Pay in 10 Days or Else! Overshadowing FDCPA 1692g

[antiquedave]

So you’ve received a dunning notice from a collector and/or attorney that is telling you that you have 10 days to submit payment or else there will be other legal consequences or a lawsuit filed. The threat can be explicit OR implied “a decision to pursue other avenues to collect the amount due will be made”

Demands for payment in less than 30 days of receipt of the initial dunning notice have been determined by the courts to OVERSHADOW AND CONTRADICT the 30 day validation period provided for in the FDCPA.

Defined as: overshadow - make appear small by comparison

Google Docs - 529233-00015.pdf has information


The demand creates confusion, do I have 10 days to pay? or can I send a debt validation letter within 30 days? Letters from an Attorney create additional fear as well, If the demand came on an attorney letterhead look at Lesher V Kay.

Review BARTLETT V HEIBL the debtor was told to make a payment or make other “suitable” arrangements within one week,

The only safe harbor that the collector really has here is if they include a statement that they will halt all collection efforts if the debtor requests validation of the debt. Even though there is a safety net here for the collector if they put that statement on the back page or in smaller type than the demand for payment it may still be considered an issue of overshadowing.

Also see
SAVINO V COMPUTER CREDIT INC.
FREYS V SATTER BEYER AND SPRIES
GRAZIANO V HARRISON
MORGAN V CREDIT ADJUSTMENT BOARD
CORTRIGHT V THOMPSON
SAWNSON V SOUTHERN OREGON CREDIT SERIVCES INC
UNITED STATES V NATIONAL FINANCIAL SERIVCES
GARY V KASON CREDIT CORP
CREIGHTON V EMPORIA CREDIT SERVICE
RUSSEY V RANKIN
Jewel Marshall-Mosby V Corporate Receivables Inc

SO if the letter makes an explicit or implicit threat of suit within the initial 30 days it MUST include a statement that a request for Validation will suspend any actions until the debt is validated.

ALSO look at your letter to see if it includes the wording “AFTER RECEIPT” the clock starts ticking 30 days after receipt NOT 30 days after they send it in the mail. Generally speaking the rule of thumb you can use is 3 days after the postmark on the envelope.

The SIZE of the type is important and whether it is highlighted or in bold letters. (and she said size doesn’t matter)

MILLER V PAYCO GENERAL AMERICAN CREDITS INC

PHONE US TODAY

Collectors are always looking for different ways to get around the FDCPA, they want to be technically in compliance but they are looking for ways to intimidate you and create fear so that you act without thinking, All of us in the situation where we are not able to pay all of our bills are not in a place where we can hire an attorney to defend us and the Collectors are looking for ways to create enough fear that they can get you to sell your car and borrow money from family and friends.

MOST CONSUMER ATTORNEYS TAKE THESE FDCPA SUITS ON CONTINGENCY AND OFFER FREE CONSULTATIONS.

Anything in a dunning letter that pushes you towards taking action immediately and not pursuing your rights because of a fear of what will happen to you if you don’t take action and make an IMMEDIATE PAYMENT can be a FDCPA Violation. OR many Variations of act quickly!

I will add more to this piece later

[BV80]

Great post! Could you further explain what you meant by "after receipt"?

"ALSO look at your letter to see if it includes the wording “AFTER RECEIPT” the clock starts ticking 30 days after receipt NOT 30 days after they send it in the mail. Generally speaking the rule of thumb you can use is 3 days after the postmark on the envelope."

[antiquedave]

Originally Posted by BV80

Great post! Could you further explain what you meant by "after receipt"?

"ALSO look at your letter to see if it includes the wording “AFTER RECEIPT” the clock starts ticking 30 days after receipt NOT 30 days after they send it in the mail. Generally speaking the rule of thumb you can use is 3 days after the postmark on the envelope."

Thanks

30 days after receipt of the initial dunning letter to respond and request validation not 30 days from the date of the letter or from the day it was mailed, The clock starts ticlking 30 days AFTER you receive the dunning letter.

One of the letter I got back in 2010 was dated 2 full weeks before the postmark on the envelope, they were imho trying to mess me up on validation and trying to create confusion about how much time I had left to respond.

[BV80]

Thank you. I understand now.

[bad98roadster]

example:

Collector dates dunning 1/1/2012
Collector sends, by first class mail, a dunning on 1/15/2012
Mail arrives at alleged debtors address on 1/19/2012
Alleged debtor might be in the Bahamas or out of town on a business trip or his 7 year old stuffs it in drawer or whatever.

The alleged debtor on 3/12/2010 writes his dispute letter in which he clarifies that he's responding to their dunning.

"I received your letter dated 1/1/2012, which I received on 2/28/12. I dispute the debt you allege and I demand validation."

If the collector doesn't establish the day you received their dunning by proof, ie. certified mail, fed express or some other form of documentation, then the alleged debtors stated date that they received the mail will stand and he will be protected under the FDCPA "30 day after receipt rule"

[TomnTex]

GEFunancing tried that on me. They sent a letter that was dated two or three weeks before I got it and there was no postmark on it to prove them wrong. Slick when they can pull this and the blamed post office fails to postmark anythng anymore.

[KentWA]

I go even further:

"I received your letter dated 1/1/2012, which I received on 2/28/12 and is the first communication from you received by me. I dispute the debt you allege and I demand validation."

They are then on notice of the date of receipt and that no other communication has been received and preserves my rights. If they wish to dispute the above statement in court, they are going to have to have CMRR receipts since they have no documentation contrary to that.

[eoth2011]

Would this follow under the above guidelines?

Medical Debt Collector sends Dunning Letter on 01/24/2012 complete with Mini Mirander of Unless yada yada yada.

Debt Collector sends second Dunning letter on 02/3/2012 Stating Our Office has contacted you previously ,, with Mini Mirander again .

By the way , this is a workmans comp claim, when i called them this past friday they stated oh dont worry about it , our computer spits out these memos every two weeks.

[1stStep]

Did you send a DV the first time?

[eoth2011]

No a phone call was made into the Creditor, THis is a workmans comp claim,
alerting them that it was just that , My Human resource dept called them and also alerted them it was WC , so they were aware,

When I recieved the second dunning letter,I called, and they stated they were aware and to not worry about it.

[BTO429]

If you are talking to a creditor about anything legal, or a collection agency or a junk debt buyer and they are moving their lips and talking then they are lying.

In my opinion from law school and experience anything that can be, or become a legality in court and you are told "oh don't worry about it' they are lying.

[eoth2011]

Originally Posted by 1stStep

Did you send a DV the first time?

They barely gave me a chance , ten days from the first letter.

[BTO429]

by law you have thirty days.

[1stStep]

Gunny's right...this could be an FDCPA violation.

[eoth2011]

Thats what Im wondering, Not too worried about the actual Bill, its under $100.00 and like I said it is definetly Workmans Comp,they did pay all the others.

But from the abundance of learning, was wondering if it was a easy FDPA Violation.

Never hurts to ask.

[KentWA]

DV, DV, DV, DV....Always and every time, no matter what. It simply preserves your rights under federal law.