahon's didn't challenge it. Should they have challenged it maybe their practices would have been more closely scrutinized, but they didn't, so it's moot. The meat of the Mahon's argument was the word "communication" as used and defined by the FCRA. That it implies an interactive exchange and proof of receipt -- since there was no exchange nothing could have been communicated as required. When the court held that the word was used as a noun and not a verb, that was that. The Mahon's didn't present or argue anything to the contrary. Then there's the tardy issue, which the loopy ones did hold, however, the Mahon's never argued nor presented for the court anything further, like FDCPA (c): (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. They never presented the "assume the debt's validity" They never presented the Wollman letter They never questioned the amount being claimed due -- so the court went on to find that having called the doctor and relaying that information with the perk of an itemized statement was enough verification. Well, no one questioned it, that's the problem, so it was enough for the court. ok, I wanted this to be short, so much for that. If I were you, ndguy, and your attorney isn't familiar with the FCRA and FDCPA, give him what he needs to refute that case: FDCPA Section 809: http://www.ftc.gov/os/statutes/fdcpa/fdcpact.htm#809 Be SURE to include this: (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. Spears v Brennan: 7th Cir. Ct. of Appeals, March, 2001 http://www.ai.org/judiciary/opinions/archive/03260101.ewn.html "The contract in no way provides sufficient verification of the debt. A review of the document reveals that it identifies only the terms of Spearsâ?? loan, including a 17.99% annual interest rate and the original loan amount of $2,561.59. The loan agreement contains no accounting of any payments made by Spears, the dates on which those payments were made, the interest which had accrued, or any late fees which had been assessed once Spears stopped making the required payments. Indeed, the existing unpaid contract balance at the time Brennan sent the debt collection notice was at least $350.00 more than the original loan amount. Therefore, Brennan violated 15 U.S.C. § 1692g(b) when he failed to cease collection of the debt by obtaining a default judgment against Spears after Spears had notified Brennan in writing that he was disputing the debt but before Brennan had mailed verification of the debt to Spears. See footnote We reverse the trial courtâ??s entry of summary judgment in favor of Brennan on this issue." The FTC Wollman letter: http://www.ftc.gov/os/statutes/fdcpa/letters/wollman.htm "This is in response to your letter of February 9, 1993 to David Medine regarding the type of verification required by Section 809(b) of the Fair Debt Collection Practices Act. You ask whether a collection agency for a medical provider will fulfill the requirements of that Section if it produces "an itemized statement of services rendered to a patient on its own computer from information provided by the medical institution . . .â? in response to a request for verification of the debt." And mostly importantly, be sure he reads the purpose of the FDCPA, it addresses the actions of Debt Collectors, NOT consumers. CA's can't dictate to you, the laws apply to them and their actions in attempting to collect a debt or alleged debt, as the case may be. Therefore, they can't tell you that you lose your right to anything within 30 days, you don't. They can only assume that the debt is valid and carry-on with their happy collection methods. Only a law that applies to you or a Judge can impose something on you. A CA has neither. C'mon fave Butch growling dude, you have cornfields, buckeyes and the mob -- we have DRY heat, cactus and the 9th Circuit. Sassy EDITED to add: The judge in Spears v Brennan goes further than the statement above. He describes a process of validation and the minimum necessary to establish proof. One thing building upon the other.
Re: Re: Re: --> What Is Validation? 2 minutes, eh? Are you saying you are in my head, fave Butch growling dude? LOL No worries on being hard on the 9th Circuit, they're loons. You said it best in the 1st minute of those 2 minutes, in the Mahon case and the one that keepmine linked, Lee was it? THEY ruined their cases for themselves. It's a shame though that CA Attorneys are getting away with using them as intimidation, trying to confuse and befuddle. Sassy
Re: Re: Re: --> What Is Validation? The 9th Circuit also brought us Nelson vs Chase Manhattan. Ithink it's a mistake to think just because the 9th issued the ruling it's lightweight. This ruling is 4 years old and still standing. If it were a weak ruling with the sheer number of lawyers on the west coast as well the number of times CA lawyers site this case nationwide, it seems like the Supreme Court would have had a shot at it by now. They haven't and I imagine there is a good reason why noone has appealed.
