cjtx2

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Posts posted by cjtx2

  1. On 12/14/2019 at 1:52 PM, HHJTexas said:

    The deadline for discovery was last WED. Nothing from PRA lawyers. A reminder was sent to them  a week before due date... NOTHING. Does this mean the questions in Request for  Admissions is automatically stipulated? 

    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.

    On 12/14/2019 at 1:52 PM, HHJTexas said:

    Additionally, since they didn't provide discovery will they be barred from have any evidence admitted during the trial?  I also thought they had to provide a 14 day notice if they intended to introduce a business record affidavit during trial? Not sure if the court will allow them additional time and excuses to not responding to any discovery. 

    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. 2 minutes ago, Clydesmom said:

    You have NO proof they are lying.  That implies intent.  Even a google search on this company does not indicate they have ever done anything like that despite their morally questionable collection focus.

    I work in health care and you would be surprised how often two or more people have almost if not completely identical names including the middle one.  More than once we have had patients in bed space in ICU next to each other with such identical names, DOB and ID numbers that large caution signs about verifying which patient you had before engaging in any medical care were posted. 

    My educated guess is a consumer with a similar if not identical name DID pass away.  Your credit file may even be mixed with this individual.  The FDCPA allows for bona fide error and so far you have proof of nothing only your far fetched suppositions.

    AGAIN:  take the [expletive] letter to a consumer attorney.  You keep arguing here as if some how you are magically going to be told what you want to hear.  The reality is you lack the comprehension and organization to handle this in Federal Court and no one here is convinced you have a case.  If you can't sell us odds on you convincing a Federal Judge and jury are zero.  On the low chance there is violations you also have the problem of undoing the potential mess which will involve a good attorney.  

    TALK TO A LAWYER.  You desperately need one.  

    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. 3 hours ago, BV80 said:

    In any case, considering the statements in the letter, for what would you request validation?  It did not state that you owed a debt nor did it reference a specific debt that you could dispute.  More proof that it’s a letter seeking information..

    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.

    4 hours ago, BV80 said:

    What financial and occupational injuries did you suffer?

    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. 

    4 hours ago, BV80 said:

    Have you been in contact with the OC? 

    yes, in writing.

  4. 6 minutes ago, BV80 said:

    Considering they believe you are dead, they did not rob you of your right to request validation.  The FDCPA allows for bona fide errors that do not hold a CA liable.  

    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.

    7 minutes ago, BV80 said:

    Which of the above would apply to you?

    (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. 17 minutes ago, BV80 said:

    Both the AL court and the FTC stated that “outstanding bills” does violate the FDCPA.  It is not unusual for people to have unpaid bills when they die.  You cannot seem to focus on the fact that the CA is basing its actions on information from a creditor, yet you keep wanting to blame the CA   

    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.

    20 minutes ago, BV80 said:

    Regarding defamation,  what law(s) would you sue for defamation?

    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. 8 hours ago, BV80 said:

    I found 2 references to “outstanding bills” of a decedent and the FDCPA.  The first is the only court ruling I was able to locate on the issue.

    Ismail v  Ascensionpoint Recovery Services (ND Alabama, 2019)

    Additionally, APRS relies on the Federal Trade Commission's Statement of Policy Regarding Communications in Connection With the Collection of Decedents' Debts, 76 FR 44915-01, 2011 WL 309977. That policy states that, because "letters addressed to the estate or an unnamed administrator or executor (legal terms with which many consumers are unfamiliar) often are opened by individuals who do so in an effort to help out, but who lack the authority to pay the decedent's debts from the estate's assets[,] a communication addressed to the decedent's estate, or an unnamed executor or administrator, is a location communication" subject to all the requirements of § 1692b. Although the FTC's opinion is nonbinding, the Supreme Court has stated its "judgment is to be given great weight by reviewing courts." F.T.C. v. Colgate-Palmolive Co., 380 U.S. 374, 385 (1965).

    Consistent with APRS's contention, the Letter conforms to the § 1692b location communication requirements. First, the Letter is intended for someone other than the consumer, Fekry Ismail: specifically, the Estate. It identifies APRS and states that its purpose is to collect location information about "the person responsible for paying the outstanding bills from the decedent's estate."[8] (Doc. 6-1). It does not state Fekry Ismail owes any debts. There is no indication the letter runs afoul of the prohibitions in § 1692b(3)-(6).

    https://scholar.google.com/scholar_case?case=15077081535787918426&q=“Ismail+v.+ascensionpoint”&hl=en&as_sdt=6,41
     

    The above-mentioned FTC policy:

    Based on the comments received and on its law enforcement experience, the Commission will forebear from taking enforcement action for violating Section 804(2) of the FDCPA against a debt collector who includes in location communications a general reference to paying the ‘‘outstanding bills’’ of the decedent out of the estate’s assets. Such a reference balances the legitimate needs of the collector with the privacy interests of the decedent. 

    Page 44921

    https://www.ftc.gov/sites/default/files/documents/federal_register_notices/statement-policy-regarding-communications-connection-collection-decedents-debts-policy-statement/110720fdcpa.pdf

     

     

    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.

  7. 15 hours ago, Clydesmom said:

    In order to prevail on defamation you would have to have actual damages.  You have none.  There is also no invasion of privacy either.

    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?

  8. 23 minutes ago, BV80 said:

    That’s true, but I don’t understand your point.  When a CA contacts a 3rd party for location information, it does not demand money at that time because the 3rd party is not the consumer debtor.

    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).

  9. 52 minutes ago, BV80 said:

    Again, “send payment to” is a demand to pay.  

    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?

