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swsabean
Joined: 12 Jul 2008
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Posts: 11
577 Magic Points
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Sun Dec 14, 2008 12:40 am
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One could argue for a distinction between validation and verification. The FDCPA appears to use the terms interchangeably. Also, the cases I quoted above are both referring to debt verification within the context of the FDCPA, section 809(b) in particular.
Imagine the following scenario: I receive a collection notice from a CA. I send them a letter demanding that they validate the debt with a copy of a contract signed by me, as well as other details. I receive a reply which consists of a copy of a billing statement from the OC and a letter which says, "We have verified that the amount claimed is the amount owed. By the way, we are not sending you a signed contract, or any of the other stuff you asked for, because the Federal courts have repeatedly ruled that we are under no obligation to do so under the FDCPA. Have a nice day." What recourse do I now have?
To be sure, I have used the debt validation tactic successfully in the past. The CA's involved backed off. But now, I am dealing with one that refuses to back off. And the more I look into it, the more it begins to appear that a demand for debt validation is nothing more than an intimidation tactic, with no substantial force behind. Essentially, it looks like a bluff.
Now, they are not going to sue me for the amount they claim I owe. First, the amount is too small to justify the effort. And second, if all they have is a billing statement, which would not constitute admissible evidence in court, then they have nothing. So, it looks like we have a standoff due to a disparity in the standards of proof between the FDCPA and the Uniform Commercial Code. They will continue to ding my credit for another five years or so, and I will continue to say, "Go ahead and file a lawsuit. You have nothing and we both know it," until the SOL expires.
The good news is, I read about a case where an Indiana state appeals court recently set a much higher standard for debt verification under the FDCPA than did the 4th and 9th Circuits. I have not yet read the case, but I will report back when I have. |
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sdchargers_63
Joined: 13 Aug 2007
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Posts: 1498
111 Magic Points
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Subject: credit
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Sun Dec 14, 2008 7:06 am
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| WOW!! Actually.......not to sound ignorant, BOTH Validation and Verification sounded like it was the SAME. Isn't a CA obligated to send you the signed contract, etc?...I mean, by law? |
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fireyone
Joined: 26 Feb 2008
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Posts: 4500
8812 Magic Points
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Sun Dec 14, 2008 11:24 pm
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SWSA, So are you saying that they do not have to provide proper validation? I had always thought it was the debtors right and that they had to have the original signed contract. Most usually will not bother with some small amoount but we know how that small amount can have all kinds of charges added on it making it almost double into an amount
worth suing for. Please if you could explain if this statement is just a way the collector blows off your request for validation or if it is a true statement:"We have verified that the amount claimed is the amount owed. By the way, we are not sending you a signed contract, or any of the other stuff you asked for, because the Federal courts have repeatedly ruled that we are under no obligation to do so under the FDCPA. Have a nice day." Thanks |
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sdchargers_63
Joined: 13 Aug 2007
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Posts: 1498
111 Magic Points
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Subject: credit
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Mon Dec 15, 2008 3:39 am
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| No, ROBERT..never been there. I'm with you, FIREYONE. ...a bill doesn't tell me anything. And that's what I tell the CA's when they send them to me. I want some kind of proof that I owe the debt. I have actually had a CA tell me they weren't "obligated" to send me anything. Geez!! |
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swsabean
Joined: 12 Jul 2008
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Posts: 11
577 Magic Points
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Mon Dec 15, 2008 2:57 pm
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Hi fireyone. What I mean is this: If you got a response like that from a CA, what could you do about it? To me, it looks like you have two options.
1. Do nothing. In this case, nothing has been gained and you have the sort off standoff situation I now have.
2. File a lawsuit in Federal court against the CA for violation of the FDCPA. In this case, you had better have some pretty good arguments why the court should overturn the precedent established by other Federal courts. Otherwise, not only will the court likely rule against you, but you and your attorney may also be subject to sanctions for filing a frivolous lawsuit.
But it is not all doom and gloom. If the CA wants to sue you for the amount owed, then they will have to provide the sort of documentation you describe. As Doc said, no contract, no debt. And they probably do not have it. |
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fireyone
Joined: 26 Feb 2008
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Posts: 4500
8812 Magic Points
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Mon Dec 15, 2008 7:40 pm
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| I am not sure exactly what I would do about it but I would report them to the atty generals office. Then if I got a summons I would reply to it. If it went to court I would take the old bill along and let the judge know they were unwilling to provide true debt validation. |
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Justin
Joined: 17 Jul 2006
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Posts: 1298
28935 Magic Points
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Wed Dec 17, 2008 9:30 am
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Hi swsabean
Since they have not properly validated your debt, you are not obligated to pay them off the outstanding debt amount. Moreover, if they sue you to the court, you can show the letter to the court that they have send you. But once you receive a court summon, you should always file a response to the summon else the creditor can bring a default judgment against you to recover the outstanding debt amount. You need not worry because the creditor cannot legally recover the debt without validating it.
