Dv1 - CA's Attorney Writes Back - Passing the $!

[Texadelphia]

Ok. I sent off a DV1 to the CA and to the CA's lawyer concerning an old Providian account that is just outside the SOL and I have disputed the balance as fraudulent CC charges.

You are going to just LOVE this. I'll just post the response here verbatim.

Mr. Texadelphia [sic]

RE: VERIFICATION OF DEBT

Our Client: Portfolio Recovery Associates, LLC

Original Creditor: Providian National Bank

Our File No. [deleted]

Dear Mr. Texadelphia:

Per your request and pursuant to 15 U.S.C. 1692g(, The Federal Fair Debt Collection Practices Act, be advised that $3,083.31 the amount being demanded, is the amount that our client claims is due and owing on the account.

Very truly yours,

APOTHAKER & ASSOCIATES, PC.

Kimberly F. Scian, Esquire

This is a communication from a debt collector, the purpose of which is to collect a debt; any information obtained will be used for the purpose of collecting the debt.

So, basically... they are refusing to validate the account. They are passing the buck back to Portoflio and saying "well, they say you owe this" and leaving it at that.

I have not heard back from Portfolio although I did get a green card.

That's it from the lawyer. No ITS from the lawyer threatening legal action, other than just "well, this is what Portfolio says you owe."

I don't consider this to be validation from the lawyer.

Comments? Suggestions???

[nascar]

The following is why you got the response you did.

What Constitutes Proper Validation?

Your legal right to debt validation comes from 15 USC 1692g( which 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.”

Contrary to what you might read elsewhere, validation does not require the debt collector to provide you with a laundry list of details like signed contracts, proof of licensing, amount they paid for the debt, etc. According to Chaudhry v. Gallerizzo, 174 F.3d 394 (4th Cir. 1999),

“Contrary to Appellants’ contention, 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 alleged debt. See Azar v. Hayter, 874 F.Supp 1314, 1317 (N.D. Fla.), aff’d 66 F3d 342 (11th Cir 1995), cert. denied, 516 U.S. 1048 (1996).”

The definition of validation in Chaudhry is formed from the opinion in Azar, “No provision of the FDCPA has been found which would require a debt collector independently to investigate the merit of the debt, except to obtain verification, or to investigate the accounting principles of the creditor, or to keep detailed files.”

The 15 USC 1692(g) definition of validation in Chaudhry has never been challenged in any of the nearly 500 cases which have cited Chaudhry in one form or another. Probably the most notable citation to date comes in Clark v. Capital Credit & Collection Services, Inc., 460 F.3d 1162, C.A. 9 (Or.) 2006,

“The Clarks also argue that Capital and Hasson failed to verify properly the alleged debt, violating §1692(g). As this contention is without merit, summary judgment was proper. The pertinent portion of §1692g requires a debt collector to “obtain verification of the debt” upon the request of the consumer, and to cease collection efforts until the debt collector obtains verification and mails it to the consumer. In Mahon v. Credit Bureau of Placer County Inc., we described on way to provide proper verification; [T]he Credit Bureau, when it received the [verification] request, promptly contacted [the creditor’s] office, verified the nature and balance of the outstanding bill, learned that monthly statements had been sent from [the creditor’s] office to the [debtors] for over two years, and established that the balance was still unpaid. The Credit Bureau then promptly conveyed this information to the [debtors], along with an itemized statement of the account. Now, the Clarks urge us to hold that Mahon sets a standard below which a debt collector’s verification efforts must not fall. We decline to impose such a high threshold. Rather, we adopt as a baseline the more reasonable standard articulated by the Fourth Circuit in Chaudhry v. Gallerizzo, 174 F.3d 394. At the minimum, “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.”

[divemedic]

Chaudhry has been discussed here ad nauseum. It is an old case, and the quote is taken out of context. The "debt" referred to in that case was attorney work product. It is also a very old case. I can cite other cases which say other things.

Do a search in these forums for Chaudhry and see what I mean.

