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cybercrusader

Is a copy of check proper validation?

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If a CA sends you a copy of one of your checks with the OC as payee, your signature and the account # of the debt,is this considered proof that the debt is yours?

C>

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It shows it's your account or you wouldn't have sent a check but it doesn't prove the balance that they claim you owe.

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<blockquote>Originally posted by Swede

It shows it's your account or you wouldn't have sent a check but it doesn't prove the balance that they claim you owe.

</blockquote>

Thanks again for your helpful info.

So, there are really two parts to proper validation: 1. Ownership of the debt and 2. The debt amount. If this is correct, then they have only partially validated the debt as per Sec. 809.

Is this correct?

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<blockquote>Originally posted by cybercrusader

Thanks again for your helpful info.

So, there are really two parts to proper validation: 1. Ownership of the debt and 2. The debt amount. If this is correct, then they have only partially validated the debt as per Sec. 809.

Is this correct?

</blockquote>

Sounds about right. Signed contract/copy of check would establish ownership and complete accounting statement showing all charges and payments made would establish alleged balance. Also, as per the Wollman letter (FTC opinion letter) proof must be obtained by the OC and forwarded to the debtor from the CA (in validation)

[Edit by Swede on Saturday, January 18, 2003 @ 10:32 AM]

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As I see it, all it "says" is that you wrote a check to that company, for that account number and for that amount from your checking account.

Everything else is speculation.

What if you made a payment for someone else? Does that mean it's your debt?

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That's a stretch smogtek. If the check was posted to an account with your name on it that won't fly. Be prepared to answer who did you write the check for and why is this other persons account number on the check?

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Well, he did say "a copy of one of my checks".

Maybe they should provide more of a "payment history" or ALL of his checks.

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My mom writes checks for us all the time for our accounts.

I agree if they dont have a complete payment history.. they aint got squat.

Keep after them

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Ponder of the day.......

What if they have a payment history, but no signed checks or contract?

Cheers!

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<blockquote>Originally posted by IronMan

Ponder of the day.......

What if they have a payment history, but no signed checks or contract?

Cheers!

</blockquote>

Then how do they know it's you..........?

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I've made a payment on my son's credit card, same last name, address, etc. doesn't mean it's my account. I've also paid on a friends electric bill, although the friend did not know who had helped them out. The electric company did however over the phone give me their account number so I could have it credited to the right place.

[Edit by !cj! on Wednesday, January 22, 2003 @ 09:23 AM]

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<blockquote>Originally posted by cybercrusader

If a CA sends you a copy of one of your checks with the OC as payee, your signature and the account # of the debt,is this considered proof that the debt is yours?

</blockquote>

If they have a copy of a check showing where you've made a payment on the account being collected, then "it's over" and you lose your case. It's called promissory estoppel.

Of course, if the CA has violated any FDCPA provisions in the collections process, you should still be able to file an action. Note that the proven existence of a debt does not bar you from filing an FDCPA claim, as it is a separate action.

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Hey Buzz.. glad you're back you've been absent :)

Question- if a copy of a check proves its your account via this 'promissory estoppel' is it still only PARTIAL validation ? As Swede noted, the check does nothing to prove the balance they claim you owe - a full accounting of all charges and credits would still be necessary, would it not ??

BTW - I used one of your validation demand letters for a couple of CA's - haven't heard anything back yet. Now.. all I need is a REALLY good one to stop this stupid 'law firm' from their continued collection calls after I've sent them TWO validation demands !!!

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<blockquote>Originally posted by LadynRed

Hey Buzz.. glad you're back you've been absent :)

Question- if a copy of a check proves its your account via this 'promissory estoppel' is it still only PARTIAL validation ? As Swede noted, the check does nothing to prove the balance they claim you owe - a full accounting of all charges and credits would still be necessary, would it not ??

BTW - I used one of your validation demand letters for a couple of CA's - haven't heard anything back yet. Now.. all I need is a REALLY good one to stop this stupid 'law firm' from their continued collection calls after I've sent them TWO validation demands !!!

</blockquote>

As for "validation," the check establishes that the debt exists/existed. As for "verification," the check doesn't mean that amount stated by the CA is necessarily correct. If I were the person who received the check copy, I'd pretend it didn't happen and continue with validation attempts -- so as to get the CA to show me all of their "ammunition," which could be to my benefit in court. The more you know about the case, the better.

