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Once you're in court, DV'ing is useless (Really!)

80 posts in this topic

I'm just putting this up as a sticky because this question keeps getting asked over and over again.

If you've been served with a lawsuit, the time to send a DV is OVER.

At this point, your priority should be writing your answer to the court addressing each point in the complaint. If you don't do this, you automatically lose the case. Your time to answer the complaint is limited, usually 20-30 days from the day you are served. DON'T waste it on a DV.

After you answer the complaint, you can then do a request for production of documents/discovery (depending on your court's rules of civil procedures - if you're being sued in small claims, you usually can't.) When you do a request for production of documents or discovery (it's called one or the other depending on your state), THEN you can ask for the things that you might ask in a DV:

1. Copy of statements from OC or contract

2. How the debt was calculated

3. Letter of sale or assignment.

But you must ANSWER THE SUMMONS/COMPLAINT FIRST!

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Very well said! It is in everyone's interest to get familair with you state rules of court if you intend to defend or go after credit card companies for there breach of agreements.

FM

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I still send the DV in addition to providing the court required answers, because it sets me up for a Federal suit later. Remember, if the DV is timely, they must cease collection activity. That includes lawsuits.

Just remember that you still must respond to the suit. The DV is a different issue that merely sets the stage for your FDCPA suit later on down the road.

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I'm answering my summons. I've read though that you can DV in Texas at any time. If I do this while I'm answering my summons, will it stall the process a bit and buy me some more time to try to raise the money to pay the debt?

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Would you considering DVing useless if you were served with an Arbitration Award? I have read so much on this and it is truly complicated.

Thank you.

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I'm answering my summons. I've read though that you can DV in Texas at any time. If I do this while I'm answering my summons, will it stall the process a bit and buy me some more time to try to raise the money to pay the debt?

Keep in mind, in TEXAS, the CA HAS TO RESPOND IN 30 DAYS, by TEXAS STATE LAW! Now, that being in a court case, I am not sure, but I would think they still would have to. But finding a lawyer to take your case on that during a lawsuit will be very rough...

I have sued 2 CA's for not responding at all, even after taking it off my credit report. Texas is GREAT!

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If the first communication was a summons, then you still need to place priority on answering the lawsuit.

However, you do not lose your DV rights either. You are still entitled to validation. Once you request it, the creditor must respond before moving forward with the lawsuit.

It is a violation for them to ignore your DV and continue to seek a judgment against you.

It is important to remember that validation consists in large part of nothing more than verification that the amount being requested is what the creditor is claiming is owed. Don't think that they owe you anything more than that.

But, you must still answer the suit. If the CA wants to violate the act by not responding, you'll not be able to use that as a defense to the suit. You can insert the FDCPA violation as a counterclaim, but it is not a defense.

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However, you do not lose your DV rights either. You are still entitled to validation. Once you request it, the creditor must respond before moving forward with the lawsuit.

It is a violation for them to ignore your DV and continue to seek a judgment against you.

I've read opposite case law. What is the basis for this answer? Seriously - I don't think it does any good.

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I've read opposite case law. What is the basis for this answer? Seriously - I don't think it does any good.

I think the confusion may be originating from the FDCPA amendment which states that a lawsuit does not constitute an "initial communication," thereby triggering FDCPA validation notice requirment.

A close read of the statute shows that the amended section only applies to subsection (a), not (B) which addresses debtors rights to validation. The debtor's 1692g(B) rights have not been affected.

There are only a handful of opinions that deal with this question post-amendment, and while it is clear that the summons no longer evokes 1692g(a) notice, the courts also continue to make the point that "progress in the suit may be delayed by verification."

New Jersey has adopted a unique approach to this by creating the requirment that if a summons was issued without prior collection, the complaint must include all information that would be provided if validation had been requested. (Really, even more. They go way past Chaudhry on this.)

In any event, the courts which have addressed this question recently are all in agreement that the FDCPA amendment is not designed to allow creditors to skirt the FDCPA, by allowing them to sue debtors on questionable or bogus debts who have no means (money) to defend themselves in court.

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Just to make sure Im clear on what is being said If I DV the law firm that is claiming I owe a debt all they have to send me for validation is the amount owed. My next question is when i file my written appearance on this debt my only answer can be I have no recollection of this debt will that be enough.

