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Hi All,

I sent a validation letter to EMA Recovery for a Medical bill which they signed for 13 days after their original letter(Original letter dated 10/30/2002). The next letter I got from them was dated 11/20/2002 and they seemed to totally ignore the fact that I sent a letter of validation. It opens saying "The notification period expires 30 days after our orignial contact with you."

SO I responded with the following letter. Please let me know your opinions and any other tactics I should take.

Jerry

Re[TAB]inquiry dated November 20, 2002: account no. (none, there is no account)

2ND REQUEST for VALIDATION

Greetings:

[TAB]Thank you for your recent response to my request for validation. This is not a refusal to pay, but a notice that your claim is disputed. Your response did not include sufficient information to establish your claim or meet the requirements of the Fair Debt Collection Practices Act. Again, I dispute your debt collection-related allegations, deny the same, and demand strict proof and verification thereof. This dispute, denial, and demand are made in accordance with federal law.

I need documents or information that show how I might be obligated to pay you. Do we have an agreement, maybe a contract in writing? I have never heard of your company before. What is the nature of your business? Are you a depository or lending institution? Did you provide me any services or products? If you did, please list them and be specific. What did I buy from you? Did either of us rely upon the other to perform? When did you solicit my business or do you have any records showing that I solicited your business? If I owe you money as you claim, then what is your obligation to me?

If you claim to be the assignee debt collector for a particular creditor, do you maintain a valid license and bond to engage in this particular collection activity in this state? What are the terms of the assignment? What are your rights and liabilities and what are the assignor’s rights and liabilities under the purported assignment agreement? When did I consent to the assignment and do you have evidence of that consent? What provisions of the purported assignment agreement describe my rights and liabilities under its terms? In what manner did I benefit from the purported assignment? Is the purported assignment within a class of contracts, the performance of which might exceed one year? Please include a facsimile of this agreement and any other supporting records in your reply. Please answer these as soon as you can and be specific.

If you don’t provide me the information requested within thirty (30) days I will consider the purported debt to be invalid, that you made a mistake, and that you agree to sanctions imposed against you and your organization for knowingly continuing a frivolous claim against me.

Please limit your communication with me to writing only. If I receive any telephone calls from your company, I will consider them to constitute harassment. Please be advised that unwanted telephone calls are a class 1 misdemeanor in this state and I will file a complaint against the caller with the attorney general’s office. I maintain a telephone log of each phone call and in some cases, make an audio recording when necessary.

Be advised that you have the right to remain silent. If you ignore this notice and contact me by telephone, you and your employees agree to allow me to make an audio recording of our conversation and you and your employees agree to allow the recording and any other information to be used against you and your employees in a court of law. I will accept only your written communication.

Be advised that I am not requesting a "verification" that you have my mailing address, I am requesting a "validation;" that is, competent evidence that I have some contractual obligation to pay you.

You should also be aware that sending unsubstantiated demands for payment through the United States Mail System might constitute mail fraud under federal and state law. You may wish to consult with a competent legal advisor before your next communication with me.

Your failure to satisfy this request within the requirements of the Fair Debt Collection Practices Act will be construed as your absolute waiver of any and all claims against me, and your tacit agreement to compensate me for costs and attorney fees.

Best regards,

Me

P.S. Enclosed is a copy the CRRR card your agent signed & my first request for validation of this debt.

[Edit by jconn40 on Tuesday, 26, 2002 @ 03:04 PM]

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The interesting part is that first statement:

"The notification period expires 30 days after our orignial contact with you."

If they're trying to say here that they don't have to validate because you didn't dispute in those 30 days, they are DEAD WRONG ! They have to give you 30 days to dispute, and that dispute notice to you MUST be in writing, the infamous letter that by law they MUST send 5 days after their first contact!

The FDCPA specificallys states:

Section 809©"The failure of a consumer to dispute the validity of a debt under this section may not be construed by any court as an admission of liability by the consumer."

They are trying to wiggle out of having to validate, or at least it sounds that way.

[Edit by LadynRed on Tuesday, 26, 2002 @ 08:49 AM]

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<blockquote>Originally posted by LadynRed

The interesting part is that first statement:

"The notification period expires 30 days after our orignial contact with you."

If they're trying to say here that they don't have to validate because you didn't dispute in those 30 days, they are DEAD WRONG !

