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I'm Being Sued, but I think they've violated FDCPA


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I received a solicitation from a local attorney who checked the county court filings the day the suit was filed, that was my initial clue.

I have not been served as of yet, but I believe I already have an affirmitive defense.

I sent a validation letter to the atty (Adam Jeffrey Katz in Coral Spgs, FL) a few months ago, CMRRR. No response.

The CA is LVNV Funding.

At the same time I send a dispute letter to the CRA. They responded within the allotted time with (everyone's favorite!) 'Verified.'

I am within the SOL, but isn't this a violation because it's a collection activity and they haven't even responded to my Validation letter?

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I have not been served as of yet, but I believe I already have an affirmitive defense.

A violation is not an affirmative defense.

isn't this a violation because it's a collection activity and they haven't even responded to my Validation letter?

They'll just claim that your request was not timely.

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wow... ok... what do you think I should do?

Settle before going to court or have a damn good defense to their claim; they failed to validate isn't one of them.

You can also attack the evidence of their claim. Most JDB's rely on ineffectual affidavits as evidence. If the debt has been sold more than once, and if you use discovery properly, you can actually use their own affidavits to your advantage.

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You can also attack the evidence of their claim. Most JDB's rely on ineffectual affidavits as evidence. If the debt has been sold more than once, and if you use discovery properly, you can actually use their own affidavits to your advantage.

You'll have to excuse me, but I don't know a lot about legal stuff.

I picked up a copy of the filing today. Would those affidavits be there? I have something that says 'Exhibit A', but it's an FDCPA notice.

Also, how would I know if the debt has been sold more than once.

BTW, this debt is listed TWICE on my credit report by 2 different places- one as CITI CARDS, the other as LVNV Funding. The CITI listing has a 00.00 balance.

I really, REALLY appreciate your help.

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They are correct that the violations are not a defense, but violations can lead to counter-claims that can make it too expensive for them to continue to persue you for.

*Continuing collection activity after receiving but not responding to validation is a vioaltion of the FDCPA.

*Failing to report the tradeline as disputed is a violation of both the FDCPA and the FCRA.

*Reporting the tradeline as verified when it was disputed is a violation of both the FDCPA and the FCRA.

I think you have sufficient cause for a counterclaim. If they verified to all three bureaus you are looking at about $7000 in counter claims. ($1000 for all the FDCPA violations combined, and $1000 for each FCRA violation to each bureau) You also can stack on costs and attorney fees to your counter claim.

If the amount they are after is less than seven grand, it's not worth it for them to continue the suit. If you were to win your counter claims they would either get nothing or have to pay you for your troubles. Your claims would off-set theirs. If what they are after is substantially more than your counter claims, you can use it to reduce your liability.

So get yourself a lawyer and have at them. You may find yourself with a check made out to you at the end of things.

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*Continuing collection activity after receiving but not responding to validation is a vioaltion of the FDCPA.

*Failing to report the tradeline as disputed is a violation of both the FDCPA and the FCRA.

*Reporting the tradeline as verified when it was disputed is a violation of both the FDCPA and the FCRA.

I think you have sufficient cause for a counterclaim. If they verified to all three bureaus you are looking at about $7000 in counter claims. ($1000 for all the FDCPA violations combined, and $1000 for each FCRA violation to each bureau) You also can stack on costs and attorney fees to your counter claim.

So you're saying that I may have counterclaim?

What if, for the 'Coninuing Collection Activity' claim, they argue that my response was not timely enough?

I can prove that I dunned them, and that I disputed and it came back 'Verified.' I responded within 30 days of being contacted by Katz.

Am I still good?

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I think you have sufficient cause for a counterclaim.

Really? Where?

Nowhere does the OP indicate the debt is not his, or if the DV request was timely.

The OP did not indicate what was disputed, or if he could contrevene the verified information with factual evidence.

The OP did not provide sufficient information on which you could possilbly base such irresponsible assumptions.

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Really? Where?

Nowhere does the OP indicate the debt is not his, or if the DV request was timely.

You are absolutely right about this. Let me state that part.

I responded to this atty within the 30 day period. I believe that makes it timely, if I'm correct.

If there is any information I can furnish you with, please tell me. I would be happy to tell you what you need to know.

I'm afraid that I'm a little ham-fisted at this right now. Thank you all for your valuable input.

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IMO, you do not have a case for the things you posted. For all you know the request was not timely, LVNV may have sent you a letter prior to the attorney, and until you see case law stating that a CA has a hard time proving initial communication, I wouldn't rely on your collection activity claim.

However there may be other violations you have not yet uncovered. Run a search on this forum for "violations".

If you have not yet been served, I suggest sending a DV to LVNV and the attorney if you do not think the information listed on your reports is correct. IMO a DV is only good if it is actually questions specific incorrect information. Also check with the courts to see if a case was actually filed. For all you know, it hasn't been yet.

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I am still being sued. I have not been served.

Please, read this entire post before responding. If I leave anything out, please tell me.

I have to come clean- I do in fact owe this debt.

I understand that the DV process is completely legal, and I in no way am judging or condemning anyone who does it and owes the debt.

You see, I am a Christian, and I know that the Bible tell me this in Romans 13:8:

8 Let no debt remain outstanding, except the continuing debt to love one another, for he who loves his fellowman has fulfilled the law.

To not do so for me is a sin. I'm not religious, I just love Jesus. I know I'll be blessed for doing what's right.

