LVNV - Indiana need advice on next steps

[spasquino]

Hello -

I stumbled on this forum after reviewing my credit report and seeing two items from Midland Management and one from LVNV Funding that I have no clue as to what they are for. I began searching online and stumbled across this site that suggested I send a letter of dispute and validation to them so I sent letters to all three, certified, return receipt requested. Literally the day after I sent the letters I received a letter from a local attorney in Ft. Wayne Indiana saying they are representing LVNV and I owe them $ and have 30 days to respond, etc.

So - do I not respond to the local attorney (Wright & Lerch) letter as I have already sent a letter of dispute and validation request to LVNV, do I send another identical letter to local attorney? As I'm certain LVNV had not received my letter prior to my getting this letter from Wright and Lerch I don't believe it was a response to my initial letter of validation.

On another note - I was going to call this local attorney office and tell them that I had sent a dispute letter to LVNV, but when the jerky guy answered the phone and said "just so you know we're recording this call" I responded and said "just so you know so am I" then he kept saying that he would have to disconnect unless I ceased recording. To which I responded saying how is that fair? If you can record me why can't I record you - I mean we'll both have the same thing so what's the big deal? To which he hung up on me....so I didn't tell them anything.

I am very new to this, but I honestly have no clue as to what these three charges are on my CR - I did go through a messy divorce and had some accounts that my ex-husband had opened in my name post divorce that I had to fight (or in some cases just pay off) becuase it wasn't mine - it's possible that is the case here but I just don't know.

[BV80]

You should have disputed with the credit reporting agencies first, but that's ok. When did the JDBs get the letters? They will have to state on your CR that the debt is disputed.

Was the "30 days to respond" part of the 30 day notice about requesting validation?

[spasquino]

Sorry - I should have added that I did also dispute with CRA the same day that I sent out the validation letter. Was that wrong? I was finding a lot of mixed messages online and just wasn't sure so I did both. I haven't received my return receipt yet but the post office said they expected delivery today to them. I mailed out on Wednesday, received the letter from the new attorney on Thursday.

The "30 days to respond" was in the text of the letter I received from the new attorney, it was just a basic "we have been retained to represent LVNV Funding and you owe them XXX you have 30 days to dispute this" etc - they wouldn't have gotten my dispute & validation letter because I had just sent it the day before and I didn't send it to this new attorney I sent it directly to LVNV as I was unaware that a new attorney existed. Does that make sense? Sorry I'm still trying learn all of this.

[BTO429]

You didn't need to tell him you were recording the convo, Indiana is a one party state

[BV80]

You didn't do anything wrong. If it were me, I'd send a debt validation request to the new attorney. It doesn't have to be elaborate.

Date

Your Name
Address
City State

Attorney
Address
City State


RE: Put the account number(s) and any cc names that were stated in the letter.

Dear ______:

I am requesting validation of the above referenced account.

Your name

[spasquino]

So now having read post after post after post - I am more confused/concerned. Or maybe I am just reading too much all at once.

I sent them the DV sample letter I found on here - the one with all the extra requests (prove the SOL has not expired, provide statements, etc) which now I have read will make them just realize I don't know what I'm doing because they aren't required to provide all that. So have I just screwed myself here?

Next question - assuming I get some kind of response from LVNV or the new attorney with the basics (original creditor, date of last payment, etc) then how do I respond? I have researched my credit report and under date of last payment there isn't one - not one payment was ever made to LVNV, I did find another entry under closed accounts - low and behold to Credit One - again I have no record of ever having had account with them and under their payment history not one payment was ever made, Credit One was charged off and it says "transferred/sold" assuming to LVNV. Since no payments were ever made at all what do I do next? If they respond with any kind of statement either stating LVNV as original creditor or Credit One, what is the next step to make them go away as I have no record of having anything to do with Credit One - suspecting it was fraudently opened by my exhusband but again no way to know.

I can't find anything searching through the forum on what to do if they respond with only the bare minimum of info and I don't want to screw up by sending another letter that makes me seem like I don't know what I'm doing.

Also, I searched the Indiana license database and nothing comes up anywhere for LVNV or for this Wright & Lerch - but maybe I'm searching for the wrong thing?

[BV80]

No, you didn't mess up. If they respond, they'll only send what is required. You may need to dispute the account again as "not mine". Dispute LVNV's and Credit One's entries. If they come back verified, I'd contact NACA. There may be an Naca attorney in your area that could help you.

National Association of Consumer Advocates | Consumer Protection Advocates and Attorneys - Help for Consumers

When was the Credit One account opened and what is the SOL in your state?

