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Why you should never pay a CA!!!!


ADSOFT
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Well due to popular demand I guess I'm starting this thread, although we do recommend that you pay your bills, you can always pay the OC. So I'm going to list some basic reasons why you should not pay a CA. All feel free to jump in!!

Some of the reason's not to pay a CA:

1. If you pay, a paid CO will not help your score

2. By paying you are admitting to guilt so you are committed to a neg TL from the DOLA( a seven year window, starting from the time you first stopped paying on the original debt)

3. There are so many FDCPA violation that you can get a CA on, that eventually they are going to slip

4. They might not be able to validate.

5. They might not have the righit to collect: The Original debt my not be assignable

6. They might not be able to collect in your state

7. The SOL might be over for your bill

8. The may have misrepresented the debt.

....Feel free to add anymore or what has worked for you!!!

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I would add:

1. They may have you confused for someone else (happened to me).

2. If they can't validate with a signed contract or note, the additional charges and interest and/or attorney's fees they are trying to collect may be ILLEGAL under state law. But this is like your point #8.

Your #4 is the key. Why would you pay anyone who can't prove you owe them the money? Because they said so? I don't think so...

Even if you believe it IS your debt, you NEED to have them show you proof. You NEED to have them show you how they came up with the balance because as mentioned in #2 above, many charges they add are ILLEGAL......and they and their counsel don't even know it (or they do but they're trying to hoodwink you)!

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Just to add to this...

I recently won a court case when a CA took me to court. I couple of things I learned.

1. Most CA's use a third party company to make sure they are licensed in each state they operate in. Always check this. This is an automatic win for you if they are not licensed and your state says they must.

2. Probably the most interesting thing I learned (I was questioning the VP by telephone) was that most of the time when a CA buys the accounts, the only paperwork they receive is a copy of the signature of opening the account and only a ledger of the account owed. They buy accounts in bulk and aren't prepared to show you the paperwork where they purchased your indidvidual account. Therefore, they can't prove the account is really yours. It's technical, but works for the judge.

I agree, never pay a CA. If you take them to court, it's really hard for them to prove you owe a specific account if you keep asking for the right paperwork. Be prepared.

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They buy accounts in bulk and aren't prepared to show you the paperwork where they purchased your indidvidual account. Therefore, they can't prove the account is really yours. It's technical, but works for the judge.

This is so true. If you demand the paperwork they'll claim that it's privy and confidential information because there are other individuals on the "bulk" list. It's LAUGHABLE.

I don't understand why these "bottom feeder" CA's just don't close up shop and go out and find some HONEST work :D

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The angle(I always say angle and I should find a new word for that, it's unproffesional and doesn't lend credibility) or area that I'm researching right now is what is considered a proper disclaimer to make a bill assignable. Even if you owe a bill and have defaulted( And there could be many reasons why, not necessarily that you don't want to pay)or refused to pay, if you didn't enter an aggrement that the bill was ASSIGNABLE, the CA has to remove.

I'm getting wordy here. But what I'm trying to say is that read your contracts. And even if they do validate, the CA may have to return the debt to the OC because the debt is "NON ASSIGNABLE".

I started a thread on that subject, and nobody has found any wording that would state if the debt is assignable.

And furthermore I think this is the avenue that Calawyer is trying to inform us on, regarding ARBITRATION. If you get into some contract and agree to arbitration you might(I not knowledgable in this area) be giving up your FDCPA rights and any other rights as a consumer.

Anyhow I'm hoping you guys can help me out in determining what is and enforceable disclaimer which would allow a debt to be assigned.

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§ 392.402. Criminal Penalty

(a) A person commits an offense if the person violates this chapter.

(B) An offense under this section is a misdemeanor punishable by a fine of not less than $100 or more than $500 for each violation.

Because crime doesn't pay!