They are trying to wiggle out of having to validate, or at least it sounds that way.

[Edit by LadynRed on Tuesday, 26, 2002 @ 08:49 AM]

</blockquote>

Seems more like they are trying to pretend they never got my original validation request. As you can see from the timing of the letters, there's no way they can say this 2nd letter and my original validation request just crossed in the mail. The rest of the letter is much the same as the first, telling me how to make payment arrangments.

And feel free to use any or all of that letter. It was freely given to me (tweeked it a bit for my needs) and has no copyrights on it as far as I know.

Jerry

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<blockquote>Originally posted by LadynRed

They have to give you 30 days to dispute, and that dispute notice to you MUST be in writing, the infamous letter that by law they MUST send 5 days after their first contact!

</blockquote>

Jconn, I am STRONGLY digging your letter- this should become as notorious as the nutcase series for OC's, perhaps dub it with a name such as "Curious George Letter" (due to all the great questions)

Lady, I disagree with your statement that notice must be in writing. In fact, the FDCPA states:

809. Validation of debts [15 USC 1692g]

(a) Within five days after the initial communication with a consumer in connection with the collection of any debt, a debt collector shall, unless the following information is contained in the initial communication or the consumer has paid the debt, send the consumer a written notice containing yada yada..

Also, when you read the FTC Staff Commentary on the FTC site they go on to say that if the first communication with the consumer is oral, notice may be given at that point and in that case, he does not need to send a written notice.

You stated before that they must send this notice 5 days after they assign the debt, the FDCPA only states 5 days after initial communication and communication is defined in the text as "conveying of information regarding a debt directly or indirectly to any person through any medium"

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Ok Swede, I stand corrected. However, I have never had an oral communication with ANY CA where they spouted off my rights to dipsute the debt.. all they do is make ludicrous demands and violate my rights in so many other ways. So, if someone's had a CA orally read them their mini-miranda and give notice of your right to dispute within 30 days, I'd be interested.

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Certaintly Ms. Vonnie :p

Actually I mis-spoke, nutcase is for fully paid collections. It's created by PsychDoc and many members have used it successfully on creditnet. Hopefully he/she doesn't mind me pasting it here- but it's posted on various boards so I hope I won't get in trouble... (if you're reading this psychdoc, I tried emailing you but you're email is off from C-net)

--------------------------------------------------

ORIGINAL NUTCASE -- LETTER #1:

--------------------------------------------------

Date

Name of Old Fully-Paid Acquaintance

Address

City, STATE ZIP

To Whom It May Concern:

I am formally requesting that you validate all tradeline notations you have submitted to the three major credit reporting agencies by NAME OF COLLECTION AGENCY or NAME OF ORIGINAL CREDITOR for me, YOUR NAME, for account number XXXXXXXXX.

Due to possible inaccuracies in these CRA reports, I must demand that the validation I hereby lawfully request be in the form of a notarized statement by a person with original knowledge of the debt as it was constituted and who can testify that the debt was incurred legally, was not subsequently disputed as a result of returned, faulty, or recalled consumer products, was not utilized as a profit-loss tax deduction during the period it may have been payable, and was not claimed as a loss with any insuring entity during the period it may have been payable. Please be advised that I am not requesting a verification that you have my mailing address; rather, I am requesting validation, i.e., competent evidence that I had some contractual obligation sans consumer protection encumbrance which incurred the original claims associated with this tradeline.

I have enclosed two documents which will verify my address: a photocopy of a [YOUR STATE] Driver's License and a photocopy of a recent [NAME OF UTILITY OR TELEPHONE COMPANY] statement.

Please know that you have 30 days from the tracked and confirmed delivery of this lawful notice to either answer these demands or to remove the associated negative tradeline notations from the CRA reports. Any other action may constitute evidence of your intent to abridge one or more civil or other constitutional rights. Please be further advised that continued unsubstantiated reporting of possible inaccuracies to third parties may provide a basis for criminal complaints being filed in accordance with FDCPA, FCRA, and other federal statutes.

I look forward to a timely and amicable resolution to this matter.

Sincerely yours,

Your Name Address City, STATE ZIP

--------------------------------------------------

SON OF NUTCASE -- LETTER #2:

--------------------------------------------------

DATE

Name of Old Fully-Paid Acquaintance

Address

City, STATE ZIP

RE: Account # XXXXXXXXX

Dear Mr. NAME:

Again, I am formally requesting that you validate all tradeline notations that you have submitted to the three major credit reporting agencies by XXXXXX for me, [YOUR NAME], for account number XXXXXXX.

