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Debt Validation Time Frame


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Forgive this long post. I got this form Wikipedia:

Debt validation

From Wikipedia, the free encyclopedia

Debt Validation, or "debt verification", refers to a consumer's right to challenge a debt and/or receive written verification of a debt from a debt collector. The right to dispute the debt and receive validation are part of the consumer's rights under the Federal Fair Debt Collection Practices Act (FDCPA) and are set out in §809 [15 U.S.C. § 1692g] of that act.

[edit] Who is considered a debt collector?

Under the Fair Debt Collection Practices Act, any person or entity, including lawyers, who regularly attempts to collect consumer debts is considered a debt collector.[1] The original creditor and its employees are generally not subject to the FDCPA, though they may be regulated by other state and federal laws; including the Fair and Accurate Credit Transactions Act and the Fair Credit Reporting Act.

[edit] When can a consumer dispute a debt or request validation?

A consumer can dispute a debt at any time, but only a written request sent within thirty days of the first written notice of the debt triggers validation rights under the FDCPA. The Act spells out specific language which must be included in the first written notice to the consumer, most notably that the consumer has 30 days to dispute the debt and request validation. However, failure by the consumer to dispute the debt during this thirty day period does not constitute a legal admission of the debt.

[edit] What constitutes debt validation?

The FDCPA does not define what constitutes proper debt validation, and different courts have reached different conclusions as to what is required from a debt collector. In the case of Chaudhry v. Gallerizzo, 174 F.3d 394 (4th Cir. 1999), the Fourth Circuit Court of Appeals adopts a relatively low standard: "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." The Court further stated that a request for validation of the debt is primarily intended to eliminate such problems as collectors contacting the wrong person or attempting to collect debts which have already been paid.[2]. In 2006, the Ninth Circuit Court of Appeals adopted the "reasonable standard" articulated in Chaudhry.[3]

In contrast, consumer advocates have criticized the Chaudhry case as allowing debt collectors to justify providing little information in response to a dispute.

Thus, what exactly constitutes proper validation of a debt depends on the specific nature of the dispute. At a minimum, the debt collector is required to confirm with the creditor the amount being claimed is correct and that the person from whom they are attempting to collect the debt is the person who owes it.

[edit] What if the debt collector does not respond?

There is no deadline for the debt collector to provide a response to the request for validation. However, a debt collector must cease all attempts to collect the debt until they have sent a sufficient response.

If a consumer makes a timely request for debt validation and a debt collector fails to provide proper validation or does not respond at all, the debt collector may not legally continue to pursue the debt. If collection activity continues, the consumer may file a law suit in state or federal court for violation of the FDCPA (see Fair Debt Collection Practices Act for discussion of FDCPA law suits).

Any dispute of the debt must also be reported by the creditor on the consumer's credit report pursuant to the Fair Credit Reporting Act (FCRA).

It sounds to me if you don't respond within 30 days from initial contact by the collector, that you can disput the debt but not DV the debt.

I would appreciate any clarification or comment.

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Where people misunderstand chaudry et al is the fact that what satisfies validication in one case doesn't set the floor or ceiling for what constitutes validication in another.

If in chaudry the collector came to the persons house and personally went over every detail of every statement with the debtor and the judge ruled that was validication. That means it satisfied the validication in that case; not define what it is.

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To add to E.Normis' entry...

If you send a validation letter, even after the 30 day window has expired, the CA fails to respond and continues collection at their own risk. The FDCPA specifically says the 30 day window begins from the time the consumer receives the initial letter from the CA, not when the CA sent it. Unless the CA has sent the letter by certified mail or by some other means that tracks when it is delivered, they have no proof whatsoever when the consumer got it.

We've all heard of occasions where postal mail is delivered weeks, months, or even years later. Heck, my mortgage bill this month was printed and mailed on December 8 and I didn't actually get it until January 4. So I've seen first hand a long delay in postal service. So a CA should (but rarely does) err on the side of caution and assume any DV notice was sent timely.

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To add to E.Normis' entry...