[Texadelphia]

Chaudhry has been discussed here ad nauseum. It is an old case, and the quote is taken out of context. The "debt" referred to in that case was attorney work product. It is also a very old case. I can cite other cases which say other things.

Do a search in these forums for Chaudhry and see what I mean.

Well in my circumstances, this is an attorney just telling me "pay X and I'll go away," which is insufficient. They aren't telling me why.

dive: Can you reference other cases to the contrary from Chaudhry, which I can quote in a response in case the attorney tries to file for a judgement?

[nascar]

.

dive: Can you reference other cases to the contrary from Chaudhry, which I can quote in a response in case the attorney tries to file for a judgement?

Yes, please do. That information would be very useful. Please enlighten us on cases which deal negatively with the Chaudhry's 1692g definition of validation. There are other cases which discuss the concept of validation, but only in the dicta of the opinion. There seems to be nothing where the court has been asked to address the definition of validation pursuant to 1692g that contradicts Chaudhry.

It's not so much the Chaudhry case itself that is so compelling, but the fact that the Supreme Court refused certiorari in the Azar case when asked to rule on this question.

[upallnight999]

What does ITS stand for?

[direred]

The following is why you got the response you did.

“The Clarks also argue that Capital and Hasson failed to verify properly the alleged debt, violating §1692(g). As this contention is without merit, summary judgment was proper. The pertinent portion of §1692g requires a debt collector to “obtain verification of the debt” upon the request of the consumer, and to cease collection efforts until the debt collector obtains verification and mails it to the consumer. In Mahon v. Credit Bureau of Placer County Inc., we described on way to provide proper verification; [T]he Credit Bureau, when it received the [verification] request, promptly contacted [the creditor’s] office, verified the nature and balance of the outstanding bill, learned that monthly statements had been sent from [the creditor’s] office to the [debtors] for over two years, and established that the balance was still unpaid. The Credit Bureau then promptly conveyed this information to the [debtors], along with an itemized statement of the account. Now, the Clarks urge us to hold that Mahon sets a standard below which a debt collector’s verification efforts must not fall. We decline to impose such a high threshold. Rather, we adopt as a baseline the more reasonable standard articulated by the Fourth Circuit in Chaudhry v. Gallerizzo, 174 F.3d 394. At the minimum, “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.”

Yes, well....

From that same ruling, what the appellate judges have to say about Clark:

Although we have not before employed the least sophisticated debtor standard to evaluate the meaning a debtor would attach to his or her own conduct, we are convinced that its use is appropriate here.

[pilgrimfaraway]

I see a few opinions referring to the Chaudhry decision, but only in reliance and affirmation of it:

Clark v. Capital Credit & Collection Services, Inc., No. 04-35563 (9th Cir. 8/24/2006) (9th Cir., 2006)

Anderson v. Frederick J. Hanna & Associates, 361 F.Supp.2d 1379 (N.D. Ga., 2005)

I found nothing that requires the CA to actually validate the debt, nor provide additional details like account numbers, balances, etc. This is a pretty important issue, and seems to run contrary to what I've read on this board, even in the context of settlements reached. I sure would like to get an answer from some who have actually used a claim of failure to validate as the basis for legal action.

[divemedic]

Sorry, I have to go to work, so I do not have time to research, but I will leave you with a couple of things to get you started.

First, hit the search button at the top of the page and type "Chaudhry" This has already been discussed ad nauseum, ad infinitum.

Second, remember the Fields quote: "debt collectors must still clearly and fairly communicate information about the amount of the debt to debtors. This includes how the total amount due was determined if the demand for payment includes add-on expenses like attorneys’ fees or collection costs." Fields v. Wilber Law Firm (7th Cir, 2004)

In the Fields case, the court also said this: "It is unfair to consumers under the FDCPA to hide the true character of the debt, thereby impairing their ability to knowledgeably assess the validity of the debt. One simple way to comply with § 1692e and § 1692f in this regard would be to itemize the various charges that comprise the total amount of the debt."