If LVNV ever decided to come after you in court, they'd have to prove the account is yours and that you made payments. If you never made a payment, they can't even prove the debt is within the SOL, because they can't prove a date of last payment.

Regarding licensing, not all states require out of state collection agencies and JDBs to be licensed. Your state's Dept. of Consumer Affairs may be able to give you that information.

If it were me, I'd still send a DV letter to the new attorney. More than likely, he's a debt collection attorney who is bound by the FDCPA. By sending the letter within that 30 day window, the attorney cannot continue collection efforts until he responds to your request. If he doesn't respond and continues to collect, he's in violation of the FDCPA.

[spasquino]

6 years is SOL in Indiana from what I've read and OC was in 2008 (although LVNV shows 2009 on CR) so it is still within SOL and collection agents (agencies) are required to be both licensed and bonded in our state. I have searched and nothing is found although I may not be searching for the exact correct thing - wright & lerch (new lawyer) doesnt come up but surely they would be licensed as they are located in the state??? Which is why I'm assuming I am searching incorrectly.....

[BV80]

Originally Posted by spasquino

6 years is SOL in Indiana from what I've read and OC was in 2008 (although LVNV shows 2009 on CR) so it is still within SOL and collection agents (agencies) are required to be both licensed and bonded in our state. I have searched and nothing is found although I may not be searching for the exact correct thing - wright & lerch (new lawyer) doesnt come up but surely they would be licensed as they are located in the state??? Which is why I'm assuming I am searching incorrectly.....

Debt collection attorneys may not be required to be licensed as debt collectors. They may only be required to be licensed as attorneys in your state. Check online with the Indiana Bar Association.

[spasquino]

Wouldn't LVNV still be required to be licensed though or not necessarily?

Actually I just found this online so I guess LVNV would be exempt as they are out of state and have only communicated via phone/mail unless the "and" inclusion mean they are only exempt if going after a non-resident and are doing it through mail/phone/fax (I am a resident so if the exemption is only for non-resident collection that would mean they would need to be licensed)

Indiana Collection Laws

INTEREST RATE
Legal: 8%
Judgment: 8%

STATUTE OF LIMITATIONS (IN YEARS)
Open Acct.: 6
Written Contract for payment of money(executed before 9/l/82): 10
(executed after 8/31/82): 6

Written Contract (other than payment of money): 10
Written Contract for sale of goods: 4
Domestic Judgment:10 on real estate
20 against the person

Foreign Judgment: 10

BAD CHECK LAWS (CIVIL PENALTY)
Triple check amount up to $500 over check amount, + attorney fees & interest up to 18% per annum or triple check amount + attorney fees and interest at 8% per annum.

GENERAL WAGE GARNISHMENT EXEMPTIONS
75% of disposable earnings for work week or the amount of 30 x fed. min. hourly wage, whichever is greater.

COLLECTION AGENCY BOND & LICENSE
Bond: $5000 each office
License: Yes
Fee:$100 plus $5 per annum, each unlicensed employee
$30 branch office
$80 - Renewal

Exemption for out-of-state collectors: Out-of-state collectors are exempt from licensing if [1] collecting for a nonresident creditor; and [2] collection activities limited to interstate communications (phone, fax, mail).

And by reading this - I do believe that the new attorney is exempt as I interpret this law:
IC 25-11-1
Chapter 1. Licensing of Collection Agencies by Secretary of State
IC 25-11-1-1
General definitions
Sec. 1. As used in this chapter, unless the context otherwise requires:
(a) The term "person" means any individual, firm, partnership, limited liability company, or corporation.
(b) The term "collection agency" means and includes all persons engaging directly or indirectly and as a primary or secondary object, business, or pursuit, in soliciting claims for collection, or in the collection of claims owed or due or asserted to be owed or due to another, including child support arrearages under IC 31-25-4. The term "collection agency" also means and includes, but shall not be limited to, any person who sells, furnishes, or maintains a letter or written demand service, including stickers or coupon books, designed for the purpose of making demand on any debtor on behalf of any creditor for the payment of any claim wherein the person furnishing or maintaining such letter or written demand service, including stickers or coupon books, shall sell such services for a stated amount or for a percentage of money collected whether paid to the creditor or to the collection agency, or where such services may be rendered as a part of a membership in such collection agency regardless of whether or not a separate fee or percentage is charged. The term "collection agency" shall also include, but not be limited to, any individual, firm, partnership, limited liability company, or corporation who uses a fictitious name, or any name other than the individual's or entity's name, in the collection of accounts receivable with the intention of conveying to the debtor that a third person has been employed.
(c) The term "claim" means any obligation for the payment of money or its equivalent and any sum or sums owed or due or asserted to be owed or due to another, for which any person may be employed to demand payment and to collect or enforce payment thereof. The term "claim" also includes obligations for the payment of money in the form of conditional sales agreements, notwithstanding that the personal property sold thereunder, for which payment is claimed, may be or is repossessed in lieu of payment.
(Formerly: Acts 1937, c.92, s.1; Acts 1955, c.304, s.1.) As amended by Acts 1982, P.L.154, SEC.40; P.L.8-1993, SEC.375; P.L.178-1996, SEC.1; P.L.234-2005, SEC.80; P.L.145-2006, SEC.159.