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I still send the DV in addition to providing the court required answers, because it sets me up for a Federal suit later. Remember, if the DV is timely, they must cease collection activity. That includes lawsuits.

Just remember that you still must respond to the suit. The DV is a different issue that merely sets the stage for your FDCPA suit later on down the road.

So a lawsuit is considered collection activity if your DV is timely?

Do you file all of your FDCPA suits in Federal court?

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I think the confusion may be originating from the FDCPA amendment which states that a lawsuit does not constitute an "initial communication," thereby triggering FDCPA validation notice requirment.

A close read of the statute shows that the amended section only applies to subsection (a), not (B) which addresses debtors rights to validation. The debtor's 1692g(B) rights have not been affected.

There are only a handful of opinions that deal with this question post-amendment, and while it is clear that the summons no longer evokes 1692g(a) notice, the courts also continue to make the point that "progress in the suit may be delayed by verification."

New Jersey has adopted a unique approach to this by creating the requirment that if a summons was issued without prior collection, the complaint must include all information that would be provided if validation had been requested. (Really, even more. They go way past Chaudhry on this.)

In any event, the courts which have addressed this question recently are all in agreement that the FDCPA amendment is not designed to allow creditors to skirt the FDCPA, by allowing them to sue debtors on questionable or bogus debts who have no means (money) to defend themselves in court.

So this is a result of the new amendments to the FDCPA?

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So this is a result of the new amendments to the FDCPA?

I would think so. The pre-amendment opinions generally fell in line with Spears. Now, in terms of this question, Spears and the like are no longer any good.

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Broke.... yes, if you timely DV'd and then they filed suit without validating.... it is a continued collection violation. Generally you can either countersue in thier suit for the FDCPA violations, or go at them seperately in Federal. But the seperate root does cost you $$ up front, etc. But the Fed judge gets FDCPA, while state judges may have to be edjamacated. But Ive stuck to counterclaim in my issues.

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I've been served twice. Neither time was there any sort of document given to me to answer any questions, etc. All it was a "civil summons" to appear in court, plain and simple.

The first time, I did DV the OC. I was sure they didn't have anything and they did provide copies of everything they had for me (Cap 1). I recieved this packet on Friday before court on Monday.

Of course, I went to the first court session and said I didn't owe it and they reset the court date (gave me about 3 months to do this DV).

There is nothing "wrong" with DV'ing after you've been served, and if it is a company that is depending on you not showing up and them winning by default because they either don't have anything they can validate with, or if they just don't want to keep having the date reset, then it is doing something.

I do agree that DV'ing after being served for the actual purpose it's for is moot. If they really do have documents to validate, then the outcome is going to be the same. You'll be screwed either way and the DV should have been done a long time ago.

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OK - it doesn't do any harm...so why waste the effort? Just concentrate on the complaint - that should be energy-sucking enough. :)

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I still send the DV in addition to providing the court required answers, because it sets me up for a Federal suit later. Remember, if the DV is timely, they must cease collection activity. That includes lawsuits.

Just remember that you still must respond to the suit. The DV is a different issue that merely sets the stage for your FDCPA suit later on down the road.

I agree with this post. We were in a case that was dismissed w/o prejudice, then no more than 2 months later we were served again by a different JDB for the same alledged debt (who is not on the CR).

On the summons papers, the JDB served up the 30 day/or assume valid DV language, so they have been DV'd--twice.

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DV only applies to someone who is subject to the FDCPA. In most cases, the attorney that is suing is the party that you would DV. The Original Creditor has nothing to do with a DV.

DV'ing can be very useful in the following situations

Collection Agency or JDB has debt and is suing in their name or the OC's name

The attorney may be a 3rd party. if the Attorney has not made any prior communications, the first communications, other than the summons triggers the 30 day rule. This included interogatories, settlement offers, etc. If you DV the lawyer, they must suspend the suit until they validate the debt with information obtained from the OC. If they can not get anything, they must end suit. This is very often the case with JDB's

ex. Major JDB buys debt from CC bank, they want to sue you in local court. They hire a local atty to process suit. DV the local atty and the case has to suspend. However, you must also file the Answer to the case.

CC company sues you in their name. They hire an instate atty to handle the case from an outside firm. The Atty handles these types of cases on a regular basis. DV the local atty and then they must suspend the case until they provide the validation.