PALE RIDER

Is this FDCPA or FCRA: ...????? isn't there a clause that states $100- $1000 with an SOL of 1 yr??/

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Pale Rider,

What is the SOL on written contracts in Texas?? I hear they are renewable???

Here is the link to Texas SOL

http://www.capitol.state.tx.us/statutes/ci/ci0001600.html#ci003.16.003

Here are a few items I found on contracts

§ 16.004. Four-Year Limitations Period

(a) A person must bring suit on the following actions not later than four years after the day the cause of action accrues:

(1) specific performance of a contract for the conveyance of real property;

§ 16.070. Contractual Limitations Period

(a) Except as provided by Subsection (B), a person may not enter a stipulation, contract, or agreement that purports to limit the time in which to bring suit on the stipulation, contract, or agreement to a period shorter than two years. A stipulation, contract, or agreement that establishes a limitations period that is shorter than two years is void in this state.

§ 16.065. Acknowledgment of Claim

An acknowledgment of the justness of a claim that appears to be barred by limitations is not admissible in evidence to defeat the law of limitations if made after the time that the claim is due unless the acknowledgment is in writing and is signed by the party to be charged.

Didn't find anything on it being renewable. You might post in Lawyer section and see if TexasLawyer replies.

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When you get to court and say to the judge that the CA failed to properly validat ethe debt, doesn't the judge ever just ask, "son, is this or is this not your account?"

Or does the obligation to validate the debt in the normal FDCPA way supercede common sense?

I mean, I understand how this DV system works with the CA generally having bad record keeping but the reality is that many of the accounts getting removed by the CRA are actually the right information. I would think once it gets to court that the judge would take a more pragmatic approach to DV.

Am I wrong?

Steven

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When you get to court and say to the judge that the CA failed to properly validat ethe debt, doesn't the judge ever just ask, "son, is this or is this not your account?"

Or does the obligation to validate the debt in the normal FDCPA way supercede common sense?

I mean, I understand how this DV system works with the CA generally having bad record keeping but the reality is that many of the accounts getting removed by the CRA are actually the right information. I would think once it gets to court that the judge would take a more pragmatic approach to DV.

Am I wrong?

Steven

Steve

You have to go some reading on the proper construction of a contract. I would do some research on contract law.

Generally, and in a very basic sense, their are many things that have to happen before a contract is created: Without that knowledge it is very deficult to determine what your rights are when you enter a deal:

Basically, anytime you enter a contract your are making a promise to something and the creditor is making a promise to do something.

Actually, I was thinking of starting a thread that would address the steps required to create a contract.

Just remember, that their are BUSINESS CONTRACTS, CONSUMER CONTRACTS, .... and probobly other types of contracts. The stuff that gets put on your report only has to do with CONSUMER CONTRACTS.

Do a little homework on CONTRACT LAW and will come in very handy!!!!

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"Do a little homework on CONTRACT LAW and will come in very handy!!!!"

Adsoft,

As an incredible coincidence, I am starting law school in three weeks and Contracts is one of my first semester classes so I will report back then. Is this considered a little homework on contract law? :^D

So at this point I am still a lay person on contracts law but I also owned my own business for the last 14 years(which might account for some of my credit woes) so I am familiar with some of the issues already.

But the contract, from what I understood above, is not so much the issue once it gets to court as much as the validation of the contract. Say for example that one opens a credit card account that eventually goes bad. There were the three elements of a contract, offer, acceptance, and consideration. Proving it was your account through debt validation probably speaks to the acceptance.

But lets assume for the sake of argument that it was indeed your account. I would think you would have a hard time saying it was not your account even if the CA could not validate int he normal way of a signed contract(assume it was a phone application). There was a contract between the credit card company and SOMEONE, it is about whether they could prove the contract was with YOU.

What I was asking was if the judge might use a more common sense approach to determining if YOU are the one who was responsible for the contract or if the FDCPA must be strictly adhered to.

