CA sues without warning

[Jerky]

I just received a summons from a NYC law firm on behalf of TX Collect in Austin TX. They sent it to my mothers house, where I haven't lived in almost 5 years. In the letter they state they sent collection letters that I never responded to.

I just ran my credit report, which shows the law firm pulled it on 8/4, but the account is listed as Paragonway. I read that Paragonway and TX Collect are the same entity and that they also go under different names.

I'm pretty sure the SOL on this account is up, but I'd like a court ruling in my favor without using a SOL defense to limit the possibility of getting a 1099C. I 'm sure that the CA doesn't have any proof that it is mine and I've won in the past against their kind using that defense, so I'm sticking with what works for now.

Now I know the FDCPA is not defense against this summons I plan on DV'ing them with the following possible violations on their part-

§807 (14) False or misleading representations- The use of any business, company, or organization name other than the true name of the debt collector's business, company or organization.

§809 Validation of Debts - I can get an affidavit from my mother stating that they never sent any type of collection letters before they sent the summons.

§813 Civil Liability - Hit them up for the maximum allowable fine.

Can any one think of anything else?

[E. Normis Debtor]

It's also a violation for filing suit on a time barred debt.

[mit417]

I just received a summons from a NYC law firm on behalf of TX Collect in Austin TX. They sent it to my mothers house, where I haven't lived in almost 5 years. In the letter they state they sent collection letters that I never responded to.

I just ran my credit report, which shows the law firm pulled it on 8/4, but the account is listed as Paragonway. I read that Paragonway and TX Collect are the same entity and that they also go under different names.

I'm pretty sure the SOL on this account is up, but I'd like a court ruling in my favor without using a SOL defense to limit the possibility of getting a 1099C. I 'm sure that the CA doesn't have any proof that it is mine and I've won in the past against their kind using that defense, so I'm sticking with what works for now.

Now I know the FDCPA is not defense against this summons I plan on DV'ing them with the following possible violations on their part-

§807 (14) False or misleading representations- The use of any business, company, or organization name other than the true name of the debt collector's business, company or organization.

§809 Validation of Debts - I can get an affidavit from my mother stating that they never sent any type of collection letters before they sent the summons.

§813 Civil Liability - Hit them up for the maximum allowable fine.

Can any one think of anything else?

You'd better check out process of service. There is a subject matter juriisdiction issue here or personal jurisdiction. Anyway, check it out!! You have been warned, plus it might help you.

[direred]

Did they pull AFTER they filed?

[Jerky]

They pulled my CR on 8/4/6

The summons hasa filing date of 8/15/6

On the summons is a purchase date of 9/7/6

The notice that came with the summons is dated 10/20/6

I just realized that they violated 809 Validation of debts again by looking at these dates. They pulled from TU, which does list the old address they sent the summons to. Now they pulled on 8/4, which is a Friday. Assuming they sent a collection letter out on Monday 8/7 the 30 day period would give me till 9/7, but they filed the summons only 11 days after pulling my credit. No other inquiries came from TX or this law firm on any of my three CR in the last two years.

I don't see how they could have mailed me

[direred]

The 30-day period is NOT a grace period.

[CarolinaBlueEyes]

they can file suit at anytime.. when you send a DV they can not continue collection such as calling etc until they either send you the validation or they decide to sue.. citibank answers DV letters this way and Unifund never does anything but send summons.. no calls no dunning letters.. etc. there is no "grace period" they can sue even if they did not respond to your dv.

IF it is time barred and you are sure on that it is a voilation to sue if its out of SOL

[E. Normis Debtor]

when you send a DV they can not continue collection such as calling etc until they either send you the validation or they decide to sue.. citibank answers DV letters this way .....they can sue even if they did not respond to your dv.

Filing suit would be continued collection activity....in fact the ultimate collection activity. They must respond to the DV before filing suit or it's a violation.

[LadynRed]

It's also a violation for filing suit on a time barred debt.

No, it isn't. Not under NY law, not under TX law, and NOT the FDCPA either.

There is absolutely NO REQUIREMENT in the FDCPA that a 3rd party collector ever has to validate. In addition, the FTC has 2 staff opinion letters.. one of which specifically says they CAN sue you within the initial 30-day period.

[direred]

No, it isn't. Not under NY law, not under TX law, and NOT the FDCPA either.