I am receipt of your correspondence postmarked [DATE]. You state that the account is reporting accurately in your opinion. However, it is not. I have contacted the alleged creditor, [NAME OF ORIGINAL CREDITOR]. They state that the account is “an open account and paying as agreed (R1)." That is their “understanding of the reporting.” However, your credit reporting does not reflect the confirmed status by [NAME OF ORIGINAL CREDITOR]. Therefore, you are reporting incorrect information to the credit bureaus.

If you do not cease reporting of the incorrect information, I will be forced to take further action. Please be advised that your blatant disregard and violations of the Fair Credit Reporting Act, Fair Debt Collection Practices Act, and my rights as a consumer have caused harm to me by seriously affecting my otherwise unblemished credit rating, causing the denial of credit, as well as causing me to be charged higher interest rates and unfavorable loan terms.

Note that the FTC has maintained that incorrect credit reporting is the legal equivalent of prohibited collection activity. I assume that you cannot validate this debt, therefore I am demanding that you cease any and all collection efforts associated with the above referenced account. You chose by doing business as a collection agency to maintain the highest possible records of accuracy and to maintain and collect valid debts.

I’m sure you are aware of the consequences in violating the Fair Credit Reporting Act and the Fair Debt Collection Practices Act as well as the multiple violations your company is now responsible for.

As per the FDCPA:

§ 813. Civil liability [15 U.S.C. 1692k]

(a) Except as otherwise provided by this section, any debt collector who fails to comply with any provision of this title with respect to any person is liable to such person in an amount equal to the sum of --

(1) any actual damage sustained by such person as a result of such failure;

(2) (A) in the case of any action by an individual, such additional damages as the court may allow

As per the FCRA:

§ 616. Civil liability for willful noncompliance [15 U.S.C. § 1681n]

(a) In general. Any person who willfully fails to comply with any requirement imposed under this title with respect to any consumer is liable to that consumer in an amount equal to the sum of

(1) (A) any actual damages sustained by the consumer as a result of the failure or damages of not less than $100 and not more than $1,000

§ 617. Civil liability for negligent noncompliance [15 U.S.C. § 1681o]

(a) In general. Any person who is negligent in failing to comply with any requirement imposed under this title with respect to any consumer is liable to that consumer in an amount equal to the sum of

(1) any actual damages sustained by the consumer as a result of the failure;

(2) in the case of any successful action to enforce any liability under this section, the costs of the action together with reasonable attorney's fees as determined by the court.

As a brief summary I state the following:

Your company has failed to send the legally required validation of this debt. You have been notified that your actions are detrimental to me and that your company has violated (including but not limited to) the Consumer Credit Protection Act, the Fair Credit Reporting Act, and the Fair Debt Collection Practices Act.

Your company knew or should have known that the actions taken against me and the information collected about me was inappropriate and damaging to me. Failed to use reasonable care in the course of business and failed to use even minimal procedures to ensure that I was not harmed.

You have communicated and are continuing to communicate incorrect and defamatory information to third parties including but not limited to, Equifax, Experian, and Trans Union.

As a result of these blatantly reckless, wanton, and intentional acts, I have suffered and continue to suffer general and specific damages. I am also very upset at your company's intentional infliction of emotional distress, other diminishments of the quality of my life and refusal to follow the law.

Please understand that I am extremely concerned regarding the harmful resultant consequences of the actions your company has taken. Please be advised that, if this matter is not resolved expeditiously, I will take any and all necessary steps to protect my rights.

If you wish to resolve this matter, this will be your last opportunity to do so. The following item must be deleted from my credit files with the three major credit reporting bureaus (Equifax, Experian, Trans Union) within 5 days from the tracked and verifiable receipt of this letter. Forward a letter to me via facsimile and via regular U.S. mail stating it has been removed and will not reappear on my credit reports again. I will accept nothing less.

Please be aware if these accounts are not deleted within 5 days of receipt, I will file a formal complaint with the Federal Trade Commission, my state's Banking and Finance Bureau, and the Better Business Bureau. Also, note that section 1681s-2(B) of the Fair Credit Reporting Act creates a cause of action for a consumer against a furnisher of erroneous credit information (Nelson v. Chase Manhattan).

