Received a NOTICE OF SUIT letter before debt validation was

[KoryBricker]

Here is what I have come up with for my response. I know I could probably keep fighting it and have a good chance of them either not being able to validate or maybe even winning the case against them for the violations but I REALLY just want to get this overwith and get it off my credit reports.

So what does everyone think of this letter. I'm thinking about faxing it to them Monday as well as sending in the mail (faxing just to get it to them faster in hopes of a faster reply)

Thanks,

Kory

All the normal "fancy" formating from MS Word was lost but you'll get the idea

===============================================

Kory Bricker

XXXXXXX XXX XXXX.

XXXXXXX, XX XXXXXX

May 17, 2003

Alpine Credit Inc.

2009 Wadsworth Blvd Ste 205

Lakewood, CO 80214-5731

(303) 239-9100

Re: XXXXXXX XXXXXXX

File No: XXXXXXX

Dear Mr. XXXXXX;

Today I received your “NOTICE OF SUIT” letter. First, I would like to remind you that at 11:01am on April 30th 2003 your office received my demand for debt validation sent via US Certified Mail. Despite your actions to the contrary, I am assuming that you and your company are at least a somewhat competent collection agency and therefore aware of the Fair Credit Reporting Act (FCRA) and the Fair Debt Collection Practices Act (FDCPA). So, let me remind you that this “NOTICE OF SUIT” letter is in direct violation of the acts. The FDCPA Section 8.09( states that upon notification requesting the validation of debt, the collection agency must cease collection of the debt until validation is obtained. As stated at the bottom of your letter, this letter is “an attempt to collect a debt” and is therefore in violation. Also, until proper validation of the debt is obtained, any further action in filing suit is an attempt to collect on the debt and will also be in violation.

You also do not seem to be aware but there has been a precedent set in the case of GREG A. SPEARS vs. TIMOTHY L. BRENNAN (available for your review at: http://www.state.in.us/judiciary/opinions/archive/03260101.ewn.html) in which the appeals court determined:

"Brennan (plaintiff collection agency attorney) violated 15 U.S.C. § 1692g( when he obtained a default judgment against Spears (defendant) after Spears had notified Brennan in writing that the debt was being disputed and before Brennan had mailed verification of the debt to Spears. "

Therefore I have an absolute defense in court to deny any judgment until you have provided proper validation.

As I’m sure you are aware, each violation is punishable by up to $1000 per violation.

Your refusal or inability to validate this debt is preventing me from verify it’s validity with my own medical and insurance records and therefore resolving the issue in a timely manner therefore causing financial damages to me. Please also be aware that a simple computer generated print-out of the debt does not constitute proper validation as backed by the FTC in the Wollman opinion letter available at: http://www.ftc.gov/os/statutes/fdcpa/letters/wollman.htm

This is my final attempt in urging you to reconsider my offer to settle this immediately with an agreement between us in which I will:

- Forego the requested validation and just make the assumption that this debt is both mine and correct and therefore pay the full sum of $173.29

- Forego further legal action against you and your company for the multiple FCRA and FDCPA violations to date

All that I am asking for in return is the complete deletion of any and all derogatory remarks regarding this debt from my credit history. Again complete deletion in exchange for full payment is NOT untrue, fraudulent, or in anyway illegal and is done quite frequently in your industry.

My offer is good until 5:00pm on May 23rd. Should you continue to refuse this generous offer to settle this once and for all, rest assured that I will:

- Prepare for and file a lawsuit against you and your company for your violations of the FCRA and FDCPA

- File a complaint with the Colorado BBB for your violations

- Notify the original creditor of your multiple violations and imminent lawsuit and therefore recommend/request they pull the account from your company so that I may work directly with them to properly validate it and make any necessary payment.

As you can see it is in both of our best interests to come to this agreement and resolve this IMMEDIATALY. This is why I am faxing this to you as well as sending via US Mail.

Should you come to your senses and accept this agreement, please do so in writing via US Mail as well as faxing it to me and I will prepare a money order to be sent to you immediately upon receipt.

Sincerely,

Kory Bricker

[timbercreektech]

Great letter. I would have a section on the bottom restating the terms and a place for their signiture. Also, put in a sentence stating that the signee has authorization to bind this agreement.

Let us know what happens.

[LadynRed]

The only possible mis-statement I see here is that the FDCPA violations are not $1000 per violation, its UP TO $1000 PER ACTION plus any actual damages.