Steven

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When you get to court and say to the judge that the CA failed to properly validat ethe debt, doesn't the judge ever just ask, "son, is this or is this not your account?"

Or does the obligation to validate the debt in the normal FDCPA way supercede common sense?

Steven

"Your Honor, I don't recall having an account with this company 3 years ago, and when I asked for validation, they only sent a printout with my name, ss#, and the amount of the alleged debt..."

It may not work, but it's worth a shot. But, you should not answer a lawsuit by claiming FDCPA violations. That is a seperate issue that should be handled in countersuit, or in seperate suit.

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"Do a little homework on CONTRACT LAW and will come in very handy!!!!"

Adsoft,

As an incredible coincidence, I am starting law school in three weeks and Contracts is one of my first semester classes so I will report back then. Is this considered a little homework on contract law? :^D

So at this point I am still a lay person on contracts law but I also owned my own business for the last 14 years(which might account for some of my credit woes) so I am familiar with some of the issues already.

But the contract, from what I understood above, is not so much the issue once it gets to court as much as the validation of the contract. Say for example that one opens a credit card account that eventually goes bad. There were the three elements of a contract, offer, acceptance, and consideration. Proving it was your account through debt validation probably speaks to the acceptance.

But lets assume for the sake of argument that it was indeed your account. I would think you would have a hard time saying it was not your account even if the CA could not validate int he normal way of a signed contract(assume it was a phone application). There was a contract between the credit card company and SOMEONE, it is about whether they could prove the contract was with YOU.

What I was asking was if the judge might use a more common sense approach to determining if YOU are the one who was responsible for the contract or if the FDCPA must be strictly adhered to.

Steven

Steve

I wasn't trying to be a wise guy up there sorry.

But as an Experienced Business man, you know how the law operates, you may be right but HOW you implement your rights can get you in trouble.

That is the beauty of the FDCPA and the FCRA. Prior to FEDRAL REGULATIONS bill collectors had no restraints( I wasn't around then but the way the FDCPA is written I'm sure there was lot of harrasment going on, probobly on all levels, psychological, Emotional, PHYSICAL....). When I first got on this board I had a background in contract law and had owned my own business. But, a lot of the things we talk about here related to violations on collecting debts: Just because a debt is yours, you still have rights as to how the Creditor and CA collect on a debt.

To answer your question. Yes the debt may be yours, but

1. They could be charging you fees you never agreed to when you started the contract.

2. You may have never agreed to have a collection agency act on the debt if you default.

3. They may have harrassed you when collecting the debt.

4. They may have missrepresented the date of your bill on your credit report and thereby cause uneccesary damage

5. They may have failed to put you bill in dispute when you challeged the debt.

6. The OC creditor might have breached the contract, and now the put it into collections

7. And there are many more violations that CA usually commit when collecting debts. ... You have to read the board.

I think if you have a background and/or experience in contract issues, you might want to start reading the FDCPA and the FCRA. So, you know what your rights are when it comes to creditors reporting on your CREDIT REPORT and Bill collectors collecting on Defaulted debts.

I started with the FCRA Sections 11 and 23. Print it out and higlight them.

Then FDCPA: Sections 6- 12 ...something like that. With the FDCPA the key is understanding how CONGRESS defined a debt ..... an Obligation, that in my opinion is the key word. As you know a lot of things have to happen before you create an obligation between a DEBTOR and a CREDITOR.

Anyhow I hope that helps. ..... BTW, glad to know you understand the basics of contract law, that will be a big help in understanding the FDCPA. I would also like to mention that on your PERSONAL credit report, on CONSUMER ITEAMS may be reported.

I hope that helps

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When you get to court and say to the judge that the CA failed to properly validat ethe debt, doesn't the judge ever just ask, "son, is this or is this not your account?"

Or does the obligation to validate the debt in the normal FDCPA way supercede common sense?

Steven

"Your Honor, I don't recall having an account with this company 3 years ago, and when I asked for validation, they only sent a printout with my name, ss#, and the amount of the alleged debt..."

