mparksmagic

Counterclaim re: violation of §1692 g (b)

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Well. I recently requested validation of a debt from palisades collection, and received a summons in response. No validation, no nothing. I am going to file a counterclaim based on violation of §1692 g (B) citing the following opinion:

Here is the link:

http://www.blueghost.ws/credit/RECKEROPINION.pdf

Southern District of Indiana… Recker v. Central Collection Bureau, Inc.

"The FDCPA requires that once a debt has been disputed in writing, the debt collector must cease all collection activities until the collector has obtained verification and mailed it to the debtor. § 1692g(B). Consequently, when a debt is disputed a collector has two options: 1) to provide verification and then resume collection activities or 2) to cease all collection activities. Jang v. A.M. Miller & Assocs., 122 F.3d 480, 483 (7th Cir. 1997).

Courts have found that both filing a new lawsuit and continuing an existing lawsuit without providing requested verification violates § 1692g(B). Regarding existing lawsuits, the Seventh Circuit Court of Appeals observed, “[t]he debt collector is perfectly free to sue within [the thirty-day verification period]; he just must cease his efforts at collection during the interval between being asked for verification of the debt and mailing the verification to the debtor.”

Bartlett v. Heibl, 128 F.3d 497, 501 (7th Cir. 1997). See Durkin v. Equifax Check Servs., Inc., 406 F.3d 410, 416 n.5 (7th Cir. 2004) (stating that a debt collector is free to bring a lawsuit within the validation period but must suspend its collection if the debtor disputes the debt); Anderson v. Frederick J. Hanna & Assocs., 361 F. Supp. 2d 1379, 1383 (N.D. Ga. 2005) (holding that because a lawsuit was a collection activity, a debt collector could not bring a lawsuit without first providing verification).

Whereas courts have found that collection activities without prior verification violate §1692g(B), the question of whether collection activities with simultaneous verification violate §1692g(B) is one of first impression. Reading the FDCPA to require that the verification be complete prior to resuming collection activities comports with the plain language of the statute. Case 1:04-cv-02037-WTL-DFH Document 23 Filed 10/17/2005

As the Seventh Circuit observed, “[w]e should not disregard plain statutory language in order to impose on the statute what we may consider a more reasonable meaning.” Jenkins v. Heintz, 25 F.3d 536, 539 (7th Cir. 1994). The statute requires that: “the debt collector shall cease collection of the debt . . . until the debt collector obtains verification . . . [and the verification] is mailed to the consumer . . . .” § 1692g(B) (emphasis added). The word until signifies that sending verification is a prerequisite to resuming collection activities. Furthermore, the statute requires that the verification be mailed to the consumer; the statute does not allow the verification to

instead be attached to a lawsuit."

Anyone have input on this

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I never recd' a notice. I pulled my CR in june and noticed the item. First I DV'd the CRA in June but it came back verified. The CRA gave me the contact info of the CA (Palisades). I then DV'd Palisades in september. Then in mid october I recd a summons, let me add that the summons was delivered to the wrong address by the sheriffs office.

Thanks!

Matt

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Well, the summons was sent to an address I haven't lived in in over 6 years (my mothers house). I would presume if they sent a notice, it would have been sent there. However when I moved from that address I updated all records on my CR as well as sent a change of address notice to the USPS. What are some methods of proving I did not receive? And shouldn't they have sent any notices via certified mail? Should I get my mother to sign an affidavit saying she has not recd anything?

Thanks in advance!!!

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There is no reason for them to send a validation notice certified. Under common law, a letter mailed is presumed to be received. Unless it was returned to them as undeliverable.

The fact they sent the summons to a previous address, but you received it anyway, would seem to hinder rather than help your cause. An affidavit couldn't hurt.

Bottom line is your claim is weak.

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I see your point. When I said the summons was delivered to my mothers address, i mean at the sheriff left a notice at her address for me to call the sheriffs office, my mother called and told me this. When I called, the warrant officer asked my new address. A few hours later I came home and the summons was stuck in the crack of my door...

Back to my other question, as stated above

Courts have found that both filing a new lawsuit and continuing an existing lawsuit without providing requested verification violates § 1692g(B).