  10. 10 minutes ago, BV80 said:

    When they demand payment, that is when they are alleging the person has an obligation to pay.  

    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.

  11. 2 minutes ago, BV80 said:

    No, it’s not making that implication.  So what if they feel guilty?  It’s what is said that matters.  

    Actually, a large portion of FDCPA is about deceitful statements and misrepresentations.

    4 minutes ago, BV80 said:

    Yes, they do, especially when they include payment options.  They state “YOU can pay...” or something similar.  

    Ok, so again we agree they do not say "you are obligated to pay", since "It’s what is said that matters".

    8 minutes ago, BV80 said:

    Include what statement?

    "consumer is obligated to pay" or something to that effect.

  12. 7 minutes ago, BV80 said:

    No, they did not.  You took that phrase out of context.  They stated, “We are seeking to identify and locate the person who has the authority to pay any outstanding bills out of CJTX2' Estate.  If you know the identity of this person, please provide it in one of the following ways:“

    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?

  13. 12 hours ago, WhoCares1000 said:

    I have an idea. Since you have the letter, why don't you take it to a consumer attorney in Texas who specializes in the FDCPA and ask them if you have a case rather than some random strangers on the internet. This way you can be assured of your answer.

    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.

  14. 1 hour ago, BV80 said:

    It doesn’t matter who the definition includes.  It must also include that the person is obligated to pay the debt.  Where did the letter allege the recipient is obligated to pay the debt?

    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."

  15. 9 hours ago, BV80 said:

    The FDCPA’s definition of “consumer” is “any natural person obligated or allegedly obligated to pay any debt.”  The language in the letter does not suggest the recipient is “obligated or allegedly obligated” to pay debts.  

     

    This is true for the general definition of consumer. But if you look into 1692c(d):

    Quote

    (d) “Consumer” defined
    For the purpose of this section, the term "consumer" includes the consumer's spouse, parent (if the consumer is a minor), guardian, executor, or administrator.

    the act covers spouses, executors, etc. when it comes to communications in connection with debt collection.

    9 hours ago, BV80 said:

    In regard to seeking location information, they are under the belief that you are dead, so why would they be seeking your location?  

    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):

    Quote

    (b) Communication with third parties
    Except as provided in section 1692b of this title, without the prior consent of the consumer given directly to the debt collector, or the express permission of a court of competent jurisdiction, or as reasonably necessary to effectuate a postjudgment judicial remedy, a debt collector may not communicate, in connection with the collection of any debt, with any person other than the consumer, his attorney, a consumer reporting agency if otherwise permitted by law, the creditor, the attorney of the creditor, or the attorney of the debt collector.

     

  16. Here is one of the dunning letters.

     

    Quote

     

    dcm

    services

    7601 Penn Ave. S, Suite A600

    Minneapolis, Minnesota 55423-5004

    Telephone: 612-243-8710

    Fax: 877-326-8784

    Toll free 866-285-2387

     

    xxxx, xx, 2019

     

    The Estate of CJTX2

    address

     

    Dear Sir or Madam:

    We have learned that CJTX2 has passed away. We are sorry for your loss, and we understand this is a difficult time for you.

    We are seeking to identify and locate the person who has the authority to pay any outstanding bills out of CJTX2' Estate.

    If you know the identity of this person, please provide it in one of the following ways:

    - Visit https://servicelink.dcmservices.com. When prompted,  please enter:

    File number: XXXXX

    PIN number: XXXX

    - Fill out the form located on the back of this letter and return it in the enclosed postage paid envelope.

    - Call our toll free number at 1-866-285-2387 to speak with one of our representatives.

    Cordially,

    DCM Services, LLC

     

     

     

    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?

  17. 23 hours ago, Harry Seaward said:

    OP can be pretty sure it's a legit phone call when the creditor says "I'm calling about the dispute you opened on xx date for account number xxxxxxxx." At that point they can volley some additional questions to eliminate any doubt.

    Can they start talking about details of the account without asking me the classic 20 questions to identify myself, confirm personal info, etc.?

  18. 1 minute ago, BV80 said:

    And you could tell them to send their request by mail.   Again, take the first step before borrowing trouble.   It is up to you to properly dispute with the credit reporting agencies.  
     

     

    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.

  19. 1 hour ago, Harry Seaward said:

    "Hey, we can have this corrected for you today if you can you please fax us a notarized statement of your living status."

    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.

  20. 3 minutes ago, Harry Seaward said:

    Let me ask you something. You launch a dispute that requires interaction with you, and then tell them not to contact you. Do you think a court wouldn't see right through your scheme? 

    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.

  21. 2 minutes ago, BV80 said:

    You send a letter revoking consent to call YOU at a particular number.  In that letter, do you bother to inform them that they are mistaken about your status as “deceased”?

    A dispute letter about the deceased status and a consent revokal at the end.

    6 minutes ago, BV80 said:

     

    Why would they assume you’re dead if you don’t answer?   It’s an assumption on your part to think that’s what they would conclude.  How do know they wouldn’t be calling to try to resolve the issue?

    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.

  22. 2 minutes ago, BV80 said:

    What do you mean by a bad contact number?  

    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.

  23. 13 minutes ago, BackFromTheDebt said:

    We don’t know what is going on.  The OC may handle this correctly, and there may be no violation.  Or, the OC could mess this up and the OP saving all the evidence could blow this up in the OC’s faces. 

    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...

  24. On 11/23/2019 at 12:40 AM, BV80 said:

    If the calls are unanswered, they can neither be deceptive or fraudulent.   And, as has been pointed out, the FDCPA does not apply to OCs. 

    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?