If you send a validation letter, even after the 30 day window has expired, the CA fails to respond and continues collection at their own risk. The FDCPA specifically says the 30 day window begins from the time the consumer receives the initial letter from the CA, not when the CA sent it. Unless the CA has sent the letter by certified mail or by some other means that tracks when it is delivered, they have no proof whatsoever when the consumer got it.

We've all heard of occasions where postal mail is delivered weeks, months, or even years later. Heck, my mortgage bill this month was printed and mailed on December 8 and I didn't actually get it until January 4. So I've seen first hand a long delay in postal service. So a CA should (but rarely does) err on the side of caution and assume any DV notice was sent timely.

There is no requirement you receive it, only that they send it.

Under common law a letter mailed is presumed to be received. It is a rebuttable presumption meaning the burden of proving it was never received falls on the receipient.

Just like if you're married and your wife gives birth. Under the law, the child is presumed yours unless you can prove otherwise.

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Thanks loads for the great responses.

Let me go a step further. If the debt is beyond the SOL for collection then the likelyhood for further collection attempt is minimal. So If I DV a CA under these circumstances and they fail to respond, can I then dispute with the CRA for removal? It seems that I can if I follow what's been said here and the DV flow chart.

I've got the letters ready to go, I just want to make sure that I'm on fairly solid ground.

Once again, thanks to all who responded. You've given me a lot of hope.

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US Court of Appeals Mahon v. Credit Bureau:

Turning to the merits, the first issue we confront is whether

a debt collector satisfies 15 U.S.C. S 1692g(a) merely by

sending the debtor a Validation of Debt Notice ("Notice").

The Mahons argue there must be proof that the debtor

received the Notice. According to the Mahons, section

1692g(a) requires "communication" between a collector and

a debtor, and this means that a collector must establish receipt

and acknowledgment of a Notice by the debtor.

[4] We hold that section 1692g(a) requires only that a

Notice be "sent" by a debt collector. A debt collector need not

establish actual receipt by the debtor. Section 1692g(a)3

explicitly states that a Notice must be sent. "[A] debt collector

shall . . . send the consumer a written notice. . . ." 15 U.S.C.

S 1692g(a) (emphasis added). Nowhere does the statute

require receipt of the Notice.

Challenging the clarity of S 1692g(a), the Mahons argue

that information is not truly "sent" until "received," and con-

tend we should focus on the section's reference to

"communication." The Mahons point to the language of sec-

tion 1692g(a) which provides: "Within five days after the ini-

tial communication with a consumer . . . a debt collector shall,

unless the following information is contained in the initial

communication . . . send the consumer a written notice. . . ."

15 U.S.C. S 1692g(a) (emphasis added). Relying on this lan-

guage, the Mahons argue "communication" is the operative

word, and requires an interactive exchange of some kind

between the collector and the debtor.

The Mahons' argument misconstrues the section's use of

"communication." Section 1692g(a) uses communication as a

noun rather than as a verb. The FDCPA defines communica-

tion as "the conveying of information regarding a debt

directly or indirectly to any person through any medium." 15

U.S.C. S 1692a(2). Thus, in section 1692g(a), the word

"communication" functions solely as a vehicle of information,

whereas the word "sent" operates as the active verb identify-

ing the requisite action.

The language of 15 U.S.C. S 1692g(a) is plain. Because the

language of the statute is plain, we need not consider extrinsic

sources to interpret its meaning. See Pressley v. Capital

Credit & Collection Serv., Inc., 760 F.2d 922, 924 (9th Cir.

1985). The plain language of section 1692g(a) does not

require that a Validation of Debt Notice must be received by

a debtor. Instead, the plain language states that such a Notice

need only be sent to a debtor.

[5] The Mahons have not raised a genuine issue of material

fact to dispute that the Credit Bureau sent them the required

Notice. The Credit Bureau's standard business practice estab-

lished that the September 21, 1995 Notice was sent to the

Mahons' home via first class mail. The Credit Bureau's

CUBS system generated the Notice, and then another machine

mechanically addressed and stuffed the Notice into an enve-

lope addressed to the Mahons. The Notice was mailed. Before

mailing, Credit Bureau employees ensured that the number of

outgoing notices corresponded with the number assigned to

the daily "batch" of notices to be sent.

