At the request of LKH, i am posting an estoppel for an OC. In my opinion, the laws of the FCBA are similar to the FDCPA in that, a creditor must supply a consumer of all info. pertinent of the alleged debt. I believe Lizardking is the originator of this letter and has posted extensively on it in the past. In his potential lawsuit versus EXP, the attorney immediately deleted his charge-off accts. because of his claim of 'estoppel by silence' The letter is basically the same as the regular estoppel but substitutes FCBA in place of FDCPA. Again, i feel it is extremely important to understand the concept of 'estoppel' BEFORE sending out the letter. So hopefully, the legal minds and link gurus can post the premise behind 'estoppel' and why it is a common affirmative defense/agrument in court. humblemarc To Whom It May Concern: As I have not heard back from you in over 30 days, regarding my demand for proof, since my notice of dispute dated August 21, 2001, and you have not supplied the demanded proof of the alleged debt, under the doctrine of Estoppel by silence, Engelhardt v Gravens (Mo) 281 SW 715, 719, I may presume that no proof of the alleged debt, nor therefore any such debt, in fact, exists. In a good faith effort to resolve this matter amicably, I restate my demand for proof of the debt, specifically the alleged contract or other instrument bearing my signature, as well as proof of your authority in this matter. Absent such proof, you must terminate any collection action and correct any erroneous reports of this debt as mine. For the record, I state again that as I have no account with you, nor am I your customer, nor have I entered into a contract with you, I must ask for the following information: 1) Please evidence your authorization under 15 USC 1692 (e) and 15 USC 1692 (f) in this alleged matter. 2) What is your authorization of law for your collection of information? 3) What is your authorization of law for your collection of this alleged debt? 4) Please evidence your authorization to do business or operate in the state of ---------. 5) Please evidence proof of the alleged debt, including specifically the alleged contract or other instrument bearing my signature. You have 15 days from receipt of this notice to respond. Your failure to respond, on point, in writing, hand signed, and in a timely manner, will work as a waiver to any and all of your claims in this matter, and will entitle me to presume that you reported this account to Transunion, Experian, Equifax, Innovis, and any other applicable agencies, in error, and that this matter is permanently closed. Your continued silence is unacceptable. You are currently in violation of the Fair Credit Reporting Act and the Fair Credit Billing Act. You have 15 days to remove the invalid debt from my credit files with the four primary credit-reporting agencies and any other applicable credit-reporting agencies. You are also instructed to send me copies of the UDF(s) sent to Transunion, Equifax, Experian, Innovis, and any other applicable credit reporting agencies noting the deletion of these accounts. Failure to respond within 15 days of receipt of this registered letter (with return receipt) will begin my small claims action against your company. I will be seeking $5,000 in damages for the following: 1) Defamation 2) Negligent Enablement of Identity Fraud 3) Violation of the Fair Credit Reporting Act 4) Violation of the Fair Credit Billing Act After obtaining the judgment against your company, I will obtain a Writ of Execution from the Sheriffâ??s office in your county and I will begin the process of attaching property or funds to satisfy the judgment. For the purposes of 15 USC 1692 et seq., this Notice has the same effect as a dispute to the validity of the alleged debt and a dispute to the validity of your claims. This Notice is an attempt to correct your records, and any information received from you will be collected as evidence should any further action be necessary. This is a request for information only, and is not a statement, election, or waiver of status.
ok, thanks to my singing partner Sassy. Here's an thread discussing estoppel and it's many meanings. http://consumers.creditnet.com/straighttalk/board/showthread.php?threadid=26311 humblemarc
I heard an echo! It's a good letter, marc. I change the case citation when tweaking for my own needs and either put estoppel by silence or doctrine of estoppel. Only 'cause I've not read that case and don't know if it's applicable or not and if I ever had to appear in court with the correspondence I feel like I would need to have the case to back it up. Whereas the principle is very broad. Flick, sway, flick Sassy
Sassy, have you ever sued or threatened to sue any creditors/CRAs/CAs? humblemarc p.s. what's up with all the flaming threads? Everyone seems a little tense right now.
