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Everything posted by cjtx2

  1. When a party does not respond to a request for admissions within 30 days from the request being served, everything is deemed admitted. You should provide the court a copy of everything they admitted to by default. You need to object to any evidence introduced at trial that was not provided to you during discovery. Unless you object, it will be admitted. Usually you would file a motion to compel discovery so the court orders them to produce it before trial. After you tried to get discovery via a motion to compel, when they fail to produce it, you can file a Motion for Sanctions, to basically ask the court to dismiss the case because the other party disregarded an order to produce discovery. In your case you could file a Motion to Dismiss, where you state that they failed to produce discovery by the due date. The court has much more leeway when you did not make an effort to get a motion to compel, but you can show that you sent a reminder, all the admissions are deemed true and it may be taken into consideration. The court may give them more time and re-schedule trial. In which case it will order them to produce discovery by a certain date (as it will in a motion to compel discovery)
  2. Thank you. I appreciate your suggestions. I did check public records and was unable to find anyone with a similar name dead recently. I just got a recent copy of my credit reports and my files are not merged with anyone else's. The reason for my questions is that I am looking for arguments to make to the lawyer and this has helped me anticipate several possible counter arguments, many things I had not thought about in advance and other weaknesses of my claims.
  3. Agreed that this is a creepy request for location information. It contains false information about me being dead. At the beginning of this thread, I mentioned that they made a call to my number and left a voice message saying they wanted to speak with the executor of my estate. Again this is a creepy request for location. And there is no law authorizing them to lie about me and claim I am dead. Can you please reference any law that allows the CA to lie while requesting location information? The morbid letters described above were sent to a 3rd party requesting location at my address. Obviously, whenever they call my number and write to my address, it is extremely likely that I will receive their communications. There is no separate law indicating the procedure to collect from the deceased. So the CA was required to follow FDCPA as it pertains to living people. Under FDCPA, the only way they can legally assume that they reached the right person and are demanding the right amount is through a dunning letter and after there is no response to request validation. So there is no basis in law to assume any of the information supplied by the OC is valid (including their false claim that I am dead). FDCPA assumes that the CA will also contact me directly, not just third parties. It had to offer me an opportunity to request validation. They obviously had my phone and address. There were multiple communications from them and none of them afforded me a dunning letter so I could dispute it. The whole problem is with procedure. The CA chose how to proceed falsely assuming that the information from the OC is correct, which violates the spirit of FDCPA, where neither the identity of the debtor nor the amount can be assumed to be true without validation. In addition to their morbid attempts at obtaining location info, they also notified other 3rd parties (the OC) and told them/confirmed I am dead and they were unable to obtain location info. As you mentioned before, it is not unusual for people to have unpaid bills when they die. A person may not have any pending collections when they die, so referencing outstanding bills does not necessarily mean bad debt subject to debt collection. But there is no other way to interpret outstanding bills for a living person than bad debt. The only way they got away with mentioning outstanding bills was to lie about me being deceased. Credit applications are denied because I do not have FICO scores due to an OC reporting me as deceased. I cannot open business checking accounts, which I need for my job because of the deceased status and they cannot check my credit score. yes, in writing.
