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Ok...I need a question answered. I received a summons (which was first contact with the CA) on 6/05. I answered the summons and sent a DV to the CA on 7/05. While the DV was still pending, the civil suit continued on...I received a Plaintiff's motion to extend time to conduct discovery on 8/26/05 base on the fact that DV was still incomplete. To my amazement when I went to the court to view the files of the case, the judge had issued a sceduling order on 8/18/05. I did not receive this order. I then received an amended sceduling order on 8/29/05. It set a discovery date cut off of 12/01/05, all motions to be filed 12/20/05 and a pretrial conference for 1/9/05. I received the DV on 12/05/05. The plaintiff filed a motion for summary judgment on 12/12/05. I responded to motion and it was denied at the pretrial conference. At the pretrial I requested to add a counterclaim to my pleadings and was denied because all motions were to be filed by 12/20/05. My question would be....because of the FDCPA law that states that all collection (including suit) must stop until validation is obtained, how or can I use this to my advantage? I did not ask for any discovery nor did I request a counterclaim while I was awaiting the validation. (yeah I know I was stupid) The main question I was wanting to ask is does it make a difference during validation if it is the court that preceeds with the case during the validation stage? Can I object to this in anyway to be able to amend my pleadings and add the counterclaim?

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Firstly you have a little of the case law wrong. The FDCPA does not stop an already initiated court case if the consumer DVs after the case has been filed. It only stops a collector from filing a case after the receive but have not responded to a DV notice.

There is also nothing in the FDCPA that precludes a collector from skipping trying to collect before filing suit. There actually is case law that says a collector can go directly to filing suit if they want to. But they must still abide by the FDCPA notification rules which requires the validation notice to be either included on the lawsuit filing or mailed seperately within 5 days of service of summons.

Amending any filings at this point is not going to happen. The judge has closed that door for the remainder of the proceedings. What you have now is arguments. You now must state your case in front of the judge.

If you are dis-satisfied with being denied counterlaims, not to worry. FDCPA claims can be brought seperately for their behavior. Just file your own suit against them. As a strict liability law, the FDCPA does not require you to prove they had intent to violate the law, just that they did. If you win, you will have an off-set against them if they have won the currently pending case.

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As a strict liability law, the FDCPA does not require you to prove they had intent to violate the law, just that they did.

I hate to disagree with you Methuss, but doesn't that contradict FDCPA § 1692k©?

§ 1692k©

Intent

A debt collector may not be held liable in any action brought under this subchapter if the debt collector shows by a preponderance of evidence that the violation was not intentional and resulted from a bona fide error notwithstanding the maintenance of procedures reasonably adapted to avoid any such error.

Is what you're saying different than the subsection I quoted, or am I just splitting hairs here?

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I am sorry. I guess I took the wording in the petition filed by the lawyers for the CA to be wording of the FDCPA law for validation. In the petition it states, "that if you dispute the debt or any portion thereof within (30)days the law requires this firm to cease our efforts, through litigation or otherwise, to collect the debt until our office provides the requested information." So, just because the lawyers state this fact in the petition it doesn't mean that they are bound by this? Thanks

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The boa fide error defense does not apply to every fact situation.

From what you have said, I do not think the FDCPA was violated. The case was clearly held in abeyance til teh DV was made. Scheduling orders are housekeeping items the judges must produce, not a substantive part of the case.

I agree with Methuss. If you feel the plaintiff violated teh FDCPA, file a separate action.

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Bonafide error is an illusion. If you read it carefully, it says that they may only claim bonafide error if they have procedures in place to prevent violations.

If the collector ignored the procedures, then the violation is willful.

If there were no procedures, there is no bonafide error defense.

Essentially this circular logic in the statute means no violation, if proven to have happend, has an error defense.

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Bona fide errors could include calling after receiving a DV, or sending a spit-out letter after getting a DV, when they can show the DV was noted but the calls/letters went out in an admin snafu.

But the wording of letters is not a bona fide defense. And saying we'll discontiue the action and not doing it is not a bona fide error.

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Bona fide errors could include calling after receiving a DV, or sending a spit-out letter after getting a DV, when they can show the DV was noted but the calls/letters went out in an admin snafu.

How?

If the collector calls after DV is received, then procedures to ensure the call did not happen either do not exist or were ignored. If a dunning letter is sent after DV is received, where are the procedures to prevent the violation...or were they simply ignored?

A major pricipal of strict liability law is that ignorance of the law is not an excuse for violating it. So even saying they didn't know it was a violation or that it was happening does not excuse the violation itself.

Only if the procedures exist, but are somehow defective in process (ie not well thought out enough to prevent all occurances), can they claim bonafide error. But if the procedure to prevent violations is so poorly done as to be ineffective nearly all the time, then the procedure doesn't meet the statutory requirement and would not be excusable as an administrative error.

Also, since the FDCPA allows the consumer to sue the individual collector, not just the company they work for, you can go after the collector themselves if they ignore the procedures established by the agency.

This is why I say the bonafide error provision is illusory. So far, I've not thought up a single way that a violation can be considered an "error" under the law's definition.

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I had a collection agency sue me.

When I counter sued them I used the fact that they transposed numbers in the amount I owed them.

The amount they SAID I owed was 2483.

They sued me for 4283.

They used Bona Fide Error.... judge agreeed BUT... they dismissed with predjudice because they knew I'd kill them for all the laws they broke.

THAT is how bona fide error can be claimed and won.

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