Jump to content

30 Day DV Timeline? Is there a Loophole???? 15 USC 1692g


Recommended Posts

I'm a Newbie - Help so far has been hugely appreciated!!!

Apologies if this has been asked before......but I've spent most of my waking hours over the last 2 days reading through this site & am a little battle weary.

Brief details:

I stopped making payments on a loan over 5 years ago. BUT [a big & stupid but], I accepted calls from a CA and have been making partial payments for the last 2 1/2 years.

In an e-mail today, the CA states that they do not own the debt, but are attorneys for the OC. Probably true. Its approx $45k unsecured loan. I've paid $12.5k so far.

I know the best time to DV would be when they initially contacted me, and without me paying any partial amounts....not least because SOL was ticking in Cali. 20/20......

I assumed its too late to DV now. However :

Reading the below - the original correspondance satisfied a/ 1-2.

It did not satisfy a/3-5.

As the CA did not adhere to requirements 3-5, could I start the DV process now????.....as I should be entitled to this as minimum requiremets?

Any repercussions / considerations??

Advice greatly appreciated!!

____________________________

§ 809. Validation of debts [15 USC 1692g]

(a) Within five days after the initial communication with a consumer in connection with the collection of any debt, a debt collector shall, unless the following information is contained in the initial communication or the consumer has paid the debt, send the consumer a written notice containing --

(1) the amount of the debt;

(2) the name of the creditor to whom the debt is owed;

(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;

(4) a statement that if the consumer notifies the debt collector in writing within the thirty-day period that the debt, or any portion thereof, is disputed, the debt collector will obtain verification of the debt or a copy of a judgment against the consumer and a copy of such verification or judgment will be mailed to the consumer by the debt collector; and

(5) a statement that, upon the consumer's written request within the thirty-day period, the debt collector will provide the consumer with the name and address of the original creditor, if different from the current creditor.

Link to comment
Share on other sites

...you may want to get a debt negotiator to contact the company; tell them you are about to file bankruptcy, but would like to negotiate for a settlement on the amount owed to them....I have a powerful tool that I think might be able to help you. Shoot me an email and I will fill you in on the details.

Debt negotiator? Ah...anyone in particular you have in mind?

Can you share with us your "tool"?

Link to comment
Share on other sites

Thanks. I appreciate that I've missed the window to go through the formal DV route.

Having paid establishes a contract.

But, surely there's an ongoing obligation that as a minimum they must prove that they are legally allowed to collect the debt.

If they are allowed to collect the debt, then surely this would make the contract that I've establshed through payments null??

Link to comment
Share on other sites

My own personal rule is that I would never willing give money to a CA. If I had the money, I would have paid the OC's, but never a CA or JDB.

So...if it were me...I'd stop giving these people money. Send the CA a DV letter containing something like "hey, I just read the FDCPA, who are you people and why are you taking my money". Contact the OC and see what you can work out. If the debt has been sold, then you've been paying a JDB. Make them prove they have the right to collect before you hand over any more money.

Link to comment
Share on other sites

Regarding Cali law....

I've read that the SOL re-starts if I make partial payments. But, the following seems to contradict this. Please see the last 2 paras :

So, even if I'm too late to DV [Which I should try] I might be lucky & be able to us a time barred defence in Cali.

CALIFORNIA

Code of Civil Procedure

2 Years

Open Acct.:

No writing

Oral Contract;

§ 339.

Within two years:

1.

An action upon a contract, obligation or liability not founded upon an instrument of writing, except as provided in Section 2725 of the Commercial Code or subdivision 2 of Section 337 of this code;

4 Years

Open Acct.: Reduced to writing-

Written Contract: §337

§337.

Within four years:

1. An action upon any contract, obligation or liability founded upon an instrument in writing, except as provided in Section 336a of this code;

2. An action to recover

(1) upon a book account whether consisting of one or more entries;

(2) upon an account stated based upon an account in writing, but the acknowledgment of the account stated need not be in writing;

(3) a balance due upon a mutual, open and current account, the items of which are in writing; provided, however, that where an account stated is based upon an account of one item, the time shall begin to run from the date of said item, and where an account stated is based upon an account of more than one item, the time shall begin to run from the date of the last item.