  4. They also consider that any financial information provided by the OC is true and yet, it is subject to validation. There are no special provisions in the law for a CA to accept some info as true and not subject to challenge and yet allow a challenge for everything else. The whole point of validation is to make sure the CA and the OC did not make a clerical mistake trying to collect from the wrong person or demanding the wrong amount. What they believed is irrelevant. It's what the law requires them to do. (1) injure a living person's reputation and thus expose the person to public hatred, contempt or ridicule, or financial injury, (a) Injures occupation
  5. Assuming it is any other false information provided by the OC, you have a right to dispute it, have them validate the debt, and if they keep insisting on falsehoods after a bogus validation, they are liable for making false statements / not conducting a real investigation. In this case, they robbed me of my right to request validation. Tex. Civ. Prac. & Rem. Code 73.001 A statement is considered libel per se if it was so obviously hurtful to the plaintiff that no proof of the statement's injurious character is required to make it actionable. Meisel v. US Bank, 396 S.W.3d 680 (Tex. App. -- Dallas 2013, no pet.). A statement is considered libel per se if it falls under either (1) the statutory definition of libel or (2) one of the four categories of per se defamatory speech. Gartman v. Hedgpeth, 157 S.W.2d 139, 140-141 (Tex. 1941) Renfro Drug Co. v. Lawson, 160 S.W.2d 246,250 (Tex. 1942) (if statement is defamatory as defined by statute, injury to reputation is presumed). To fall within the statutory definition of libel, a statement must: (1) injure a living person's reputation and thus expose the person to public hatred, contempt or ridicule, or financial injury, (2) impeach a person's honesty, integrity, virtue, or reputation, or (3) publish a person's natural defects and thus expose the person to public hatred, ridicule or financial injury. A statement is considered libel per se, without regard to the statutory definition of libel, if, on its face, it falls within one of the following four categories: (a) Injures occupation (b) Imputes crime (c) Imputes loathsome disease (d) Imputes sexual misconduct
  6. Is the executor/trustee of a living trust addressed by this letter (notwithstanding the contents)?
  7. Thank you!!! Right on point. The court's and FTC's conclusion relies on a dunning letter related to an actually deceased person. Do I have more privacy rights than my deceased self? Does the phrase "outstanding bills" refer to "debt" for a living person? For someone deceased it could be seen as unfinished business and not necessarily debt.
  8. Thank you. There is invasion of privacy because there are communications with third parties asking about my private business. Someone else saw the letters. The CA could probably get away with it if I were dead, but because I am not, they cannot disclose that there are any debts. The embarassment of having my private business disclosed to third parties does not require further proof. As far as the related defamation claim, they are spreading false and misleading information to third parties, including the OC, which has resulted in my credit file being blocked, unable to get FICO scores, so credit applications have been denied. Are these the kind of actual damages you are refering to?
  9. My point is that FDCPA is applicable to acquisition of location info when there are violations like disclosing there is a debt, calling a debtor a deadbeat (or worse), using foul language, disclosing that a CA is calling if it was not specifically prompted to do so, etc., even though there is no demand for money. I need to review some caselaw to see who has a right to sue. I think a 3rd party can sue if, for example CAs keep harassing them about someone else's debt after they asked not to be contacted again. I need to make sure whether a debtor can sue for the equivalent of invasion of privacy, disclosing private business to 3rd parties. On the other hand, if FDCPA does not apply as you suggest, then common law causes of action would (like invasion of privacy) and defamation (telling others I am dead).
  10. Ok, so is there a demand for payment when contacting third parties to acquire location information? That does not make any sense. Even though the very reason for CAs existence is to collect money, there are many instances when they initiate communications that do not have an expectation of demanding money from the person contacted but could lead to the debtor. I know there is plenty of case law where CA's contacted third parties to acquire location information and disclosed it was a collection agency or their caller id had an explicit reference to collections and they were found to be in violation of FDCPA. Did they make a demand for payment or just location info? Why would a neighbor or co-worker pay your debts? CAs have guidelines to disclose only that they are calling "about a private business matter" and they can only disclose the name of the CA if asked for it, in which case they have no choice but to identify themselves. So they cannot tell third parties that there is a debt involved because that is also an FDCPA violation. Again, in those cases did they make a demand for payment or just location info?
  11. First off, I am sorry if my questions come across the wrong way. I am just trying to understand the nuances. A demand for payment is usually an implicit statement. "Send payment to"..." or something similar. No explicit mention of an obligation to pay. But if they sent dunning letters discussing debts, they could avoid FDCPA altogether as long as they do not request a payment. They could contact all third parties, co-workers/boss, relatives, neighbors, etc. What I am trying to say is that there is no requirement to demand a payment. As long as they disclose there is a debt or an unpaid bill, there is a strong suggestion that the debtor (or his/her executor) has an obligation to pay. When a CA contacts a third party, they do not demand payment just location information. They cannot tell a third party about the debtor's private business. If they disclose they are trying to contact him/her because the debtor has an unpaid bill (debt) or that they are a CA (if not asked directly about the name of the business), it is clearly a FDCPA violation. So maybe my mistake was calling it a dunning letter. It is just a communication with a third party regarding an alleged debt.
