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I have read the law (fdcpa) over and over again I filed a small claims lawsuit against a CA because I requested validation of the debt back in October I #1 only sent one request certified return receipt they completly ignored this and failed to respond whatsoever then the same day that they received my papers from the court letting them know the date of court they sent me what they considered validation which was a printscreen copy of their computer screen and it did't even have my birthday correct on it so what I did was call them and ask them what this was and the rude man proceeded to tell me that is all they have to send me for validation and that when they go to court with me the will provide a copy of the original contract now correct me if I am wrong but in the suit I put it that they violated the fdcpa by not reporting and then validating to the cra during the validation process for it has been 3 months I disputed this with the cra's and tu deleted this from my report but experian validated is there any surprised that they can throw at me when I get to court Pleaseeee respond to this if you know anything at all I need a little reinforcement on my beliefs :confused:

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<blockquote>Originally posted by jj31

I have read the law (fdcpa) over and over again I filed a small claims lawsuit against a CA because I requested validation of the debt back in October I #1 only sent one request certified return receipt they completly ignored this and failed to respond whatsoever then the same day that they received my papers from the court letting them know the date of court they sent me what they considered validation which was a printscreen copy of their computer screen and it did't even have my birthday correct on it so what I did was call them and ask them what this was and the rude man proceeded to tell me that is all they have to send me for validation and that when they go to court with me the will provide a copy of the original contract now correct me if I am wrong but in the suit I put it that they violated the fdcpa by not reporting and then validating to the cra during the validation process for it has been 3 months I disputed this with the cra's and tu deleted this from my report but experian validated is there any surprised that they can throw at me when I get to court Pleaseeee respond to this if you know anything at all I need a little reinforcement on my beliefs :confused:

</blockquote>

I'm not entirely clear on what has happened here, but it looks to me like the only violation you have them on is not marking the tradeline in dispute.

A CA never has to validate; they only have to cease collection activities until they do. There is an FTC opinion letter regarding this. So them not providing you proper validation in 3 months is not a violation of the FDCPA.

They do, however, have to mark the tradeline in dispute, and it looks like you have disputed the tradeline with the CRA and the CA verified? Yes? If so, that is a violation, but IMO a weak one to hang a lawsuit on. Again, IMO, it's best used in conjunction with other, more-likely-to-be-seen-by-a-judge-as-more-serious violations; icing on the cake, if you will.

:o

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Cookiemnster is right. But, you may be able to use the remarks made to you that are lies. Such as when he said what you received was all that is required, tell the Judge that is wrong. Look up Spears v Brennan, print, and take with you. Also, get the Wollman letter. They may not be much, yet, it may help. Is there anything else they have done to you at any time since the onset? Be sure to remember that even though the debt is legit, they are still not allowed to violate you. There is case law somewhere on this site about that. I don't remember where, maybe one of the others do.

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DON'T MIX THE TWO ISSUES HERE!! BE CAREFUL!!! No surprises in court either!

It's irrelevant that they have the contract. They're idiots. Let them bring it to court. All you do is object, it's relevance. The horse is already out of the barn and now they want to close the barn door???? In Court??? BLAHAHAAHAHA.....idiots.

Ok, here's the deal:

The contract is immaterial for your suit. The facts are:

- You have proof that you sent and received your validation / dispute request.

- They failed to respond under FDCPA.

- They failed to report item as disputed under FDCPA.

The judge cannot rule based on FTC opinion letters. The judge can only rule on interpretation based on case law and the statutes only (called "authority").

You don't need to prove intent or negligence. FDCPA is a strict-liability statute.

The validity of the underlying debt is not relevant to the CA's liability for violation of the FDCPA. The only exception is when a CA attempts to collect a debt which is not owed. The CA CANNOT assert any counterclaim for the underlying debt.

You don't have to prove the debt is invalid either. However, payments on amounts not owed as a result of an FDCPA violation can constitute actual damages.

You're entitled to $1000.00 plus court costs and atty's fees.

You may also get actual damages (emotional distress, time lost from work, etc). Under 15 USC 1692k(a)(1) they are liable for actual damages.