LAST ITEM MEANS ON A CURRENT, MUTUAL AND OPEN ACCOUNT. ONCE AN ACCOUNT HAS BEEN CLOSED TO FURTHER CHARGES, ANY PAYMENTS ON THAT ACCOUNT DO NOT EXTEND THE START OF SOL

"However, if the obligation sued upon constitutes an open book account, the statute of limitations begins to run from the date of the last entry on the account. Code of Civil Procedure § 337(2). But an open book account becomes closed, and the statute of limitations begins to run, once the account creditor ceases to extend credit on the account and there is no further activity on the account other than payment being made. RNC, Inc. v. Tsegeletos (1991) 231 Cal.App.3d 967, 972."

Link to comment
Share on other sites

Will do - thanks. Apologies if I'm asking questions that I should be able to find out the answer to, but have spent most of the last week trawling through posts and other sites......and some areas just need a bit of clarification on.

usually I'm quite a fast learner. Hopefully when I get up to spedd and manage to find a way to sort my stuff out I can help others.

Thanks again.

Link to comment
Share on other sites

Is there a more effective way of searching "Account Settled" and "Accord and Satisfaction".

I've searched them and read through nemerous posts, but don't think I've really got to the proper subject matter yet.

Extra direction would be greatly appreciated if you have time. If not, no worries, I'll keep searching.

Link to comment
Share on other sites

Still frustrated!

Does anyone have a definition, or a link to what "account stated" means?...and the factors to consider.

Without reading the whole thread, the focus is on 2 areas, primarily the 1st detailed below :

1/ SOL, and any reaging which does / doesn't happen following a partial payment...in California

2/ DV'ing after the 30 days.

My take is that you still have the right to DV after the 30 days. But, the CA doesn't have to stop collection efforts. It doesn't affect your right to DV, and it doesn't confirm it is your debt, and the correct amount. You can stop paying, but this may accelerate the thing going to court. Either way, the CA would still have to validate the debt at some point...even if that meant going to court. The CA may decide not to take it to court as he knows he'll have to validate it at some point, and sell it on to another CA or JDB. At that point, they'll issue a dunning letter, to which I could then DV within the 30 days.

Maybe if you just had to deal with 1 of the above with a CA you'd have a good fighting chance. But, the combination of both of them make make it pretty tricky....i.e. you've not DV'd within 30 day AND you've made payments. Why would you do this? The answer....pressure & panic.......and not having know this board sooner!!!!

Comments welcome

Link to comment
Share on other sites

Account stated basically means if an entity sends you a bill, and you do not dispute it, the bill is valid. From dictionary.law.com

account stated

n. a statement between a creditor or the person to whom money is owed and a debtor (the person who owes) that a particular amount is owed to the seller as of a certain date. Often the account stated is a bill, invoice or a summary of invoices, signed by the customer or sent to the customer who pays part or all of it without protest. This is important when a frustrated businessman sues for "account stated" which sets both the debtor's liability and the exact amount the debtor must pay, which is less complicated than claiming a debt is due and payable. An account stated may carry a longer statute of limitations (time to file suit) than some other forms of debt depending on the state.

Accord and satisfaction, simply put, is a contract term. It essentially means that the old contract is satisfied (closed) and replaced with a new accord (agreement)- in this case the old terms were replaced with a new contract (accord), where you agreed to pay $X over a period of time. Since the new agreement is a new contract, an all new cause of action would occur if you simply stop paying the money.

accord and satisfaction

n. an agreement to accept less than is legally due in order to wrap up the matter. Once the accord and satisfaction is made and the amount paid (even though it is less than owed) the debt is wiped out since the new agreement (accord) and payment (the satisfaction) replaces the original obligation. It is often used by creditors as "a bird in the hand is worth two in the bush" practicality.

Link to comment
Share on other sites

Guest
This topic is now closed to further replies.
 Share

×
×
  • Create New...

Important Information

We have placed cookies on your device to help make this website better. You can adjust your cookie settings, otherwise we'll assume you're okay to continue.. For more information, please see our Privacy Policy and Terms of Use.