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Failing to send required consumer notice.


Mathiastheok
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I have a thought about pinning a CA in their corner.

What I am referring to below is not the RESPONSE to a DV, but a CA's initial notice to a debtor....such as when they assume or get hired to collect a debt.

While reading the FTC's report on debt collection practices I ran across this:

Failing to send required consumer notice: The FDCPA requires that

debt collectors send consumers a written notice that includes, among other things, the amount of the debt, the name of the creditor to whom the debt is owed, and a statement that, if within thirty days of receiving the notice the consumer disputes the debt in writing, the collector will obtain verification of the debt and mail it to the consumer.

You may be saying "Mathiastheok where in the heck are you going with this?"

Well, I know for a fact that most all CA'a don't send those notices CMRRR, and so how would they prove that they sent out the notice... Unless they did send them CMRRR.

This means nothing if there isn't some penalty for not sending out the notices, and while I was reading the FTC's 2004 report on debt collection practices they did mention after the above section that "Some consumers may not even be aware that the Commission enforces the Act or that the conduct they have experienced violates the Act."

So where is the violation and where are the penalties for the CA's, and could that be something we could use as leverage against a CA to remove our debt or whatever?

Something like, "You failed to send me proper notice of the debt in the first place in violation of blah blah blah...this carries a penalty of X and I request proof that you sent me the notice.. if you fail to send me proof then Blah blah blah"

Or should I stop trying to think and go back to printing my DV letters... xheadscratchx

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Well, I know for a fact that most all CA'a don't send those notices CMRRR, and so how would they prove that they sent out the notice... Unless they did send them CMRRR.

The CAs don't have to prove that you got the letter...only that they have a mechnism in place for sending them. Not fair, but then they have better congressmen than we do...

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The CAs don't have to prove that you got the letter...only that they have a mechnism in place for sending them. Not fair, but then they have better congressmen than we do...

With all humble :notworthy: respect thats is contrary to what the FTC is saying.

They state that "Failing to send required consumer notice: The FDCPA requires that debt collectors send consumers a written notice"

and then "Some consumers may not even be aware that the Commission enforces the Act or that the conduct they have experienced violates the Act."

If its required, than failure to meet that requirement is a violation... and violations carry consequences....

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Of course I can't put my finger on it, but I know its been discussed here before. There is either an official FTC opinion letter, or a court case that says the CAs only need to show they have a mechanism for sending it.

I believe you... Im not trying to reinvent the wheel here but anything I can get against the CA'a is one more feather in my hat.... thanks for helping !!

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Mathias- I received a letter, after disputing a TL with Applied Card Bank, from 1st National Collection Bureau. First letter, no "30 days to dispute" notice. I immediately DV'd but I kept that letter as proof. Maybe I'll need it later if they don't FOAD first. Know what I mean?

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There are 2 issues here. One, the courts have held that a CA does not hae to prove a consumer got a letter, nor do they have to prove they sent the letter. All they have to show is that they have a process that would normally insure that the letter was PROBABLY mailed, and that is good enough for the court to consider that it was sent.

The other is the notice that is required by the FCRA when a creditor places a negative on your CR. That letter is only required of creditors, not CA's.

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The courts say that all they have to do is say "We sent the notice reuired by 1692g, giving the debtor 30 days to dispute the validity of the debt, and he failed to do so. We are not obligated to provide validation after the 30 day period has expired."

Every CA I took to court tried that defense. Be ready for it.

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The courts say that all they have to do is say "We sent the notice reuired by 1692g, giving the debtor 30 days to dispute the validity of the debt, and he failed to do so. We are not obligated to provide validation after the 30 day period has expired."

Every CA I took to court tried that defense. Be ready for it.

and what was your response??

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To add to what divemedic is saying. Hopefully, it will clear up any questions that remain.

In their normal course of operation, on a daily basis, a CA uses the U. S. Mail to send their letters to initiate the collection activity. They also will use the phone to initiate the activity, but, if phone used, they must send a written communication within 5 business days. Yes, we all know they do not always do this.

For the above reason, most courts will accept the CA's statement that they did post the required letters. Do also realize that CA reps usually have a work sheet in the file which they use to make notes of communications, such as a phone call. The purpose is so anyone who opens the file can see what has transpired since onset. Now, a consumer can, in court, ask of this, and if CA claims they do, a request can be made to the court to see this sheet. Only try this if your desire is to prove there was no written communication. Notations you would want to see were entries showing date of mailing and reference to, such as initial letter, or phone call. Do realize that in a civil action, the burden of proof is on the plaintiff, not the defendant.

In regards to a consumer and the use of U. S. Mail, you would have to show proof you sent the letter as you do not use the mail or phone in your "daily" business activity. A receipt of purchasing stamps does not prove you sent a letter. This is the main reason we say to send by CMRR.

Hope this helps.

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:lol: :lol:

But they do have to have the "30 day statement" right? Violation w/proof? Granted, I couldn't prove it was the initial letter but who knows maybe a judge would actually take my word for it. It could happen.

DH just received a dunning letter with no "30 days to dispute" statement. :roll: We have no idea what it's for. They are offering 50% settlement. :? Although they do mention that this is an attempt to collect blah, blah, blah....bozos!

