When does the validation period start?

[adminppdotcom]

There has been plenty of posts about the validaiton period and I think we all agree that the validation period begins on the first communication with the consumer from the debt collector.

But the debate is WHAT qualifies as the first communication with the consumer? Many say it's when the consumer sees a trade line on their credit report, or even if they see an inquiry on their report. Some say it is when the debt collector overtly contacts the consumer or when the consumer receives the validation notice under 15 USC 1692g.

A recent post by Xanathos puts this in a real world perspective quite well :

The 30 day time limit isn't from the time a CA sends the letter, it's from the time of first communication. For many consumers, the time of first communication is when they first notice a negative tradeline on their credit reports.

There are 2 schools of thought on this.

First school of thought.

The definition of "communication" is contained in the FDCPA:

§ 803. Definitions [15 USC 1692a]

As used in this title --

(1) The term "Commission" means the Federal Trade Commission.

(2) The term "communication" means the conveying of information regarding a debt directly or indirectly to any person through any medium.

Because reporting a debt to a consumer reporting agency causes the information to be "communicated" with the consumer, INDIRECTLY in this case, there is absolutely no question that a trade line or an inquiry on a consumer report is "communication" with the consumer. It is also commonly the "first communication" with the consumer.

Under this scenerio, the 30-day validation period begins when the consumer firsts sees the trade line or inquiry on the consumer report. The consumer can then send a request for verification to the debt collector requiring them to (1) send the consumer verification of the debt (whatever your opinion of that requires), and (2) cease further collection activity, including further reporting to the consumer reporting agency. (2) is supported by the Cass Informal Opinion Letter, which states in part:

"....Section 1692g( requires the debt collector to cease collection of the debt at issue if a written dispute is received within the 30-day validation period until verification is obtained. Because we believe that reporting a charged-off debt to a consumer reporting agency, particularly at this stage of the collection process, constitutes "collection activity" on the part of the collector, our answer to your question is No. Although the FDCPA is unclear on this point, we believe the reality is that debt collectors use the reporting mechanism as a tool to persuade consumers to pay, just like dunning letters and telephone calls. Of course, if a dispute is received after a debt has been reported to a consumer reporting agency, the debt collector is obligated by Section 1692e(8) to inform the consumer reporting agency of the dispute."

So according to the FTC, at least informally, once the debt collector receives a request for verification during the 30-day validation period, the debt collector cannot further report the debt until they send validation (whatever your opinion of what that requires). Then the FTC adds that the debt collector has to notify the consumer reporting agency of the disputed status of the debt under Section 1692e(8).

So to summarize, if a consumer sees a trade line or inquiry, the consumer can send the debt collector a validation ("DV") letter. Upon receipt of the "DV" letter, the debt collector has to (1) Cease collection activity, (2) Send verification, and (3) Report the debt "in dispute" under Section 1692e(8).

*** Regarding (2); Some say the debt collector has to send verification no matter what, even if they cease all collection efforts or return the debt to the original creditor.

Now, the second school of thought.

The validation period does not begin until the consumer either receives validation rights notice contained in 15 USC 1692g- see Mahon v. Credit Bureau Of Placer County 171 F.3d 1197

In this case, the court stated: "The Mahons failed to request verification of the debt within thirty days following their receipt of the Notice."

OR

When the consumer presumptively received the notice. This is because subsection (a) states the debt collector shall SEND the notice. There is no indication receipt by the consumer is required.- see

Mahon v. Credit Bureau Of Placer County 171 F.3d 1197

In this case, the court stated: "The Fair Debt Collection Practices Act requires only that a Validation of Debt Notice be sent to a debtor, not that the notice be received. The evidence established, without a genuine dispute of any material fact, that the Credit Bureau sent the required Notice to the Mahons. Under the common law Mailbox Rule, the Notice was presumed received shortly after it was mailed.

OR

The validation period begins 5 days after the initial communication with the consumer during which the debt collector OVERTLY attempts to collect a debt. This would include a dunning letter, collection calls from the debt collector, in-person visits by the debt collector, or most importantly, a phone call made BY the consumer during which the debt collector OVERTLY attempts to collect a debt.

