Legal question- need good info

[divemedic]

I am dealing with a CA who is trying to say that my DV is untimely and beyond the 30 day window. I have lived at the same address for a year and a half. I have lived in the same town with valid forward orders for my mail for the last 4 years. I have been easy to find.

The first letter I got from this CA said "This is not our first attempt to contact you." They are saying that they don't have to respond to DV because I am beyond 30 days from initial communication.

How do I convince a judge that this is a lie? How should I fight this? I know the conventional wisdom is that I don't lose validation rights, but when opposing counsel stands up and says that I only have 30 days to dispute, how do I counter?I know they don't have to prove they mailed me a letter, so how do I beat this?

( 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.

[booger69]

Your right to validate doesn't end at 30 days. They still have to validate.

Diamond v. Corcoran, clearinghouse No. 48,404 (W.D. Mich. 1992)

Burdett v. Harrah's Kansas Casino Corp. , 294.F. Supp. 2d 1215 (D. Kans. 2003)

Even if it is past the 30 days, you haven't admitted to jack squat regarding this alleged debt!

Stright from the NCLC Fair Debt Collection 5th ed.

Having said that; I guess you may be able to dig up something in Discovery or with a subpeona to prove they are lying.

[divemedic]

I looked up the cases you mentioned and didn't find the first, the second made no mention of the 30 day window that I could find. Could you elaborate or post links?

Whether I have admitted anything or not I don't think is material here. They are not saying I have admitted anything, they are saying they don't have to validate to continue collection activity. I am not trying to be difficult, I am just trying to see what I can take with me to court.

[Guest]

Well here is how I would argue it in court.

If my not mailing a validation letter only allows them to ASSUME the debt is valid.. at what point then can I say that it is not valid.

Congress did not mean to put a strict time limit on validation or they would not have added that last statement. Mail gets lost all the time, mistakes are made.. things are overlooked.

You can simply say... How can you prove the legal standing of the debt, the amount of the debt etc.. if you do not validate the debt.

The law says that you get all of these yet you are saying that I give them up when I miss the 30 day window? No that is not the intent of the act nor was it Congress' intent as well.

That is how I would argue it but who knows if that would work.

Just my 2 pennies.

There is also a GREAT THREAD on this subject over at Art of Credit.

http://www.artofcredit.com/phpBB2/about3080-0.html

They are basically saying that the CA doesnt have to cease collection attempts after the

30 day time frame.. BUT they still must validate the debt.

In other words.. to stop the collection activity on an account the DV letter must be received in the 30 days ... AFTER that time they can continue to try and collect but they STILL have to validate the debt.

Make sense?

[booger69]

If you have the NCLC manual the citation is on page 240.

They better be able to validate in court or they are screwed. No judge is going to accept "well your honor, Divemedic had 30 days to dispute and didn't, so we don't have to validate this debt."

Also cite 1692(g) c..."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."

If you can do some Discovery, make them show what procedures they used to send any previous notices, all training manuals/materials/videos/audio tapes, all documents relating to the activities to collect debts like yours, all documents between you and the CA pertaining to this alleged debt, etc...you get the picture. They should have copies of the documents, not having them is going to hurt them in court.

I will see if I can dig up some more cases and citations for you.

[booger69]

If they could have validated this debt, they would have!

[admin]

One other thing - they need to prove that they send you something - where's their CMRR proof. If they can't prove it, they are up the creek.

[Crew Chief]

I'm using the same defense in a couple of the cases I'm coming up against dive. I sent in letters requesting validation to CA before but never sent them CMRRR...anybody on this site would tell you not to do this because you would never have proof that you did it. If you showed up in court and said they didn't validate without CMRRR cards the CA would call you a liar and you would have nothing to stand on...they won't in this case. I would bring a copy of the letter from the collection agency that says it isn't their first piece of correspondence to you. Judges are trained (at least they should be) to spot deception, all CA do is proliferate deception, it's like some crazy psy-ops agency. Tell the judge that you never received any letter but the one you have, talk about your military record and anything else you can have stand for your integrity, your moral fiber. Judges have listened to me above others just because of military records and so forth. Definetely do what Sky Warner says and put in for Discover and such, that would be awesome to trip up the other side, but don't forget that the FDCPA and FCRA are largely stacked in our favor. Hope that helps.

[divemedic]

Admin- I remember reading a case where a CA won because the court ruled that they don't have to prove you got the letter or that they even sent it. All they have to do is prove they have reasonable procedures in place that the letter SHOULD have been sent.

[gdouglaslee]

You can dispute the validity of a debt at any time, but they do not have to cease collection activity unless your dispute is sent within 30 days of receiving their initial notice.

