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Collection letter from CA within 30-day validation period


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My wife has a CapOne account that has been referred to a local CA, Halcomb & Wertheim PC (a law firm). She got the initial notice from H&C on 12/8; a couple of days ago she got a demand letter from them. Isn't it a requirement of FDCPA case law that a CA must allow the debtor the full 30 days to respond before any attempts to collect?

I am preparing a validation request for her and would like to know if I can cite them for a violation even before they get it.

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Isn't it a requirement of FDCPA case law that a CA must allow the debtor the full 30 days to respond before any attempts to collect?

The FTC (and the courts) have determined that the 30-day period does not prevent a CA from pursuing a collection. They must cease, however, when a request for DV is presented, and cannot continue until proper validation is provided to the consumer.

http://www.ftc.gov/os/2000/04/fdcpaadvisoryopinion.htm

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Except for the part that says: "Before the 30 day period had expired, the collection agency sent a second letter advising the consumer that she had three days in which to respond before further collection action would be taken...."

That is an overshadowing violation against the "least sophisticated consumer" rule.

The FDCPA does not say a CA cannot take action within the 30 days. Nor does it say a consumer gives up their right fo validation after 30 days. It simply says the CA "will assume the debt is valid"

There is a thread on this topic somewhere. See if we can't dig it up. If I'm not mistaken, there is a ruling that specifically states a CA can move forward with collection activities during the 30-day period.

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The good doctor is right. Nothing wrong with multiple letters or a letter and a phone call within the 30 days, so long as nothing is said that would seek to confuse a consumer about his rights. The 30 days is not a "cooling off" period, just a time for the debtor to get his act in gear. So, read the two letters and any mini-miranda warnings together, and see what comes up.

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I am totally confused now.

Doesn't this state that the CA must cease collection activity, i.e. phone calls, letters... until the requested validation is received by the "debtor"? Assuming that the VD was sent out in a timely manner within the 30 days

of § 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 --

(1) the amount of the debt;

(2) the name of the creditor to whom the debt is owed;

(3) a statement that unless the consumer, within thirty days after receipt of the notice, disputes the validity of the debt, or any portion thereof, the debt will be assumed to be valid by the debt collector;

(4) a statement that if the consumer notifies the debt collector in writing within the thirty-day period that the debt, or any portion thereof, is disputed, the debt collector will obtain verification of the debt or a copy of a judgment against the consumer and a copy of such verification or judgment will be mailed to the consumer by the debt collector; and

(5) a statement that, upon the consumer's written request within the thirty-day period, the debt collector will provide the consumer with the name and address of the original creditor, if different from the current creditor.

(B) If the consumer notifies the debt collector in writing within the thirty-day period described in subsection (a) that the debt, or any portion thereof, is disputed, or that the consumer requests the name and address of the original creditor, ]the debt collector shall cease collection of the debt, or any disputed portion thereof, until the debt collector obtains verification of the debt or any copy of a judgment, or the name and address of the original creditor, and a copy of such verification or judgment, or name and address of the original creditor, is mailed to the consumer by the debt collector. receipt of the initial CA communication.

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I am totally confused now.

Doesn't this state that the CA must cease collection activity, i.e. phone calls, letters... until the requested validation is received by the "debtor"? Assuming that the VD was sent out in a timely manner within the 30 days

A CA must not continue collection while in possession of a DV until proper validation is forwarded to the consumer.

It says nothing about a 30-day "grace period" where a CA cannot pursue the collection.

Bottom line - no response to DV, no collect.

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Another way to look at it is that a CA can continue collection activity, including calling and sending letters, right up to the time they receive your DV letter.

Or, they can do anything they want right up to the time they receive your DV letter.

Overshadowing would only occur if they demanded payment with the the 30 day period (IMMEDIATE PAYMENT, PAY NOW, PAY WITHIN 10 DAYS etc).

If the letters they send are identical to the first and/or there is no demand for payment, it isn't overshadowing

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  • 3 weeks later...

I as I read the section no where does it states that documnetation with consumers signature is required.

hmm.....

So in all actuality if they pull one of their stall tactics and act as though they have sent proper validation then they can continue to send threatening letters.

I imagine they would certainly need to make sure they understand proper verification first before they begin collection activity after sending what they feel to beleive is validated account info.

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