Don't they still have to validate and send me info on what this debt is before this case continues? I still have not recd anything, and in the original validation request I sent them in Sept. I clearly stated all communication should be directed to my new address.

Also, when speaking to my mother this evening, she says for the last 3 months, the attys representing the CA call her 2 times a day with an automated message. Is that a violation for contacting a 3rd party?

Thanks again!!!

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Also, what is the deal with the 30 days to dispute. I mean if the CA legimitally has the wrong address (not the address listed on your CR) and sends collections letters to that said wrong address, how could you know they are trying to contact you? How can they continue the suit without validating the debt.. I mean, I don't even know what this debt is. If they can show me proof its mine, I'll pay up, its not like I cant pay, I just want to know that its mine, who the OC is and some signed paperwork linking me to a contract.

Thanks!!

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Don't they still have to validate and send me info on what this debt is before this case continues? I still have not recd anything, and in the original validation request I sent them in Sept.

Again, only if your request was timely. They will claim they sent you your verification rights, you will have to prove you never received it. Communication continually being sent to the wrong address will aid in that proof.

I clearly stated all communication should be directed to my new address.

Could be a snafu that the change of address didn't go through. Might call them to correct it.

Also, when speaking to my mother this evening, she says for the last 3 months, the attys representing the CA call her 2 times a day with an automated message. Is that a violation for contacting a 3rd party?

Thanks again!!!

Maybe, depends on what they discuss with your mother. You didn't indicate whether you told them it is inconvenient for you to receive calls at that number, or if you provided a new phone number where it is convenient to receive calls.

There is no provision in the FDCPA that requires them to limit all communications to the mail.

You can dispute a debt at anytime, and you should. The 30 day window only pertains to requesting verification of the debt and ceasing further collection efforts until it's provided. After that window closes, they can assume the debt to be valid and continue accordingly. Although, your failure to timely request verification cannot be considered an admission of liability for the obligation.

However, you'll certainly be able to dispute the debt in court, and, through discovery, request all the verification you could ever possibly want to aid in your defense.

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Maybe, depends on what they discuss with your mother. You didn't indicate whether you told them it is inconvenient for you to receive calls at that number, or if you provided a new phone number where it is convenient to receive calls.

There is no provision in the FDCPA that requires them to limit all communications to the mail.

In my DV I sent to the CA in Sept. I stated "i would like to request, in writing, that no telephone contact be made by your offices to me, including but not limited to computer generated calls and calls or coorespondence sent to or with any third parties, it will be considered harassment and I will have no choice but to file suit. All future communications with me MUST be done in writing and sent to the address noted in this letter via USPS."

I would also like to add, that this is the CA's atty that is calling, not the actual CA. Does my request for only written communication apply to the attys as well? I also have dated picture evidence of caller id transactions to my mothers house from the attys.

Thanks in advance, you are such a help e. normis

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Bottom line is nothing you are pointing to can be used as a defense to their claim. If there are any FDCPA violations, you have to bring a counterclaim for them.

You need to work on attacking their evidence of claim, or come up with something a little more solid as a counter claim to negotiate with to get them to dismiss their case.

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The relationship between the CA and the Attorney needs to be established to see if they are one in the same as defined under the FDCPA...

In June you found out about them and disputed with the CRA but you failed to dispute with the CA directly that could have been used as first communication under the first 30 days for continued collection activity. You waited until September which it too much of a believable stretch.

Had you sent something in June when you first noticed them like: I have just received a copy of my credit report and found listed a collection account from you. Please note that I have never received any prior communication from you and therefore notice you that pursant to the FDCPA to cease any current collection activity until such time as your verify this alleged debt as per the FDCPA... you get the idea.

IMO you need to do as suggested: You need to work on attacking their evidence of claim!

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The relationship between the CA and the Attorney needs to be established to see if they are one in the same as defined under the FDCPA...

What is the best way to determine this? And what specific information do I need to know regarding their relationship?

In June you found out about them and disputed with the CRA but you failed to dispute with the CA directly that could have been used as first communication under the first 30 days for continued collection activity. You waited until September which it too much of a believable stretch.

Well, the reason why I disputed with the CRA first, I figured they had some incorrect info and it would just be removed once I reported it. Once I recd notice that the info came back verified, I then contacted the CA to get the specifics, which I never received. The lawsuit was filed exactly 20 days after they received my DV notice.

