What if you are on the 3rd CA and DVs have been ignored?

[Been_Ponzied]

A cell hone company has sold my account 3 times to different CAs. The first two totally ignored my VLs. I'm now wondering what to do with the third one. The second one also did not report this account disputed.

What should I do now? If I get the CRA to report it disputed, then I've lost my edge on that violation haven't I?

[blel0906]

Wonder if its the same cell company I have been dealing with....Same thing account sold three times. I got lucky disputed as not mine and it was removed from my reports but it must have just been timing as a week later I got a new collection notice from 3rd company....I immediately DV's them using the standard DV form but added a line that on three different occasions I have requested proof and at each request my account has been sold starting the whole process over again. To my surprise this time they responded stating that they would request the records from the OC and that it could take up to 6 weeks so far it has not been reported again. I would say keep trying make sure the one reporting is not the one trying to collect right now dispute it as not yours then try to DV again.

[IHateCAs]

Let me get this straight.

You disputed to CA #1.

CA #2 bought the debt from CA#1 and tried to collect? That's a VIOLATION right there.

They cannot attempt to collect on a debt that is previously disputed. You don't even have to prove that CA #2 KNEW it was disputed, you just have to prove you disputed with CA #1. It's called inputed knowledge. If CA #1 didn't tell CA #2, tough ****, still a violation.

Powers v. Professional Credit Services, 107 F. Supp. 2d 166 (N.D.N.Y.)

Jones v. Weiss Neuren & Neuren, 95F. Supp. 2d 105 (N.D.N.Y., 2000)

These cases have to do with a different type of FDCPA violation, but it's VERY similar. Party #1 knew consumer had retained a lawyer, yet party #2 tried to contact consumer instead of the lawyer.

Case #1, they made the argument that the consumer has to PROVE that the 2nd party was contacted by the 1st party about the retention of a lawyer. Court DISAGREED.

Case #2, party #2 knew about the lawyer and didn't tell party #2. Party #2 claimed it wasn't their fault. Court DISAGREED.

[codename_fortyseven]

I hate CA's is on top of his game!

This is how you can lay the smack down on sherman and their hydra's. Attempting to collect on a disputed debt is a violation.

Everyone is trying to handle things with letters and phone calls. If you have documented violations, sue!

It isn't that hard and if you aren't ready to go pro se, go to naca.net and hire a lawyer.

[Methuss]

Only if the CAs are selling junk-debt to each other. I don't see how you can prove that outside of court discovery process.

It is perfectly legal for a CA to not respond to DV letters if they abandon all further collection activity. If the CA chooses to do this and returns the account to the OC, there is nothing illegal about the OC hiring another different collector to try and get you to pay.

It's an unfortunate loophole in the construction of the law.

[IHateCAs]

Only if the CAs are selling junk-debt to each other. I don't see how you can prove that outside of court discovery process.

That's the point though. There's nothing wrong with filing in court, doing discovery then MFSJ. Cost to consumer = $0, cost to CA = attorney fees & plaintiff fees & $1k FDCPA damages.

You only have the rights you are willing to enforce in court. If you continue to let CA after CA dun you without enforcing your continued collection rights, you might as well just pay anyone who comes along and asks for $$$.

It is perfectly legal for a CA to not respond to DV letters if they abandon all further collection activity. If the CA chooses to do this and returns the account to the OC, there is nothing illegal about the OC hiring another different collector to try and get you to pay.

It's an unfortunate loophole in the construction of the law.

Dispute with the OC. 3rd party collector now cannot attempt to collect because account is disputed. If they send you a dunning letter, nail them for $1k.

Your best bet with any out of SOL debt that the OC shops around is to dispute with the OC.

Dispute with the CRA and save a copy of the letter. Dispute directly to the OC and save a copy of the letter. Those two pieces of paper are probably 50x better than any documentation a CA has.

[Methuss]

#1. If you sue a CA and come up empty during discovery, you will have to pay their court costs and probably get yourself sanctioned. You can't use the courts to fish for information...the judge will pound you for that. You have to be damn sure of at least one violation before you sue a CA.

#2. Although there is law (FACTA) that allows you to dispute directly with an OC, there is no consumer right of action against an OC that refuses to cooperate. Only the government can enforce that section of the law against an OC. Good luck getting any results there.

[IHateCAs]

#1. If you sue a CA and come up empty during discovery, you will have to pay their court costs and probably get yourself sanctioned. You can't use the courts to fish for information...the judge will pound you for that. You have to be damn sure of at least one violation before you sue a CA.