Re: Re: Re: --> What Is Validation? The Mahon case is good for siting that proof of receipt of dispute (mini-miranda) rights isn't required of CA's under the FDCPA. We never loose the right to dispute, I say, based on Section 809(c) and the FDCPA says the notice has to be provided, provided isn't received -- the CA's only have to show that they followed routine and commonly accepted business practices in mailing. If you don't receive your notice but discover the debt being claimed, dispute it's validity when you discover it. There's the lesson, but the Mahon case says that their request was tardy because it wasn't made within the initial 30 day window BUT found that nonetheless, upon dispute, the CA contacted the doctor's office (OC) and verified the collection amount alleged and that it was unpaid. The CA forwarded that information via a letter with an itemized statement to the Mahons. That was sufficient verification of the debt's validity for the Court as the validity of the debt was never questioned in the first place. I think the Mahon case and it's use in holding that a validation dispute outside of the initial 30-day window makes the request tardy is wrong and there are plenty of subsequent cases to back that up. As well as additional cases holding that one cannot waive their FDCPA rights and protections. The Mahons based their case on not having received the required validation notice. Once they did request validation, they never questioned that the bills weren't theirs nor that the amounts claimed weren't right, only that the CA didn't have PROOF that they had received their mini-miranda rights -- which they argued was a communication involving an interactive exchange, not just a notification. I think the case is more useful in defining communication myself and that was is enough for verification of a debt's validity depends on the individual Judge as well as the individual case. The Mahon case is a good example of the individual Judge factor, I say. Quixote's case is stellar for that as well. Judges are individuals, people, not robots with a gavel. They decide what is acceptable as proof in their courts and weigh that against not only how they themselves interpret the law but how it is argued and presented. It too, depends on what each case is about and they are all different, what is presented and what is focused on. There is a huge difference between a wrong balance being alleged and an account that doesn't belong to someone. There is a huge difference in saying the CA violated the FDCPA because it cannot prove that it sent me, nor did I receive, the required validation notice and saying that a CA failed to provide the required validation after a dispute was made or refused to accept that something was disputed. Identity theft requires more documentation than a wrong balance. If we are pursuing FDCPA violations, we have to be able to prove them. I swear to tell the truth won't get anyone very far without something to back it up. The Lee case wasn't submitted for publication but it confirms the inner dealings and exchanges in a court room. It can never be so black and white and sometimes court cases are won and lost on the required procedures in filing and presentation alone as well as intent of those involved. Whether the debt is valid or not and the consumer's actions aren't supposed to matter, however, you can't present a case alleging violations by the CA when your own actions are shady and questionable, even if your actions aren't specifically weighted by the court officially, surely they are clouding the proceedings and creating a dark cloud for the Court to consider your case under. Both cases reaffirm that alleging you didn't receive the notice and trying to make the non-receipt a violation equate to it wasn't provided as required because I didn't receive it, won't work. Not alone. The CA used an address obtained from a police report to confirm that he indeed did live at least at one of the addresses that the statements were mailed to. Just like the Mahons having lived in the same place for 45 years -- both of those only served to discredit both Mahon and Lee and their cases were primarily based on no proof of having received anything. I'm no Judge and even I find that doubtful. Eventually, validation documentation was refused without an initial payment of $100.00 for which the Lees were refused a receipt. I have a problem with that BUT it's not a violation of the FDCPA as they were pursuing. Then the Lees had numerous telephone coversations with the CA's, for every verbal violation they alleged, the CA countered with as a matter of our policy and procedure our employees...verbal just