  12. Actually, a large portion of FDCPA is about deceitful statements and misrepresentations. Ok, so again we agree they do not say "you are obligated to pay", since "It’s what is said that matters". "consumer is obligated to pay" or something to that effect.
  13. So they are not implying that the executor is obligated to pay the debt? It works real well since a lot of people fall for the guilt trip and feel obligated to pay the deceased's debts. Most dunning letters do not explicitly say you must pay or that you are obligated to pay... They just state there is a debt, the amount and how to pay it. Is there a requirement that they must include a statement to that effect?
  14. Thanks. I just want to be well informed by the time I meet a consumer lawyer. I know it may take several opinions, but I had a terrible experience some time ago because I had not done my research. I went to a NACA lawyer and without knowing anything about my situation, he scolded me for not paying my debt and getting myself in a bad situation. He said I did not have a case just because he did not know how to handle it. I did it myself and won.
  15. Ok, so we agree the definition includes the executor or administrator of an estate and it does matter. They make a misleading statement to create the impression that whoever receives the letter is responsible/obligated to pay my debts. Specifically: " the person who has the authority to pay any outstanding bills out of CJTX2' Estate."
  16. This is true for the general definition of consumer. But if you look into 1692c(d): the act covers spouses, executors, etc. when it comes to communications in connection with debt collection. They are seeking location info for the executor of my estate, which is treated as a consumer according to the above definition, and their attempt to obtain location info is allowed under 1692c(b):
  17. Here is one of the dunning letters. I do not see: a validation notice nor a disclosure that this is a debt collector and that any information obtained may be used for that purpose. Are they required to provide it? The smart thing would be to include it just in case. 1692d(d) defines consumer "for the purposes of this section" so that it includes the executor or administrator and this is in the context of communications in connection with debt collection. On the other hand, if this was just an attempt to acquire location information under 1692 b, they were not supposed to state that "such consumer owes any debt". Are there any FDCPA violations in this letter?
  18. Can they start talking about details of the account without asking me the classic 20 questions to identify myself, confirm personal info, etc.?
  19. Thank you! All I want is to make sure I come up with a complete dispute instead of regretting later on that I should have included something else.
  20. That could be sent by mail. Again, any phone request to send any documents to a non public knowledge fax or address would be suspect ID theft.
  21. As you mentioned above, their false reporting is either a mistake or hearsay from unofficial sources. There is no exception in the law to prevent me from asserting my rights not to be contacted over the phone. What can possibly come out of a phone contact? Verify info over the phone for someone I have no way of knowing whether it's legit or not? If there is ID theft involved or suspected, this would make things even worse.
  22. A dispute letter about the deceased status and a consent revokal at the end. Harry Seaward suggested above that as part of the OC's investigation they can easily claim that they attempted to call me and that I did not answer, so they fulfilled their duties to investigate my dispute and do not have to correct the error because obviously there is no evidence to support the claim that I am alive. It will also prevent me from suing them for FCRA violations since they attempted "in good faith" to verify the account.
  23. When revoking consent, because they are not bound by FDCPA or TCPA to stop calling, they will be told that the number is not a good contact number because they will not be able to reach me and there is no guarantee that it will even be answered.
  24. Thank you for your posts. I am documenting everything and covering all bases in anticipation for a worst case scenario. I need to do some more digging, but one of the credit bureaus considers 2 types of deceased status: overall, which comes from the SSA's master file and another one which comes from data furnishers, which according to the bureau, it's much more common than the other one. The credit bureau requires a notarized letter to prove that you are alive and then they contact the furnishers to tell them they are wrong. It seems like this is the way they investigate...
  25. I understand the part about the call itself. What about the assumption that because nobody answered a bad contact number, the person must be dead?
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