FDCPA question

[BROTHER]

809

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.

This section here in FDCPA, It says it must be MAILED TO THE CONSUMER. Does it mean AFTER you have RECIEVED the mail, or just the Date that it was MAILED even though you HAVE NOT recieved it yet??

I would think that a debt collector would cease all collection activity UNTIL a consumer has RECIEVED it and NOT just when they mailed it. That way we can confirm the 'proper validation' Please answer.

[Recovering Attorney]

When it is mailed. That's what the statute says. If COngress wanted to make sure you got the letter, it would have said "received"

[BROTHER]

Thanks for the response.

Not soon after i posted that , I found CASE LAW that would support the position of when it was RECIEVED.

Even though the statuate SAYS MAILED to the consumer the PROBLEM comes when a collection agency CLAIMS they MAILED it and an UNSOPHISTICATED consumer claim they NEVER RECIEVED validation to their DISPUTE (Spears v Brennan). It APPEARS that the BURDEN of PROOF would be on the collection agency.

JUDGES tend to believe a CONSUMER (As in a cases i have found). It can look like a CA is "OVERSHADOWING" a consumer rights (without proof of validation and REPORTING a DEBT to credit bureaus is CONSIDERED continued COLLECTION ACTIVITY and ALL collection activity MUST CEASE until verification/validation is done and MAILED to the consumer).

I can see where a person can CLAIM OR ARGUE its when its RECIEVED cause an UNSOPHISTICATED consumer can THINK that because of the a SIMILAR STATUTE that says about RECIEVEING the first notice to DISPUTE the debt in 30 days. The 30 days does NOT start until AFTER a consumer RECIEVES the notice.

809

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 --

(3) a statement that unless the consumer, within THIRTY days AFTER RECIEPT 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

Just like a CA(collection agency) can CLAIM that they NEVER got your DISPUTE if you do NOT have PROOF of mailing it or they never RECIEVED it. Its just GOOD practice to just wait that extra day or 2 and send it certified mail return reciept requested to protect yourself. Of course im NOT an attorney, Im just going off of what i've seen on some of the CASE LAWS and others posts.

So forgive me if I DISAGREE with your 'literal' interpetation of the statute, but THANKS for responding.

[DocDon]

There is case law floating around here that basically states the CA need only state the letter was given to the USPS for delivery, and that's that....

[BROTHER]

DocDon, do you KNOW the actual case law for that scenerio??? I would like read it. Please give a link to it.

Even if that is the case, I do belive it MAY be an EXCEPTION and NOT the NORM. just my opinion, from the ACTUAL case laws that I have seen and ive seen More than one, (Spears being the most famous one)

[DocDon]

I'm LOOKING for it as we SPEAK. I'll POST it here.

[DocDon]

Here go:

Mahon v. Credit Bureau, 171 F.3d 1197 (9th Cir. 1999). Debt collection agency must prove only that the § 1692g notice was sent, not received by the consumer. Absent any evidence other than the consumer’s bare denial of receipt, the common law mailbox rule controlled where uncontroverted evidence showed that the collection agency properly mailed the notice. The court additionally found that a debt collector was under no duty to verify a debt which the consumer disputed after the thirty-day validation period.

McGinley v. Law Offıce of Shapiro & Kreisman, 2003 WL 21466936 (N.D. Ill. June 24, 2003). Court granted summary judgment dismissing consumer claim that the debt collector failed to send the required initial validation notice, where the consumer’s only evidence was that he did not receive the notice and the debt collector produced a facsimile of the initial dun and electronic records showing that it was in fact mailed to the consumer.

Damsel v. Shapiro, 2001 Ohio App. LEXIS 4052 (Ohio Ct. App. Sept. 13, 2001). Summary judgment for the defendant affirmed on the consumers’ claim that the defendant failed to send verification in response to their § 1692g request when the evidence was uncontroverted that the defendant mailed the response in accordance with ordinary business practices and received no indication that the response was returned or undeliverable. Consumers’ mere denial of receipt of the collector’s verification response was insufficient to create an issue of fact for trial since § 1692g requires only that the collector send such verification.

[Anonymous]

Here go:

Mahon v. Credit Bureau, 171 F.3d 1197 (9th Cir. 1999). Debt collection agency must prove only that the § 1692g notice was sent, not received by the consumer. Absent any evidence other than the consumer’s bare denial of receipt, the common law mailbox rule controlled where uncontroverted evidence showed that the collection agency properly mailed the notice. The court additionally found that a debt collector was under no duty to verify a debt which the consumer disputed after the thirty-day validation period.

I'm rather suprised to see that considering it came from the Wacky 9th...

[BROTHER]

Thanks for the response, but i still have to say thats an EXCEPTION. Not too sure about that Circuit 9th especially with the statement

The court additionally found that a debt collector was under no duty to verify a debt which the consumer disputed after the thirty-day validation period.

the 30 day validation period is a NOT a grace period , so HOW can they (9th circuit ) say there is no duty to verify a disputed debt.??when the FDCPA clearly says,

809 Validation of Debts

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.

Im told there is an opinion letter by the FTC that says they do NOT look at the 30 debt validation period as a 'grace period' so one would not lose their validation rights. Other courts have OVERTURNED 9th district almost 27 times!! just search it out. this is just my opinion.

“Section 809 (a) specifically requires that the consumer be informed that if he or she disputes the debt, verification will be provided.....

In addition, Section 809 (a) requires the debt collector to inform consumers that they have 30 days from the date of their receipt of the 809 (a) notice within which to provide a written dispute or request for verification. Arguably, the proposed dunning notice in question could be construed to suggest that consumers must provide their written dispute or verification request 30 days (or longer) from the date of receipt of the 809 (a) notice. Consumers who act on that interpretation would lose their right to verification. That effect obviously runs counter to the intent of Section 809 (a).”

[DocDon]

Im told there is an opinion letter by the FTC that says they do NOT look at the 30 debt validation period as a 'grace period' so one would not lose their validation rights. Other courts have OVERTURNED 9th district almost 27 times!! just search it out. this is just my opinion.

You are correct. It's been upheld that the 30-days you have to request DV does not mean they are to cease collection during that 30-day period.

You are also correct that 9th Circuit decisions have been overturned more times that all other Circuits combined.

Here's the deal with case law: it's not necessarily the "law of the land" - it's the decision handed down by a local court. For every case law, there is probably one that contradicts it - this is why the real secret to law is pretty much making one argument more believable than the opposing.

[Ravenous Wolf]

Here's the deal with case law: it's not necessarily the "law of the land" - it's the decision handed down by a local court. For every case law, there is probably one that contradicts it - this is why the real secret to law is pretty much making one argument more believable than the opposing.

I remember my business law professor going over that... Which was really frustrating because it is quite an effort to cover precedents even though the precedents themselves are not necessarily the "law of the land"... especially with certain types of judges...

[BROTHER]

You are correct. It's been upheld that the 30-days you have to request DV does not mean they are to cease collection during that 30-day period.

It seems that the point was trying to make was misunderstood. I was trying to emphasized the point that consumers do NOT lose the right to DISPUTE or ask for VERIFICATION of a debt as it appears that the 9th Circuit wants to say: debt collector was under no duty to verify a debt which the consumer disputed after the thirty-day validation period

thanks for responding.

[BROTHER]

Part of the Judgement from

Spears vs Brennan

"Brennan does not provide, nor have we found, any authority for the proposition that consumers may waive the protections of the FDCPA. To the contrary, several courts have addressed this very issue and determined that consumers may NOT waive their rights under the Act."