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cybercrusader

Is a copy of check proper validation?

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<blockquote>Originally posted by cybercrusader

<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.

</blockquote>

I would generally agree with the "malpractice" term mentioned by another poster (because it would cost you lots of money and place the burden of proof on you and not the CA), but if your locale's small claims court judge doesn't even have a law degree, then yes, by all means pass it up and go to a higher court. It wouldn't be called an appeal, though, because general sessions is not a court of record. It would be a trial de novo (a new trial). Good luck.

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<blockquote>Originally posted by 123rich

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?

</blockquote>

does anyone know??

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Buzz-saw,

The 'law firm' I mentioned - they are listed on the ACA rosters as a collection agency and I've looked them up on Martindales - their main business - debt collection. So there's NO question that the FDCPA applies to these guys. They're racking up violations....

[Edit by LadynRed on Thursday, January 30, 2003 @ 02:43 PM]

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<blockquote>Originally posted by LadynRed

Buzz-saw,

The 'law firm' I mentioned - they are listed on the ACA rosters as a collection agency and I've looked them up on Martindales - their main business - debt collection. So there's NO question that the FDCPA applies to these guys. They're racking up violations....

[Edit by LadynRed on Thursday, January 30, 2003 @ 02:43 PM]

</blockquote>

True; and you might want to check with the Bar Association and see if they are really attorneys. Another thing to look at is if they are active collectors, or they just "rent their letterhead" to OCs.

By the way, I applied for about 30 different jobs at the company where I "think" you work. As always, though, no word back. Have they filled the VP and AVP of web development positions yet...those were the ones I hit the hardest. All of this, of course, assuming you work where I think you do.

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First off, I'd find out if "assignees" have standing in the court in your state. It just may be possible that they (CA) are precluded from contacting the OC through their purchase agreement.

You need to construct your case to force them to provide discovery. This is where burden comes into play. Sounds like they can only tie you to the debt. They have to provide an accounting statement along with that. They should also have a chain of collection evidence at the time of default to establish their claim.

The burden's on them for proving you DIDN'T pay and that they are being damaged by you not paying. However, you have to backup your claim that you did pay by providing evidence that you did (most recent check, balance statement). Maybe your other records got lost in a fire or flood sometime ago?

These matters are decided on the preponderance of the evidence. So pull out all you guns. Words alone will not win the day.

Good Luck.

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<blockquote>Originally posted by IronMan

First off, I'd find out if "assignees" have standing in the court in your state. It just may be possible that they (CA) are precluded from contacting the OC through their purchase agreement.

You need to construct your case to force them to provide discovery. This is where burden comes into play. Sounds like they can only tie you to the debt. They have to provide an accounting statement along with that. They should also have a chain of collection evidence at the time of default to establish their claim.

The burden's on them for proving you DIDN'T pay and that they are being damaged by you not paying. However, you have to backup your claim that you did pay by providing evidence that you did (most recent check, balance statement). Maybe your other records got lost in a fire or flood sometime ago?

These matters are decided on the preponderance of the evidence. So pull out all you guns. Words alone will not win the day.

Good Luck.

</blockquote>

Good post and information, but one question... don't they also have to prove that a debt actually exists?

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<blockquote>Originally posted by IronMan

You need to construct your case to force them to provide discovery. This is where burden comes into play. Sounds like they can only tie you to the debt. They have to provide an accounting statement along with that. They should also have a chain of collection evidence at the time of default to establish their claim. </blockquote>

The CA in this particular case hasn't provided anything: either proof of debt or an accounting statement. There is also no chain of collection evidence whatsoever. In fact, the first I ever heard of them was when I was reading the summons.

In my opinion, they have sidestepped my validation rights at every opportunity. For example, I never got an initial communication. Also, if the summons is the initial communication, it does not contain any language required by 809. By law, this matter isn't even supposed to be in court.

In my state (PA), the debt collection statute (including rights to validation) applies to both OC and CA. In addition, only an attorney can file suit on behalf of an assignee. The interesting twist in this is that the attorney in this case is an employee of the collection agency (they are NOT a law firm). Upon investigation, I found out that this moron attorney got licensed one week before filing several complaints simultaneously against numerous debtors.

