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What is proper validation?


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Hello. I am a new member in search of a few answers. I had sent out my DV to an "attorney" that is attempting to collect on a credit card that I had disputed the fees that were being charged to the account. I did not receive validation, but instead was handed a summons for a "complaint" that was set for trial in local civil court.

I would like to add at this time that the summons was not presented to me directly, but to my spouse. The summons was not filled out by the server as to whom it was actually delivered, (there were spaces to do this) nor did he identify himself as a server for the court. He merely stated that "he had some papers for (my name). In addition, he entered into the garage (the garage door was open) and approached the interior entrance of our home rather than using the primary entrance at the front of the house. The reason I mention all of this is because I question the legality of the summons delivery??

In any case, I filed a response within the allotted time to the court that stated that I had requested validation from the "attorney" some 5+ months earlier (with delivery confirmation) and had no response to the request. I also stated that I felt this (filing of a complaint) was in violation of my rights under the FDCPA. I supplied the court (within response letter) a copy of my DV letter that I had sent to the collector. I also sent an entire copy of my response to the "attorney".

The "attorney" then responded to my DV request through my response submission to the summons. But I have two burning questions:

1) He did not respond to my original request, but after five+ months still filed the complaint (suit?) with civil court. Could I not get the case thrown out by just appearing and stating this fact? But the other part to this question is that he then has attempted to comply by using my response letter to the court as delivery to him requesting validation. Could that circumvent the FDCPA violation issue?

2) The "attorney" has responded to the DV with the absolute minimum. He listed the original creditor, the account number, the total amount due (lump sum - no itemization), and copies of the last two statements from the credit card that I had received before going to collections. I used the DV letter that is posted in the forum that asks for specific items (eight total) and this is all I got. Should I push further? Specifically, because he had not provided me with an itemized account of what is owed. Should I ask for a complete payment history of the account so that I can now dispute the specific fees?

The case comes up next month. I know that I can file for a continuance, but do I want to? Personally, I feel that this collector has not properly followed the procedures of legal collection practices. Am I right? Wrong? Help!

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Subject of much discussion and varied opinions, but the following article should give you a fairly good understanding.

What Constitutes Proper Validation?

I don’t mind tackling this one because I don’t put as much stock in debt validation as everyone else does. True, there is no clear cut definition, either in statute or common law, but there’s enough out there to develop a really reliable baseline. I primarily look to four sources as my basis for proper validation.

· “Contrary to Appellants’ contention, 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. Chaudhry v. Gallerizzo, 174 F.3d 394 (C.A.4(Md.), 1999).

· “[T]he 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 established 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. Mahon v. Credit Bureau of PlacerCounty Incorporated, 171 F.3d 1197, 1203 (9th Cir., 1999).”

· “In Mahon v. Credit Bureau of Placer County, Inc., we described one way to provide proper verification:[.]…Now, the Clarks urge us to hold that Mahon sets a standard below which a debt collector’s verification efforts must not fall. We decline to impose such a high threshold. Rather, we adopt as a baseline the more reasonable standard articulated by the Fourth Circuit in Chaudhry v. Gallerizzo, 174 F.3d 394 (C.A.4(Md.), 1999). At the minimum, “verification involves nothing more than the debt collector confirming in writing that the amound being demanded is what the creditor is claiming is owed.” Clark v. Capital Credit and Collection Services, Inc., 460 F.3d 1162 (9th Cir., 2005)

· Finally the Federal Trade Commission’s LeFevre-Wollman (March 10,1993) letter regarding the FTC’s position on FDCPA 809(B). “Because one of the principal purposes of this Section is to help consumers who have been misidentified by the debt collector or who dispute the amount of the debt, it is important that the verification of the identity of the consumer and the amount of the debt come directly from the creditor”.

It’s pretty easy at this point to focus on the key elements of proper validation.

· The validation must come from the debt collector in writing.

· The amount demanded must be what the creditor is claiming is owed.

· The debt collector must contact the creditor to retrieve the information.

· The debt collector need keep detailed files of the alleged debt.

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Please forgive my ignorance... did I get an answer in the posting from "nascar"? I am still confused. Can I show up in court and cry foul? or not? The attroney did not respond to my initial response (DV letter) to his first letter that stated that he had been assigned the account. Instead he went straight to the suit! Can he do this without first validating as I requested? And then, don't I then present the specifics that I am disputing to him before it gets escallated further? I just need some straight answers before I dig a hole for myself.

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Also, what about the improper delivery of the summons? Does that not hold any "power" behind it, that I was served improperly? And what about my chance to dispute the charges (fees) to the account... what about the other points of validation?

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Your DV must be sent within the first 30 days of initial communication or the collector is under no duty to respond. Even so, the collector's failure to respond is not a defense to the underlying debt, only ground for a possible counterclaim. You must defend against the lawsuit on its own merits.