IC 25-11-1-2
Collection agency; definition
Sec. 2. The term "collection agency" does not include the following:
-----------------------------------------------------------------------------
(a) Attorney at law.
(b) Persons regularly employed on a regular wage or salary in the capacity of credit men or in a similar capacity except as an independent contractor.
(c) Banks, including trust departments, fiduciaries, and financial institutions including licensees under IC 24-4.5 and licensees under IC 28-5-1.
(d) Licensed real estate brokers.
(e) Employees of licensees under this chapter.
(f) Any person, firm, partnership, limited liability company, or corporation engaged in any business enterprise in the state whose primary object, business, or pursuit is not the collection of claims, as the term is defined by the provisions of this chapter.
(g) Any electric, gas, water and telephone public utilities, their respective employees, agents, representative agents, representatives, and individual contractors.
(h) Any express company regulated under IC 8-2.1 or IC 8-3.
(Formerly: Acts 1937, c.92, s.2; Acts 1955, c.304, s.2.) As amended by Acts 1977, P.L.272, SEC.1; P.L.23-1988, SEC.113; P.L.99-1989, SEC.31; P.L.3-1989, SEC.145; P.L.8-1993, SEC.376.

So.......I can possibly claim that LVNV isn't licensed but not the attorney - has LVNV gotten around the license requirement by retaining a "local attorney" to collect or since they are the ones listed on the CR then are they still the CA? ....All in all the new attorney is stating I owe $700, the original Credit One on the CR said the limit was $250, the highest balance was $603 but again no payments had ever been made at all....Blagh! I'm confused. Maybe I'm worrying unnecessarily but I am the kind of person that always wants to plan ahead for the possible next step.

[BV80]

It doesn't say they're exempt if they're going after a "non-resident". It stated "non-resident creditor". That means if the creditor does not reside in your state, the collection agency doesn't have to be licensed.

Just to make sure, contact the IN Dept. of Consumer Affairs or the Secretary of State. Someone at one of those agencies should be able to tell you for sure.

[retmar]

I'm going to begin with the very first post.

LVNV most likely has bought the debt. I say this due to OP's comment of the 2009 date on CR. The comment that the debt was found on a CR, tells me that LVNV has never contacted OP by mail. If true, then LVNV may be in violation of the FCRA for not notifying OP in writing as required by statute, within 30 days before or after reporting. You do not yell "violation" now. You will wait until fair time has passed to where they have no legitimate claim to innoncence. This would apply if OP filed a COA with the post office, or, never moved from last address on file with OC on the account. LVNV's only way to avoid a violation is if neither was present. Can they claim innocence in court? Yes, but file anyway.

One of two things are also clear here. Having not received prior communication from LVNV, the letter from the attorney may be their first attempt, and, it just happened to occur the day following OP's sending off his disputes. OR, they could have been lurking, and, when OP pulled his report, this sent up a flag to where they had the letter sent. Also know that the letter could also be a computer generated form letter.

Either way, the actions of sending off the dispute letters to LVNV and the CRA's is sufficient and proper. There is really no need to send this attorney anything as LVNV will forward the dispute. Yes, you could send them a copy of, for information only, but, why waste the time and money. Your return receipt is your protection as proof of their being in receipt of your dispute. The attorney cannot move without permission of LVNV.

To include, the comment made as to the 2009 date on CR, this is legit if it is showing as the "First Reported" date, otherwise, it is a violation. Even though LVNV purchased this claim for pennies on the dollar, they are still liable under the FDCPA, as they are a debt collector as defined in the FDCPA.

DO NOT CALL this attorney for any reason. Though we all commend you for your actions on that other call, your calling does not help you and could cause you problems down the road. Only communnicate in writing, period. If you do not want them to call you, you must send them a letter that they are forbidden to call and may only communicate in writing. If thya have not started the constant calls, then, you can wait until then.

In closing, if this claim is legit, Your goal is to assure that any resolution affords you the best result. By this, if you receive proper validation, and the claim is actionable, knowing they paid pennies, you would make a written offer for $.25 on the dollar to begin the process. Yes, it will go back and forth. If you find they have violated you, you will use this to offset the claim, up to and including they close, delete, and go away. Keep us in the loop and we will share your next steps as they arise.