[6] The Mahons offered no evidence that the Credit Bureau

failed to follow its ordinary business procedure in sending

them the Notice. They simply say they did not receive the

Notice, just as they say they did not receive any of the

monthly statements sent to them by Dr. Bowen's office over

a period of more than two years.

We conclude there is no genuine dispute of the fact that the

Credit Bureau sent the required Validation of Debt Notice to

the Mahons as required by 15 U.S.C. S 1692g(a).

C. The Adequacy of Verification - S 1692g(b)4

[7] The Mahons also contend the Credit Bureau failed to

verify their debt as required by 15 U.S.C. S 1692g(B). Under

this section, a debt collector must provide verification of the

debt to the debtor, upon written request made by the debtor

within 30 days after receipt of the initial Notice. 15 U.S.C.

S 1692g(B). If no written demand is made,"the collector may

assume the debt to be valid." Avila v. Rubin , 84 F.3d 222, 226

(7th Cir. 1996); 15 U.S.C. S 1692g(a)(3).

[8]Having already determined that the Notice required by

the FDCPA was sent to the Mahons by the Credit Bureau, we

presume that it was received shortly thereafter. Under the

common law Mailbox Rule, "proper and timely mailing of a

document raises a rebuttable presumption that it is received

by the addressee." Anderson v. United States , 966 F.2d 487,

491 (9th Cir. 1992); see also Meckel v. Continental Resources

Co., 758 F.2d 811, 817 (2d Cir. 1985) (properly mailed

computer-generated notices can be presumed received).

[9] The Mahons argue that their receipt of the September

21, 1995 Notice cannot be presumed because, they contend,

a genuine issue of fact exists as to whether subsequent letters

sent to them by the Credit Bureau were returned as undeliver-

able. We reject this argument because it is contrary to the evi-

dence and fails in any event to rebut the presumption of

receipt of the September 21, 1995 Notice. Mr. Bellisario's

deposition testimony and the Credit Bureau's business prac-

tice established that no letters sent to the Mahons by the

Credit Bureau were returned as undeliverable. Moreover,

even if letters subsequent to the September 21, 1995 Notice

had been returned, without any evidence that the September

21, 1995 Notice was returned, the inference would be that it

was not returned. This would tend to establish its receipt by

the Mahons, apart from the common law Mailbox Rule pre-

sumption; and, in any event, that presumption is not rebutted

by the absence of proof that the September 21, 1995 Notice

was returned to the Credit Bureau.

[10] We conclude the evidence established, without a genu-

ine dispute of any material fact, that the Notice sent to the

Mahons on September 21, 1995 was received by them shortly

thereafter. They did not request verification of the debt to Dr.

Bowen until June 5, 1996, almost nine months later. For their

request to have been effective, it had to be made within thirty

days from the date they received the Notice from the Credit

Bureau. 15 U.S.C. S 1692g(a)(3). The Mahons' tardy request

for verification of the debt, therefore, did not trigger any obli-

gation on the part of the Credit Bureau to verify the debt.

Even if it did, however, the Credit Bureau, when it received

the June 5, 1996 request, promptly contacted Dr. Bowen's

office, verified the nature and balance of the outstanding bill,

learned that monthly statements had been sent from Dr.

Bowen's office to the Mahons for over two years, and estab-

lished that the balance was still unpaid. The Credit Bureau

then promptly conveyed this information to the Mahons,

along with an itemized statement of the account. Although the

Mahons did not request verification of the debt within the

time provided by the statute, the Credit Bureau properly veri-

fied the debt anyway.

CONCLUSION

The district court did not err in granting the Credit Bureau's

summary judgment motion without hearing oral argument.

The Fair Debt Collection Practices Act requires only that a

Validation of Debt Notice be sent to a debtor, not that the

notice be received. The evidence established, without a genu-

ine dispute of any material fact, that the Credit Bureau sent

the required Notice to the Mahons. Under the common law

Mailbox Rule, the Notice was presumed received shortly after

it was mailed. The Mahons failed to request verification of the

debt within thirty days following their receipt of the Notice,

but when the Credit Bureau received their tardy request, it

promptly verified the debt anyway, just as the statute would

have required had the Mahons made a timely request.

