Am I being too lenient...sorry so long! I had to sut out some parts of the lagal stuff but you can get the picture Legal Counsel, You have filed a judgment against me. I have never been shown any proof of this debt as required by Federal Law. Please note this excerpt from the FDCPA pertaining to validation. I have bolded the applicable section for your convenience. § 809. Validation of debts [15 USC 1692g] (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. The judgment was vacated On July 7th, 2003 and on July 21, 2003 you sent a letter acknowledging that court order to cease all collection activity and release any restrained accounts. Since that time I have sent you a validation request sent certified mail, return receipt requested, on June 25, 2003 received in your office by Bonnie Espinol on June 27, 2003, (copy enclosed) which I received no response to. I then sent another request for validation certified mail, return receipt requested on August 20, 2003, which was received in your office by Liya Krikheli on August 22, 2003(copy enclosed). In response to this I received a printout from your computer system with my name, address and social security number. This is NOT sufficient validation. For your convenience I have inserted the Wollman Opinion Letter from the Federal Trade Commission, as it clearly explains what and why validation of debts is required. Please pay special attention to the bolded section. (Edited for space) Also please see the decision of Spears vs. Brennan, which directly correlates to our mutual situation. Again, pay special attention to the bolded section: Issue Four: Failure to Cease Debt Collection (Edited for space) I have gone above and beyond what I should have had to do to get you to follow the laws that govern you. I have also spent countless hours trying to inform your company of their legal obligation. All of these documents are readily available on the Internet or in libraries. I am beginning to get quite frustrated with your obvious lack of knowledge of the laws that govern you as a debt collector. I have also never seen an accounting of how you arrived at the figure $2705.44, which is also my right according to the FCRA. I would like this forwarded to me immediately as well as the validation of this supposed debt. If I do not receive said validation and accounting, I will be forced to seek legal remedy. I also have another issue brought on by your letter of October 17, 2003. On this day you sent me a letter (copy enclosed) stating you have confirmed that this office has restrained and is holding your bank account pursuant to the enforcement of the above stated judgment. The vacating of the judgment is in effect until we go back to court. Unfortunately you asked for a continuance at our last court date. Please see below for yet another section of the FDCPA, which you have violated. There is a court order to cease collection activity and/or any garnishment or attachment until a decision is reached. § 807. False or misleading representations [15 USC 1962e] A debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section: (4) The representation or implication that nonpayment of any debt will result in the arrest or imprisonment of any person or the seizure, garnishment, attachment, or sale of any property or wages of any person unless such action is lawful and the debt collector or creditor intends to take such action. (5) The threat to take any action that cannot legally be taken or that is not intended to be taken. (6) The false representation or implication that a sale, referral, or other transfer of any interest in a debt shall cause the consumer to -- (A) lose any claim or defense to payment of the debt; or (B) become subject to any practice prohibited by this title. (7) The false representation or implication that the consumer committed any crime or other conduct in order to disgrace the consumer. (10) The use of any false representation or deceptive means to collect or attempt to collect any debt or to obtain information concerning a consumer. (11) The failure to disclose in the initial written communication with the consumer and, in addition, if the initial communication with the consumer is oral, in that initial oral communication, that the debt collector is attempting to collect a debt and that any information obtained will be used for that purpose, and the failure to disclose in subsequent communications that the communication is from a debt collector, except that this paragraph shall not apply to a formal pleading made in connection with a legal action. (12) The false representation or implication that accounts have been turned over to innocent purchasers for value. (13) The false representation or implication that documents are legal process. (14) The use of any business, company, or organization name other than the true name of the debt collector's business, company, or organization. (15) The false representation or implication that documents are not legal process forms or do not require action by the consumer. (16) The false representation or implication that a debt collector operates or is employed by a consumer reporting agency as defined by section 603(f) of this Act. I sadly regret the time I have had to spend drafting this letter and the others that have come before it. I am requiring that you do what is expected of you by me, the consumer and the Federal Trade Commission and send validation of this debt in the appropriate manner from the appropriate source. I expect this within 30 days as you have now had over 118 days to respond since my first letter. I can only assume you do not have this proof and if that is the case, I demand you drop these legal proceedings and immediately inform the courts that this judgment was filed in error. In addition I consider it harassment and extortion that you continue to send me letters stating that you have restrained my bank account. There is a court order staying you from doing so and you MUST abide by this.
I am no expert, just few small things ... "On June 25, 2003 I sent you a validation request via certified mail, return receipt requested. It was received in your office by Bonnie Espinol on June 27, 2003, (copy enclosed). As of today I have not received a response to this letter." "If I do not receive said validation and accounting in <insert number here> days from the date you receive this letter, I will be forced to seek legal remedy."