IMO you need to do as suggested: You need to work on attacking their evidence of claim!

I agree.. I have contacted the CA regarding DV, should I now contact the CA's Atty and request DV? What is another route I can take to attack evidence of their claim?

Also. I haven't recd mail at my mothers house in years (well, since the sheriff delivered an attempt of summons) and yesterday she called me to tell me she recd an advertisment from a lawfirm that says:

"you may not have been served yet, but palisades collection has filed a lawsuit against you, we can help you file bankruptcy and relieve this debt"

How did they get this info? Any Ideas?

Thanks so much

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Found this today: Opinion stating if a consumer has not recd any communication from a debt collector regarding an alleged debt, then the official court document will serve as the "initial communication" and the consumer has 30 days to dispute from that day.

"If an attorney debt collector has had no prior communications with a consumer before serving a summons or other court document on the consumer, that document would constitute the "initial communication" with the consumer if it conveys information regarding a debt. The attorney would therefore have to include the written notice mandated by Section 809(a) (often referred to as the "validation notice") in the court document itself or send it to the consumer "within five days after the initial communication."

Also, I have noted that the atty representing the CA who was assigned the alleged debt pulled my CR from TU on 09/06. Clearly on the TU CR it states my current address and the date it was updated on 06/06. It is my belief that they willfully sent all communications to the prior address, hoping not to reach me and have the summons served to someone other than me so that they could receive a default judgement. Would this be some sort of standing for willful non-compliance? Any advice is helpful.. Thanks!!!

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That opinion is now obsolete since the new FDCPA took effect last month.

Hmm.. Didn't know that. Just another lesson learned from you !!! Thanks!!

Noncompliance of what? Your report is apparently accurate.

I updated my address with the CRA's in June. The CA's Atty clearly knew my new address since it was stated on my CR they pulled in Sept. However they still sent the summons to an old address, I would presume to try to keep me from receiving it and to try to get me to not show for court and get a judgement against me. Is that some sort of violation?

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Likely they didn't pay any attention to the address on the CBR assuming the address provided by the CA was the most current. When you are confronted with 2 addresses, you have to decide which one you use.

They can't get a default judgment without showing service so your scenario is an unlikely one; they wanted you served. Their hope is you don't appear after being served. That's how they get a default.

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Likely they didn't pay any attention to the address on the CBR assuming the address provided by the CA was the most current. When you are confronted with 2 addresses, you have to decide which one you use.

I see, Even though the new address on my TU report is dated?

They can't get a default judgment without showing service so your scenario is an unlikely one; they wanted you served. Their hope is you don't appear after being served. That's how they get a default.

Well, Im not sure if you read a previous post of mine, but notice was put at my mothers door for me to call the sheriffs office. I called, they asked my address, the next day, the summons was stuck in the crack of my door. The area where it says date served, by whom, and to whom, is blank. I live in an interior entrance apt building, with my neighbor less than 10 inches away. How is this sufficent service? I know its pointless now, because I admit I've been served, but what if I never got the summons. I wouldn't have known about the case and would have missed my court date resulting in default. I know its a far cry... Pleeeezeeee judge. :D

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I don't know what your state's rules are regarding service. Where I am you must be personally served, and the local judges are sticklers about it. The process server must sign an affidavit of service, and unless same is on file, the judge will not grant a default judgment. To paraphrase one local judge "show me an affidavit of service and I'll grant your default."

If you've entered any responsive pleading, or otherwise appeared other than a special appearance to contest service, you've essentially waived service. In other words, consider yourself served.

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Also, why don't you move to quash for improper service. Everyone told me that the judge would say no, but the judge forced the attorney to serve an alias summons upon me.

You should have seen the attorney's face!!!

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Why dont you move to quash for improper service
Well, Im not sure if you read a previous post of mine, but notice was put at my mothers door for me to call the sheriffs office. I called, they asked my address, the next day, the summons was stuck in the crack of my door. The area where it says date served, by whom, and to whom, is blank. I live in an interior entrance apt building, with my neighbor less than 10 inches away.

But I was served. Can I still motion to quash, even though I did recv the papers?

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