Also received a call regarding a balance due on an automobile purchased by DH when he was in College :shock: . We're talking 20 years here! This car by the way died way before I even met him. They were using an old address when he was in VA! I immediately turned into my :twisted: mode and started to recite sections from the FDCPA. Told them they would need to validate as this was not a recognized debt! Rep on the phone that sounded like she was 13 yrs old says "Oh, we don't have to provide validation, this is an attorney's office. :? I said "I don't care if you're an attorney's office, you are debt collecting attorney's office, therefore you are bound by the FDCPA". Silence and then a man with a strong and agressive voice comes on and he says "Ma'am you are no longer a consumer" WTF??? I say "according to the FDCPA a consumer never relinquishes the right to demand validation" And if I am no longer a consumer then why is he calling? That was such a dumb response for a lawyer! I must have rattled him. :roll: He says listen here and I'll give you that validation or verification if that's what you call it! I tell him "you better do some more reading ..that's what the FDCPA calls it"! He then hangs up on me. He had asked for my mailing address so he could send me info and I was like "are you crazy????" The rep also asked me to verify DH SS# Yeah right!!!! Don't think he'll call back. :? That's too bad! That was fun!!!! Sorry for rambling on...just had to share! :p

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DH just received a dunning letter with no "30 days to dispute" statement. We have no idea what it's for. They are offering 50% settlement. Although they do mention that this is an attempt to collect blah, blah, blah....bozos!

There has got to be a way to rip they're *bleep*, *bleep*, heads off for this stuff. It's deceptive practice. If you don't tell lil 'ol lady down the block she has a right to say "wait a minute, that's not right", then she's going to whip out the check by phone info in a heartbeat. It's not right.

That was fun!!!! Sorry for rambling on...just had to share!

Don't you love having the knowledge to deal with these A$$CLOWNS? Good job.

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I hope and pray this idiot does send the information. This is so illegal, it is good for one heck of a chuckle.

First thing, sit down and make note of the call. Include names, dates, times, and main points of conversation, such as "you're not a consumer".

Then sit down and compose a complete C&D letter that tells this "ADUB" that the debt is timebarred and they have no legal recourse to the debt. Do include the phone call by repeating all of the illegal comments, and cite applicable violations. Then close with the fact you will sue them in District Court in your county if their activity continues. And, in closing, their actions are being reported to your AG, their AG, the FTC, and all other governing agencies. Do have some fun. This is a riot.

Do keep us informed as we haven't had one of the good ones for some time.

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Searched the internet for this idiot lawyer and here is what I found. Obviously, he has not learned his lesson! :? He was sued for violations and deceptive practices. I also noticed his number comes across my ID caller as "Attorney Hecker" talk about trying to intimidate. Yeah...that really stopped me from answering that call! :lol: Maybe I DO want to play. :twisted: I might call and give them my address so he could send me all the info he has.

http://www.lawcash.com/attorney/3418/lawrence-a-hecker-pa-lawsuit.asp

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If I was you, I would list your complaint as requested on your link. You never know, you may get an attorney to assist you. Also, still try and get this "ADUB" to send his threats in writing. Do not call. If they do not have your current address, send them a CMRR letter demanding they send you, in writing, what was told to you on the phone. Yes, do include at least part of the conversation, especially the "not a consumer" part.

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  • 2 weeks later...

Ok...This idiot sent a dunning letter. :?

First of all it is starts with the heading:

LAW OFFICE OF

LAURENCE A. HECKER, ATTORNEY AT LAW.

Member of NJ Bar

SECOND DEMAND LETTER

(yeah the address they sent first letter to was DH's address when he was in college. :?)

Says:

This office represents, blah, blah,...etc.. You have failed to respond to our first letter, blah, blah, etc. This is a second demand for full payment because you have had ample time to pay your creditor. You must call our office to arrange installment payments, blah, etc...

Next paragraph:

At this time, no attorney with this firm has personally reviewed the particular circumstances of your account. However, if you decide not to contact this office, our client may consider all available remedies to recover on the balance due, which may include an attorney review of your account.

Next paragraph:

NOTICE OF IMPORTANT RIGHTS

This is the 30 day to dispute notice..... The last sentence says: If you notify our office to cease contact by telephone at your place of employment, no further contact will be made. :shock:

I thought they were not suppose to contact your place of employment no matter what. Doesn't matter anyway because DH owns his own business. :lol:

Last paragraph reads:

This is an attempt to collect a debt. Any information obtained will be used for that purpose. You are hereby notified that a negative credit report reflecting on your credit record may be submitted to a credit reporting agency if you fail to fulfill the terms of your credit obligations.

Definitely going to send a cease and desist considering this debt is approx 20 yrs old! :roll:

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Be sure and include each and every word stated on phone, plus copies of all communications. Then cite all applicable sections of the FDCPA as well as the SOL for your state. Make sure this ADUB knows he got caught. And, last but not least, cc the AG, State Bar, FTC, and Ethics board. And, of course, file the complaints with all of them

HEH, HEH! You could also make note of the previous "problems" you found old Hecker had to deal with. Why not, nothing he can do about it.

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NOTICE OF IMPORTANT RIGHTS

This is the 30 day to dispute notice..... The last sentence says: If you notify our office to cease contact by telephone at your place of employment, no further contact will be made. :shock:

Um, obviously if it's the 30 day to dispute notice, it is not the second notice. The first notice gives you 30 days to dispute, but it's nice of them to try and pretend they didn't break the law.

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I was getting ready to send letter to these idiots when I found this. :shock:

The plantiff's letter looks just like the one DH received for the time barred debt. What do you all think? Should I send him a copy of this. At the very end says the idiot lawyer asked for suit to be dismissed and it was denied!!! :lol:

http://www.paed.uscourts.gov/documents/opinions/05D0479P.pdf

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I would just mention this case as well as the news you found about his actions. That would suffice in getting the message out to him.

What you do need to get done ASAP is to compose your complaint with your AG, State Bar, and Board of Ethics, then do the same for his, if different than yours. And be sure to include copies of these two items to each of them. Plus, when you send the letter to this ADUB, note at the bottom of the page "cc" and who you sent the complaints to.

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