Why can a CA attend court proceedings if it hasn't validated your debt?

[Optimus_SubPrime]

This is just a point of law I'm wondering about.

The FDCPA, Section 809( states:

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.

So if a CA sues you, you dispute the debt, and they don't send you proper verification, isn't showing up in court an act of continuing the debt collection? Isn't refusing to withdraw the lawsuit an act of continuing debt collection?

It seems to me that once you dispute their claims, they ought to be obligated to withdraw their lawsuit until they issue you a proper verification. Just wondering why I haven't heard anyone else bring this up, or if I'm missing something basic. (It's been known to happen.)

[GreatGadsby]

they are only required to cease collection efforts if your DV was TIMELY. (that is, sent within the first 30 days of their INITIAL contact with you.)

you would be hard pressed to show that the lawsuit was the first time you had ever had contact with them, especially since they are not required to prove that they ever sent you a letter or anything, only that they had reasonable procedures in place to ensure mailing.

and not that I would put it past some of them, but it seems very unlikely to me that their first contact would be a lawsuit. those cost a lot more than $0.39 worth of postage for a dunning letter.

[divemedic]

Even if your DV was timely, the lack of validation is not a defense to a suit- it merely gives you grounds for a claim under the FDCPA. So all you can do is use your FDCPA damages to offset the others

[uwackme]

Yes, even with a timely DV they can just march on as if the law didnt exist.

They are violating, and you can sue/countersue with the FDCPA violation as a CoA.

One thing worth trying, is to file a Motion to Continue the case until the Plaintiff meets its obligation under federal law to provide validation. Worst the judge can doi is say no. But I think its a valid point, knowing the plaintiff has NOT complied, and knowing that federal law does require the collector to cease activities until.... the judge might just grant the continuance until the plaintiff coughs up validation... and now the judge is going to be "judging" whether what they produce IS indeed validation. And you have tons of caselaw on what is NOT validation to shoot down any halfass attempts on the plaintiff's oart.

Its certainly worth a try.

[E. Normis Debtor]

So if a CA sues you, you dispute the debt, and they don't send you proper verification, isn't showing up in court an act of continuing the debt collection? Isn't refusing to withdraw the lawsuit an act of continuing debt collection?

Yes. They must suspend litigation until such time as they provide verification.

However, as pointed out, not doing so is not a defense to their suit for the underlying debt. It provides you with a cause of action for your own suit or counterclaim for their violating Federal Law.

[Optimus_SubPrime]

they are only required to cease collection efforts if your DV was TIMELY. (that is, sent within the first 30 days of their INITIAL contact with you.)

you would be hard pressed to show that the lawsuit was the first time you had ever had contact with them, ...

it seems very unlikely to me that their first contact would be a lawsuit.

But usually the summons is your first contact with the attorney, and an attorney is a separate debt collector under the FDCPA, Section 803(6), right?:

6) The term "debt collector" means any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another

So they're legally bound to withdraw their suit until they send you a proper verification of the debt, it seems to me.

I also wonder if a class action could be filed against a debt collecting law firm that doesn't provide proper verification and doesn't withdraw their cases.

[GreatGadsby]

the attorney is NOT a separate debt collector just because he's acting as their attorney. he is representing his client. there is a line between that and acting as a debt collector on behalf of someone.

[Optimus_SubPrime]

the attorney is NOT a separate debt collector just because he's acting as their attorney. he is representing his client. there is a line between that and acting as a debt collector on behalf of someone.

I was thinking more of the Collections Dept. of a law firm, but it's an interesting question. How many times a year can you engage in suing debtors before you are legally considered someone who "regularly collects or attempts to collect, directly or indirectly, debts"?

I know that attorneys have been found by the 7th Circuit Court of Appeals to be debt collectors under the FDCPA just for sending a summons.

[divemedic]

Depends. I was reading a case earlier where a Law firm had collections as only 2% of their case load, and they were ruled to NOT be a debt collector.

[nascar]

I have seen it both ways as well. I think the ownership of the debt may be a determining factor.