missing something?

[glarco]

I looking through FDCPA section 809 validations of debts. I can't find anywhere in there that says the CA is required to provide a signed agreement from the debtor or even from the OC. It only says the CA is required to provide name and address of the OC. Am I missing something or misreading the section? Is there Case law? or another section?

[ADSOFT]

I looking through FDCPA section 809 validations of debts. I can't find anywhere in there that says the CA is required to provide a signed agreement from the debtor or even from the OC. It only says the CA is required to provide name and address of the OC. Am I missing something or misreading the section? Is there Case law? or another section?

Well, you have to have a little back ground in contract law.

Look up the defiinition of a debt in the definitions section of the the FDCPA.

Then get on google and lookup "contract law primer". In the FDCPA it says the you have to prove that the CA must prove you have an obligation

§ 807. False or misleading representations [15 USC 1962e]

A debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section:

(1) The false representation or implication that the debt collector is vouched for, bonded by, or affiliated with the United States or any State, including the use of any badge, uniform, or facsimile thereof.

(2) The false representation of --

(A) the character, amount, or legal status of any debt; or

( any services rendered or compensation which may be lawfully received by any debt collector for the collection of a debt.

(A) .. the characrter, amount, or legal status of any debt.

So the only way a collection agency can prove that you owe the amount of a debt is to prove the original contract. ... otherwise anybody could say you owe money and send you a debt.

It;s an implied definition for somebody with a background in contract law.

I had a thread on the old board that addressed this issue, I'll see if I can find it.

[ADSOFT]

Here you go, this should help you.

http://debt-consolidation-credit-repair-service.com/phpBB2/viewtopic.php?p=25259#25259

[glarco]

very good argument adsoft. Your method is definately useable. However, let me play devil's advocate for a minute. Let me PM my rebuttal and see if you can punch holes in it.

[cybercrusader]

very good argument adsoft. Your method is definately useable. However, let me play devil's advocate for a minute. Let me PM my rebuttal and see if you can punch holes in it.

Can you post the rebuttal? I think it would be interesting in light of the fact that FDCPA is definately vague with respect to what you're asking......

Also, if the matter ends up in court (the CA says they validated, but you say they didn't) then the CA needs a preponderance of evidence to win. This may or may not require a signed contract. Like Adsoft pointed out, it boils down to simple contract law. If they're going to sue you for breach of contract then they HAVE to prove that you were a party to it in the first place. If they don't have a signed contract they could provide other proof, but it's definately a steep mountain for them to climb without one.

[glarco]

I agree with both adsoft and cybercrusader. It does boil downt to contract law and the sense of fairness. It just angers me when I go on some collection forum and see what they are saying on how to handle these situation. One particular, serves most or all his alleged debtors by publications. Who reads the stupid classified legals. Then he gets a default judgement. The same says to just write back and request more personal information when you receive a validation request. I'm trying to figure out how they get away with this. Just venting

[TylerDurden]

Section 809 also mentions the following...

"(4) a statement that if the consumer notifies the debt collector in writing within the thirty-day period that the debt, or any portion thereof, is disputed, the debt collector will obtain verification of the debt or a copy of a judgment against the consumer and a copy of such verification or judgment will be mailed to the consumer by the debt collector; and "

Granted it doesn't say what "type" of verification is sufficient, but like ADSOFT and cybercrusader stated, it has to be sufficient enough to hold up as "legal" proof in court should the matter ever goes before a judge.

As for signed documents, your state's Statute of Frauds should regulate this. Here is Maryland's Statute of Frauds:

" § 5-901. Executory contracts.

Unless a contract or agreement upon which an action is brought, or some memorandum or note of it, is in writing and signed by the party to be charged or another person lawfully authorized by that party, an action may not be brought:

(1) To charge a defendant on any special promise to answer for the debt, default, or miscarriage of another person;"

So, if they can't produce the document bearing my signature agreeing to be liable for the debt, then they haven't met their burden in proving that this is my debt.

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[TylerDurden]

I agree with both adsoft and cybercrusader. It does boil downt to contract law and the sense of fairness. It just angers me when I go on some collection forum and see what they are saying on how to handle these situation. One particular, serves most or all his alleged debtors by publications. Who reads the stupid classified legals. Then he gets a default judgement. The same says to just write back and request more personal information when you receive a validation request. I'm trying to figure out how they get away with this. Just venting

I read that thread, too. It was a bit unnerving... I don't read the papers anymore as I get my news from their websites instead, so the part about serving people by publications was really disturbing.

Unfortunately, these CAs target people who are uneducated in these matters (just like I was a few months ago) and just don't know any better. It is not illegal for these CAs to take someone to court, but consumers should be given the opportunity to challenge the charge in court. The CAs' cowardly behavior just proves what type of low-lives they are.

To repeat Sisflomi's advice... stay away from those forums... they'll just get your blood pressure up.

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[cybercrusader]

So, if they can't produce the document bearing my signature agreeing to be liable for the debt, then they haven't met their burden in proving that this is my debt.

My state of PA has a similar statute (as I'm sure most states do), but it goes one step further. I don't have the actual statute handy, but basically it says that if a written contract can't be provided, or is unaccessible, the pleader must provide a writing as to the substance and terms of the original agreement and an explanation as to why the original writing is not available.