AFFIRMED. the end

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::ritual periodic spit at the mahons::

What MORONS.

If for some reason you're apathetic to the appeals court ruling mahon, perhaps you should try others that have reached the same conclusion:

Hoefs v. CACV of Colorado, LLC,

365 F.Supp.2d 69, D.Mass., March 24, 2005

Moore v. Blatt, Hasenmiller, Leibsker and Moore, LLC,

F.Supp.2d, 2006 WL 1806195, C.D.Ill., June 29, 2006

Holsinger v. Wolpoff & Abramson, LLP,

Slip Copy, 2006 WL 2092632, N.D.Cal., July 27, 2006

Johnson v. Midland Credt Management Inc.,

Slip Copy, 2006 WL 2473004, N.D.Ohio, August 24, 2006

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There is no requirement you receive it, only that they send it.

Fraid not. Read the plain language of the law:

(3) a statement that unless the consumer, within thirty days after receipt of the notice, disputes the validity of the debt, or any portion thereof, the debt will be assumed to be valid by the debt collector;

And if you bother to look up the congressional debate on it, you will find that it was Congress' intent that they close the door on the possibility of debt collectors backdating notices (as this was a common abuse that Congress was addressing).

Mahon v. Credit Bur. of Placer County Inc. (which is the caselaw that comes from) addresses only the issue of consumer claims of non-receipt of notice. In the case of a consumer responding with a DV, there is no dispute over receipt of the notice, just when it was received.

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Slight different tack here: where does one look up the congressional debate?

Also, I've responded with a DV when I'd never received a notice: when I saw something on my CR. In fact, I never received the mandated notice because it was sent to a place I'd never lived at (if it was sent at all).

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Fraid not. Read the plain language of the law:

(3) a statement that unless the consumer, within thirty days after receipt

You received the notice 5 days after it was sent. Read the plethora of case law relative to common law mailbox rules, presumption of receipt, including the FDCPA cases already cited.

You bear the burden of proof it wasn't received. You would be better off focusing on how to overcome that burden, rather than ignoring its existance under law.

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I ignore nothing.

"Under the common law "mailbox rule," proof of proper and

timely mailing of a document raises a rebuttable presumption that

it is timely received by the addressee. Rosenthal v. Walker, 111

U.S. 185, 193-194 (1884); Hagner v. United States, 285 U.S. 427,

430 (1932)."

In other words, you CAN ARGUE THAT YOU DID NOT GET IT. yes there is a presumption of reciept, but it is NOT absolute.

"Unlike registered or certified mail, a certificate of

mailing provides evidence of mailing only. In Sylvan v.

Commissioner, 65 T. C. 548 (1975),"

In other words, it provides NO PROOF OF RECEIPT.

You can also look at United States v. Peters, 220 F.2d 544 (10th Cir. 1955) which sets up the "physical delivery rule" as a standard for mail as well.

I've been through this crap and litigated a case against the City of Chicago over this very issue... THEY LOST.

Although I admit it is up to the judge, and they can be unpredictable, there is sound ground to argue non-receipt.

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I ignore nothing.

"Under the common law "mailbox rule," proof of proper and

timely mailing of a document raises a rebuttable presumption that

it is timely received by the addressee. Rosenthal v. Walker, 111

U.S. 185, 193-194 (1884); Hagner v. United States, 285 U.S. 427,

430 (1932)."

In other words, you CAN ARGUE THAT YOU DID NOT GET IT.

And what did the Supreme Court state in your cite?

The rule is well settled that if a letter properly directed is proved to have been either put into the post office or delivered to the postman, it is presumed, from the known course of business in the post office department, that it reached its destination at the regular time, and was received by the person to whom it was addressed.

A rebuttable presumption requires a greater burden than the mere statement "I didn't get it." If the CA can show it used standard mailing procedures, the burden to prove you "didn't get it", is on the recipient. And, in all FDCPA cases on point regarding the mailing of the validation rights, no court has ever accepted "I didn't get it" as adequate rebuttal to a proof of mailing.

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