There is absolutely NO REQUIREMENT in the FDCPA that a 3rd party collector ever has to validate. In addition, the FTC has 2 staff opinion letters.. one of which specifically says they CAN sue you within the initial 30-day period.

I think the poster you quoted meant suing outside the SOL, not suing within the initial 30-day period. The former violates either of a couple parts of § 807.

[E. Normis Debtor]

It's also a violation for filing suit on a time barred debt.

No, it isn't. Not under NY law, not under TX law, and NOT the FDCPA either. There is absolutely NO REQUIREMENT in the FDCPA that a 3rd party collector ever has to validate. In addition, the FTC has 2 staff opinion letters.. one of which specifically says they CAN sue you within the initial 30-day period.

You confuse the meaning of a time barred action with legally permissible action within the initial 30 day validation period.

Filing suit on a time barred debt is 3 violations (Kimber v. Federal)

1. Taking an action that cannot legally be taken.

2. Misrepresenting the legal status of a debt.

3. Use of false representation or deceptive means to collect a debt.

If a timely request for validation is made, validation MUST be mailed to the consumer before suit is filed or it violates. Irrespective if suit is filed within the 30 day validation period or outside of it. (Recker v. Central Collection)

Additionally, if suit is filed within the initial 30 day period and validation is requested, the suit MUST be suspended until validation is mailed to the consumer or it violates. (Recker v. Central Collection)

Validation cannot be attached to a summons and complaint. The FDCPA requirement is that it MUST come through the mail. (Recker v. Central Collection)

And BTW, if you're in the 9th District, there is support that the FDCPA requires that validation MUST be provided if requested; ceasing further collection isn't sufficient. Though all other districts have held otherwise.

[Jerky]

It is a violation to sue for a time barred debt in NY;

NY State CVP - Civil Practice Law and Rules

Article 2 - LIMITATIONS OF TIME

§ 213 Actions to be commenced within six years: where not otherwise

provided for; on contract; on sealed instrument; on bond or note, and

mortgage upon real property; by state based on misappropriation of

public property; based on mistake; by corporation against director,

officer or stockholder; based on fraud. The following actions must be

commenced within six years:

2. an action upon a contractual obligation or liability, express or

implied, except as provided in section two hundred thirteen-a of this

article or article 2 of the uniform commercial code or article 36-B of

the general business law;

[E. Normis Debtor]

Jeryky, you're mis-applying the NY limitations statute. Unless NY has a consumer protection statute similiar to the FDCPA that can be applied, it would not necessarily be a violation of state law to file suit on a time barred claim. Though it would violate the FDCPA by doing so.

[Jerky]

NY State Laws

GBS - General Business

Article 29-H - DEBT COLLECTION PROCEDURES

(601)(8) Claim, or attempt or threaten to enforce a right with knowledge or

reason to know that the right does not exist;

If a CA knows or is made aware of the fact that the debt is past the SOL, and they continue to collect, I would think it would fall under this law.

[Jerky]

I went through my documents the other night and realized that they filed probably two months before the SOL was set to run out. This sounds bad, but they still have to prove that it's mine with some sort of documentation, which is where I've had success in the past.

A major fault for them was lying on the complaint with the court. In the complaint they say that they had sent letters and statements to me with no response. Well I never actually lived there, at my mother's, I just used it as a mailing address for a little bit, but even so, my mother will sign an affidavit that I haven't received mail there in several years .

So if they did send statements and whatever, then they should be able to submit them to the Court expeditiously, say within 2 weeks. If not, grant my motion to dismiss with prejudice and F off.

[LadynRed]

Misrepresenting the legal status of a debt.

And just what is that 'legal status' ??? Unless state law specifially says it is illegal to sue on an out-of-statute debt, the debt is STILL LEGALLY collectible, it is still REAL DEBT.. so where is the "misrepresenation" ?? All the SOL does, and you know this, is provide an affirmative defense in case you ARE sued in all but 2 states in the US.

Taking an action that cannot legally be taken.

Why not ???? The state laws that govern the SOL DO NOT prohibit a lawsuit from being filed on an out-of-statute debt unless you live in WI or CA where it IS illegal to sue on a time-barred debt.

if you're in the 9th District, there is support that the FDCPA requires that validation MUST be provided if requested;

And the 9th circuit is so far afield in most of it's cases that there are only a small percentage of their decisions that have NOT been overturned. Its no wonder the rest of the nation doesn't agree.