doesn't get it, not ever. Important too, especially in the Lee case, there are the findings required for a Judge to grant a summary judgment, that's procedural, going beyond allegations and looking to the facts. The facts that were presented on paper didn't allow the Judge to do anything but what he/she did, deny the motion. I noted in the Lee case that all but one of the FDCPA violations being pursued were disregarded on their face because they were time-barred by the SOL for pursuing the same. The Lees never claimed they were denied their right to dispute nor did they ever dispute in writing (in writing has since been successfully argued as a non-requirement for alleging a dispute, however, validation still isn't required when something is disputed verbally, only the dispute notation is required and it takes you back to having to prove something as verbal only). The Lees said they weren't given the required validation notice as required, once the court decided it was mailed and likely received, that falls apart. They only fessed to receiving 1 letter and that letter they said didn't disclose the CA's were "debt collectors" -- those words specifically. Nelson v Chase Manhattan isn't a weak ruling, I say, though, I had forgotten that was decided as well by the 9th Circuit. It has the weight of the FTC behind it too -- that would be a hard one to fight. The cases are weak, I say, both Mahon and Lee, in the use as citations by CA's for everything BUT proof of receipt not being required. That's not how Mahon is being used though. Weak, not because of how the Judges ruled, given what they were presented and more importantly what wasn't presented, they ruled as they had to. Weak because the arguments depended on the Judge finding that proof was indeed required -- once that failed, so did the rest of their cases. The sure thing is, you can't hang your hat and base a case on saying the CA's violated the FDCPA because they have no PROOF that you received your required notice therefore they didn't provide it as required. That's a lot of typing, keepmine, to say I'm flying with ya ;-) and agree with you absolutely except for how the cases are being used by the CA's. The cases are useful and valid as they apply to the mini-miranda rights and whether a CA has to prove it sent them or prove that you received them. The 30 days begin upon receipt. They aren't valid in establishing what validation is or isn't nor for insisting that we lose our right to receive validation if not made within the initial 30 day timeframe of an initial communication. You can't discount the rulings of the district just because most of their rulings are eventually overturned, until overturned they are fair game and carry weight, nor because of their stance on the Pledge of Allegiance. Though, I will call on passionate fave Butch growling dude to come visit the next time our local school attempts to say and enforce that because of that ruling and until it's decided in it's finality, we can't say the Pledge of Allegiance at all. Sassy Here's the cases if anyone is interested: Mahon v Credit Bureau of Placer County, 9th Circuit Court of Appeals, 1999 http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=9th&navby=case&no=9717298v2&exact=1 Lee v Accutrack, District Court of Hawaii, 1999, NOT released for publication http://216.239.41.100/search?q=cach...credit+bureau+of+placer+county&hl=en&ie=UTF-8[/url]
Re: Re: Re: Re: --> What Is Validation? Well said Sassy. I can tell you put a lot of thought into your post. We're glad to have you on this thread. The above portion of your comment is especially troubling to me. This is an issue I've been looking at for some time and I honestly cannot figure out what we, as consumers, can do about it. Put simply; Ca's know that all they have to do, if or when they end up in court, is assert that they sent the required notice contained the Miranda, and judges will accept that. Even if it's necessary to "doctor" their records to show they did send it they certainly will be happy to do so. Therefore, MANY CA's are not even bothering to send any notices, especially when you consider the expense invloved. KathyCMH is in my city and has dealt with a CA I'm familiar with. While on the phone with one of their "newbie" reps., the rep stated outright, "Oh we never send notices. We just post the account and wait for the consumer to have trouble". That puts us (consumers) in a tough spot, obviously, because debt can appear out of nowhere. Unless we watch our reports like Hawks we wouldn't even know it until we're turned down for credit. Congress simply MUST figure SOMETHING out here. This is ridiculous. Thanks for your input.