For the purposes of 15 U.S.C. 1692 et seq., this Notice has the same effect as a dispute to the validity of the alleged debt and a dispute to the validity of your claims. This Notice is an attempt to correct your records, and any information received from you will be collected as evidence should any further action be necessary.

Thank you and I look forward to your resolving this most expeditiously.

Sincerely,

Your Name Address City, STATE ZIP

Your Fax Number

--------------------------------------------------

FINAL NUTCASE -- LETTER #3,

SENT IF NECESSARY,

REQUIRES CUSTOMIZATION,

MODIFY TO SUIT YOUR ISSUES:

--------------------------------------------------

DATE

Name of Old Fully-Paid Acquaintance

Address

City, STATE ZIP

RE: Account # XXXXXXXXX

Dear Mr. [NAME OF COLLECTOR]:

I received a message that you have called my place of residence and left a message regarding resolving the above-referenced account.

My previous letter, submitted via facsmile on [DATE], outlined what action needed to be taken. I called you and left a message on your voice mail. Although I have requested that all contact be in the form of written correspondence, I attempted to again contact you via telephone at the number given (XXXXXXXXX) to resolve this matter amicably. It seems that you are either never at your desk or you do not answer your phone.

Let me once again outline what action needs to be taken. Since you have not validated the above referenced tradeline within the given timeframe, you are to immediately delete this incorrect account, in the form of a Universal Data Form, from files with the three major credit bureaus (Equifax, Experian, and TransUnion), and fax proof of the deletion to me immediately! Furthermore, since you are unable to validate this tradeline, it is lawfully assumed that you are unable to verify this account with the credit reporting agencies as well.

Also note, that section 1681s-2(B) of the Fair Credit Reporting Act creates a cause of action for a consumer against a furnisher of erroneous credit information (Nelson v. Chase Manhattan).

Please be advised that failure to comply with my requests will result in a lengthy and expensive legal battle with your company. Considering that you are not located in my state, you will have to appear here or retain outside counsel to defend your interests. This matter can be resolved without such action.

For the purposes of 15 U.S.C. 1692 et seq., this Notice has the same effect as a dispute to the validity of the alleged debt and a dispute to the validity of your claims. This Notice is and attempt to correct your records, and any information received from you will be collected as evidence should any further action as necessary.

Thank you, and I look forward to your resolving this matter expeditiously, as time is of the essence.

Sincerely,

Your Name Address City, STATE ZIP

Your Fax Number

--------------------------------------------------

(end Nutcase sequence)

--------------------------------------------------

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Actually, the best way to respond to the oft-heard "we're not obligated to validate after 30 days" lie is to hit them with the fact that you're not an idiot and that you know the actual legal context of the "30-day rule".

The "30 days to validate" statement was in no way designed to affect the actions/choices of the consumer; it's purpose is to affect the actions of the CAs. All that statement really says is this:

"We (the CA) are notifying you that we have an account here that has your name on it. By law, you now have 30 days to dispute ownership of this account before WE can institute any further collection activities. If you dispute ownership within 30 days, we will then send you what evidence we have BEFORE we begin further collections activities. If you don't dispute the debt within 30 days, the we can ASSUME that the debt is valid and begin MORE collections activity"

In other words, this requirement is designed to give you - the consumer - protection from a full-throttle assault by the CAs. Think of it this way: that original letter that you receive from a collection agency is not really a collections notice, it's a WARNING that you are ABOUT TO BE subjected to collections activity unless you dispute the information immediately. But if you decide to dispute the information later, you still have every right to do so and the CAs are still obligated to provide the information, thus the admonition that failing to request validation is not "an admission of liability by the consumer".

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And by the way, regarding my last post, here's the proof of my assertions:

I have had at least 3 different collections agents try to use the 30-day lie on me in phone conversations, telling me that they weren't required to respond to my validation requests since it had been over 30 days since they sent their original letters to me. When I explained to them that I wasn't an idiot and recited the above to them, guess what their responses were?

Nothing...nada...zip.

They all promptly dropped it completely. They never tried to state that I was "mistaken" or "wrong"...they just immediately tried to shift to some other tactic. Which leads me to believe that they know fully well what the actual meaning of the 30-day statement is: they're just hoping that YOU are too stupid to know what it means.

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