It may not work, but it's worth a shot. But, you should not answer a lawsuit by claiming FDCPA violations. That is a seperate issue that should be handled in countersuit, or in seperate suit.

Nothing agains Pale Rider( A very knowledgable source on this board may I add),

But, if they can prove you used the the service then you are going to be committed to THEIR interpetation of the bill.

That's is why I believe that you have to focus on violations. There are numerous cases where CA and CA LAWYERS have been sued because they violated the rights DEBTORS. Personally, the "NOT MINE" defense is only strong when you first dispute with the CRA'S. I personally, think the strongest position you have on a non Time-Barred debt is that the CA can't misrepresent the debt and the fact that you question any PORTION of the debt.

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When you get to court and say to the judge that the CA failed to properly validat ethe debt, doesn't the judge ever just ask, "son, is this or is this not your account?"

A while back I started a whole thread on this very subject (if I find it I'll post the link). It's an excellent question and depending on your circumstances, the answer should be carefully crafted. You certainly don't want to lie in court if you can help it. On the other hand, any type of admission and you better have your checkbook ready.

Like Pale Rider said, the best approach is to simply say that you don't recall having an account with them and you don't recognize the account number, and that's why you asked for validation. Keep in mind that the burden of proof is on the CA to prove that it's your debt.

And answering a complaint with FDCPA violations is NOT recommened and certainly NOT a defense. It's a seperate issue. However, you're certainy entitled to counterclaim for FDCPA violations.

I personally, think the strongest position you have on a non Time-Barred debt is that the CA can't misrepresent the debt and the fact that you question any PORTION of the debt.

If you've asked for validation and never got anything credible (ie, from the original creditor), then the best defense (IMHO) is to claim the it IS beyond the SOL. If they can't prove the debt is within the SOL, then it may as well be past it.

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If you've asked for validation and never got anything credible (ie, from the original creditor), then the best defense (IMHO) is to claim the it IS beyond the SOL. If they can't prove the debt is within the SOL, then it may as well be past it.

CC,

I have to admit, that is a very strong defense, the time-barred issue!!!

So, how would you word it in the court or on the law suit, that a bill is beyond the SOL.?????

As a matter of fact, I read a post on another board were a member stated that after disputing as "not mine" then dispute that the DOLA as before the SOL, so if they verify incorrectly you have them on another violation. If they verify then they are commited to validate the debt, they have to produce a contract or obligation terms????

Hey, now we have two strong disputes, "NOT MINE", DOLA(before SOL).

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This is to DJR...

Shoot me if I'm wrong, but I think you're confusing contract law (which is a state/civil matter) with federal law.

The FCRA and FTC opinion letters govern on when and how validation must be made. Evidence of an initial contract is just one of the peices required in validation. The CA/OC must also validate the amount, provide statements, etc.

Just proving a contract existed from the beginning does not mean complete validation took place. It's also the other things that happened after a contract is found that needs to be analyzed. When did it first become late, when was it charged off, how much interest/late fees, etc.

Just proving there was an original contract does not mean that complete validation has been provided. We generally talk about it here with validation because it's the most basic element of validation and is often lacking. Even if they do prove that the original agreement is there, there are MANY other elements of validation to attack.

If it were as easy as proving a contract, they wouldn't call it validation, they'd call it "proving the contract." From my understanding, validation is not just ownership of the debt, but every bit of information that is being reported to the CRA must be accurate and proveable by documentation.

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To Tolstoy

Validatation= Contract(signature and terms) + (How the contract has been collected and represented) + (is bill assignable)

That is a very good and astute observation. I would add to that the validation should also include if the BILL/DEBT is assignable???

I have tried many times on many boards to get a discusssion going on what is proper wording for a debt to be assignable , nobody seems to be able to answer that!!!! ????????

