Legal Questions

[buzz-saw]

1. I receive a "compliance notice" at my PRIMARY address (which is also on the account in question), stating that my remaining silent is construed as a "refusal to pay." Easy enough. Understood. However, I later learn that the ORIGINAL notice (commencing the 30-day period) was sent to an address I rarely ever use, and which used to be my business address.

Can a CA send the original notice to a non-primary address (that's not even on the OC's account information), and then send the "refusal to pay" notice to my PRIMARY address (which I check on a daily basis)? Cites, please

2. Can a CA send collection letters within the 30-day period, provided I haven't sent a DV letter?

3. The law states that the failure to dispute within the 30-day period is not to be construed [by the courts] as an admission of liability. Easy enough.

Now... even though you have a right to dispute AFTER the 30-day period, is the CA still obliged to cease collection efforts when a DV letter (after the 30-day period) has been sent?

4. And finally, how long does the CA have, after receiving your DV/dispute letter, to notify the CRAs about your account being disputed?

Any help would be appreciated! I've searched for the answers high and low, but to no avail (even at West!). I can't imagine that these questions/issues have never been raised in court or addressed by statute(s) before.

[cookiemnster]

Have you read the FTC opinion letters?

Some of your questions are answered by those.

You're going to be hard pressed to find a lot of caselaw regarding these issues, because most of these battles are fought in small claims court, which unfortunately doesn't create caselaw.

[buzz-saw]

<blockquote>Originally posted by cookiemnster

Have you read the FTC opinion letters?

Some of your questions are answered by those.

You're going to be hard pressed to find a lot of caselaw regarding these issues, because most of these battles are fought in small claims court, which unfortunately doesn't create caselaw.

</blockquote>

I've read several of the op letters, and even searched for keywords, etc. among them, but still nothing that answers my questions. Since, as you said, General Sessions isn't a court of record, I could always take my case there and get my answers the "hard way," but I don't have the money to pay attorney's fees if I lose.

[cookiemnster]

<blockquote>Originally posted by buzz-saw

I've read several of the op letters, and even searched for keywords, etc. among them, but still nothing that answers my questions. Since, as you said, General Sessions isn't a court of record, I could always take my case there and get my answers the "hard way," but I don't have the money to pay attorney's fees if I lose.

</blockquote>

Oh, ick! What state are you in that allows attorneys in Small Claims court? Guess I should be happy I'm in a state that doesn't. Of course, I haven't had to sue (yet) so it hasn't been an issue.

I'll dig through my copies of the opinion letters and see if I can't find some relevant quotes for you that answer at least a couple of your questions

[cookiemnster]

<blockquote>Originally posted by buzz-saw

1. I receive a "compliance notice" at my PRIMARY address (which is also on the account in question), stating that my remaining silent is construed as a "refusal to pay." Easy enough. Understood. However, I later learn that the ORIGINAL notice (commencing the 30-day period) was sent to an address I rarely ever use, and which used to be my business address.

Can a CA send the original notice to a non-primary address (that's not even on the OC's account information), and then send the "refusal to pay" notice to my PRIMARY address (which I check on a daily basis)? Cites, please

2. Can a CA send collection letters within the 30-day period, provided I haven't sent a DV letter?

[buzz-saw]

Thanks for the information!

I think I've now got my case with CA-1 narrowed down to where I need it with the time-periods. I've also found that the CA notice period actually begins when you RECEIVE the letter, and not when they send it. In my case with CA-1, they addressed their follow-up letter (to the right address) exactly 30 days after they sent the initial letter (to the wrong address). Since I didn't know the original was at my old address, I didn't fetch or "receive" it until a couple of days ago. Hence, the 30-period began to accrue then.

[cybercrusader]

<blockquote>Originally posted by buzz-saw

Thanks for the information!

I think I've now got my case with CA-1 narrowed down to where I need it with the time-periods. I've also found that the CA notice period actually begins when you RECEIVE the letter, and not when they send it. In my case with CA-1, they addressed their follow-up letter (to the right address) exactly 30 days after they sent the initial letter (to the wrong address). Since I didn't know the original was at my old address, I didn't fetch or "receive" it until a couple of days ago. Hence, the 30-period began to accrue then.

</blockquote>

Very interesting discussion. Thank you for posing questions that I've been thinking about.

My situation is similar to yours. I never got an initial communication giving me the chance to dispute. In fact, I never got a subsequent letter or notification ever. ZIP, ZERO, ZILCH. (It was most likely mailed to a previous address, but that's just a guess).

Lo and behold, one day I get served with a civil complaint from CA I never heard of. Like you, I begin the 30 day clock the day I signed for the complaint. I immediately sent out validation letters, first and second requests)(via Certified Mail RR, Priority Mail Delivery Confirmation, fax, email and now FEDEX.) Incidentally, the Certified Mail was refused. I'm waiting to see if they'll accept the FEDEX.

My question is: now what? CA has already filed suit. Are they supposed to drop the lawsuit until they provide me with sufficient validation?(hardly). Can I use failure to notify as a defense? (it seems a bit of a stretch.)