As for the "law firm," they are covered by the FDCPA as long as they "regularly" engage in the process of collecting debts for clients. Now, if it's just an isolated case of a creditor using his/her attorney to collect a debt, and the attorney hasn't engaged in debt-collection for a good number of other clients, then I'm not so sure the FDCPA applies. In such a case, see if he/she is licensed to practice law in your state, and also don't forget the requirement that they report your account to CRAs as being "disputed."

It's really hard to say in a case like you're talking about...there are lots of variables specific to each individual case.

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<blockquote>Originally posted by buzz-saw

If they have a copy of a check showing where you've made a payment on the account being collected, then "it's over" and you lose your case. It's called promissory estoppel.

Of course, if the CA has violated any FDCPA provisions in the collections process, you should still be able to file an action. Note that the proven existence of a debt does not bar you from filing an FDCPA claim, as it is a separate action.

</blockquote>

I was just posing a question in preparation for an upcoming hearing with CA. This particular CA hasn't provided me with anything even close of validation. My only concern is if they show up in court with something like a copy of a cancelled check.

Isn't there a disclosure law? Aren't they supposed to show me what proof they have if I ask for it? They sent me a copy of my credit report (grossly inaccurate) as proof and some ridiculous piece of paper saying that my original contract with OC is lost, but the debt is mine because I made payments on it.

Yes, they have violated FDCPA like there's no tomorrow, but unfortunately, as you said, it's a seperate issue.

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What if the check that the CA has is a check that you wrote for a purchase and not a payment to them. Would that be proper validation?

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>>I was just posing a question in preparation for >>an upcoming hearing with CA.

"Hearing?" Is this a legal hearing, or just something the CA is wanting to do?

>>My only concern is if they show up in court >>with something like a copy of a cancelled >>check.

If it can be proven that the check was written by you as payment on the account they are collecting on, then they have proven that a debt exists or existed; however, the amount of that debt or whether it STILL exists, is a different story.

>>Isn't there a disclosure law? Aren't they >>supposed to show me what proof they have if I >>ask for it?

Yes and no. The FDCPA requires that they validate, and there are court decisions that state whether certain things are considered validation, but there is NO law -- case or statute -- that provides a "punchlist" of exactly what is required for validation (which is SAD).

>>They sent me a copy of my credit report

>>(grossly inaccurate) as proof.

That's not proof.

>>and some ridiculous piece of paper saying that >>my original contract with OC is lost, but the >>debt is mine because I made payments on it.

Probably so, if you made payments on it; but that's not always the case. Unless they can produce canceled checks to that effect, all they have is hearsay from the OC's computer system.

>>Yes, they have violated FDCPA like there's no >>tomorrow, but unfortunately, as you said, it's >>a seperate issue.

It's a separate issue, but I would use it when communicating with them regarding the situation, as it might make them weigh the risks and benefits of obtaining a judgement versus having their reputation ruined (or, ruined further, if they've already been in trouble). Search online...if they've been in trouble before, you'll find it.

I got one off my back (remanded the file back to the OC) a couple weeks ago by sending proof of their FDCPA violations against me, and about 40 pages of separate past complaints and judgements against them initiated by other consumers. I told them in so many words that the "choice was theirs." By the way, I'm still suing them! :)

[Edit by buzz-saw on Wednesday, January 29, 2003 @ 08:09 PM]

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<blockquote>Originally posted by cybercrusader

Isn't there a disclosure law? Aren't they supposed to show me what proof they have if I ask for it?

They are suppose to disclose the evidence they have against you (if you ask). I am in court now concerning a debt. I sent a CRRR letter to the plaintiff's atty asking for a full accounting of all payments I made and acct balance. I then filed a copy with the court, and filed an affidavit stating that I sent a copy to the plaintiff's atty with proper postage. This way I will know what evidence they have.

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By disclosure I'm sure you mean discovery.

The fact is, in most states small claims court discovery is not required. If you are in a higher court then state laws regarding discovery will come into play.

If this is small claims, check your state law. You can ask all you like and send all of the letters you want but, if discovery is not required you're out of luck.