"refusing to quantify an amount that the debt collector is trying to collect could be construed as falsely stating the amount of debt. See Miller v. McCalla, Raymer, Padrick, Cobb, Nichols, and Clark, L.L.C., 214 F.3d 872, 875-76 (7th Cir. 2000) (letter required the consumer to call a toll-free number to determine the full amount of the debt).

Also from Miller: we rejected the proposition that a debt collector could provide incomplete information in a dunning letter so long as it provided a telephone number for the debtor to call. “It is notorious that trying to get through to an 800 number is often a vexing and protracted undertaking, and anyway, unless the number is recorded, to authorize debt collectors to comply orally would be an invitation to just the sort of fraudulent and coercive tactics in debt collection that the Act aimed (rightly or wrongly) to put an end to.” Miller, 214 F.3d at 875.

You will always find case law on both sides of an issue. The trick is to only show that which supports your case, and be willing to do research to shoot down theirs.

[nascar]

In Miller, the court was asked to determine "the question whether the defendants violated the statutory duty to state the amount of the loan", pursuant to 1692g(a)(1). Since the dunning letter sent to Miller contained only the principle amount of the loan, and Miller was given a phone number to call to get the complete balance. (The creditor claimed this was required because the total changed daily) The Miller court ruled that the dunning letter did not comply with the Act. "The statement does not comply with the Act (again we can find no case on the question). The unpaid principal balance is not the debt; it is only a part of the debt; the Act requires statement of the debt."

This case dealt with the statement of the debt in a dunning letter, not the question of what constitutes proper validation. The court's statement "again we can find no case on the question" reinforces that fact. This case is not a persuasive resource in a proper validation question and is easily distinguished from Chaudhry.

In Fields, the question revolved around the content of dunning letters and statement of debt. This is the same legal question as Miller. In fact, the Fields court cited Miller in its opinion. If Fields would have come before Miller, no doubt the Miller court would have cited Fields. Nonetheless, again we have a case which would not be a persuasive resource in a proper validation question and is easily distinguished from Chaudhry.

The earlier statement that Chaudhry is not applicable because the "debt" consisted of legal fees has no basis. Legal fees can be part of all of a debt. That's clear upon reading Fields. The reference to the age of the Chaudhry case is also flawed, evidenced by the fact that it continues to be cited without contest to this day in debt validation cases.

I would suggest that when one cites caselaw as a persuasive authority that it is important to recognize the underlying issue of the case being cited. Put simply, you can't fit a square peg in a round hole. I am going through this explanation primarily because I have come to believe that there is an over-abundance of misinformation being promulgated on this forum. It's obvious that a large number of people take the advice of some of the "experts" very seriously and in fact may use that information in their decision making process. When the information provided is formulated from flawed theory and used by folks who take very seriously what is said on this forum, we must be extremely careful. This is not a personal affront to anyone, but if my opinion is no longer welcome on this forum, I'll move on. I for one, do not want to be responsible for encouraging someone to sue, only to watch them get blasted in court because they relied on bad information. Since I have gone back to doing this kind of work on a regular basis, I have reread lots of old posts, including mine, and cannot believe the bad advice that has been forwarded as fact. We have to be more responsible.

[divemedic]

At the same time, the Chaudhry case was about whether or not attorney work product was subject to validation. There are flaws to EVERY argument. Unless you are writing the majority opinion for the supreme court, there are always people who are going to argue against your case. It takes hours to write a good argument for or against a case. I do not have the time to be anyone's research department, nor am I an attorney. I am telling you what works.

If you are trying to beat a CA or OC for amounts of up to $10,000, I can tell you that my opinion works. Do you know why it works? Because you make a persuasive enough case to make the opposing attorney realize that settling the case is a better use of his time and his client's money than fighting this in court.

There is much to the Chaudhry case. Like I said, it has been discussed to many times. I have noticed that you like to argue. I have noticed that you like to favor the CA. I have noticed that you are "not litigious". I am. I have filed suits against CA's, and I have yet to lose a case. I have gotten the results I was looking for EVERY TIME. That's right- I got the delete, I got a check, and I got a release. If my tactics were so wrong, then why was that?

[nascar]

I have noticed that you like to argue.