I don't remember the case, but it says that if a debt collector knows a debt is disputed or has reason to beleive a debt is disputed then it is and they must make the right notations on your credit report that the debt is disputed.

You can also dispute any portion of a debt, like the amount of interest, late fees, OTL fees.

When it comes to claims about mailing things, the debt collector and the consumer are held to the same standard. Neither the debt collector nor the consumer are required to send correspondence CMRRR, but there is no doubt that it certainly establishes your claim if you do. A debt collector can also establish a system that identifies and records sent correspondence, like in the Mahon case, where the debt collector presented evidence and explained their procedures for mailings which the judge found more than satisfactory. You can ignore that case because the Mahons were liars. The lived at the same address since the North American continent separated from the Eurasian continent and claimed the never received anything, but offered no explanation. The judge did not find them to be credible plaintiff's and even says so (tactfully).

I'll see if anyone has the text to those cases so you can see what they say.

[admin]

You can dispute the validity of a debt at any time, but they do not have to cease collection activity unless your dispute is sent within 30 days of receiving their initial notice.

I don't remember the case, but it says that if a debt collector knows a debt is disputed or has reason to beleive a debt is disputed then it is and they must make the right notations on your credit report that the debt is disputed.

You can also dispute any portion of a debt, like the amount of interest, late fees, OTL fees.

When it comes to claims about mailing things, the debt collector and the consumer are held to the same standard. Neither the debt collector nor the consumer are required to send correspondence CMRRR, but there is no doubt that it certainly establishes your claim if you do. A debt collector can also establish a system that identifies and records sent correspondence, like in the Mahon case, where the debt collector presented evidence and explained their procedures for mailings which the judge found more than satisfactory. You can ignore that case because the Mahons were liars. The lived at the same address since the North American continent separated from the Eurasian continent and claimed the never received anything, but offered no explanation. The judge did not find them to be credible plaintiff's and even says so (tactfully).

I'll see if anyone has the text to those cases so you can see what they say.

So if someone had been moving around and had many addresses the Mahon case wouldn't hold water?

[divemedic]

So, in my case, I have lived here for awhile and this CA has had my actual address, as I have been disputing another (paid) account with them for 2 years.

All they have to do to be able to skirt the FDCPA and be able to continue collection activity post DV is claim that the first letter wasn't the first and that I am untimely? That seems to be a rather large loophole.

[LadynRed]

When are they claiming they got this account ??

Have they pulled your credit since that date ? I'll bet they have.

If you've not moved, and your current address is on your reports, then they surely cannot claim they had another address and sent it there.

Where DID they send the alleged letters ? You could probably get that info on discovery. Its a bitch to try to prove something DID NOT happen and they get away with this via the common law that presumes if they had the procedures in place for mailings that you DID get mail, even if you never got any such letter.

[divemedic]

When are they claiming they got this account ??

I don't know, they haven't said. They won't answer DV.

Have they pulled your credit since that date ?

Not that I can tell. There are some soft pulls I don't recognize, though.

What sucks is that this is only for $21. Maybe I can use this as leverage to get rid of the paid coll TL, too.

[devil21]

The key word in the initial communication statute is "RECEIPT". Basically, you have to receive the initial communication, just them sending it is not the same thing. Im my case, AA apparently sent several letters to an old address but once they got my new address they sent a letter there, which I received (remember, receipt is key) so THAT is the initial communication, not the junk they sent to an old address. You may have to give some sort of proof that you did not receive prior letters though.

[gdouglaslee]

The key word in the initial communication statute is "RECEIPT". Basically, you have to receive the initial communication, just them sending it is not the same thing. Im my case, AA apparently sent several letters to an old address but once they got my new address they sent a letter there, which I received (remember, receipt is key) so THAT is the initial communication, not the junk they sent to an old address. You may have to give some sort of proof that you did not receive prior letters though.

Amen.

Everybody makes this harder than it has to be. If you're living at 321 Kensington Drive, Streamwood, IL 60107 and the CA is sending you notices to 1060 West Addison, Chicago, IL 60604, they lose. Until they mail you a notice to the Kensington Drive address, you have not received a notice.

The Mahons have not raised a genuine issue of material fact to dispute that the Credit Bureau sent them the required Notice. The Credit Bureau's standard business practice established that the September 21, 1995 Notice was sent to the Mahons' home via first class mail. The Credit Bureau's CUBS system generated [*1202] the Notice, and then another machine mechanically addressed and stuffed the Notice into an envelope addressed to the Mahons. The Notice was mailed. Before mailing, [**12] Credit Bureau employees ensured that the number of outgoing notices corresponded with the number assigned to the daily "batch" of notices to be sent.