Thousands of lawsuits are filed every single day on time-barred debts. If this action were absolutely illegal, they wouldn't be getting away with it so flagrantly ! I wish it WERE punishable, a lot of the junk debt buying business would just dry up an blow away.. but instead it gets bigger daily.

From the FTC Krisor Opinion letter ..(and yes I know it's not binding)

Mr. John D. Krisor, Jr.

Krisor and Nusabaum

P.O. Box 6200

South Bend, Indiana 46660-6200

Dear Mr. Krisor:

This is in response to your letter of October 9, 1991 wherein you pose two questions:

(1) If a debt collector ceases collection activity, must the debt collector send documentation of the indebtedness to the debtor?

(2) Can a debt collector charge for copies of the documentation of the indebtedness? 1. Section 809( of the Act provides that if the consumer disputes the debt or requests identification of the original creditor in writing, the collector must cease collection efforts until he verifies the debt, or identifies the original creditor and mails a response to the consumer. If the consumer's request for verification of the debt was made in accordance with Section 809( of the Act, the collector need not supply the documentation but only so long as collection efforts are not resumed. Section 809( requires that "the collector cease collection of the debt, or any disputed portion thereof, until the debt collector obtains verification of the debt . . . and a copy of such verification . . . is mailed to the consumer by the debt collector." In situations contemplated by Section 809(, the Act imposes the obligation to furnish verification before the collector resumes collection efforts. In the event the collector decides not to pursue the collection efforts, there is no requirement to furnish the documentation of the indebtedness to the consumer. In the event that collection efforts are resumed, the requirement to furnish verification to the consumer prior to resumption of collection remains.

And from the LeFevre-Cass Opinion letter we have:

III. "Is it permissible under the FDCPA to cease collection of a debt rather than respond to a written dispute from a consumer received during the 30-day validation period?" Yes. There is nothing in the FDCPA that requires a debt collector to continue collecting a debt after a written dispute is received. Further, there is nothing in the FDCPA that requires a response to a written dispute if the debt collector chooses to abandon its collection effort with respect to the debt at issue. See Smith v. Transworld Systems, Inc., 953 F.2d 1025, 1032 (6th Cir. 1992).

Then from the Berger letter:

2) We interpret the "thirty-day period" as a period within which consumers must dispute their debts in writing in order to avail themselves of their Section 809( rights, but not as a "grace" period. Thus, we believe that there is nothing in the Act that prevents you from filing suit during this period, so long as you do not make any representations that contradict Section 809(.

Then of course, in the Castle letter, they fall back on Heintz v. Jenkins:

In answer to question #2: in view of the recent Supreme Court case, Heintz et al v. Jenkins, (No. 94-367; 1995 U.S. Lexis 2840), decided April 18, 1995, which considered litigation activity to recover a debt to be "collection activity" covered by the FDCPA, it does not appear that a debt collector may attempt to reduce a disputed claim to judgement without obtaining the verification required by Section 809(.

So, to say the least, the waters are muddy.

[E. Normis Debtor]

ladynred, I'm not arguing they can't pursue collection of an account which is time-barred for legal action. Of course they can attempt collection, providing they do not threaten or file a lawsuit. My statement, for which there is overwhelming case law* was "It's also a violation for filing suit on a time barred debt."

While not necessarily an action prohibited by state law, it violates the FDCPA because of the unsophisitcated consumer standard that is applied to actions under the Federal Statue. filing of a lawsuit to collect a time-barred debt is deceptive to the unsophisticated consumer Goins v. JBC & Assoc., 352 F. Supp. 2d 262 D. Conn 2005

The legal status of a debt would include whether or not it is time barred.

A plain reading of § 1692e(2)(A) leads the Court to conclude that [HN7] the FDCPA is violated when a debt collector falsely represents the legal status of a debt. Common sense dictates [**5] that whether a debt is time-barred is directly related to the legal status of that debt. After all, if a debt cannot be pursued in court because it is time-barred, the debt collector's ability to legally collect on the debt is limited. I, therefore, find that [HN] the legal status of a debt necessarily includes whether that debt is time-barred. Shorty v. Capital One Bank (90 F. Supp. 2d 1330; 2000 U.S. Dist. LEXIS 4679; April 3, 2000).