Yes, and you don't? It would appear that anyone who disagrees with you is accused of being argumentative and inflammatory.

I have noticed that you like to favor the CA

Incorrect.

I have noticed that you are "not litigious"

Correct.

I have filed suits against CA's, and I have yet to lose a case.

I can say the same, but choose not to broadcast it to everyone in the free world.

If my tactics were so wrong, then why was that?

Because you have a forum of readers who think what you say is fact, when in many cases, it is only your interpretation. You don't have a right to use this forum to promote misguided advice at the expense of others.

I suggest you either learn to accept criticism or get permission from Kristy to ban anyone who doesn't agree with you.

[divemedic]

I am sorry, you are right- that must have been the intent of congress, that a consumer asks for validation, and a CA says, "Yep, that is what you owe, now pay up."

Validation complete.

[GreatGadsby]

Yes, and you don't? It would appear that anyone who disagrees with you is accused of being argumentative and inflammatory.

Incorrect.

Correct.

I can say the same, but choose not to broadcast it to everyone in the free world.

Because you have a forum of readers who think what you say is fact, when in many cases, it is only your interpretation. You don't have a right to use this forum to promote misguided advice at the expense of others.

I suggest you either learn to accept criticism or get permission from Kristy to ban anyone who doesn't agree with you.

you need to back the F* up! Dive has been here way longer than you and has helped a lot of people. he's a moderator for a reason. he refuses to moderate threads in which he has posted on principal. and if he were in the habit of banning everyone who disagreed with him, you would have been gone a long time ago! you argue and then offer case law that supports his position while trying to argue ? what sense does that make? go back to your cave and quit picking fights with people just because they're smarter than you.

(not that Dive needs my help, but nascar was annoying me too)

[nascar]

not that Dive needs my help,

I was wondering when the attitude would show up from the girlfriend. You know what, you pompous attention seekers can have your little stage. I'm finished with this nonsense.

Dive, with your attitude, you'll be living in your car again soon, if that story was even true.

Kristy, you ever wonder why people are bailing from this forum so quickly? Look no further than your little Napolean.

[divemedic]

Now that I have a few minutes, here is what I dug up. This is a 2004 case where a CA sent a letter to a debtor in response to a timely DV. This is what the court had to say:

" the information contained in the letter would not have sufficed to verify the debt. The only information disclosed in the letter was the date that the account was opened, the date that the last payment was posted, the name and social security number listed on the account, and the current balance. The letter did not indicate the amount or basis of the charges underlying the current balance, nor did it indicate the dates on which such charges were incurred." GUERRERO v. RJM ACQUISITIONS, (DC Hawaii, 2004)

[nascar]

Now that I have a few minutes, here is what I dug up. ... GUERRERO v. RJM ACQUISITIONS, (DC Hawaii, 2004)

I told Kristi that I would try to get along so I'll just give you this bit of friendly advice regarding your last post. Always make sure of the status of your case before you cite it as reference.

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

LOCATION OF HEARING FOR NOVEMBER CALENDARRevised Notice:

1132 Bishop Street

Honolulu, Hawaii 96813 October 3, 2006

Wednesday, November 15, 2006 9:00 a.m. Sixth Floor Courtroom

( ) 05-15121 Guerrero v. RJM Acquisitions LLC

[admin]

No one deserves abuse and even the "experts" (here insert me, nascar and dive) have differing opinions.

Calling each other names or saying that a subject has been argued "ad nauseum" is no excuse for rudeness. And strictly not allowed. Another important point - even if something has been argued to death, what is the harm of exploring it further? The world of credit changes so often and new cases are rendered every day. These things SHOULD be discussed as often as people feel like it.

This Chaudry subject is highly complex and is not a question like "how do I fix my credit?" to which the response definitely should be to hit the search button.

Also, even if the tone is rude - please don't response in kind. This goes no where. I'm often wrong on what I post and I depend on the forum members here to set me straight. EVERYONE should adopt this kind of attitude and not get defensive.

If someone just blindly follows anyone's advice off of this forum without checking it out, even if it comes from a seemingly reliable source, they are fools. All information should be checked before making crucial decisions.

