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Possibly Filing Lawsuit, want to confirm facts


avenger
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I could possibly be filing suit against a debt collector but want to make sure I've interpreted the information correctly before I do so.

Briefly my situation:

-Looked at my credit report and noticed a collection account

-It is a legitmate account and I do owe money, but I have/had yet to see any validation, and obviously want to take every step necessary to make sure my rights aren't violated

-I disputed the information with the credit bureaus, BBB, AG, and consumer affairs using that reason

-I was sent account statements from the last 11 months the account was open as 'validation'

_______

Am I correct in interpreting that complete account history from the opening of the account to the charge off is required for validation as set forth in Fields V. Wilber Law Firm and Spears v Brennan (account was open for over 5 years)?

Am I correct in interpreting Wilber in that the orginal signed contract b/w myself and the creditor must also be produced, as well the contract b/w the creditor and collection agency?

Also, how the collection agency determined their interest add-ons (Coppola v. Arrow Financial Services)

If I do file suit as part of my argument can I bring up the fact that the company has been sued countless times before for similar reasons.

The law says I can sue for $1000. Will I have to establish any type of damages or can I simply say that the statue says I'm entitled to that amount?

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Haven't read Fields v Wilbur in a while, but I don't recall either case saying you had to provide a full accounting to satisfy verification. Spears v Brennan said that the original loan contract would not satisfy verification because it's only proof that a debt was incurred, not proof of the current outstanding debt.

Chaudhry v Gallerizzo, Stonehart v Rosenthal, Guerrero v RJM Acquisitions (under appeal)... plus one other 3rd circuit case where the name escapes me (ruled that computerized records from the OC are acceptable) are the best to read regarding verification.

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Thanks for your help. If Spears v Brennan d/n state full account history is required than why does sister site credit-info-center use it in of its validation letter samples?

http://www.creditinfocenter.com/forms/sampleletter15.shtml

I can give two reasons.

1) Poor use of case law (Coppola case cited dealt with obtaining assignment/purchase information via discovery IE during a lawsuit, not a DV).

2) Attempt to come across informed to appear not worth it to collect from.

Since we're on the subject, the title of sample letter 15 contains a typo. It's a letter to send to the CA, not the CRAs.

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If I have time tomorrow (and I remember), I'll upload the entire Spears v Brenann case for you to read over and decide for yourself. Assuming google doesn't turn it up on a search.

IIRC it mainly ruled on overshadowing and whether producing a loan contract constituted verification. I don't remember anything saying that an entire account summary must be provided (that'd be very important).

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You can ask for all that stuff, but the courts have not ruled it is necessary for a collector to give you whatever it is you ask for. In fact, they don't ever have to answer you. People misunderstand DV. You can ask for whatver you want, but make sure there is a reason behind it, i.e., a dispute. And even then, imo, the collector only need send what the creditor gives them. If they give you something, anything, it probably gets them off the hook. There is no violation of the FDCPA for " bad validation."

You can claim actual damages, but be prepared to prove them, amnd like most negligence actions, damages of a physical, emotional and even financial nature should be supported by expert testimony, not just your say-so.

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Thanks for your help. If Spears v Brennan d/n state full account history is required than why does sister site credit-info-center use it in of its validation letter samples?

The Spears case establishes only that the existence of a contract does not prove that a debt is still owed upon it. That's all.

Remember, dicta is not case law. 90% of what you might think is "case law", just because it's published in an opinion, is not binding. Judges ramble; you have to be able to pull out the real issues of the case to be effective.

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Thanks for your help. If Spears v Brennan d/n state full account history is required than why does sister site credit-info-center use it in of its validation letter samples? http://www.creditinfocenter.com/forms/sampleletter15.shtml

Okay a little bit of confusion here. I went over and read the sample letter thorougly and re-read what you were saying.

The sample letter mentions complete payment history and you were saying complete accounting of the debt from opening to closing. Not the same thing (to me at least).

Anyway, here's the relevant portion of Spears v Brennan.

The contract in no way provides sufficient verification of the debt. A review of the document reveals that it identifies only the terms of Spears' loan, including a 17.99% annual interest rate *879 and the original loan amount of $2,561.59. The loan agreement contains no accounting of any payments made by Spears, the dates on which those payments were made, the interest which had accrued, or any late fees which had been assessed once Spears stopped making the required payments. Indeed, the existing unpaid contract balance at the time Brennan sent the debt collection notice was at least $350.00 more than the original loan amount.

Looks pretty similar to Guerrero v RJM Acquisitions (3 years later).

The letter did not indicate the amount or basis of the charges underlying the current balance, nor did it indicate the dates on which such charges were incurred. The letter also failed to indicate whether interest was factored into the current balance, and, if so, at what rate and for what time period. Particularly in this case, where Defendant added interest at a rate different from the original, contractual rate for Plaintiff's account, the limited information provided in the June 14, 2002 letter was insufficient to verify the alleged debt"

Anyway, I would not go into court, guns blazing, claiming that they did not provide a complete account history.

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The attorney for Spears had a pretty good DV letter.

Also on November 12, Shepard sent Brennan a letter informing him that Spears “disputes your debt collection-related allegations, denies the same, and demands strict proof and verification thereof. This dispute, denial, and demand are made in accordance with federal law.”

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And a quick snippet from Fields v Wilber Law Firm.

Even if attorneys' fees are authorized by contract, as in this case, and even if the fees are reasonable, debt collectors must still clearly and fairly communicate information about the amount of the debt to debtors. This includes how the total amount due was determined if the demand for payment includes add-on expenses like attorneys' fees or collection costs.

[...]

In the original dunning letter, Wilber listed an account balance that exceeded the principal obligation by $266.48. Wilber's fees were more than double the original obligation, $122.06. Nowhere did Wilber explain that it was seeking attorneys' fees of $250. Fields received the initial dunning letter almost eight months after she incurred the charges at the veterinary hospital.

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Thanks HateCA and attorney for your input. So there is no case law or anything to consitute what exactly constitues validation (minimum required)?

If you were in my shoes would you consider what you got validation?

(Account statements for the last 11 months of an account that was open for 5 years)

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Thanks HateCA and attorney for your input. So there is no case law or anything to consitute what exactly constitues validation (minimum required)?

No such thing will ever exist.

If you were in my shoes would you consider what you got validation?

(Account statements for the last 11 months of an account that was open for 5 years)

Read the two cases I quoted and compare it to what you received.

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If the CA is claiming the same balance as the one unpaid from the last statements, I think they have met the standard.

The FDCPA is not a dodge. It is meant to protect people (even people who owe money) from unscrupulous debt collectors.

They're not. They are claiming about $1200 more.

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