DV is the consumers best protection if done timely. Never, Never, Ever forget to do a DV when timely. You lose your strongest consumer protection when you fail to DV.

USofA

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Collection Agency or JDB has debt and is suing in their name or the OC's name

The attorney may be a 3rd party. if the Attorney has not made any prior communications, the first communications, other than the summons triggers the 30 day rule.

Sometimes, I've heard cases ruled otherwise

This included interogatories, settlement offers, etc. If you DV the lawyer, they must suspend the suit until they validate the debt with information obtained from the OC. If they can not get anything, they must end suit. This is very often the case with JDB's

It's not really debt validation at this point. You can ask for things via discovery and argue in your affirmative defenses that they need these things, but the FDCPA is moot at this point.

ex. Major JDB buys debt from CC bank, they want to sue you in local court. They hire a local atty to process suit. DV the local atty and the case has to suspend. However, you must also file the Answer to the case.

Definitely disagree with this one. Never heard of this one and have not seen it in procedural civil codes of any state.

CC company sues you in their name. They hire an instate atty to handle the case from an outside firm. The Atty handles these types of cases on a regular basis. DV the local atty and then they must suspend the case until they provide the validation.

Just like last time, disagree.

DV is the consumers best protection if done timely. Never, Never, Ever forget to do a DV when timely. You lose your strongest consumer protection when you fail to DV.

Agree with this.

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Actually the case that defined this is Bartlet v. Heibl. I do not have the full citation, but it was in the Seventh Circuit No. 97-1946.

In dealing with Atty's that wish to sue during the 30 day DV period. In the case, the Court drafts a safe harbor letter.

If, however, you request proof of the debt or the name and address of the original creditor within the thirty-day period that begins with your receipt of this letter, the law requires me to suspend my efforts (through litigation or otherwise) to collect the debt until I mail the requested information to you.

This is clear, if you DV the Atty during the 30 day period following initial communictation, they must suspend their efforts (including litigation) until they provide the validation of the debt from the original creditor.

Remember 1692(g) requires that they suspend all collection activity until they obtain validation of the debt from the original creditor and forward it to the consumer. I think you would be hard pressed to find a judge anywhere that will find that litigation is not a collection activity.

Also, the statue (1692(g)(B) indicates that a formal pleading is not initial communications, however the exception does not extend to any other communications.

The FCC has stated in In re Martinez, 266 B.R. 523 (B.S.D.Fla.) that a summons is not excluded from being initial communications. They also clarify that service of a motion would trigger the 1692(g) requirement if not already triggered.

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Finally, the FDCPA is not moot during a debt collection suit. The attorney prosecuting the case is subject to the FDCPA. You can not raise FDCPA violations as a defense, however, you can counter-claim them if the atty is a party to the suit, cross claim them if not a party in certain situations, or raise as a seperate claim before the expiration of the SOL.

For example, the caselaw is full of examples of filing a debt collection action that is past the SOL is a violation of the FDCPA. False and misleading statements by an atty for the Plaintiff in a debt collection suit are also violations of the FDCPA.

to call the FDCPA moot is a severe miscariage of justice

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So, we have 2 different opinions and I respect both.

My feelings are that if the attorney for the JDB is offering the DV language on the summons--why not KYA --- answer, submit Interrogs/discovery AND DV?

So, it comes down to this---either the attorney is a fool for offering the language, or I am stupid for thinking that following the rules the attorney offered is going to do any good.

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This is clear, if you DV the Atty during the 30 day period following initial communictation, they must suspend their efforts (including litigation) until they provide the validation of the debt from the original creditor.

The above is not true. I've read case law where going to court before the 30 days was up was not a violation of the FDCPA.

The other thing is the FDCPA violations are not as powerful as bringing up the fact that a collection agency's evidence is 100% hearsay and cannot be admitted. They must prove a fiduciary relationship - and the consumer has no fiduciary realtionship (meaning that the consumer has some kind of agreement to pay the collection agency, which is impossible: the consumer never applied for credit, never received cash from the collection agency). The collection agency also has no intimate knowledge of the creation of the debt - all information provided by them is therefore hearsay.

My reasoning for not doing a DV - IT'S WASTE OF TIME! Why not concentrate your energy where it counts? On the court case! DV'ing DOES NOTHING. There is no case law saying that it does any good or makes one iota of difference.

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