Below is why:

"Validation" is addressed in the FDCPA and the word is only used once, and it is in a TITLE.

§ 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.

( 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.

© The failure of a consumer to dispute the validity of a debt under this section may not be construed by any court as an admission of liability by the consumer.

Subsection (a) states: "(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"

This section has several elements:

(1) Within five days after the initial communication with a consumer in connection with the collection of any debt UNLESS CONTAINED IN THE INITIAL COMMUNICATION;

(2) A debt collector shall send the consumer a written notice containing;

(3) (a)The amount of the debt;

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

©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;

If the consumer simply sees a trade line or an inquiry on a consumer report, and this is the intial communication as addressed in the First School of thought, then subsection (a) requires the debt collector to send the written notice within 5-days after the consumer sees the trade line or inquiry, or within 5-days after the debt collector reports the trade line or causes an inquiry because this is the initial communication with the consumer.

Regarding the content of the notice. A trade line usually contains:

(a)The amount of the debt; and (b)the name of the creditor to whom the debt is owed. Because (a) and ( are contained in "the initial communication" (the trade line), the only thing which has to be sent to the consumer in writing is ©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"

So under this scenerio, the debt collector would have to send the consumer a written notice which contains ONE PHRASE : "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" becuase the rest of the info was in the initial communication, the trade line itself.

If it was an inquiry which was the initial communication, the debt collector would have to send a "full" written notice within 5-days after the consumer sees the inquiry, or within 5-days after the debt collector causes an inquiry because this is the initial communication with the consumer.

Subsection (3) under 15 USC 1692g also has several elements:

(1) Within five days after the initial communication with a consumer in connection with the collection of any debt UNLESS CONTAINED IN THE INITIAL COMMUNICATION;

(2) A debt collector shall send the consumer a written notice containing;

(1) A statement that if the consumer notifies the debt collector in writing;

(2) within the thirty-day period;

(3) that the debt, or any portion thereof, is disputed;

(4) the debt collector will obtain verification of the debt or a copy of a judgment against the consumer;

(5) and a copy of such verification or judgment will be mailed to the consumer by the debt collector

So If the consumer simply sees a trade line or an inquiry on a consumer report, and this is the intial communication as addressed in the First School of thought, then subsection (3) under 15 USC 1692g requires the debt collector to send the written notice within 5-days after the consumer sees the trade line or inquiry, or within 5-days after the debt collector reports the trade line or causes an inquiry because this is the initial communication with the consumer containing 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."

Subsection (5) under 15 USC 1692g too has several elements:

(1) Within five days after the initial communication with a consumer in connection with the collection of any debt UNLESS CONTAINED IN THE INITIAL COMMUNICATION;

(2) A debt collector shall send the consumer a written notice containing;

(1) A statement that if the consumer notifies the debt collector in writing;

(2) within the thirty-day period;

(3) that the debt, or any portion thereof, is disputed;

(4) the debt collector will provide the consumer with the name and address of the original creditor, if different from the current creditor.

So If the consumer simply sees a trade line or an inquiry on a consumer report, and this is the intial communication as addressed in the First School of thought, then subsection (3) under 15 USC 1692g requires the debt collector to send the written notice within 5-days after the consumer sees the trade line or inquiry, or within 5-days after the debt collector reports the trade line or causes an inquiry because this is the initial communication with the consumer containing 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.

Subsection ( of 15 USC 1692g also has several elements:

(1) Within five days after the initial communication with a consumer in connection with the collection of any debt UNLESS CONTAINED IN THE INITIAL COMMUNICATION;

(2) A debt collector shall send the consumer a written notice containing;

(1) A statement that if the consumer notifies the debt collector in writing;

(2) within the thirty-day period;

(3) that the debt, or any portion thereof, is disputed;

(4) or that the consumer requests the name and address of the original creditor;

(5) the debt collector shall cease collection of the debt, or any disputed portion thereof;

(6) until the debt collector obtains verification of the debt or any copy of a judgment and mails it to the consumer;

(7) or the debt collector mails the name and address of the original creditor.