Re: Re: Re: Re: --> What Is Validation? QUESTION ON VALIDATION: THE WORD "OBLIGATION" I was reading the FDCPA and I took the section: DEBT VALIDATION to mean OBLIGATION VALIDATION. i.e. (5) The term "debt" means any obligation or alleged obligation of a consumer to pay money arising out of a transaction in which the money, property, insurance or services which are the subject of the transaction are primarily for personal, family, or household purposes, whether or not such obligation has been reduced to judgment. Now from contract law, to get to the point where a party of a contract is 'obligated' a lot of things have to happen: 1) offer and acceptance, 2)meeting of minds, 3) promise for a promise .... etc. I would think that to verify, validate a debt all that has to be established is if all the conditions of a contractual obligation have been met. Would anybody care to comment on that. I'm trying to do some validation of some debts with some CA'S, and If I have to go to court these is how I'm going to argue my point: "They never verified/valdated my contractial obligation and mentioned in the FDCPA." ... Any comments would be appreciated.
Re: Re: Re: Re: Re: --> What Is Validation? You're exactly right Movin. There DOES need to be all components present before an agreement exists, and unless the agreement does exist then there's no agreement, no meeting of the minds, NO OBLIGATION to repay. If the OC is stupid enough to give you a loan without your promise to repay it then it's just too bad for them. Here's the problem. Obviously you know we live in a country of law, not men. We live in a contract oriented country. To complete the contract a mechanism is already in place that is presumed to establish the fact that a "meeting of the minds" did in fact occur. Your Signature Lack of a signature is presumed to mean no meeting of the minds occurred. That's why we want that signature in validation. "The device containing my signature that makes me liable, (obligated)". Conversely, the door swings both ways here. If they DO provide your signature a court will presume a meeting of the minds did in fact occur. A signature does in fact prove you're obligated. If you're trying to argue that no meeting of the minds occurred even in the face of your signature, that'll be tough. Perhaps innocent by reason of insanity would work easier. Now back to that first paragraph. Courts assume that OC's are not so stupid as to give you money without this meeting of the minds. They may produce a preponderence of evidence in other ways proving that you did use the account, such as copies of checks, or purchase slips, etc., etc. So a court can assume a meeting of the minds MUST have occurred, even without this signature. It's not carved in stone that you will win if they can't produce a signature. But you'll have a much better chance if they can't. Naturally, demanding this signature is the starting point of all our val. attempts. Great question.
Re: Re: Re: Re: Re: --> What Is Validation? Butch , Thank You very much. After reading some of the other boards, they argue: ... "Brennan (plaintiff collection agency attorney) violated 15 U.S.C. § 1692g(b) when he obtained a default judgment against Spears (defendant) after Spears had notified Brennan in writing that the debt was being disputed and before Brennan had mailed verification of the debt to Spears. " This above mentioned case and the tenents behind it that certain conditions( "obligations") were not meet and people argue this case to prove validation of debt, and what entitles validation. There is also a mention in FDCPA about "verification" of debt. But, I think that if we as consumers focus on the word "DEBT" as defined in the FDCPA and the process as you mentioned above to create an obligation, we as consumers can save ourselve alot of headaches. I'm not saying not to use all those case letters, but I've been at this credit repairt stuff for 2 1/2 months and now that I'm in the validation processes it never ceases to amaze me the ignorance and deception of these collection agencies; and that also goes for the CRA'S. Anyhow, thank you very much for, confirming my interpetation of the FDCPA, ... I always knew that CONGRESS had put the key word in there to protect the consumer. ... So do you recommend that we focus on DEBT (as defined in the FDCPA) as opposed to "validation" and "verification". I would appreciate you perspective on this!!!! Thanks in advanced ..Oh and by the way, I have a few debts, in which the OC lost my original contract, they are trying to charge me all the extra collection fees....