Word of caution here, two cases uphold that the $1000 statutory damages is available to one plaintiff in one lawsuit. Therefore, $1000 statutory award is "per action" not "per violation". You could file two separate suits or however many violations against the same defendant and have them all heard the same day or split them up. That's the only way around that.

However, I think action in the sense of FDCPA means "cause of action", but I haven't found anything concrete on that. It is arguable though since these violations would be a valid "cause of action". Wouldn't make sense to file 20 separate suits for 20 violations. That would take up the whole calendar. I'm still trying to research this one. Haven't had any luck so far.

I think that's enough for now.

Cheers!

[Edit by IronMan on Saturday, February 22, 2003 @ 05:19 PM]

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I dont know how they could even possibly think of saying it was a mistake in not reporting this to the cra because I mentioned this to the guy on the phone and he proceeded to laugh at me is a copy of his computer screen constitute proper validation or not because with this validation letter was a demand for payment in full after about 20 min. of arguing with this guy and telling him that I cancelled this agreement with Ballys within my three day right to cancell he had the nerve to ask me to pay a settlment amount for 500.00 right now verses the 676.00 can you beleive the nerve of some of these ca's

Thanks JJ

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Ps I heard that there was one case where they failed to report the debt as being disputed and years later he went down and applyed for a mortgue and got denied then he finally took them all the way to the supreme court he was ordered to pay the 400 something original bill and then the judge granted him 1000.00 for the violations of the fdcpa then he also awarded the guy 150,000 for the cost of the house that he could not obtain because of his credit I think the case was Brady v someone is anyone out there familiar with this case if so please let me know Thanks JJ

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The case you're referring to is Brady v. Credit Recovery which was decided in the 1st Circuit stating that disputes does not have to be in writing to enforce § 1692e(8) of the FDCPA. This section doesn't really have to do with validation but with "false and misleading" representations which states that if they know or should have known that the debt was disputed, they cannot report it without this notice to the CRA's.

Brady v. Credit Recovery

Brady claims that defendants violated a provision of the FDCPA, which proscribes debt collectors from making any "false, deceptive or misleading representation . . . in connection with the collection of any debt." 15 U.S.C. § 1692e. More specifically, Brady argues that defendants violated § 1692e by failing to inform First American of the disputed status of the unpaid rent listed on his credit report. Section 1692e(8) explicitly states that the failure of a debt collector to disclose the disputed status of a debt constitutes a "false, deceptive, or misleading representation." Id. 1692e(8). 1

Defendants do not contest the facts. Rather, defendants argue that the facts do not, as a matter of law, rise to the level of "false, deceptive, or misleading representation" in violation of § 1692e(8) because Brady never disputed the debt in writing. This case thus turns on a narrow question of statutory construction: Should § 1692e(8) of the FDCPA -- which on its face does not impose a writing requirement -- be read to impose a writing requirement on a consumer who wishes to dispute a debt? Blah blah blah……

We therefore conclude that § 1692e(8) does not impose a writing requirement on consumers who wish to dispute a debt. For the foregoing reasons, we reverse the district court's order of dismissal/grant of summary judgment and remand this case for action consistent with this opinion.

In regards to validation, like cookie said, they don't have to ever validate, however, they have to cease collection efforts until they do. If they account is already place on your credit report, they can't respond to a CRA dispute or update in any way, without this notice. I think this is the FTC letter cookie is talking about

FDCPA Staff Opinion LeFevre-Cass

Statutory damages are set to be a maximum of $1000.00 per action per act. Here's a link with case laws that have established the $1000 per action, not violation FDCPA statutory damages

However, be aware of what bingo said, that it doesn’t necessarily mean you’ll get that It is up the discretion of the court to award the amount anywhere between $100 and $1000