Coming up empty with respect to what? You already have evidence that the debt is in dispute. What is the CA gonna say "oh we didn't know and we don't have any documents saying that we did know"?

I'm not sure I understand where you're going with this.

#2. Although there is law (FACTA) that allows you to dispute directly with an OC, there is no consumer right of action against an OC that refuses to cooperate. Only the government can enforce that section of the law against an OC. Good luck getting any results there.

Going off on a tangent here.

OCs are liable under 623( of FCRA.

[Methuss]

IHateCAs,

This thread involves a case where the OC has hired several CAs to pursue collections on an account. If the consumer sends a DV letter to the CA and the CA abandons all collection efforts instead of validating, how do you propose there is any FDCPA violation to sue for?

Unless the consumer specifically states they are disputing the alleged debt in their letter to the CA and gives a reason, the CA is under no obligation to report it as disputed to the CRAs. There is case law that indicates a blanket "I dispute" isn't sufficient to trigger a responsibility on the CA. But if you say "I dispute because I never had an account with the company you represent" etc. the CA then has a responsibility to report it as disputed (but only their own tradeline, not the OCs).

Furthermore, there is nothing illegal about an OC contracting a different CA to pursue collections if the previous one decides to abandon its efforts. CAs are contracted to do a job and have no knowledge of prior collection efforts instigated by other companies. I know of no law that holds the OC responsible to communicate prior collection efforts to a new CA they contract, nor do I know of any law that says a CA must communicate any reason why they choose not to pursue collections on an account to the OC that contracted them. With that level of plausible deniability you would be hard pressed to find sufficient evidence to pursue a court case against a CA in this case...you need somethnig concrete like verbal abuse, or overshadowing. Discovery would be limited to the accusations at hand as well, you wouldn't be permitted to "fish" for proof of other violations.

[IHateCAs]

IHateCAs,

This thread involves a case where the OC has hired several CAs to pursue collections on an account. If the consumer sends a DV letter to the CA and the CA abandons all collection efforts instead of validating, how do you propose there is any FDCPA violation to sue for?

That's why I said to dispute with the OC directly. When the OC sends the account to a CA, the debt is already in dispute. Attempting to collect would be a violation because the CA cannot attempt a collection until validation is provided.

Unless the consumer specifically states they are disputing the alleged debt in their letter to the CA and gives a reason, the CA is under no obligation to report it as disputed to the CRAs. There is case law that indicates a blanket "I dispute" isn't sufficient to trigger a responsibility on the CA.

Link or citation?

I know of no law that holds the OC responsible to communicate prior collection efforts to a new CA they contract, nor do I know of any law that says a CA must communicate any reason why they choose not to pursue collections on an account to the OC that contracted them. With that level of plausible deniability you would be hard pressed to find sufficient evidence to pursue a court case against a CA in this case...y

Look up the caselaw I posted. Consumer (through attorney) tells OC that he is represented by attorney. OC places account with CA. CA attempts to contact consumer directly.

Violation of 805(a)(2)

In the first case, the CA argued that the consumer has to prove that the CA received the information from the OC. Court disagrees. IOW, discovery isn't even necessary.

In the second case, the OC intentionally did not communicate this knowledge to the CA. Court rules this is imputed to the CA ANYWAY. Reasoning: this practice would be an end-run around FDCPA protections.

The case is not on point with our situation since we are talking about disputes instead of attorney representation, but I'll be damned if it's not as close as you can get.

[codename_fortyseven]

Methuss,

I spoke to a lawyer on this issue. He stated that once a CA is notified of the dispute, the account is disputed, period.

If they send it back to the OC and the OC farms it out to another CA, the original dispute still hasn't gone away, and it is a violation. If they didn't know, they should have.

Notifying an agent or rep (just like all that fancy stuff regarding the collection of accounts or transferring accounts to an assignee, rep, agent, etc....) of the company is notification to the company.

Tower mentioned something about this on AOC recently. Do a search for "absolute disputes" over at AOC.

This should work well for the hydra known as Sherman.

Bottom Line: Hold on to those green cards.

[Been_Ponzied]

What's AOC and where it is? Is it Association of Creditors? Do they talk about us on some forum?

I forgot to say that this company is T-Mobile, I paid the bill in full before sent to collection, I disputed with them and sent them proof and the green card. And yet I'm on the 3rd collection agency. Should I dispute and VL with them too to try to get another violation? This one is an attorney-collection place.