Subsection © of 15 USC also has a few elements:

(1) The failure of a consumer to dispute the validity of a debt;

(2) under 15 USC 1692g;

(3) any court cannot take that failure as an admission of liability by the consumer.

So if a consumer fails to dispute a debt under 15 USC 1692g, a debt collector cannot use it as evidence against the consumer in court on an action to collect the debt.

[willingtocope]

I think the real answer to this question is...it doesn't matter.

Failure to request valdiation within 30 days of whatever date the "period" begins:

a. Allows the collector to "assume the debt is valid and continue collections"...but...

b. Is not evidence that the consumer admits to owing the debt.

and, when the DV letter is received, the CA must mark the TL as "in dispute" and cease all collection efforts until the debt is validated.

Therefore, the question is immaterial...

[adminppdotcom]

I think the real answer to this question is...it doesn't matter.

Failure to request valdiation within 30 days of whatever date the "period" begins:

a. Allows the collector to "assume the debt is valid and continue collections"...but...

b. Is not evidence that the consumer admits to owing the debt.

and, when the DV letter is received, the CA must mark the TL as "in dispute" and cease all collection efforts until the debt is validated.

Therefore, the question is immaterial...

when the DV letter is received, the CA must mark the TL as "in dispute" and cease all collection efforts until the debt is validated.

You subscribe to the first school of thought.

Why does the court in Mahon address the question of "timely notice" and "tardy request" if there is not a limit on time of validation?

Also the court stated: "The Mahons also contend the Credit Bureau failed to verify their debt as required by 15 U.S.C. § 1692g(. Under this section, a debt collector must provide verification of the debt to the debtor, upon written request made by the debtor within 30 days after receipt of the initial Notice. 15 U.S.C. § 1692g("

It is NOT irrelevent. Quite the opposite, is the heart of the WHOLE validation process. The statute says "( If the consumer notifies the debt collector in writing within the thirty-day period described in subsection (a) "

When does the thirty-day period described in subsection (a) begin ? That is the million $ question.

[momof5]

ppdotcom

OK, it is irrelevant. Why? The CA cannot prove you actually got the correspondence. He did not send it CMRRR.

For me, I cite the fact that I pulled my credit bureau and found this account. I have no knowledge of it, so validate it for me, please.

Since I have told them I had no knowledge and found it on my bureau, my letter is the 'first contact'.

This is why we send EVERYTHING CMRRR. WE can prove THEY got our letter. They cannot prove we got ours. The 'assumption' that it was never returned proves it arrived is not valid either. It is simple to research cases where postal workers had PILES of mail at their residence that they never delivered. I also have a complaint filed at my local post office. I have had a TERRIBLE time getting all my mail! I have been looking for stuff I knew was sent and weeks later... nothing! My ex-FIL sent me my child support (since ex has him managing the money while he is in IRAQ). He sent it priority mail. Weeks went by and nothing. The bank would do nothing without serious additional $$$. Reissue certified funds now, give us $200. Reissue certified funds and check has not cleared in 30 days, $100. Otherwise you must wait 60 days!!!! The priority envelope, which WAS addressed correctly was returned to ex-FIL as undeliverable 40 days after it was mailed!!!! I can cite a dozen pieces of mail that never arrived and was never returned to the orgin as well!!!

Just because they put it into USPS does not mean that it ever reached it's destination!

[adminppdotcom]

Just because they put it into USPS does not mean that it ever reached it's destination!

Yup. But the judge in Mahon says that don't matter based on the plain language of the act. I don't agree with it, but that's the law of the land so to speak.

[DocDon]

So how many of the decisions handed down by the 9th Circuit have not be overturned? Is there some truth that the 9th Circuit has been overturned more than all the Circuits combined?

Easy does it on the case law. They're law forums for that.

While Mahon addresses timely request for DV, did you happen to notice what the CA had to go through to prove it sent notice? I would think many CA's would want to avoid that.

I should also remind you that we HAD this discussion already. Ad nauseum, back in September of 2003. Have only had maybe a couple incidents where a CA has used Mahon and said they don't have to validate.

Point is, your inentions, as well-meaning as they are I'm sure, are OLD SCHOOL. You're not enlightening us in the least.

[adminppdotcom]

ok. point taken