You already know this stuff, so maybe you misunderstood my original statement as it was relative to the act of filing suit, not merely making collection efforts.

*See also Kimber v Federal Fin. Corp., 668 F Supp 1480 (M.D. Ala. 1978); Stepney v. Outsourcing Solutions, Inc., 1997 US Dist LEXIS 18264 (N.D. Ill. Nov 4, 1997); Norris v. Miller, 926 F Supp 7763 (N.D. Ill. 1996); Martinex v. Albuquerque Collection Servs., 867 F Supp 1495 (D.N.M. 1994); Canterbury v. Columbia Gas, 2001 WL 1681132 (S.D. Ohio Sept 25, 2001)

[LadynRed]

"It's also a violation for filing suit on a time barred debt."

Then people need to start turning around and SUING scum like ASSet Acceptance and all the others who routinely file lawsuits on time-barred debts. Unfortunately, only if EVERY victim filed an FDCPA countersuit would it make the slightest difference to them. The FDCPA's $1,000 max penalty just doesn't hurt enough !!

[E. Normis Debtor]

I agree. In fact, just this morning, I posed the issue on a new collectors forum that recently recruited me. It will be interesting to see what responses it solicits from collectors.

http://www.collectiontalk.com/forum_posts.asp?TID=3

[CarolinaBlueEyes]

Filing suit would be continued collection activity....in fact the ultimate collection activity. They must respond to the DV before filing suit or it's a violation.

WOW I didnt know this.. i thought that filing a suit could be a response,.. that they could only contact you with information.. a suit or to inform you of the case being dropped.

I dv'd a creditor they responded with a suit.. is that in fact a violation??

[CarolinaBlueEyes]

I think the poster you quoted meant suing outside the SOL, not suing within the initial 30-day period. The former violates either of a couple parts of § 807.

thank you that is exactly what I meant.. the debt being out of SOL and time barred.. I was not talking about the 30 days

[CarolinaBlueEyes]

Then people need to start turning around and SUING scum like ASSet Acceptance and all the others who routinely file lawsuits on time-barred debts. Unfortunately, only if EVERY victim filed an FDCPA countersuit would it make the slightest difference to them. The FDCPA's $1,000 max penalty just doesn't hurt enough !!

I LOVE This comment I was just thinking that a few days ago that these fees are FAR too small to make an impact.. it means nothing to them... I know in NC you cant file on a time barred debbt.. I thought it was a federal law as well.. but these slimy JDB's dont care.. and since most people dont show up for these hearings its a free payday

[Recovering Attorney]

There is no case law in the NDNY or the 2nd Circuit that says suing on a time-barred debt is a FDCPA violation.

The NY FDPCA applies to creditors and would ostensibly apply then to JDBs, but there is no private right of action under that law. Might be a deceptive practice, but the courts have been hesitant to apply it to collection cases.

[CarolinaBlueEyes]

There is no case law in the NDNY or the 2nd Circuit that says suing on a time-barred debt is a FDCPA violation.

The NY FDPCA applies to creditors and would ostensibly apply then to JDBs, but there is no private right of action under that law. Might be a deceptive practice, but the courts have been hesitant to apply it to collection cases.

what about the state statute.. we have on in NC that we debated on the board it seems it would be illegal to file on a time barred but I have been told yes and and no.. what is your take on it.?? I would love your opinion..

thanks.

§ 58‑70‑115. Unconscionable means.

No collection agency shall collect or attempt to collect any debt by use of any unconscionable means. Such means include, but are not limited to, the following:

(1) Seeking or obtaining any written statement or acknowledgment in any form containing an affirmation of any debt by a consumer who has been declared bankrupt, an acknowledgment of any debt barred by the statute of limitations, or a waiver of any legal rights of the debtor without disclosing the nature and consequences of such affirmation or waiver and the fact that the consumer is not legally obligated to make such affirmation or waiver;

(2) Collecting or attempting to collect from the consumer all or any part of the collection agency's fee or charge for services rendered, collecting or attempting to collect any interest or other charge, fee or expense incidental to the principal debt unless legally entitled to such fee or charge;

(3) Communicating with a consumer whenever the collection agency has been notified by the consumer's attorney that he represents said consumer

[Recovering Attorney]

I would say that the statute you cite does not address suing on a time bared debt but merely calls "unconscionable" the attempt to get someone to reaffirm a timebarred debt. It would be a stretch, imo