Clearly, we have an example of a trigger happy CA with a new resource on staff; a flunkie attorney. Does someone smell BIG FDCPA violation lawsuit?

I'm just about due in court. I'll let you know how it all turns out.

C>

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<blockquote>Originally posted by cybercrusader

The CA in this particular case hasn't provided anything: either proof of debt or an accounting statement. There is also no chain of collection evidence whatsoever. In fact, the first I ever heard of them was when I was reading the summons.

In my opinion, they have sidestepped my validation rights at every opportunity. For example, I never got an initial communication. Also, if the summons is the initial communication, it does not contain any language required by 809. By law, this matter isn't even supposed to be in court.

In my state (PA), the debt collection statute (including rights to validation) applies to both OC and CA. In addition, only an attorney can file suit on behalf of an assignee. The interesting twist in this is that the attorney in this case is an employee of the collection agency (they are NOT a law firm). Upon investigation, I found out that this moron attorney got licensed one week before filing several complaints simultaneously against numerous debtors.

Clearly, we have an example of a trigger happy CA with a new resource on staff; a flunkie attorney. Does someone smell BIG FDCPA violation lawsuit?

I'm just about due in court. I'll let you know how it all turns out.

</blockquote>

A summons can be the "initial communication," however, they are still required to advise you, in writing, of your dispute rights. If you requested validation, this "should" (but not necessarily will) put a "stay" on the case against you. But the other side of the coin is that if the CA feels what they send is proper validation, it's doubtful that they'll stay the complaint -- and you'd have to bring that issue up in a separate action against them. Just my $.02

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A check is not a legal receipt for anything. I have gone through IRS audits where I would have sworn a check would work for a receipt, and the IRS said legally it doesn't mean anything.

Get something in writing.

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Hi all,

I got a question to all the legaleagles here.

I am in the contracting business, and often write the contracts for acceptance to provide services. In this contract there are "exclusions", which means the work you wont perform that is on blueprints/contract under your area. I always right at the end of the list of exlusions "Any other thing, that is not specified to be done by xyz company." well this line or the like has save my co.'s asses several times in disputes including lawsuits.

So when i wrote my "valiadation" letter I included a line like this ----

Asking them to provide any and all other information they have on this account, that i did not specifically request.

I noticed Buzz-saw earlier said that their isnt a "punchlist" of things they have to require.

So maybe this 1 line helps you if it comes to legal action?, it definately cant hurt you.What do those in the know think?

[Edit by troubledconsumer on Saturday, March 15, 2003 @ 12:49 AM]

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<blockquote>Originally posted by troubledconsumer

Hi all,

I got a question to all the legaleagles here.

I am in the contracting business, and often write the contracts for acceptance to provide services. In this contract there are "exclusions", which means the work you wont perform that is on blueprints/contract under your area. I always right at the end of the list of exlusions "Any other thing, that is not specified to be done by xyz company." well this line or the like has save my co.'s asses several times in disputes including lawsuits.

So when i wrote my "valiadation" letter I included a line like this ----

Asking them to provide any and all other information they have on this account, that i did not specifically request.

I noticed Buzz-saw earlier said that their isnt a "punchlist" of things they have to require.

So maybe this 1 line helps you if it comes to legal action?, it definately cant hurt you.What do those in the know think?

[Edit by troubledconsumer on Saturday, March 15, 2003 @ 12:49 AM]

</blockquote>

I'm certainly not a "legal eagle," but I think that requesting "anything else you happen to have" from a creditor is too vague in nature and would lead people to believe that you, the letter writer, aren't fully prepared to hammer out the issue with them.

I would recommend including a "bulleted list" in your validation letter, with each bullet describing (in meticulous detail) a particular item you need. A bulleted list conveys the idea that you've got your ducks in a row, and a detailed description of what you need gives them one less excuse to not send the information.

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yes, I agree.... I add that statement to the list of items requested.

I usually ask for at least 10 items pertaining to that particular account, but at the end I also request "Any other documentation not listed above pertaining to the alleged debt"

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