Savino v. Computer Credit

II. District court's award of statutory damages

CCI also argues that the district court erred in awarding Savino statutory damages in the amount of $500.00. The decision whether to award statutory damages under the FDCPA and the size of the award are matters committed to the sound discretion of the district court. Clomon v. Jackson, 988 F.2d at 1322. All that is required for an award of statutory damages is proof that the statute was violated, although a court must then exercise its discretion to determine how much to award, up to the $1,000.00 ceiling. Bartlett v. Hiebl, 128 F.3d 497, 499 (7th Cir. 1997) (where plaintiff seeks statutory damages and not actual damages, penalty "does not depend on proof that the recipient of the letter was misled"). The district court must "consider the frequency and persistence of noncompliance by the debt collector, the nature of such noncompliance, the extent to which such noncompliance was intentional, and other relevant factors in deciding the amount of any 'additional damages' awarded." See 15 U.S.C. § 1692k(B)(1); Clomon, 988 F.2d at 1322. In concluding that Savino was entitled to an award of $500.00, the district court noted its conclusion that the August 14 letter violated the FDCPA but also found that the notice was not threatening or abusive in tone. Savino, 990 F. Supp. at 166. In addition, the court found that there was no evidence that CCI's noncompliance was intentional. Id. Because the district court's stated reasons for its award of statutory damages comport with Clomon, the court did not abuse its discretion in its award to Savino.

As far as attorney's fees, you are entitled to recover that if your suit is successful. However, even if you win the case but receive minimal monetary awards, you may not get attorney’s fees. I can’t remember the case, I’m at work and don’t have it but when I get home I’ll hunt it down for you.

Now to my question, this is Bally’s!!! Who’s the CA? Bally’s have had A LOT of problems with consumer protection laws and debt collection. If you tell me a little more, I do have a lot of dirt on them as I’ve dealt w. these scumsuckers myself…..

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LOL Bally's says Swede is a $120K a year stripper ;)

Ironman, I agree with everything you said, except that not providing validation is STILL not a violation of the FDCPA unless they continue collection activities. I have no idea if they did in the case of the OP here, but this is something that is a VERY important distinction, IMO, and trips a lot of newbies up.

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The company for Ballys is Financial Credit and they provided what they said they had to leagally which was a copy of their computer screen after being served their papers for the small claims lawsuit but during that time of the 3 months they were continuing collection efforts on me by reporting to the cra's this is what I have them on this is the illegal part am I correct and that opinion letter they were talking about doesnt that opinion letter address medical bills or is it diverse Thanks JJ

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:D Bingo's absolutely correct on the adjudication of the statutory award, I should have clarified that (what'd you expect at 1AM? - :o )

Swede, bad-a&#036;&#036; followup! Thanks! :eek:

If you ever make out to the West Coast, let me know!

Cheers!

[Edit by IronMan on Saturday, February 22, 2003 @ 05:24 PM]

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<blockquote>Originally posted by cookiemnster

LOL Bally's says Swede is a $120K a year stripper ;)

</blockquote>

LOL I'm a bit upset that they don't think I'm worth more.......and you my friend, have an incredibly good memory to remember that was my "stipping post".

<blockquote>Originally posted by IronMan

Swede, bad-a&#036;&#036; followup! Thanks! :eek:

If you ever make out to the West Coast, let me know!

</blockquote>

Gracias ;) I'll be there as soon as calawyer gives me that job he's promised me...we'll have drinks!!!

<blockquote>Originally posted by jj31

The company for Ballys is Financial Credit and they provided what they said they had to leagally which was a copy of their computer screen after being served their papers for the small claims lawsuit but during that time of the 3 months they were continuing collection efforts on me by reporting to the cra's this is what I have them on this is the illegal part am I correct and that opinion letter they were talking about doesnt that opinion letter address medical bills or is it diverse Thanks JJ

</blockquote>

Yep, it's Financial Credit Corp for me too but when they got my validation letter they removed the listing from my report and 4 months later they send me a whacko "bally's contract" as validation stating that I was a stripper....they haven't reinserted yet.

You said they continued collection activity by reporting, unless they have updated the account or responded to a dispute without a notice, they haven't violated. In other words, if the last update on the report is pre validation they're within their rights.

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<blockquote>Originally posted by Swede

LOL I'm a bit upset that they don't think I'm worth more.......and you my friend, have an incredibly good memory to remember that was my "stipping post".

</blockquote>

Bwahahahaha! Who could forget that post once they've read it???

Besides, it's really good fodder for teasing you ;)

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<blockquote>Originally posted by cookiemnster

Bwahahahaha! Who could forget that post once they've read it???

Besides, it's really good fodder for teasing you ;)

</blockquote>

Haha, yea I s'pouse it is....

calawyer, it's ok, I can keep my "nite-job" and work pro-bono ;)

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