A CA who doesn't have or can't access the original contract can construe this to mean that they can simply draw up an affidavit identifying the terms and substance of the original contract. Sadly for them, the OC (or a party with direct and personal knowledge of the alledged account has to prepare the affidavit and it MUST be accompanied by other evidence such as statements, charge slips, a record of payments and so forth.

So, without the original signed contract, their job to prove the debt (in my state at least) becomes HARDER, not easier.

What state was that ding-dong collector in who was serving notice via the newspaper?

[TylerDurden]

If I'm not mistaken, I think somewhere in the thread it said the "ding dong" was from California. The thread has like 10 pages of postings, so I don't remember where I read that...

Here is a link... Please be forewarned that reading it can cause severe nausea and elevate your blood pressure. Proceed at your own risk...

http://www.collectionindustry.com/forum/messageview.cfm?catid=9&threadid=292

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[cybercrusader]

Thank you! I've been to that board several times and find very amusing. I definately missed that thread though.

[ADSOFT]

Well I'm glad to see that the readers on this board quickly are begininig to get educated on the interelation between contract law and FDCPA.

As a mater of fact it comes in handy when you enter new consumer obligations. You know your rights if the contract were to go into default. Or if the creditor tries to over charge you.

When I first got on this board NOBODY knew how to directly prove validation. They couldn't make the CONTRACT-SIGNATURE to CA connection (When you understand how assignment works it gets better, but that's for later; we might continue it on this thread). They would quote spears and Breenen, blah, blah, blah, blah. Understanding the meaning of the word "OBLIGATION" is the key. And if anybody takes the time to understand what it takes to OBLIGATE somebody with a contract, then you know how make somebody prove if you are obligated to anybody.

Newer members to Credit Repair will see Spears and Breenen quoted on a regular basis. But, the argument is difficult to communicate to the unsophisticated CA, or CSR. ...And it take a long time to figure out.

Don't get me wrong, Spears and Breenan is a great case. It definitley proves that the court is willing to hold up the stipulation that a lawsuit must be backup up by a CONTRACT WITH TERMS AND A SIGNATURE. But, the it is argued in reverse(From the DEATH OF A CONTRACT: A contract has a life: Conception, Creation, End(Default/NoDefault) and /or Judgement.

What I'm trying to say is that it is alot easier to say, "hey do you have a piece of paper with a signanture and terms that says I'm OBLIGATED to pay that amount"... How hard is that to understand???? ... as opposed well according to SPEARS AND BREENEN. .... urg( That's great when you get to court, ...if it goes that far)

I believe that new people to credit repair should learn about contracts as to how they are formed then how they are enforced if a default where to happen. Also how to ask for validation prior to going to court.

Anyhow I'm kind of venting, because I had to reverse the contractual arguement from SPEARS and BREENEN to CONTRACT LAW. But, like I said before, if you ever have to go court and you need case law. Spears and Breenen is the way to go. When you first begin your dispute, I would use "Contractual Obligation: Terms and conditions". In my opinion if you go learn contract law and read the FDCPA and search how the obligation is confirmed it will save you months in your learning curve.

[cybercrusader]

Some CA's will say that Spears vs. Brennan is not binding in any other courts except those in the state of Indiana. While this may be true on face value, the fact of the matter is Spears vs. Brennan lays out the basic requirements needed to prove the existence of a loan agreement in virutally any state: liability for the contract itself and liability for the specific amount claimed.

[ADSOFT]

Some CA's will say that Spears vs. Brennan is not binding in any other courts except those in the state of Indiana. While this may be true on face value, the fact of the matter is Spears vs. Brennan lays out the basic requirements needed to prove the existence of a loan agreement in virutally any state: liability for the contract itself and liability for the specific amount claimed.

Wow, you have actually run into that.???

There are some FTC letters that outline the responsibilities for consumer obligatations. I'll have to dig it up. On the old board I was referencing them.

The Woolman letter refernces the need for a signature and a contract but it can be confusing because it also talks about medical bills.

[admin]

bump

[ADSOFT]

First of all here is the link to all the FTC letters: http://www.ftc.gov/os/statutes/fdcpa/letters.htm

Here are two letters that outline a signature and contract with terms as to the proper proof that a consumer is obligated to a debt enforceable by FDCPA procedures and subject to FCRA reporting.

#1: here the FTC is outlining credit card transaction in which consumer obligations must be differentiaed from business transactions: Notice how a signature with terms are referenced to solidify the contractual obligation therby credit and justifing the debt.

... The Nants letter

http://www.ftc.gov/os/statutes/fdcpa/letters/nants2.htm

#2 In the following case confusion arose due to whether Association Fees which had not been paid are subject to collection practices of the FDCPA. Note how the FTC argues that a signature with contractual terms to pay association fees OBLIGATES the debtor to be responsible for those fees. The FTC commisioner goes on to explain that a consumer must read the fine print because a contract may contain hidden fees.

... actually I just used a simular agruement with TMOBILE two weeks ago they tried to charge me a $25.00 disconnect fee cliaiming that in was in my agreement that they emailed me when they set up my internet account. I had it waved because I didn't agree to it. Proof: How could have I been told prior to the agreement. I had no internet access, duh: Therefore their charge was fraudulant and I would bring them up on FALSE ADVERTIZING charges and would not only prosecute them to full extent of the law, but I would use the lawyers of my credit card company whos' job it is to prosecute frauduanlt activity against them. ... they dropped the charges like a HOT PATATO.

.... The Philbin Letter:

http://www.ftc.gov/os/statutes/fdcpa/letters/nants2.htm