E. Normis Debtor Posted November 27, 2006 Report Share Posted November 27, 2006 Now that everyone has had time to digest the newly amended FDCPA, let me pose this question:A CA decides to go right to litigation after being assigned an account rather than dunning.They file a formal complaint it is sent to you with a summons.Is this an initial communication triggering the requirement to inform you of your verification rights? Link to comment Share on other sites More sharing options...
nascar Posted November 27, 2006 Report Share Posted November 27, 2006 Amendment 1: Clarifies a formal pleading does not constitute an initial communication under the FDCPA and does not trigger the need for validation notice disclosures required by the Act. Link to comment Share on other sites More sharing options...
nascar Posted November 27, 2006 Report Share Posted November 27, 2006 newly amended FDCPA,Not been signed into law yet, has it? Link to comment Share on other sites More sharing options...
E. Normis Debtor Posted November 27, 2006 Author Report Share Posted November 27, 2006 It was signed by Bush on Oct 13 and took effect immediately. Link to comment Share on other sites More sharing options...
E. Normis Debtor Posted November 27, 2006 Author Report Share Posted November 27, 2006 Amendment 1: Clarifies a formal pleading does not constitute an initial communication under the FDCPA and does not trigger the need for validation notice disclosures required by the Act.So what's your answer to the question? Yes or no? Link to comment Share on other sites More sharing options...
nascar Posted November 27, 2006 Report Share Posted November 27, 2006 I haven't read the text of the amendment yet. Do you have a link to it?Looks like legal pleadings aren't going to be considered as collection activity under FDCPA, so no relation between the two.I would say no. Link to comment Share on other sites More sharing options...
E. Normis Debtor Posted November 27, 2006 Author Report Share Posted November 27, 2006 You'll have to scroll down to page 40 to find it, but here it is.1692g was ammended to add a new subsection (d) which now reads:(d) LEGAL PLEADINGS.—A communication in the form of aformal pleading in a civil action shall not be treated as an initialcommunication for purposes of subsection (a) Link to comment Share on other sites More sharing options...
IHateCAs Posted November 27, 2006 Report Share Posted November 27, 2006 A summons is not a legal pleading, yes? The actual complaint is. Link to comment Share on other sites More sharing options...
E. Normis Debtor Posted November 27, 2006 Author Report Share Posted November 27, 2006 We have a winner.A summons is not a formal pleading, in fact it isn't a pleading at all; it is process.The distinction between the two are clear. Courts ruling on the FDCPA have chosen to give the term "communication" a broad meaning, to include a summons. (There is also a FTC opinion in support of this.)Though the intent of congress may have been otherwise, a court cannot look to intent when the plain meaning of the words are unambiguous; and they are.My position is a summons is not exempt under the ammended FDCPA, it is a communication, and if it's the initial communication it triggers the requirement to inform a consumer of their verification rights. Link to comment Share on other sites More sharing options...
nascar Posted November 27, 2006 Report Share Posted November 27, 2006 Becasue of its strictly procedural nature, could the summons itself be considered a ''form or notice which does not relate to the collection of a debt" under the new subsection (e)", and as such, not be considered initial communication? Link to comment Share on other sites More sharing options...
E. Normis Debtor Posted November 27, 2006 Author Report Share Posted November 27, 2006 No, for 2 reasons.1. A summons is in direct relation to the collection of a debt.2. There is no statute or regulation that requires a summons to be issued.Those are key components to subsection (e) Link to comment Share on other sites More sharing options...
astiman Posted November 27, 2006 Report Share Posted November 27, 2006 *yawn* Link to comment Share on other sites More sharing options...
CrzyAmeriCan Posted November 27, 2006 Report Share Posted November 27, 2006 edited to remove my stupid reply Didnt read the post correctly Link to comment Share on other sites More sharing options...
IHateCAs Posted November 27, 2006 Report Share Posted November 27, 2006 What do I win? Can't wait to use the "activist judges" comment when a judge rules that Congress intended to include summonses. Link to comment Share on other sites More sharing options...
E. Normis Debtor Posted November 27, 2006 Author Report Share Posted November 27, 2006 The prize was a new digital phone recording system, but since you've taken such a pro-collector stance, it's been withdrawn. Link to comment Share on other sites More sharing options...
LadynRed Posted November 27, 2006 Report Share Posted November 27, 2006 but since you've taken such a pro-collector stance, it's been withdrawn. Link to comment Share on other sites More sharing options...
direred Posted November 27, 2006 Report Share Posted November 27, 2006 A summons is not a legal pleading, yes? The actual complaint is.Funny thing, when I filed one case, they asked if I wanted the summons then and there. I wondered why I wouldn't (but then found out when I faxed a copy of the pleading sans summons to the defendant and got a settlement fairly quickly).Filing isn't communicating with the debtor. A summons would be.(Even if a summons were excluded, stuff later in the process, such as a request for admissions, would be a communication.) Link to comment Share on other sites More sharing options...
IHateCAs Posted November 27, 2006 Report Share Posted November 27, 2006 I'm pro collector?! Link to comment Share on other sites More sharing options...
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