Now, what if CA ignores requests for validation and instead shows up in Small Claims with what I originally asked for? Bets anyone?

[cybercrusader]

As a follow up to my previous post:

What if I file a countersuit against CA for failure to cease collection activities after providing a request for validation?

[buzz-saw]

<blockquote>Originally posted by cybercrusader

As a follow up to my previous post:

What if I file a countersuit against CA for failure to cease collection activities after providing a request for validation?

</blockquote>

Disclaimer: I am not an attorney and do not represent myself as such. By reading this post, you acknowledge and agree that the views expressed by me are my own personal opinions and observations, and not legal opinions or implied legal advice.

Ok... as I see it, as long as they can prove the debt to the COURT'S satisfaction, you'll have to pay it -- period. It would appear that an FDCPA violation took place in that they didn't provide you with the letter/notice that they're required to.

This (FDCPA) would most likely be heard as a separate suit, but I don't know for sure. You would carry the burden of proving that they didn't send you the required notice. The ONLY way I know of which you can do that is by swearing under oath. At the point, I think the judge would ask the CA for proof that they sent you the notice. If they can't produce the necessary postal documentation, I would think you'd win. Also, showing the judge copies and other paperwork that demonstrates your attempts to "work with" the CA might go a long way.

[cybercrusader]

<blockquote>Originally posted by buzz-saw

<blockquote> Ok... as I see it, as long as they can prove the debt to the COURT'S satisfaction, you'll have to pay it -- period. It would appear that an FDCPA violation took place in that they didn't provide you with the letter/notice that they're required to. </blockquote>

I am certainly no attorney or legal expert by any stretch of the imagination, but according to Spears vs. Brennan, summary judgment was reversed on appeal because CA (among other things)

1.)failed to prove the date on which debtor received the collection letter notice, and 2.) "failed to cease collection of the debt by obtaining a default judgment against Spears after Spears had notified Brennan in writing that he was disputing the debt BUT BEFORE BRENNAN HAD MAILED VERIFICATION OF THE DEBT TO SPEARS."

It seems to me that unless CA mails the proper validation to debtor (even during a lawsuit) the CA isn't entitled to a judgment, at least not a summary. The burden of proof seems to be on the CA to prove when the 30 day validation period started. If they can't, and they haven't provided me with validation they are in violation and not entitled to judgment.

Which brings me to another thought....Why even appear at the hearing? Why not just let sleazy CA get a summary judgment and then file an appeal based on the same factors that applied in Spears vs. Brennan?

[Edit by cybercrusader on Friday, December 27, 2002 @ 01:10 PM]

[buzz-saw]

Excellent observations! I apparently need to be more observant, lol

Same disclaimer as in my earlier message...I'm not a lawyer; read this message at your own risk; etc., etc., etc.

I'll have to look at "Spears" more closely. I know there was an FDCPA violation due to Brennan's not ceasing collection actions after receiving validation notification, but I didn't know the court released Spears from liability for the debt itself.

If a summary judgement is overturned, it usually just means both parties have to go back to the drawing boards and solidify their cases, and then, if the original plaintiff still feels he has a case, he/she may reinstitute the action in the same court or, if it's not a "court of record," have a trial de novo (new trial) in a "court of record."

That is done here all the time -- someone sues in General Sessions just so they can ascertain facts and see the other party's ammunition. Then, after the case is adjudicated, the same action (augmented by whatever is learned at the GS trial and assuming there is still have a case) is filed as a brand new case pending before the Circuit Court which, here in Tennessee, is a court of record.

I'm willing to bet that Spears is still responsible for the debt (if it hasn't been discharged in bankruptcy), notwithstanding the fact that he prevailed in an FDCPA action that essentially just gave him some money and bought the CA more time to prepare its case.

I'll dig deeper and see what I can find

[cookiemnster]

<blockquote>Originally posted by buzz-saw

I'm willing to bet that Spears is still responsible for the debt (if it hasn't been discharged in bankruptcy), notwithstanding the fact that he prevailed in an FDCPA action that essentially just gave him some money and bought the CA more time to prepare its case.

</blockquote>

Actually, Spears did file bankruptcy before his appeal went through and had the debt discharged

[cybercrusader]

<blockquote>Originally posted by kenrb01

But, the opinion goes on to discuss whether or not the validation notice is prohibited by some states in the wording of court documents. Hope this helps with some of your questions

</blockquote>

Excellent. Thank you for the information.

So, the way I read the FTC opinion, the collection agency must provide the "initial communication" either in the court document itself or mail it to the consumer within 5 days. That's definately great ammo for my case.

So logic would state that if they fail to provide the initial communication, then they aren't entitled to judgment in their favor?

Here are the interesting issues that I will be facing:

1. What is the CA going to say when I state in court that I never received the initial communication? Since I know for a fact that I never got one (and that they can't prove that they sent one to me at my current address) it will basically be my word against their's.

2. How will the judge rule if the CA provides sufficient validation at the hearing? (Of course, I will need time to review it and reconcile it with my records).

I am not sure if filing a countersuit is the way to go or to simply wait for appeal.