The Mahons offered no evidence that the Credit Bureau failed to follow its ordinary business procedure in sending them the Notice. They simply say they did not receive the Notice, just as they say they did not receive any of the monthly statements sent to them by Dr. Bowen's office over a period of more than two years.

But they got all their other mail. They had been living at that address since the Permian Age and both went to the same doctor for 15 years. They never had any problems getting their mail from the doctor during that time except that last two years when they claim they never received any bills at all, and nothing from the CA. Their full of crap.

Those 2 cases someone esle mentioned, Sylvester "the Cat" Diamond v Corocan and Ima Stupid Dead Gambler v Harrahs have nothing to do with anything here. Diamond is about overshadowing in a dunning letter and made 5 claims and won 4 of them. He lost on the 809© issue.

Harrah's is about the history of casino gambling in Kansas on Indian Reservations since 1859. NCO sent 9 notices over a 15 month period except that Idiot was dead before they ever mailed the first notice. The plaintiff came up with all kinds of weird clams like gambling in Kansas is illegal (that explains the need for Professor Brown's history lesson on Kansas and Indian treaties), the checks he wrote weren't collectible off of the reservation etc.

[divemedic]

You all are missing the point of my question. What I am saying is that it doesn't matter what address I lived at. They are going to claim that I got the letter.

There never was a letter to get, they are claiming they sent me one sometime in the past so they can dodge providing validation by claiming it is beyond 30 days, in other words, THEY ARE LYING.

[booger69]

Check the cases again...

The US district court of the Western Division of Michigan (Diamond v. Corcoran) stated that a collection letter that used the statement "Under the law, you have 30 days to dispute this balance," gave the impression that there is a time limit for debt validation and after 30 days you waived the right to validation.

Burdett v. Harrah's also had a statement about failing to dispute a debt was not an admission of being liable for the debt.

Divemedic indicated the CA is trying to say they don't have to validate after the 30 days have elapsed, and they do! If Divemedic has been at the same address (as he has stated) they will say the same thing as in the Mahon case...we have been sending letters to Divemedic at this address and have been for awhile...it becomes Divemedic's word vs. the Ca's word. The CA will insist that their procedures were followed and that is the proof that the letters were sent and Divemedic chose to ignore the letters. Even if he did get any letters (and I would bet there were none sent!) he still has not waived his right to debt validation, that is what both of the cited cases included in their rulings.

[divemedic]

Why would I ignore a CA's letter? They are so easy to beat and you frequently get $$$ for it!

[devil21]

They can claim whatever they like but if you can show that you did not reside at the address they claim they mailed an initial communication to, they are dead in the water. You will have to raise the issue. Hell, a sworn affidavit would be enough to defeat their assertion that you received the letter. Its going to be stronger than whatever they want to say b/c I guarantee you they will not file an affidavit regarding sending the letter because that would open the affiant to deposition and discovery (and perjury if they, in fact, did not send a letter).

[booger69]

That could be an argument for you Divemedic...you WOULDN'T ignore a letter because you are aware of your rights. Maybe you should get really nasty with this CA & let them know you will be a bigger headache for them than they could want!

[devil21]

Be careful of admitting just how much you know because most consumer protection statutes use the "least sophisticated consumer" doctrine. Admitting that you are well versed in consumer law turns that off. Either way, an executed, sworn affidavit would be enough to defeat their assertion that they sent a letter to you.

Related to that would be that if the CA has been sending notices to an old address with no reply then discovers a new address and sends a dunning to that address, they SHOULD be smart enough to put 2 and 2 together and act as if the notice to the new address is an initial communication. It could be arguable that they do not have proper procedures in place to ensure compliance with the law.

[admin]

Booger is right, though...

Diamond v. Corcoran:

File No. 5:92-CV-36

The letter contains the following statement: "Under the law, you have thirty (30) days to dispute the balance." This statement gives the false impression that failure to respond within 30 days operates as a waiver of rights under the law and accordingly violates § 1692e(10).

Meaning you can always request validation.

[devil21]

One can always DV, the law simply provides that if it is timely the collector has to cease all collection activity until they legally validate. If its one year later, they still have to provide validation, they just don't have to stop harrassing you about the alleged debt.

[admin]

One can always DV, the law simply provides that if it is timely the collector has to cease all collection activity until they legally validate. If its one year later, they still have to provide validation, they just don't have to stop harrassing you about the alleged debt.

No, the way I read it is that the dispute over the amount is over, they still have to stop harrassing you if they don't validate.