[Edit by LadynRed on Monday, May 19, 2003 @ 10:02 AM]

[Swede]

<blockquote>Originally posted by KoryBricker

Today I received your “NOTICE OF SUIT” letter. First, I would like to remind you that at 11:01am on April 30th 2003 your office received my demand for debt validation sent via US Certified Mail. Despite your actions to the contrary, I am assuming that you and your company are at least a somewhat competent collection agency and therefore aware of the Fair Credit Reporting Act (FCRA) and the Fair Debt Collection Practices Act (FDCPA). So, let me remind you that this “NOTICE OF SUIT” letter is in direct violation of the acts.

</blockquote>

Without knowing any background on this, if the only action is one DV letter from you directly to the CA, there’s no FCRA violation. Unless they have updated the account with the CRA’s without a notice of the dispute or placed it on your report after they got your letter, you have no game here.

<blockquote>Originally posted by KoryBricker

As stated at the bottom of your letter, this letter is “an attempt to collect a debt” and is therefore in violation.

</blockquote>

This is part of the mini-miranda that they by law have to include in their first communication to you (subsequent communication only needs to state that the communication is from a debt collector) This is not a violation, if they didn’t include it- it would be a violation.

<blockquote>Originally posted by KoryBricker

Also, until proper validation of the debt is obtained; any further action in filing suit is an attempt to collect on the debt and will also be in violation.

</blockquote>

They can still file, as established by case law, however, they must stay the proceedings until validation has been obtained.

<blockquote>Originally posted by KoryBricker

Please also be aware that a simple computer generated print-out of the debt does not constitute proper validation as backed by the FTC in the Wollman opinion letter available at: http://www.ftc.gov/os/statutes/fdcpa/letters/wollman.htm

</blockquote>

Of course you can include this; however, my question would be why? You don’t want them to validate so why would you help them in the direction on how to properly obtain it…..?

[Edit by Swede on Monday, May 19, 2003 @ 10:31 AM]

[Anonymous]

there is another thread i posted in validation referring to lawsuits while in validation. admin says that CA's can't sue while in validation process, until validation has been proven. ist that wrong or do i not know what 'stay' in reference to law suits means?

http://www.debt-consolidation-credit-repair-service.com/cgi-local/cutecast/cutecast.pl?forum=2&thread=7193

[Swede]

<blockquote>Originally posted by Idon'tpay

there is another thread i posted in validation referring to lawsuits while in validation. admin says that CA's can't sue while in validation process, until validation has been proven. ist that wrong or do i not know what 'stay' in reference to law suits means?

</blockquote>

Stay meaning they can file but can't proceed to an actual court date.

[tolstoy]

Basically, it's to preserve their rights under the SOL.

Many people on here seem to think that they can ride out the SOL on a debt near the end. If the SOL is about to run, many creditors will file in court within the SOL and then validate afterwards. This way, the SOL doesn't run, the creditor filed before it expired and it buys the creditor time to scare up the documents. Edit: In many cases, if an outside attorney is handling the case, this will often happen. An attorney that doesn't preserve a client's rights under the SOL can be reprimanded by the local and state bar's and held liable for malpractices. So, if the outside lawyer doesn't know if the client will have the documents before trial, they will file, more often than not. It's then up to his/her client to get the validation. An attorney that let's the SOL run isn't a very good one.

Anyway, the case law suggests that the creditor can't show up in court and pursue the action and assert claims until validation has been made to the debtor. Basically, it's a summary judgement for the debtor because the creditor would basically fail to "state a claim" in the eyes of the court. If they can't properly validate the debt to the debtor, they can't do it to the court. Here's case law for that, if you want to include it:

"Each element must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation." Id. In order to defeat a summary judgment motion, the nonmoving party may not simply rely on his pleadings but must present some evidence on every material issue for which he will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).

If you want this to just be over and you don't care about a countersuit, that would make them produce some evidence before it even went to trial. Here, they'd have to produce the validation to continue pursuing the case. Personally, I'd do that and then see if it gets dismissed. My guess is if you throw that in your letter, they'll think you really know what you are talking about and you aren't afraid of the civil suit, because you'll never see a day in court because you will file a motion for summary judgment. This way, you'll also see if they can actually validate. You also don't give them the time all the way up until the trial date to come up with validation. They have to come up with the validation to a judge at the beginning stages of the suit instead of when the court date is assigned, which can be 2-3 months out.

However, they can always file to preserve the date for the SOL.

I'd also change the wording about just making the assumption that it's your debt, I'd say: "While making no admission of liablility for this debt, I'd be willing to pay $xxx.xx for an expedient resolution to this stressful matter."

Please note, this does not constitute legal advice, it is just how I would handle a similar situation.

[Edit by tolstoy on Tuesday, May 27, 2003 @ 12:13 PM]