Re: Re: Re: Re: Re: --> What Is Validation? Butch , Thank You very much. After reading some of the other boards, they argue: ... "Brennan (plaintiff collection agency attorney) violated 15 U.S.C. § 1692g(b) when he obtained a default judgment against Spears (defendant) after Spears had notified Brennan in writing that the debt was being disputed and before Brennan had mailed verification of the debt to Spears. " This above mentioned case and the tenents behind it that certain conditions( "obligations") were not meet and people argue this case to prove validation of debt, and what entitles validation. There is also a mention in FDCPA about "verification" of debt. But, I think that if we as consumers focus on the word "DEBT" as defined in the FDCPA and the process as you mentioned above to create an obligation, we as consumers can save ourselve alot of headaches. I'm not saying not to use all those case letters, but I've been at this credit repairt stuff for 2 1/2 months and now that I'm in the validation processes it never ceases to amaze me the ignorance and deception of these collection agencies; and that also goes for the CRA'S. Anyhow, thank you very much for, confirming my interpetation of the FDCPA, ... I always knew that CONGRESS had put the key word in there to protect the consumer. ... So do you recommend that we focus on DEBT (as defined in the FDCPA) as opposed to "validation" and "verification". I would appreciate you perspective on this!!!! Thanks in advanced ..Oh and by the way, I have a few debts, in which the OC lost my original contract, they are trying to charge me all the extra collection fees....
Re: Re: Re: Re: Re: --> What Is Validation? Butch , Thank You very much. After reading some of the other boards, they argue: ... "Brennan (plaintiff collection agency attorney) violated 15 U.S.C. § 1692g(b) when he obtained a default judgment against Spears (defendant) after Spears had notified Brennan in writing that the debt was being disputed and before Brennan had mailed verification of the debt to Spears. " This above mentioned case and the tenents behind it that certain conditions( "obligations") were not meet and people argue this case to prove validation of debt, and what entitles validation. There is also a mention in FDCPA about "verification" of debt. But, I think that if we as consumers focus on the word "DEBT" as defined in the FDCPA and the process as you mentioned above to create an obligation, we as consumers can save ourselve alot of headaches. I'm not saying not to use all those case letters, but I've been at this credit repairt stuff for 2 1/2 months and now that I'm in the validation processes it never ceases to amaze me the ignorance and deception of these collection agencies; and that also goes for the CRA'S. Anyhow, thank you very much for, confirming my interpetation of the FDCPA, ... I always knew that CONGRESS had put the key word in there to protect the consumer. ... So do you recommend that we focus on DEBT (as defined in the FDCPA) as opposed to "validation" and "verification". I would appreciate you perspective on this!!!! Thanks in advanced ..Oh and by the way, I have a few debts, in which the OC lost my original contract, they are trying to charge me all the extra collection fees....
Re: Re: Re: Re: Re: --> What Is Validation? In response to :.... Butch , Thank You very much. After reading some of the other boards, they argue: That's no argument MovingonUp, Spears v Brennan is one of the best cases supporting your position. You're misdreading it, if you intend to have a papertrail that is defendable, you have to play by the sections where a violation can occur and you have a cause of action -- that section involves "verification" or "validation" depending on what you are pursuing. ....... > Butch Thank You very much,again!!! I didn't want to do the full reference to the previous post because I know is slows down NET access and especially on such an important topic. I'm definatly going to get into "Spears v Brennan ", use the old highlighters as you mentioned above. I especially want to thank you for clearing up the relation between "debt", "validation" and "verification". ..Thanks again, and thanks for quick response, .. Great board. Sincerely MOVINGONUP
Re: Re: Re: Re: Re: Re: --> What Is Validation? Try to remember as you read Spears, that it focuses more on what validation isn't, as opposed to what it is. For example; validation ISN'T just a signed contract, etc. Many presume that Spears defines what Val. IS, but it doesn't. Happy reading.