[Methuss]

What lawyer is that? Seems he needs to study more:

Start with this:

"In a statutory construction case, the beginning point must be the language of the statute, and when a statute speaks with clarity to an issue judicial inquiry into the statute's meaning in all but the most extraordinary circumstance is finished." Riva v. Commonwealth of Massachusetts, 61 F.3d 1003, 1007 (1st Cir. 1995) (quoting Estate of Cowart v. Nicklos Drilling Co., 505 U.S. 469, 475 (1992)) (internal quotation marks omitted).

Because the FDCPA does not include the terms "dispute" or "dispute debt" in the section devoted to definitions, see 15 U.S.C. §1692a, we look first to ordinary usage. In ordinary English "dispute" is defined as a "verbal controversy" and "controversial discussion." Webster's Third New International Dictionary (3rd ed. 1971). Brady v. Credit Recover Company, Inc

You cannot have "verbal controversy" or "controversial discussion" unless there is a stated reason from both sides which are at odds. So blanket statements of dispute giving no reason don't hold up to this legal test.

Now as for dispute v. validation they are seperate an unique within in the FDCPA. Validation is nothing more than the CA providing certification that the creditor and amount are correct (Chaudrey v. Gallerizzo). So without certification that the debt claim is accurate, you would have no basis for a dispute over the accuracy of what is claimed. Ergo, if the CA chooses to abandon collection in liue of validation and has committed no other statutory violations, you have nada, zip, zilch to work with.

[IHateCAs]

What lawyer is that? Seems he needs to study more:

Start with this:

"In a statutory construction case, the beginning point must be the language of the statute, and when a statute speaks with clarity to an issue judicial inquiry into the statute's meaning in all but the most extraordinary circumstance is finished." Riva v. Commonwealth of Massachusetts, 61 F.3d 1003, 1007 (1st Cir. 1995) (quoting Estate of Cowart v. Nicklos Drilling Co., 505 U.S. 469, 475 (1992)) (internal quotation marks omitted).

Because the FDCPA does not include the terms "dispute" or "dispute debt" in the section devoted to definitions, see 15 U.S.C. §1692a, we look first to ordinary usage. In ordinary English "dispute" is defined as a "verbal controversy" and "controversial discussion." Webster's Third New International Dictionary (3rd ed. 1971). Brady v. Credit Recover Company, Inc

You cannot have "verbal controversy" or "controversial discussion" unless there is a stated reason from both sides which are at odds. So blanket statements of dispute giving no reason don't hold up to this legal test.

CA says you owe $xxxx in a dun. You dispute the debt. Sounds like a controversy to me.

Now as for dispute v. validation they are seperate an unique within in the FDCPA. Validation is nothing more than the CA providing certification that the creditor and amount are correct (Chaudrey v. Gallerizzo). So without certification that the debt claim is accurate, you would have no basis for a dispute over the accuracy of what is claimed. Ergo, if the CA chooses to abandon collection in liue of validation and has committed no other statutory violations, you have nada, zip, zilch to work with.

Are you a CA in disguise spouting that Chaudry crap?

Again, are you going to look into the cases I posted?

[Methuss]

I did look at the cases you posted. They are irrelevant to validation. They have to do with attorney representation. It's only use towards validation issues is as an interpretive argument. You might be able to get away with it arguing a case before a jury, but a judge isn't gonna buy it in a non-jury trial.

And, no, I'm not a CA. I've kicked a number of their arses around myself and taken more than one Collector to court (even beat the City of Chicago pro-se). You don't get to be an "Addicted Expert" here by being a CA troll. I simply state it like I see it and based on my personal research and experience. Every once and a while I walk over to Edelman, Combs, Latturner, and Goodwin to bounce a question off the real pros as they are only a block away from where I work.

Chaudrey is case law, like it or not. It isn't going to go away just because it was a stupid decision. I prefer Coppola v. Arrow myself, but that only covers production of documents during discovery and can't be used for DV purposes (other than as a threat ... "produce it now or in court").

[Methuss]

CA says you owe $xxxx in a dun. You dispute the debt. Sounds like a controversy to me.

On what basis? That you never heard of the creditor? That the amount is wrong? What?

Do you think a judge would accept that line of reasoning? Unlikely. The judge is simply going to tell you that if it was as simple as saying you dispute it, without giving cause for the dispute, then no one would be able to collect receivables at all. The entire function of debt obligations would be moot.

I'm going to tell you the same thing I tell the people reporting to me at work when they come up to me with such non-sense:

Unless you can identify what the problem is and how to address it, you don't have a problem, you are just complaining.

[codename_fortyseven]

AOC = art of credit.com, another good site full of litigious folks like here.