In defending against the suit, can you prove it isn't your debt; does the CA have standing to sue you; has the statute of limitations expired; those kinds of things.

If you choose to pursue a counterclaim for collection violations, you'll need to prove that you sent, and they received, a timely DV.

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Also, what about the improper delivery of the summons? Does that not hold any "power" behind it, that I was served improperly?

Unfortunately, you received the summons, and you admit it. Service of process to a spouse is legal in AR.

See AR civ procedure:

http://courts.state.ar.us/rules/civpro4.html

(1) Upon an individual, other than an infant by delivering a copy of the summons and complaint to him personally, or if he refuses to receive it, by offering a copy thereof to him, or by leaving a copy thereof at his dwelling house or usual place of abode with some person residing therein who is at least 14 years of age, or by delivering a copy thereof to an agent authorized by appointment or by law to receive service of summons.

Saying that, no matter how the summons was served, through your window, garage, chimney, etc., you did receive it. As long as the process server was not convicted for violating any laws in serving you, you cant really use that as a defense or even a counterclaim therefore you actually were served properly.

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And what about my chance to dispute the charges (fees) to the account... what about the other points of validation?

If you want to dispute the charges, notify the attorney and the CA in the form of a DV. If you have proof the charges are not correct, you will need to bring these to court with you and present them to the judge. Save copies of everything, yous gonna need it.

I think nascar pretty much laid it out, to clarify, all a CA legally needs to validate is the correct amount owed to the OC. Just keep asking for documents, over and over, by the time you go to court, tell the judge you have been asking for this because the amounts are wrong, and they failed to provide it.

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I really want to thank "nascar" and "mparksmagic" for your time and knowledge. You have been very helpful.

I understand about the server, I've done a little research on my end as well. But what about the fact that I responded to their original letter in May of last year (six days after the date on their letter) and heard nothing from them until October when I was served a summons? Not only was I never afforded a right to dispute anything, but I was never even given the chance to negotiate with them. (I know they do this) Would this defense hold up to a judge? Would he then declare that we should start the process over again? Or would I be left holding the bag, now with attorney fees and court costs added? (and a judgement against me) The thing is, I don't dispute the fact that I owe them something, and I won't get into the details now, but I do not feel they have treated me fairly from day one. (the OC or the DC)

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"They didn't treat me fairly" isn't a defense.

Well, it may not be a defense but it sure is a claim, 15 USC 1692f : Unfair Practices... 8-)

In response to the OP, they will likely claim they sent you a letter prior to the first one you recieved, they did not receive a timely dispute, and therefore did not have to cease collection activity. It will then be your burden to prove you did not recieve it. This happened to me, I had to prove that the address they were sending letters to, I had not lived at for over 6 years. This helped when I talked to the attorney representing the CA, who ended up non-suiting the case.

I've told this story in another thread, but I called the attorney suing me over and over and over sometimes 2 times per day, relentlessly until the collectors got so annoyed (its funny to annoy a collector like they do you :smile: ) they put me on the phone with the attorney representing the case. I told him I was not aware of the debt, and told him I had been requesting info since more than 6 months ago. I was very nice and advised him I was extremly concerened. I told him "I know its not your firms fault, however this is extremely damaging to me as I am trying to purchase a condo and it is damaging my credit scores, if your client wont drop the case, I look forward to our meeting in court on Feb xx and I will be filing a counterclaim for violations of FCRA / FDCPA today and will mail you a copy of the complaint" he was very helpful, He non-suited the case for me meaning judgment was entered in my favor. Try calling the attorney, make sure you get the names and rep ids of everyone you talk to though. Tell them your story, some of the collectors at the attorney may be very understanding, others not so much.

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That's a very good point "mparks"! I shouldn't be afraid to tell them that I know I have rights and know the consequences for them by not honoring those rights. I mean, they're telling me what they're going to do to me... right? They've pushed me to the point that I have considered borrowing money from a couple of those "payday loan" places and just paying it off even with the rediculous (and undeserving) fees! But something inside me keeps saying that "it just isn't right!" and I want to see this through and hopefully end in my favor. Thanks again, your a great help.

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something to think about. I hear you talking about things they done wrong, however if you didnt address them in your response, then (what I did, and not what you shoudl do) I filed a motion to request leave to file my first ammend my response. then i filed my first ammended responce and counter claim. I had proof i asked them to validate my alleged debt, but they didnt validate and continued to sue in court. It was a violation of my rights. I asked for a grand. among other things. Thier attorney showed up the day of court and asked me to drop my claimes of FDCPA and fcra violations. I did let them off the hook because the judge didnt have to grant my motion, but probably would have being that being pro se meant a lot of slack.. lol Depending on your ammount. and your state court room procedures, maybe something similiar will make it go away. However if it is not on paper, the judge probably wont address it.

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