Re: Re: Re: Re: Re: --> What Is Validation? We talk alot on this board about CC debt and/or loans. I'd love some clarity about services. Break that down even more... you have services where someone physically does something for you (carpet cleaners, photographers, etc.) and services where someone represents you (attorneys, doctors, etc.). If I sign into a contractual agreement and the OC can provide signature and what appears to be an itemized bill including payments and late charges, that takes care of 1 & 2 from above. But how do services document #3? If it were a carpet cleaner and the carpet still looked terrible, you could take a picture of the terrible carpet. However, in the case of attorneys, doctors, etc. how do you ensure a promise for a promise? Medical doctors are usually pretty good about letting you know in advance of basic charges, but regardless of what happens in the office the charges are never really basic are they? Most of us simply pay the bill as a fact of life if we want to remain healthy. And in my instance with the attorney bill... the attorney did not prepare a case. She promised to represent me and do her best to keep me from losing my case, and as the time came closer to the trial she assured me we had a strong case. But when it came down to it she cited that because I was "innocent" it was entirely up to the defense to prove otherwise and she didn't prepare anything. (!!) I spent hours and hours developing a case that proved that not only should I win the case, but the other person should be highly penalized for their own actions. She didn't use any of her own stuff or any of mine. When the other party deposed me, she refused to depose them back even though it ended up being a major turning point in court that we could have won on. She "forgot" to have a court reporter assigned. And when it was all said and done and I lost because the judge didn't base his decision on whether or not I was innocent but who present the better case, she refused to file a Motion to Reconsider until the final bill was paid in full. So in this instance... the OC can provide a contract and a "detailed" account filled with her own numbers. But can she provide that she fulfilled her end of the contract? Even if I could provide proof that what the judge saw could have been altered if she would have prepared a case, will a promise for a promise stand up here??? Will a judge even care?
Re: Re: Re: Re: Re: --> What Is Validation? Question specifically for Butch. .... After making THE post I noticed it was SASSYINAZ that responded, I do agree with many of the things that she said (I assume a she, no guy would call himself SASSY), but agian the problem I've always had with SPEARS VS. BRENNEN is that although everything they arqued and proved was correct from a "contract law" perspective, it was implemented in reverse order: Which is understandable becuase the lawyer jumped the gun. ... anyways I liked SASSYS' answer I would like to get BUTCH'S response to same exact post, so. BUTCH'S what is your SPECIFIC PERSPECTIVE on the following: After reading some of the other boards, they argue: ... "Brennan (plaintiff collection agency attorney) violated 15 U.S.C. § 1692g(b) when he obtained a default judgment against Spears (defendant) after Spears had notified Brennan in writing that the debt was being disputed and before Brennan had mailed verification of the debt to Spears. " This above mentioned case and the tenents behind it that certain conditions( "obligations") were not meet and people argue this case to prove validation of debt, and what entitles validation. There is also a mention in FDCPA about "verification" of debt. But, I think that if we as consumers focus on the word "DEBT" as defined in the FDCPA and the process as you mentioned above to create an obligation, we as consumers can save ourselve alot of headaches. I'm not saying not to use all those case letters, but I've been at this credit repairt stuff for 2 1/2 months and now that I'm in the validation processes it never ceases to amaze me the ignorance and deception of these collection agencies; and that also goes for the CRA'S. Anyhow, thank you very much for, confirming my interpetation of the FDCPA, ... I always knew that CONGRESS had put the key word in there to protect the consumer. ... So do you recommend that we focus on DEBT (as defined in the FDCPA) as opposed to "validation" and "verification". I would appreciate you perspective on this!!!! ... I'm trying to put something on paper that gets these CAs to take the time to fully validate the "OBLIGATION" part of the debt instead of wasting everybody's time in court!!! Thanks in advanced ..Oh and by the way, I have a few debts, in which the OC lost my original contract, they are trying to charge me all the extra collection fees.... MOVING ON UP ... sorry for the confusion, I'm new to the board and not too familiar with the format.