[BV80]

The reason I suggested sending a DV to the attorney is in order for the poster to show that he/she requested validation in response to the 30 day notice on the attorney's letter. It's to leave no doubt that validation was requested in response to the first dunning letter and not just to an entry found on the CR.

I'm not sure LVNV would be required to contact the OP before furnishing information to the CRAs. I know that financial institutions are required to do so. The FCRA is clear about that. If CAs and Assignees (JDBs) are required, I don't know where that's mentioned in the FCRA.

[retmar]

BV80,

The OP sent the DV to LVNV based on information found on his CR. Even though no written communication was received prior, whch offered the 30 day window, the OP may still dispute the clam and request validation. This is a common error made by the majority of the consumers who receive the letters. Why is that no where in the statute, FDCPA 809(b), is it written that the consumer is forbidden to dispute or request the validity of a claim after the 30 days has passed. The statute only says that IF you fail to request, they MAY ASSUME the debt is valid. And, if it were true, the consumer is forbidden, then why did Congress add secton (c)? Also, if you read FDCPA 807(8), you will find it does not have a specific time frame. In short, the CA/JDB/ATTY is on notice of a dispute. Remember, the FDCPA is written in words that the "least sophisticated consumer" can understand. Too many times people read into something that isn't there to begin with. When I nailed the CA involved in my problem, this is one the claims I included, SOL was primary. I won, they lost. They were fined by the state and lost the business of their client, plus, other sanctions.

As to your comment about the atty, one is an assignor and the other is an assignee. They must communicate if they want to win. Miscommunication is a major problem when two parties do not commnicate. The OP would have loads of fun if this did happen, and, use it to his advantage, in offsetting the amount claimed. FYI, NCO on many occasions will reassign your account to one of their affiliates upon receipt of a dispute. This is one of their games, but, too many have now realized, and are fighting back, with several wins. If you reread my post you will find I said he could send the ATTY a copy, for information purposes, but, why waste money.

Regarding your comment about notifications. Read FCRA 623(7)(A)(i), then read FCRA 603(p)(2). You will find that a CA and JDB, along with some ATTY's, do meet the burden. Key words are "AND regularly and IN THE ordinary course of business furnishes information . . . ". To include, many states have their own collection and reporting statutes, California being one. Here, it is found at CCC 1826.1 and requires of all who report. California also holds the OC liable under both state and federal collection statutes when they attempt to collect their own claim.

[spasquino]

Thank you for your info - I did go back and check my CR and have attached both images here (there's no personal info so I'm not concerned) there is a difference in the date first reported - but only by a few months. Is that enough to be an issue or not really? Is there anything else I'm missing?

Every time I moved I filed a COA with the postal system so if they wanted to find me they certainly wouldn't have had any problems.

Well I tried to attach the images but apparently I haven't posted enough to be allowed to do that.

The Credit One entry says date delinquency first reported as 08/2008, the LVNV says 11/2008

[BV80]

I never stated the OP couldn't dispute the claim and request validation as a result of finding an entry on his CR. I simply stated that he should dispute the entry on his CR first with the CRAs. I didn't go further into the explanation, but the reason for disputing with the CRAs first is to reserve your private right of action under the FCRA if the furnisher is reporting inaccurate information and refuses to correct it.

Again, regarding my comment about a letter to the attorney, I stated it for the OP to protect himself. Of course he doesn't have to send another letter, but I felt it would leave no doubt in the eyes of a judge that validation was requested as the result of a dunning letter.

If LVNV should have provided notice to the OP for submitting negative information, then they are in violation of the FCRA, but the OP would have no private right of action for that particular violation.

[retmar]

BV80,

Since I had posted based on your post prior to mine, I went back through and found your earlier post as regarding the CRA's. There is nothing wrong with what you said there, and is all well and good in some cases, but, not all. If you are not aware, when a consumer files a dispute with the CRA's, they send an email to the CA/JDB/ATTY with your name and SS#, and account info, plus a two digit number that refers to your dispute, such as "Not Mine" The CA/JDB/ATTY now has a "Heads Up" that you are trying to fix your CR. They don't like that unless they get paid. You have now placed the ball in their field, not yours. In fact, this is how I got started with that CA who I beat up. The items claimed, though not my responsibility, were timebarred, so, since others had simply disputed as "Not Mine" and received immediate deletion, I felt why not. Within 10 days of my filing my dispute I got a letter from the CA demanding payment or referral to an attorney for suit. I literally did a jig around my cane. In short, doing this is OK, but, one must be prepared, just in case. Always remember you want to keep the ball in your court at all times. Even if the claim is legit, within statute, anything, your goal is to resolve amicably, but, with you the winner, not the loser. By this, if you can settle for a lesser amount with deletion, due to violations, whatever, you won.