Hang on Jane. From what I can gather from your letter, I think I'd try a different strategy. More tomorrow. .
Thanks guys...Butch I'm waiting for your expertise...I didn't send it yet..A bit of background to help out: They filed a default judgment against me. I didn't even know until I got a letter from the court. I am in NY. This is the way they got the judgment. OC is Citibank, CA is Rushmore Recoveries, Atty for Rushmore is the one who filed the judgment. Also Citi has no record of me ever having a card that is in this situation. I have one that was paid in 1998 and that's it. They served me at an address I hadn't lived at for more than a year and I had filled out a change of address. A representative of the law firm went to the courthouse and said this person, with this SS# owes us this money. The court says you swear, can you sign this affadavit. The guy signs they get it. They "serve" me. I have no idea so I don't find out until the default judgment gets sent in writing to me. I go and file an order to show cause and the judgment is vacated. We have had one court date that they have asked for a continuance in Oct. The next date is Jan. 7th that is why I am trying to get them to drop the case before we go back. At least now I have some type of background on what I should do. Maybe I should consult with a consumer atty?
Right there's my point Jane. We make a mistake when we show our willingness to go round and round with these people. They have not validated, and it's not your job to show them how. (You don't want them to know how). We do get to a point I believe when we should completely change our stance. You're at that point. The change in attitude is simply, "You've screwed around now for months. You obviously cannot properly validate, therefore I'm entitled to the pressumption that your demand is erroneous. You have exactly 5 business days to delete everything, or I'm going to sue." Jane, have you read Performance Capital Management V. FTC? It's my favorite case. Just for fun, here it is again: For Release: August 24, 2000 California Debt Collection Agency Settles FTC Charges Of Fair Credit Reporting Act Violations The Federal Trade Commission today announced a proposed settlement with a California-based debt collection agency, Performance Capital Management, Inc. (PCM), under which the company would be fined $2 million and enjoined from what the FTC called "serious violations" of Section 623 of the Fair Credit Reporting Act (FCRA). According to the terms of the proposed settlement, payment of the fine would be waived due to the company's poor financial condition. The FCRA regulates the collection and dissemination of sensitive information about consumers by credit bureaus and other types of consumer reporting agencies. Section 623 was added by Congress in the 1996 amendments to increase the accuracy of consumer reports by imposing specific duties upon any entity that furnishes information to a consumer reporting agency. The settlement announced today is the Commission's first enforcement action under Section 623. PCM is a California corporation with headquarters in Irvine, California. It specializes in buying and collecting consumer debt that has been charged-off by the original creditor as uncollectible. PCM is currently in bankruptcy, and the Commission has waived the $2 million civil penalty based upon the financial condition of the company. In its complaint against PCM, the Commission alleges that PCM violated a number of requirements imposed by Section 623. First, the complaint alleges that PCM provided credit bureaus with inaccurate "delinquency dates" for its accounts. Section 623 defines the delinquency date for an account as the month and year that an account first became delinquent. This date is important because it is used by credit bureaus to measure the seven-year period that negative credit information may be reported under the FCRA. According to the Commission, PCM systematically reported accounts with delinquency dates that were more recent than the actual date of delinquency, resulting in negative information remaining on consumers' credit reports long beyond the seven-year period mandated by the FCRA. The Commission's complaint also alleges that PCM violated Section 623 by ignoring or failing to investigate consumer disputes referred by credit bureaus, and by failing to notify credit bureaus when consumers disputed collection accounts with PCM. The proposed settlement would require PCM to provide correct delinquency dates when reporting collection accounts to credit bureaus. The agreement also mandates the proper investigation of disputes. Where PCM learns during an investigation that account records no longer exist for a disputed debt, the company must delete the information from credit bureau files within five days. Finally, the agreement would require PCM to report as "disputed" all accounts where consumers have disputed the information with PCM. The Commission vote to file the complaint and proposed settlement was 5-0. The proposed settlement will be presented to the U.S. Bankruptcy Court for the Central District of California, which is overseeing PCM's bankruptcy. If approved, the agreement will be filed in the U.S. District Court for the Central District of California. Notice the FTC's position here is unanimous. You also haven't said how much the demand is for. If it's for more than $2,000, I might get them on the phone and offer 20% to make it all go away. The alternative is "see ya in court." There's a time when "HEY I'VE PI$$ED AROUND WITH YOU CLOWNS FOR MONTHS NOW. GET IT OFF MY REPORT IMMEDIATELY." You might need to get a little mad.
That said, it's always a good idea to consult with an atty. once legal action ensues. I'd just lead him in the direction I just talked about. If they don't drop it, you can figure out some counter claim. .
Thanks Butch, great excerpt. I'll add that to my court papers. Only thing is they haven't reported it...they just filed a judgment against me.