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Adsoft,

That's a good point, and I obviously don't know for sure, but I'd say to be assignable, you'd have to have a right in the first place:

1. To be able to sell a right, you'd have to have the right in the first place.

2. To establish ownership of a legitimate debt, you have to validate

3. If unable to validate when a request is made, you have no assignable right until you are able to validate under the law.

So, if you are a creditor and assert that a debt is valid and a validation request is made by your debtor, I would say you are unable to assign this debt until you can prove that the debt is clear and true. By selling the debt/assigning it is basically like selling a home that you have a lien on. Until that lien is cleared, you can't really sell clear title.

That's just my opinion though...

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Adsoft,

That's a good point, and I obviously don't know for sure, but I'd say to be assignable, you'd have to have a right in the first place:

1. To be able to sell a right, you'd have to have the right in the first place.

2. To establish ownership of a legitimate debt, you have to validate

3. If unable to validate when a request is made, you have no assignable right until you are able to validate under the law.

So, if you are a creditor and assert that a debt is valid and a validation request is made by your debtor, I would say you are unable to assign this debt until you can prove that the debt is clear and true. By selling the debt/assigning it is basically like selling a home that you have a lien on. Until that lien is cleared, you can't really sell clear title.

That's just my opinion though...

We are going to eventually have to get Kristy(Admin) in on this because the DV section of the board states thata bill should be assignable for a CA to take over the collection duties. I still haven't found anyting on the FDCPA that states ii nor on the net: Google "assign FDCPA"

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Well here it is: ... I found the proper wording. According to these guys unless the debt is properly worded, the CA can't put it on your credit report. Why,

"Because you don't have a contract with the CA"

...

Assigned or Purchased Debt

In most cases, creditors assign past-due accounts to a collection agency, but occasionally they will sell the debts to these agencies if the amount is significant enough. Most collection agencies however, work with assigned debts. In the case of an assigned debt, the collection agency DOES NOT own the debt, and you do not technically owe them any money. It would be impossible for a collection agency to prove that you owe them money because there is not a contract between you and them; the contract was between you and the creditor.

One snag is that some contracts have wording like this: "debtor agrees to be responsible for payment of this debt to creditor OR IT'S ASSIGNS". This IS a contract between you and the debt collector as well as the creditor and if they can provide you with a copy of a signed contract that states this, they've got you and you will need to settle this debt. But you would only do that AFTER they validated the debt and showed you a copy of the contract you signed.

You always need to request validation of any debt, because if they can't validate it (regardless of whether you legitimately owe it or not) the collection agency can't prove you owe the debt. And under the FDCPA, if they can't prove it, they can't collect on it. Always, always, ALWAYS, request validation in the form of a copy of the original contract bearing your signature, made by you, that states you have a contractual obligation to the debt collector and/or the original creditor.

Your right to validate the debt

As you can see, under the FDCPA you are entitled to validate this debt, and the creditor or the collection agency is required to provide proof that you owe the debt. That proof must be copies of the original documents with your signature obligating you to pay. And this is important: It is NOT sufficient proof if they send you a computer generated printout or itemization from their computer system of the debt. Click here to view the FTC opinion letter that confirms this. Additionally, the collection agency is prohibited from requiring you to pay any amount for the retrieval of such proof.

As you can see, debt validation has teeth. If a collection agency can't provide proof, in the form of copies of an original contract bearing your signature, or a court-ordered judgment, they:

Cannot collect the debt

Cannot contact you about the debt

Cannot report the debt on your credit reports

The FDCPA empowers you to sue the collection agency in state or federal court for $1,000 in damages for each violation.

Here is the link.

http://www.argentopress.com/debt_validation.htm

Btw, I just typed "assign FDCPA" in Goolge and I ran into this!!

So, after asking for validation, would asking that they remove the NEG TL from your report because it doesn't have the proper wording be enough leagal muscle??? i.e, you don't have a right to report because I never created an agreement with you?

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