As to your comment about the attorney, again, not a problem, but, why waste money for unnecessary paperwork. Since LVNV is a collector under the collection statutes, all communications to them must be forwarded to the proper "desk". By OP having possession of a signed Green Card, his proof of delivery is documented, thus, no excuses will stand.

Regarding the FCRA comment, read sections 616, 617, and 618. A consumer does have a right of action.

spasquino,

Reported information must be as the OC reports. Even if the debt is purchased, the original dates and amounts must show alike. The only item a new owner can report that is different is the "First Reported" date which would align with the date they first reported it. Date of delinquency must be the same as the OC, no matter if assigned or sold. If sold, the OC tradeline must show a zero balance with the words "sold or transferred", or like verbiage. Amounts must match with an acception regarding accrued interest. This amount can change monthly if updated monthly.

As to your filing a COA, perfect. BUT, hopefully you saved your copy you received in the mail from the U. S. Snail Mail. You have that, you are in great shape. If not, you have a problem unless you still have other mail, with envelopes, showing the forwarded label still present. I say this as the USPS only retains this info for one year. Now would be a good time for you to go through your papers and find all you can find on these items. Then put them all in one folder or binder for safe keeping.

[BV80]

Regarding the FCRA comment, read sections 616, 617, and 618. A consumer does have a right of action.

I agree that a consumer does have a right of action under the FCRA. I didn't mean to imply that we don't. BUT we do not have a right of action for all violations of the act.

The duty to inform the consumer of the insertion of a negative entry is under Section 623(a)(7)(A)(i).

Then you have Section 623(c):

(c) Limitation on liability. Except as provided in section 621(c)(1)(B), sections 616 and 617 do not apply to any violation of--

(1) subsection (a) of this section, including any regulations issued thereunder;

623(c) states that private rights of action don't apply to violations of 623(a). We do have a private right of action for violations of 623(b).

[RockDaddy]

SpaSquino,

Sorry to hear of your troubles. I have experience fighting LVNV and their local attorney. I won a $4500 case just by using advice from this board.

I can tell you that I got a LOT of help from people on this board, and can vouch for the advice that the peeps in this thread have already posted, as they have *lots* of experience.

You should focus on a couple of things:

First - if you have never opened any of the cards, fight this. Dispute it with the OC and dispute it with the Credit Bureaus. You can take them both to court if need be and compel them to produce a 'wet-seal' signature that you signed, which of course, they won't be able to do.

I'd fire off the DV letter to the attorney collecting for LVNV ANYWAY. Because A) LVNV is going to say they sent you a letter way back when that you didn't respond to within 30 days, which is likely a lie. B) if you send the current (local) attorney for LVNV a response within 30 days of their dunning letter, it will at least provide you mini-Miranda on the current basis. (I know a couple of you are debating this point in this thread - this is just my opinion, whether or not legally it is correct, personally I would send the DV letter.)

You could also send the Lawyer a C&D letter, citing lack of standing. It's *very* unlikely that LVNV can produce the proper documentation to provide the necessary chain of command of paperwork needed to sue you. I did exactly this when I was presented with a LAWSUIT filed against me in Massachusetts District Court. And I wrote telling the lawyer that they had violated the FDCPA, and I was going to countersue them as well as LVNV.

Guess what? They folded and said they would settle "with prejudice" (this means that they cannot sell the debt onwards again), if I agreed not to sue them. And it was over without going to court.

Knowing *how* to sue these people goes a long way. Far enough that they weren't willing to pursue a $4500 debt.

Don't waste your time wondering if the local attorney is licensed to collect in your state. As long as they are attorney's LVNV can hire their services to sue you, which it sounds like they are intending to do.

If it gets this far, keep posting. I'd be happy to send you the exact letters I used to win my case. LVNV really is the Devil. Just Google them... lol...

Anyway, keep us posted and keep learning. This is a good place to start!

Good Luck!

-RD

[BV80]

First - if you have never opened any of the cards, fight this. Dispute it with the OC and dispute it with the Credit Bureaus. You can take them both to court if need be and compel them to produce a 'wet-seal' signature that you signed, which of course, they won't be able to do.

Unless Indiana has such a requirement, a signature is not required for credit card debt. Use of the card would indicate a "contract".

But I agree that if the OP didn't use the cards, they'll have a hard time showing that purchases and payments were made.