READ this Article that was attached

Well, there are portions of the article which are correct.

That's why there has been arguement over some of the form letters asking for information about insurance or tax offsets, and the like.

Wollman Opinion
http://www.ftc.gov/os/statutes/fdcpa/letters/wollman.htm

The Wollman opinion emphasizes both "Because one of the principal purposes of this Section is to help consumers who have been misidentified by the debt collector or who dispute the amount of the debt, it is important that the verification of the identity of the consumer and the amount of the debt be obtained directly from the creditor."

Basically in my validation letters I ask for

* Complete historical documentation, including a signed application, and all statements.

* A summary of any and all fees (in my complete statement I use actually quotes the FTC Commentary that ACA so highly regards in this article, listing every type of imagineable charge under 808(1)), their rates, and begin and end dates of calculation, that they have accessed to the account, and their legality under federal and state law.

Basically, #1 is proof that it is the consumers account, #1 & #2 is proof of the amount owed, and how that amount is legal as per the FDCPA Section 808(1).

ACA conveiniently skips over the second purpose entirly in their article.

The section on "Confusion over the dispute process", I think 99% of the people who suggest a 30 day time limit, are suggesting the interlocked validation/dispute process. So there is no confusion, the point that they are failing to see is that the Cass Opinion considers verification to the CRA's as collection activity, and they can not do collection activity until they have complied with the validation requirements.

But this part of the article is correct as so far as it goes. IN ORDER TO PUT THEM ON THE 30 DAY TIME CLOCK, you need to interlock them into the FCRA verification period, at the same time as they are under the validation period.

 

Would either of you be willing to post a sample letter that includes this information?

Thanks!

 

Well, bascially, this is one of the reasons why I use my own strategy, researched mainly from the ground up. It's also why I suggest not using any form letter until you know what every sentence in it means, frontwards and backwards.

But here's a quick and easy validation sample.

Each of the bulleted items makes up a component of the two which the Federal Trade Commission commentary, and the FDCPA itself establishes as the 'reason' for validation. To conclusively validate that you are the consumer responsible for the debt, and to conclusively validate that the amount of the debt is 100% complete and accurate.

i.e. as in Brennan v. Spears, the signed contract alone was not conclusive documentation of the amount of the debt, and vice versa, the complete accounting from beginning and end would not be conclusive validation of whether the consumer identified is the true consumer responsible for the debt.

Both an application & contract are needed to determine if the fees (in bullet 3) are in accordance with 808(1), and to determine if the identified consumer is the real consumer.

All statements from day 1 (or in the least from the last date there was a ZERO balance at the beginning of a billing cycle) are required to validate the amount of the debt.

How the fees are calculated is required in order to make sure that those fees have not been miscalculated.

Another thing that the ACA seems to overlook is the statutes own phrasing of OBTAIN and MAIL. If the statute wasn't designed for the CA to have to OBTAIN anything for validation, the statute itself wouldn't mention that they must cease collection activity until after they have OBTAINED and MAILED the validation. Even the Wollman Opinion itself, hints that the CA must OBTAIN the validation from the alleged original creditor, and not just have their computer spit out the summary of the alleged account.

 

I agree with jam. I've posted several times advising people not to use those letters that ask for everything. Much of that information is proprietary, and where it's not, it's none of your business. What is written off, for example, is for recording and tax purposes. If it's later recovered, it's just brought back as income.

An agree between a creditor and a collection agency or attorney may be an item subject to a nondisclosure agreement.

Like jam, I just write something that sounds like a normal person would have written it. Put it in your own words, but say something like: "I am disputing this debt as I have no recollection of this amount being due to anyone. Please send me proof that this is my account, and show me how the balance was obtained." If they tell you who the creditor is, maybe you can say you don't recall them. For example, Bank of America bought NationsBank. So if you had an account with NationsBank and now you get a notice from someone collecting for BofA, to me it's valid to say that you don't recall applying for credit with BofA. Part of a good validation would include that it was a NationsBank account and that NB is now Bof A.

 

chele:

What did the CA not provide in the validation response, which they attached this to?

(And I am wondering if ACA & the CA would be equally liable for the violation for the false & misleading representations in the article, if what they're refusing to provide are account statements, because in ACA's flawed article, they forgot the second part of the purpose of validation. -- remember that furninshing a deceptive form is a separate violation...)

 

Fight fire with fire...

Tell them that the ACA council had better read all of what the Federal Trade Commission states before making opinions.

You'll want to make this your own.

--

The documentation that your company provided DOES NOT conform to the requirements set by the Federal Trade Commission for what validation is.

Specifically established by the Federal Trade Commission in the Wollman Opinion, the Federal Trade Commission explicitly was asked "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'?" the Federal Trade Commission explicitly answers that question by saying "Mere itemization of what the debt collector already has does not accomplish this purpose."

Another falacy in the article which you provided is that the author overlooks that there are not just one purpose for the validation of debts, but two, again stated in the Wollman Opinion. "The statute requires that the debt collector obtain verification of the debt and mail it to the consumer (emphasis mine). Because one of the principal purposes of this Section is to help consumers who have been misidentified by the debt collector or who dispute the amount of the debt, it is important that the verification of the identity of the consumer and the amount of the debt be obtained directly from the creditor."