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All the Best 
Justin |
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goodnatured
Joined: 03 Nov 2007
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Posts: 4007
1224 Magic Points
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Wed Dec 17, 2008 10:34 am
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I think what happens in a lot of cases is that the collection agencies buy what they deem to be junk debt, debt that could not be collected by the original creditor in a set amount of time or debt that they figure they won't get paid for anyway. These debts are written off by the original creditor and the collection agencies buy it for pennies on the dollar figuring they can turn a quick profit. However what the original credit fails to provide them with is the proper paperwork to show that they have the right to transfer the debt to the collection agency and that the collection agency can now legally collect on it.
the collection agencies just assume that most consumers of credit do not know the law behind the collection efforts. Fortunately for them, alot of folks don't and they can threaten and intimidate and have people pay for a debt that is uncollectable to begin with. This happens all the time in statute of limitation cases. The debtor does not know and if the collection agency can squeeze out any amount it starts that clock all over again.
We are fortunate enough to have found this site and have shared experiences and learned enough that they can not pull the crap on us.
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Goodnatured,
http://cashinpocket.synthasite.com/
for all the ways I make $$ online |
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fireyone
Joined: 26 Feb 2008
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Posts: 4500
8812 Magic Points
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Wed Dec 17, 2008 11:01 am
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| This is why they are called junk debt collectors. There have been laws in place for these types of agencies but they are not as well known to people who honestly just fell back on debt. They should have something in writing on credit card applications that tells a person to make sure they know there rights or maybe calling it "understanding your rights ". There is nothing out there that even tells you that there is laws to protect you unless you start your own interenet search. |
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swsabean
Joined: 12 Jul 2008
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Posts: 11
577 Magic Points
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Wed Dec 17, 2008 1:34 pm
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In my own particular case in dealing with a recalcitrant CA, it is now pretty clear what will happen. I am not going to sue the CA for violations of the FDCPA because I would probably lose. They are not going to sue me for the amount claimed because they would probably lose. They will continue to report negative entries on my credit reports until the debt expires. And I will live with that until the debt expires. So, my plan to improve my credit score has, in this instance, utterly failed.
Nevertheless, it has been illuminating. I now believe that I have a pretty good understanding of what the courts have decided about debt validation under the FDCPA. Sadly, the requirements for debt validation under the FDCPA are not nearly as stringent as I was previously led to believe.
I have not yet had an opportunity to look at the Indiana appeals case, but I feel that it is not likely to carry much precedential weight in a Federal court. |
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fireyone
Joined: 26 Feb 2008
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Posts: 4500
8812 Magic Points
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Thu Dec 18, 2008 12:22 am
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| Your right some things are just best let go. If your debt is past the SOL time period I would just leave it alone. It amy seem like a long time the seven and a half years it takes to fall off but the time passes quickly and you can rebuild your credit .The older the debt the less impact also. Usaully once a debt becomes 3 or more years old it isn't really holding you back much. |
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Justin
Joined: 17 Jul 2006
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Posts: 1298
28935 Magic Points
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Thu Dec 18, 2008 11:10 am
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Hi Swsabean
You need not sue the creditor or the collection agency to get the negative listing removed from your credit report. All you need to do is to send a dispute letter to the credit bureaus with the copy of the letter that you have received from the collection agency. The credit bureaus will verify it with the CA and get the listing removed from your credit report.
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All the Best
Justin |
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fireyone
Joined: 26 Feb 2008
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Posts: 4500
8812 Magic Points
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Fri Dec 19, 2008 3:27 pm
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| Swsabean, If you are looking for good samples of debt validation letters we have them here at the website. Type sample letters in the search box or debt validation letters and you will get some good ones. If you need any help just ask someone will guide you there. |
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carol
Joined: 27 Jun 2006
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Posts: 1362
Location: Los Angeles, California
29592 Magic Points
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Sat Dec 20, 2008 4:27 am
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This forum has a lot of sample letter for our help. We can personalize these letters by just changing the name and address of the collection agency or the inquirer (if there is a hard inquiry), and our name. You can find such letter if you visit the link letters of credit
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Keep in touch
Carol |
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goodnatured
Joined: 03 Nov 2007
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Posts: 4007
1224 Magic Points
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Sat Dec 20, 2008 2:11 pm
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You can also find them on the debt forum, it will be under the do it yourself section on there. goodluck and keep us updated.
_________________
Goodnatured,
http://cashinpocket.synthasite.com/
for all the ways I make $$ online |
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