Another one of the things that has nagged me for some time is a tag that someone has on the bottom of their posts, saying something to the effect of:

'Never violate your ethics to achieve your goals.'

Whoever has that at the bottom of your post, I salute you.

I have finally succumbed to doing what's right.

Again, I do not judge or condemn anyone who may have tried to remove legitimate stuff. I know what it's like to be under debt. It chokes you.

Now that I've said all of that, I need help.

I need to know the best strategy for settling with the CA. It's LVNV Funding and Adam Jeffrey Katz is the suing attorney.

I am going to try to go for .15 on the dollar. I know they'll get me up.

I am also going to try to push for a deletion. I have hope against hope that I can come out of this thing smelling like roses.

SO, I would like to tap into the mountain of wisdom and experience that you all have to help me through this.

Also, special thanks to everyone who has given me input- it has been incredibly valuable.

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How do you know if you are being sued if you have not been served? Check with the courthouse to affirm. You have to be served properly.

I would still say to DV the attorney, doing so can sometimes put the collection on hold. I DV'd the attorney suing me for something that was legitimatelly not mine, they tried everything they could to get me to pay prior to my court date. I just kept calling and writing letters and finally they dropped the case because they could not provide evidence it was mine.

Bottom line is, you should always ask to see paperwork regarding the debt, even if you believe it is yours. For all you know, they screwed up the balances and you might pay too much. Just DV the attorney and wait for documentation, keep writing / calling them asking for proof, save everything, and when your court date arrives, if it does, and they have not given you anything. Just show the court. If they give you documentation, advise them you can only pay a certain amount, they will likely take it.

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I Dv'd the atttorney already. I have all my CMRRR stuff.

I also DV'd the CRAs, and they all came back 'verified.'

BTW, I got a solicitation from an atty and a mediator, that was my first clue that I was being sued. I checked the courthouse and I got a copy of the filing. So I know that I am being sued.

However, I haven't been served, b/c the address on the filing is not my current one.

What should I do now? Keep sending letters?

Thanks for listening and responding. I appreciate it.

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First off, realize that the FDCPA, the FCRA, and the DV process has nothing to do with whether or not you owe somebody money. Its all about making the person trying to take money from you play by the rules. To begin with, you want them to prove they have the right person (wrong address? why is that?), the right account, the right amount, and the right to collect the debt in the first place. There's nothing "Christain" about handing money over to a thief.

It sounds to me like they might have tripped up there somewhere.

I may not be correct in this instance, but, I think LVNV funding is a "junk debt buyer". If that's the case...you don't owe them anything. They're not the people whose money you used. If you want to be Christain about this, call up the people who gave you the money and tell them you'll send them a check for the full amount. I don't think paying 15% to a JDB to encourage them to continue to hassle unfortunate people is what the bible had in mind.

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Methuss is right:

*Continuing collection activity after receiving but not responding to validation is a vioaltion of the FDCPA.

*Failing to report the tradeline as disputed is a violation of both the FDCPA and the FCRA.

*Reporting the tradeline as verified when it was disputed is a violation of both the FDCPA and the FCRA.

E. Normis Debtor is sorta right, and I think we've all agreed that suing for not responding to a DV letter is a weak case and is usually overturned. BUT that being said, if you are already being sued AND these other things are going on, PLUS they have weak evidence against you, I'd totally countersue.

Willing is 100% right that whether a debt is yours is completely irrelevant, there is case law stating this.

Per Daniel Edelman:

Quote:

A debt collector’s misrepresentation that it is an assignee is

actionable. Gearing v. Check Brokerage Corp., 233 F.3d 469 (7th Cir. 2000).

B.

C. Gearing also holds that misrepresentations are actionable regardless

of intent. 233 F.3d at 473. The "FDCPA is a strict liability statute," and "proof of

one violation is sufficient to support summary judgment for the plaintiff." Cacace

v. Lucas, 775 F. Supp. 502, 505 (D. Conn. 1990).

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All I can say is what I did by calling the attorneys listed on the summons, every day, even twice per day, like they did my mother and asking for documentation, the case ended up in a non-suit. Essentially I win. They got sick of hearing from me and finally put me on the phone with the actual attorney that would be representing the plaintiff. I told him I had been asking for months for the documents. He said to save us both time he would file order of nonsuit. He said he understood that I wanted to see the paperwork and even told me I had every right to, he was very nice, I even wrote a thank you letter to him, just in case they try to sue again :)

You dont have to take my advise as every attorney is different, but my way seemed to work, assuming they could not provide documentation. If they can, well now thats a different story.

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Admin, I am going to quote your quote.

*Continuing collection activity after receiving but not responding to validation is a vioaltion of the FDCPA.

*Failing to report the tradeline as disputed is a violation of both the FDCPA and the FCRA.

*Reporting the tradeline as verified when it was disputed is a violation of both the FDCPA and the FCRA.

All these violations would have been perpetrated by LVNV Funding, right?

Am I looking at 7 counts here, 1, 3, and 3?

Where would I file this, in county here, or in county there, or federal?

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*Continuing collection activity after receiving but not responding to validation is a vioaltion of the FDCPA.

*Failing to report the tradeline as disputed is a violation of both the FDCPA and the FCRA.

*Reporting the tradeline as verified when it was disputed is a violation of both the FDCPA and the FCRA.

Actually, it's Methuss's. ;)

All these violations would have been perpetrated by LVNV Funding, right?

Si.

Where would I file this, in county here, or in county there, or federal?

If this is a counterclaim, then whatever court they have filed in against you.

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