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Legal Questions re: Phone Bill Debt (Long)


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Hi All,

My fiance' was contacted by A$$et regarding an old phone bill, and we've gone through some DV steps already. I have a couple of legal questions about where we currently stand. We live in California, and this account was also in California, so this is all in relation to California law. So let me first provide the back ground:

We received a notice from A$$et saying she owed a little over $400.00 on a phone bill account that:

1. We never knew was ever deliquent

2. Was closed back in 2001

For the first issue, I'm thinking that's not much of a defense since we really have no way to prove it. I suspect this was one of those circumstances where the forwarding address never kicked in, and the remaining bills were simply "lost in the mail". This might have some relevance, which I'll discuss a little farther down. But I'm far more interested in the second issue, for SOL reasons.

We went through the DV process, and they sent the usual one-page printout saying "yep you owe it". We wrote back requesting a complete payment history from the original creditor (similar to the DV letters you see in online samples). And believe it or not, they actually sent back copies of the old Pac Bell (later SBC, now AT&T) statements. Based on how they looked and what my fiance remembers of the services on the account, they look legit.

Ok, fair enough. But two things struck me about the info they sent:

1. The earliest statement they sent was from July 2001 (5 years ago!)

2. It wasn't a "complete" payment history. The earliest statement they sent showed an unpaid balance of $270.44.

So I've sent them another letter stating that we had previously requested a complete payment history, arguing that this is needed to prove that the $270.44 was correctly and accurately billed for actual services rendered on the account. I should note that I deliberately left the letters very cordial - I don't want to incite a summons from this trigger-happy CA, and hopefully this additional request doesn't do that.

As I wait for a response, I'm thinking about how we should proceed. I'm leaning toward going w/ the expired SOL, but I have some questions about my legal standing:

1. In California, the SOL on written, promissory, and open ended accounts is 4 years, oral is 2 years. Is a phone bill considered one of these? I'm concerned that a utility is some kind of special contract that doesn't fall under these rules, and I don't want to be tripped up if I try to say it's expired when it hasn't.

2. If it does fall under the SOL, could the documentation provided by A$$et be used by us as proof the SOL has expired (even though I don't have the statement showing the inception of the debt, they did provide me something showing it's over 5 years)? I have a hard time believing they would be dumb enough to send me info that I can use as a defense, and that's one of the reasons why I asked about the type of account. I should also note that they stamped the statement copies with a "this is related to collection of a debt, any informatoin provided will be used for that purpose" type of statement. Does this somehow invalidate it as evidence?

3. Let's say they can't come up with the additional bills to show the full debt-can we use this to argue that the debt isn't valid? I know the definition of validation isn't in the FDCPA, and they have the Chaudary case to fall back on, but the California Department of Consumer Affairs has some documentation that does expand this definition to include full itemization.

http://www.dca.ca.gov/legal/dc_2.pdf

Which would take precedence?

4. Even if Cali law would be on my side, there's still a lot of subjectivity in defining proper validation. This is where my first point about not ever knowing the debt was deliquent might be a factor. I was considering how viable an argument it would be if we said that because we didn't know the account was ever deliquent, they would need to prove that the entire amount was indeed toward services rendered on the contract. Any thoughts on if this is relevant?

Basically, I'm trying to see if I can get them on either misrepresentation of the amount, or (if they tried to sue) for trying to collect on a time-barred debt. For the amount involved, I'm not particularly keen on going to court, but what I would like to do is include this information in a C&D letter to discourage them from trying to sue me. Alternatively, I might also use that same information as leverage to get a settlement that includes deletion of the record from her credit report. I'm not averse to paying this off if it actually was a valid debt, but I want to have as much ammo as possible to negotiate for a deletion.

I've read a lot of these posts and really appreciate the insight people have so far - any thoughts specific to our situation would be greatly appreciated.

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First, the SOL has indeed run on the account.

Second, the Chaudhry case is 7 years old, and had to do with attorney work product. Read this:

http://www.debt-consolidation-credit-repair-service.com/forums/showthread.php?t=236269

Third, the validation does not even meet the Chadhry standard, as Chaudhry said this: "verification of a debt involves nothing more than the debt collector confirming in writing that the amount being demanded is what the creditor is claiming is owed; the debt collector is not required to keep detailed files of the debt. There is no concomitant obligation to forward copies of bills or other detailed evidence of the debt."

Since they are showing a bill of $270 in the bill, and the CA is claiming $400, they are not showing what they are claiming.

Fourth, I think it is illegal to try to collect on an out of statute debt in California. (Not being well versed in CALI law, you may want to check on that)

Are they on your CR? If not, send a C&D.

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Thanks for the reply - if the debt is out of statute then I think we're in good shape. If nothing else I have evidence that the "legal status" of the debt was misrepresented.

But regarding the validation and amount, I think I didn't express it quite clearly, so let me try to itemize it a bit better (I'll round the numbers to show it more clearly):

First Contact from CA: Said it was $400

First Response to Validation: One pager noting that Principal = $310, interest $90.

Second Response to Validation: 2 Statements.

Statement 1 (July 2001) - $270 unpaid balance, plus $40 for that month's service = $310

Statement 2 (August 2001) - confirming closure of account, with unpaid balance of $310.

So the $270 is an amount that was supposedly charged to this account prior to July 2001. So it's not that the CA is reporting $400 when the bill said $270, it's that $270 is part of the principal that I haven't yet seen proof for - the total A$$et is reporting is the final principal amount from the OC, plus their own interest. IF A$$et comes up with the bills, fine. If they don't, the question is if I have enough evidence to constitute a misrepresentation of the amount of the debt.

BTW, yes it did show up on her credit report, so that's why I'd be interested in trying to work a settlement including deletion.

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You may have them on mischaracterizing the amount, since it appears she owed $270 and they are now loading up the balance with amorphous fees and charges. You could roll the dice and sue them for this under the CAL and fed FDCPA and see what happens. They will likely counterclaim for the balance, but then they have to weight collecting $400 against paying you more than that. And you will have the SOL defense to throw in their faces.

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