[divemedic]

I would say that I do not mind a good discussion- it improves all of us, and it improves the board. I am not always right. Also, in the legal sense, even attorneys disagree on this subject, which is why we have courts in the first place.

I do have to say that I was, and remain, highly offended at the "little Napolean" remarks, as well as the remarks concerning me becoming homeless, etc.

[nascar]

Truce, with an emphasis upon mutual respect.

My apologies for the remarks.

[Raysway]

...Gentlemen!

[direred]

I see a few opinions referring to the Chaudhry decision, but only in reliance and affirmation of it:

Clark v. Capital Credit & Collection Services, Inc., No. 04-35563 (9th Cir. 8/24/2006) (9th Cir., 2006)

If you read between the lines, the 9th circuit basically considered Clark either an idiot or crazy. See the quote I posted from the case earlier in the thread. They pointed out that the CA's burden of proof for mailing wasn't as exhaustive as the testimony in the Mahon case (which really taught me something about CA's processes, so I recommend reading it, even though it was pretty clear the 9th circuit thought they were lying).

So, in other words, I'm not sure too much should be read into the Clark case.

[Texadelphia]

Ok, enough with the bickering.

LOL I come back from a long night in airports to catch up on a flame war in my absence!

So... and differing opinions is what I want to hear.... what do you think the best course of action would be for me? Go ahead and ITS the lawyer?

The CA has not yet responded, and the 30 days I gave them ends next week. I did get back the green card from both entities rather quickly. The local attorney, again, didn't do anything in her letter but just said "my client says you owe this much" and didn't even provide account information.

No opening date.

No OC account number.

No DOLA, nothing.

I suspect that the attorney (and I did some follow up, the letter did originate from a law office) did not have any information about the account in front of them.

I suspect that I won't hear back from Portfolio now, since I DV'd both of them at once.

My thoughts:

I want to DV2, and basically instead of the form letter demand, I will remind them that I am entitled to validation of the debt. Saying your client I owe X amount is not validation by any stretch of the imagination.

It is extortion.

Please send me proof that I owe this. That's the least that I ask.

I intend to produce all of this in front of a judge to show a good-faith effort in attempting to resolve this peaceably.

However, the lawyer has not given any language that looks like an ITS threat---yet. It's a $3K balance which I am disputing as fraudulent, and that will be obvious on the CC statements, the last two months of transactions were foreign ATM withdrawls in Africa. I suspected back in 2001/2002 when I disputed the Providian account that a website purchase had caused my info to be divulged, but never received anything from a merchant informing me of this.

Account closed. Undisputed amount paid as PIF. Then 3 years later collections start out of the blue. Lovely.

If you read between the lines, the 9th circuit basically considered Clark either an idiot or crazy. See the quote I posted from the case earlier in the thread. They pointed out that the CA's burden of proof for mailing wasn't as exhaustive as the testimony in the Mahon case (which really taught me something about CA's processes, so I recommend reading it, even though it was pretty clear the 9th circuit thought they were lying).

So, in other words, I'm not sure too much should be read into the Clark case.

[direred]

So... and differing opinions is what I want to hear.... what do you think the best course of action would be for me? Go ahead and ITS the lawyer?

My own experience dealing with both Portfolio and Providian (though Providian was with another JDB, whom I also sued).

1) Portfolio made no attempt to validate, even after I filed suit.

2) Providian had most of the records that would have led to validation.

3) Providian didn't sell my paper until it was outside SOL.

How much work Portfolio would put into the whole thing (and whether they'd bother to spend the $ for validation for court) will depend a lot upon how much they paid for the paper. How long after chargeoff did Portfolio get it? The sooner it was, the more likely they are to sue.

[west1012]

Just been reading some of the posts.......I typed Apothaker in the search box, and ended up here.

Tex, I got the same letter (different account info, of course) from David Apothaker back in June. Without validating the debt they did file suit. It is scheduled for this Thursday, and guess what came in yesterday's mail......a packet with all the old account statements.

Wish me luck