Methuss is no collector in disguise, but a savvy pro se. We are just not in agreement on this point.

I'll talk to the atty and get the case law.

[Been_Ponzied]

I have to say that this is FASCINATING, reading very learned folks debate!

[IHateCAs]

I did look at the cases you posted. They are irrelevant to validation. They have to do with attorney representation. It's only use towards validation issues is as an interpretive argument. You might be able to get away with it arguing a case before a jury, but a judge isn't gonna buy it in a non-jury trial.

We aren't talking about what constitutes validation, we are talking about disputes and imputed knowledge.

You must cease any collection activity on a disputed debt until validation is provided. That is very specific in the FDCPA.

The cases I mentioned have to do with imputed knowlege of a similar prohibited activity in the FDCPA (contacting a consumer directly when the CA does or should know an attorney is retained).

The courts ruled that the CA is bound by that statute when the debt is assigned from another party, regardless if they are told about it or not.

Therefore, the status of a dispute should be imputed knowledge for the CA.

Edited:

The reason why validation was rejected in that particular case, was because he was asking for validation on fees not yet incurred (appraisal and attorney fees) and he wanted a diary of what the attorney's were billing for while the trial was in progress (privileged).

And not only that you, like the CAs, only paste the paragraph that you think supports that stand.

In the present case, Gallerizzo, after receiving assurances from NationsBank that the sums were owed, verified the debt amounts in his January 18th letter to Plaintiffs' counsel and forwarded a copy of the bank's computerized summary of the Chaudhrys' loan transactions. The summary included a running account of the debt amount, a description of every transaction, and the date on which the transaction occurred. See Graziano v. Harrison, 950 F.2d 107, 113 (3d Cir. 1991) (holding that computer printouts which confirmed amounts of debts, the services provided, and the dates on which the debts were incurred constituted sufficient verification). Thereafter, in a January 19th letter to counsel, Gallerizzo restated the amount of the inspection fees and indicated that the amounts were correct. Nothing more is required.

The collector went back to the CREDITOR and verified the account and got a detailed accounting of the debt. He forwarded the information he got from the CREDITOR, he didn't just print out some crap from his own computer files.

The CAs just send a letter back with an affidavit from their own employee saying "yeah it's right". If they had an affidavit from EVERY company who purchased that debt back to the OC, maybe they'd have something.

You have to take what the court said in its entirety, not one sentence that makes the CAs position look good. The verification obtained was quite extensive and detailed, not an affidavit from the CA saying it's correct based on their own information.

How many times has Chaudhry been cited in court by a CA trying to obtain judgement?

[codename_fortyseven]

Notice to the agent is notice to the principal, and is applicable to all successors and assignees.

If I tell a CEO something, it is the same as telling a minimum wage CSR. If I tell a CSR something, it is the same as telling the CEO. If the company is bought out, sold, changes names, or whatever, what I told the agent still stands.

Just as a debt can be sold, assigned, all notifications/agreements go along with that. If you make an agreement with CA #1, and they sell that account to CA #2, the original agreement is still binding on all CA #2.

Same principle with the dispute. If you dispute something, sending it back to the OC or trading to another subsidiary doesn't resolve the dispute or invalidate it.

The dispute still stands and is still binding on a successive CA. If they weren't told, that's too bad. They need to get the whole story when they buy a debt, not just a SSN, address, and amount said owed.

[IHateCAs]

CA says you owe $xxxx in a dun. You dispute the debt. Sounds like a controversy to me.

On what basis? That you never heard of the creditor? That the amount is wrong? What?

Questions for you (requests for admissions)

1) Do you think the phrase "I dispute this debt in its entirety" is too vague? If I say I dispute everything, that means everything right? Balance owed, creditor, interest, fees, date closed. Everything.

2) Okay I just started reading over that caselaw you posted earlier. You realize that the result of this was the appeals court OVERTURNING the summary judgement in favor of the defendant right?