As per the Federal Trade Commission, and the Fair Debt Collection Practices Act itself, your company is required to OBTAIN and MAIL a copy of the complete validation which your company receives from the alledged original creditor, to the consumer. The Federal Trade Commission even repeated it twice in the same paragraph so that the collection agency who requested the opinion would comprehend what was required of it for providing validation.

I am attaching a copy of the above quoted opinion by the Federal Trade Commission as to what a collection agency is supposed to do, which proves that your company violated federal law in providing an improper validation of debts response.

Furthermore, on xx/xx/xxxx, which was before your company's unacceptable response to the validation of debts request, your company verified the trade line to CRA, in violation of the Section 809(b) cessation of collection activity required after your agency receives a validation of debts request, which your company received on xx/xx/xxxx, and prior to your company's incomplete attempt at a response on xx/xx/xxxx. Failure of your agency to delete said illegally verified trade line immediately, will force me to consider other options in resolving this matter.

 

BTW: If you used the form validation letters requesting everything imagineable, they are correct in refusing to provide those, but there is no legitimate reason for not obtaining and mailing actual STATEMENTS from the alleged original creditor, although they could get the medical provider caught in HIPPA deep water .

The best thing is to have a defendable position for everything which you request in your validation, because if you sue, or are sued, you will want to be able to convince the judge that there is a legitimate need for that information.

I only once requested "proof that the CA's had been properly assigned by a CA which was properly assigned", and that was after I 'tricked' the CA #3 into writing a letter stating that he was contacted by the CA #2 in regards to the account, which I could use to say that there was genuine confusion about which CA truely had ownership of the account. (The account quick-flipped through at least 3 CA's in less than a week, and CA #1 appeared on my TU report after CA #3 contacted me, so I contacted them, was told that I needed to contact CA #2, and told CA #2 to call CA #3 because I would not make a long distance call to them without knowing what it was portaining to. )

The key is that there was a genuine confusion over the overlapping of the CAs, and there had to be some way to straighten out the overlap. So, I could defend my request for that information if needed.

 

When I copied and pasted this message, I forgot the first part of it...

Ok...

Basically, they said according to the medical provider, our 'itemization' is correct as follows.

blah blah - $xx.xx
blah blah - $xx.xx

--

 

*missed this question, just saw it when I wanted to refer someone to this post*

The hard violation would be the collection activity prior to providing the validation of debts answer.

Technically the ACA 'article' may be correct enough as far as it goes (and technically, *THEY* aren't the ones who are saying it, although they are using it to justify their non-compliance).

Also, the Chaudry caselaw cited is out-of-date (Thanks Butch for that little tidbit.) The FDCPA was edited in a way that that opinion is now inconsistent with the plain language of the statute, so if they would rely on the Chaudry case to defend themselves, you have the unbeatable counter-arguement that "That would be all well and good, *IF* Chaudry was ruled upon based on the current version of the FDCPA, it pre-dates the current version of the FDCPA, and Congress made the statute to defend against the Chaudry ruling."

 

Chaudhry is not applicable in most cases.

 

Re: Re: READ this Article that was attached

...

 

Re: Re: READ this Article that was attached

Well ... we about have Chaudhry nailed down, once & for all.

Out of date or not, Chaudhry simply doesn't apply to cases like Chele's.

It was over residential real estate. If a debt is a secured debt, collateralized by an underlying asset, the validation/verification rules are different.

I've struggled HARD with this one for several months. Similar to those who lose ALL credibility the instant they call Bush a "liar", I knew we couldn't say that Mr. Johnson "missed the boat". Ya just don't get to be Cheif council at ACA by being wrong.

So I had to find a way to accomplish TWO things;

1) Make sure Mr. Johnson is right, at least technically, which he very well may be.

This left me with only one other alternative;

2) Render the Chaudhry case UNUSABLE, in so far as we are concerned.

So by default I began to examine the issue of "applicability" to most of our processes.

Therein lies the key which unlocks the Chaudhry mystery.


I'm almost there.

Further, Jam is right on. Quoting Chaudhry in Chele's case would lead a least sophisticated consumer to conclude that the CA has no further obligation to the consumer.

THIS IS UNFAIR AND DECEPTIVE.

And I am working on how to hold ACA's Johnson to task as well.

Bottom line: Chaudhry has NO APPLICABILITY to Cheles' case.

 

Re: Re: READ this Article that was attached

Hmmm, and just when I was beginning to doubt how well that false and misleading statement case would play out...

Chances are the CA itself never even bothered to look at the case itself, and just took it's from ACA, so it has to be good for a one size fit all answer...

I started my first response by stating that for the most part Johnson was correct, as far as he went...

Although he did (probably intentionally) forget the imperitive keywords in Section 809 "obtain and mail", when he rested his hat on Chaudry to prove that verification didn't have any responsibility for the CA to provide the consumer with anything, just to double check their records (hmmm, doesn't that sound like the FCRA arguement that they try to make, as well); and that validation had a second purpose which was to ensure that not just the right consumer was the target, but that the amounts involved were 100% correct.

 

Re: Re: READ this Article that was attached

I know you did Jam. You had it right on.

Your concept that there may be a misleading representation in furnishing a copy of Johnson's article, thus implying that the CA has no further duty to substantiate an alleged obligation, is dead on my friend.

This of course would lead a least sophisticated consumer to "give up", thinking he had no more options.

A violation.