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Here's my thinking: A CA who never properly validates a debt prior to court isn't entitled to judgment because filing a claim in court is considered continued collection efforts (a violation of FDCPA). Since I requested validation in writing, the debt is now technically in dispute...and still will be on the day of the hearing.

If they decide to pull the trigger in court (with a copy of a check or whatever is sufficient validation) they still aren't entitled to judgment because (if they had the proper validation all along) they would be guilty of an "unfair and deceptive" collection practice. (They refused me my rights to validation in an effort to secure judgment in court).

It may be a bit of a reach, but it does have some basis in the law (at least the way I read it).

C>

[Edit by cybercrusader on Wednesday, January 29, 2003 @ 09:26 PM]

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<blockquote>Originally posted by vincent

They are suppose to disclose the evidence they have against you (if you ask). I am in court now concerning a debt. I sent a CRRR letter to the plaintiff's atty asking for a full accounting of all payments I made and acct balance. I then filed a copy with the court, and filed an affidavit stating that I sent a copy to the plaintiff's atty with proper postage. This way I will know what evidence they have.

</blockquote>

In my situation, I requested validation and the CA sent me a letter stating that my request has been met with the credit report and this bogus document signed only by two employees of CA.

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<blockquote>Originally posted by cybercrusader

Here's my thinking: A CA who never properly validates a debt prior to court isn't entitled to judgment because filing a claim in court is considered continued collection efforts (a violation of FDCPA). Since I requested validation in writing, the debt is now technically in dispute...and still will be on the day of the hearing.

If they decide to pull the trigger in court (with a copy of a check or whatever is sufficient validation) they still aren't entitled to judgment because (if they had the proper validation all along) they would be guilty of an "unfair and deceptive" collection practice. (They refused me my rights to validation in an effort to secure judgment in court).

It may be a bit of a reach, but it does have some basis in the law (at least the way I read it).

C>

[Edit by cybercrusader on Wednesday, January 29, 2003 @ 09:26 PM]

</blockquote>

If the court feels that the CA didn't provide you with validation prior to the hearing, AND you filed an FDCPA action because of it, you will most likely be awarded a judgement on -that- basis. HOWEVER, the CA's violating the FDCPA does not, in any court, preclude them from obtaining a judgement against you -- all it does is give you a cause of action against them under the FDCPA, which is a separate matter.

Bottom line, they only have to prove the debt to the judge's satisfaction. If there is a discovery rule at the general sessions level in your locale, and you haven't been provided with the required evidence, then the judge will most likely grant a continuance (if you ask) so that you can get and review the evidence before proceeding with the case.

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<blockquote>Originally posted by buzz-saw

If the court feels that the CA didn't provide you with validation prior to the hearing, AND you filed an FDCPA action because of it, you will most likely be awarded a judgement on -that- basis. HOWEVER, the CA's violating the FDCPA does not, in any court, preclude them from obtaining a judgement against you -- all it does is give you a cause of action against them under the FDCPA, which is a separate matter.

Bottom line, they only have to prove the debt to the judge's satisfaction. If there is a discovery rule at the general sessions level in your locale, and you haven't been provided with the required evidence, then the judge will most likely grant a continuance (if you ask) so that you can get and review the evidence before proceeding with the case.

</blockquote>

This matter is in small claims. As you may already know, the decision could be based on how the magistrate "feels" on hearing day. My attorney has suggested that I shouldn't even waste my time showing up, but rather deal with the matter on appeal. However, Im going anyway, because based on the validation they have provided to me, the CA doesn't have a leg to stand on.

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Thanks Bingo for the legal synonym for disclosure :)

Hey cybercrusader, why would your atty advise you not to show up for court. Without knowing all the details, that advice sounds like malpractice.

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<blockquote>Originally posted by vincent

Hey cybercrusader, why would your atty advise you not to show up for court. Without knowing all the details, that advice sounds like malpractice.

</blockquote>

My attorney simply "suggested" that I don't have to go if I don't want to, not because I should avoid the matter, but because I should argue the merits on appeal, in a higher court with a REAL judge.

The attorney knows this particular magistrate very well(who is NOT an attorney like most). He believes (from first hand experience I assume) that trying to argue FDCPA and state debt collection statues to someone who's main function is dealing with traffic violations, is an exercise in futility.

Nevertheless, I am going. And I am filing suit for FDCPA violations, but certainly not in small claims.

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