Our conclusion that §1692g( does not define "disputed debt" for the entire FDCPA is further supported by the language of §1692e(8) itself. If the meaning of "disputed debt" as used in §1692g( carried over to §1692e(8), then, in order to trigger the limited protection of §1692e(8), a consumer would be required to submit written notice to a debt collector within the initial thirty-day period. See 15 U.S.C. §1692g(. But the plain language of §1692e(8) requires debt collectors to communicate the disputed status of a debt if the debt collector "knows or should know" that the debt is disputed. See 15 U.S.C. §1692e(8). This "knows or should know" standard requires no notification by the consumer This is the crux of my argument. They SHOULD know because of imputed knowledge. JDB tries to collect. You dispute the debt. JDB sells to JDB2. JDB2 now knows or SHOULD know that the debt is disputed. written or oral, and instead, depends solely on the debt collector's knowledge that a debt is disputed, regardless of how or when that knowledge is acquired. See id. Applying the meaning of "disputed debt" as used in §1692g( to §1692e(8) would thus render the provision's "knows or should know" language impermissibly superfluous. See United States v. Bailey, 516 U.S. 137, 145 (1995) (quoting Ratzlaf v. United States, 510 U.S. 135, 140-41 (1994) ("Judges should hesitate . . . to treat [as surplusage] statutory terms in any setting. . . . ").

Nowhere in this case summary did I read that you had to use any specific language in how to dispute the debt. The court merely ruled that the FDCPA doesn't define "dispute" or "disputed debt". In fact, they ruled that an ORAL dispute, while not triggering 1692g which requires written disputes, it DOES trigger 1692e.

The defendant was granted SJ because of no cause of action (they claim he didn't dispute in writing, so suing under 1692e was improper). Appeals court overturned and remanded. So basically, telling them on the phone "I dispute this" means they HAVE to report it to the CRAs as disputed (in the first circuit).

Now, I've heard that the courts have accepted something as simple as "I dispute this debt" written in purple crayon as sufficient. I don't have the caselaw, it's just one of those anecdotal things you hear on boards like this. If that's true, then my argument for imputed knowledge is correct or at least a very feasible argument to make in a trial.

[Methuss]

I found some better caselaw that more clearly upholds your statements with no guesswork or interpretation necessary: Jeter v. Credit Bureau Inc., 760 F.2d 1168 (11thCir. 1985).

Took quite a bit of digging to find that one though and it is not generally dicussed in credit advocacy circles. I'm not sure why since it is a very anti-debt-collector ruling. Based on the date it may have been supplanted by newer, less consumer friendly case-law.

Just remember there is case-law on both sides of the fence on this subject of imputed knowledge.

Chaudrey is cited quite often by CAs as you rather sarcastically asked. So far there are no new cases to refute it with. Yes, they must get certification from the OC and mail it to the consumer. That was never in argument. But they only have to obtain the dollar amount and the creditor name/address. Nothing more. They don't have to produce contracts authorizing them to collect or anything else more detailed except in discovery.

Sure you can use Coppola v. Arrow to try to intimidate them, but if they know the truth of it, they may not fall for it. I have had about a 60% success rate using it myself, but some of the bigger CAs have caught on. Of course, I *do* sue the bastards if they don't comply, but a lot of people just don't have the commitment (or the 7 weeks vacation/yr) to spend on such actions. Some people have to balance the effort with the results....and that has to be respected here.

[IHateCAs]

I found some better caselaw that more clearly upholds your statements with no guesswork or interpretation necessary: Jeter v. Credit Bureau Inc., 760 F.2d 1168 (11thCir. 1985).

Took quite a bit of digging to find that one though and it is not generally dicussed in credit advocacy circles. I'm not sure why since it is a very anti-debt-collector ruling. Based on the date it may have been supplanted by newer, less consumer friendly case-law.

Guess someone will have to shepardize that. Heck Estoppel goes back to like 1920.

8)

Oooh, 11th circuit too, perfect for me.

Just remember there is case-law on both sides of the fence on this subject of imputed knowledge.

Well our job is to dig it ALL out, even the ones that look bad for us and analyze it the way we do with Chaudhry. Just remember that just because caselaw may be controlling in a circuit, doesn't mean it applies in the particular case.

[legend]

hmmm this would all explain issues in my case and why I gave up then!

I sent DV to CA#1 no response CRA verified anyway.

It was sent to CA #2 I DV'd no response and again CRA verified.

It was then sent to lawyer to collect #3 I DV'd no response and the CRA AGAIN verified.

I sent ALL green cards and ALL letters to CRA's - THEY STILL VERIFIED???

I just dont get it.

It was the following:

Sherman AQuisitions

Alegis Group

Forster & Garbus

All for the same account and now ALL are still reporting collection account on EQ and TU!

Hell I dont even know now who has it or who doesnt!

[codename_fortyseven]

Sue them all for continued collection activity and watch how fast the TL's go away. You definately have evidence of that.

You could add in the Imputed knowledge part for CA's 2 and 3, but that would STILL only be another count of continued collection activity.

It wouldn't matter for Federal court, only for additional damages under a state statute.