yep marc, I think there is only so far you can go with letters and disputing unless you are willing to end up in front of a judge eventually. Otherwise, disputing is pretty much your last and continuing option; hoping to eventually wear them down with a deletion. I don't think you should threaten to file suit unless you are prepared to follow through, for whatever reason, because that makes all your communications before that point silly and idle threats. I thought I'd end up in front of a judge with Bank One, then low and behold, the tradeline of much grief vanishes from all reports!!!! that was just last week so I am happy dancing. So, the answer is yes, my communications have come to threatening and I am prepared to do so, though I've not had to -- having my paperwork in order, wouldn't hold me back because I think you should do that with each communication. That's what makes me nervous about using the whole case citation (it's not available online, that specific case and I've not gone to a law library to search it out, but it's on the list). I don't doubt that it is applicable, I just don't know that for myself, and, as much as I love you all and trust your wise words, I have to know it for myself by double-checking. There's other cases though and the estoppel principle itself as a doctrine. I think it sounds just as good but isn't as specific. For myself, if I'm going to throw up citations and case law, I feel the same with lawyers spewing too, you have to be prepared that someone's gonna look that case up and see what the heck you're talking about and challenge you on it. I feel like, for myself anyway, I know others have successfully used the letter as is with the reference, but the process is a process and from the first letter you should be seeking resolution while keeping your butt covered and papers in order. The only thing I wonder about in referencing the FCBA is the timeframes and that would depend on whoever your creditor is, because they are specific. You could say that you didn't receive whatever bill or statement and I think they'd be smart to give you the benefit of that doubt. Sassy Edit: You could do the same with the FCRA sections on the duties and responsibilities of information furnishers. Either way or both ways, the requirement to provide proof is there, and if you end up in a court room without the proof, that would be the first matter to be resolved.
edited because previous poster edited. Why did you edit, you had a valid argument. please post it again. humblemarc
Sassy, i'm trying to get together some 'intent-to-sue' letters for ideas to help my clients. Could you email your letter if you still have it. Thanks, humblemarc
Now you lost me marc, I don't have a problem at all with the estoppel doctrine, use it! If there's a duty to respond, and they don't, their silence (inaction) stops them from backtracking and then making a claim other than what you have relied on. The Engelhardt v Gravens specifically isn't available online, though that could work for you too. No one else can surf it up either (creditors). It involves property, that's my only hesitation with it, it doesn't make the estoppel argument any less valid though. Except that, it is an affirmative defense, in response to a charge or complaint. Sassy
sassy, sorry, you read my edited post to mitchra opinion on estoppel. he edited it, so you may not have seen it. humblemarc
Well, I took a closer look at the letter and it appears that estoppel may apply, and that it may be used appropriately in this particular letter. It is the nutase letter that Bill buaer uses which shows a blatant misunderstanding of the doctrine of estoppel. By remaining silent towards the validation request they may have indeed estopped their legal defense against your claim. It is a stretch of the concept, but I am not an attorney, although I have an intermediate understanding of business law.
I think I'm losing my mind, what I KNOW I read is gone, LOL Ya'll crack me up. Thanks fave Butch growling dude!!!!!!! Sassy
you're right, Sassy. i forgot to edit the "Englehardt v. Gravens" part from the actual letters i have sent out. I just say "Doctrine of Estoppel by Silence", because that particular case has little to do with the type of estoppel we are utilizing in our potential cases. humblemarc
Ok you twisted my arm...lol Here is my BLAW books explanation of estoppel ver batem (sp). A person may be estopped or prevented from asserting a defense because his conduct in the matter has caused reliance by a third party to his loss or damage. Suppose Neal's son forges Neal's name to a check, which the drawee bank cashes. When the returned check reaches Neal, he learns of the forgery. Rather than subject his son to trouble, possibly including criminal prosecution, neal says nothing. Thereafter, Neal's son continues to forge checks and to cash them at the drawee bank. Although the bank may be suspicious of the signature, the fact that Neal has not complained may induce it to believe that the signatures are proper. When he finally seeks to compel the bank to recredit his account for the forged checks, neal will not succeed: his conduct has estopped him from denying that his son had authority to sign his name. (Mann & Roberts, 500) As I said earlier I think estoppel in credit repair is a stretch, but this letter gets pretty close to the true legal concept.
I guess my question would be where is the third parties loss or damage in credit repair? How have they damaged you by not asserting their legal defense, and what legal defense have they not asserted?
