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

80 posts in this topic

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.

Possibly some ignorant questions but here goes. Why wouldn't DV'ing prove what you stated above? That the CA's case is based on hearsay? I mean they couldn't validate the debt, correct? Would that not stop them in their tracks, and therefore keep there from being any case history to show it works?

MA Mom

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You're doing double the work. Even if you DV the collection agency after you are served, you are still going to have to request the same documents in your request for document production or even in your affirmative defenses. IT'S A WASTE OF TIME.

In addition, sometimes violations of the FDCPA are tough to prove. You'll have to argue whether or not something is really debt validation, whether or not they continued collection activity, etc.

Why not go after the sure thing - that the collection agencies HAVE NO CASE. Everything they introduce is hearsay.

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No, its not useless. If you DV they have to stop their case until they provide validation. If they do not, you can counter sue for FDCPA violations. Never EVER, Under ANY circumstance, do you want to give up any rights to a creditor that is sueing you.

To say otherwise is just plain bad advice.

In other words, You have a right to discovery. You contend that they dont have evidence, so why bother requesting discovery—they won't have any of the documents.

That would be just as foolish as saying give up your right to DV a CA. (if within the first 30 days of initial communications).

USofA

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No, its not useless. If you DV they have to stop their case until they provide validation. If they do not, you can counter sue for FDCPA violations. Never EVER, Under ANY circumstance, do you want to give up any rights to a creditor that is sueing you.

To say otherwise is just plain bad advice.

In other words, You have a right to discovery. You contend that they dont have evidence, so why bother requesting discovery—they won't have any of the documents.

That would be just as foolish as saying give up your right to DV a CA. (if within the first 30 days of initial communications).

USofA

A few points:

1. Discovery is different than DV'ing. If you are being taken to court, definitely ask for the same kind of documentation you would in an initial DV. But's it's not called debt validation at this point

2. Not sure where you get the idea that DV'ing halts a court case. This is simply not true.

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Not sure where you get the idea that DV'ing halts a court case. This is simply not true.

Yet another urban legend.

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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.

It's not a violation if you never requested DV in writing. If you request a timely DV in writing, then they have to respond to it, whether it's in litigation or not.

I don't think it will halt a lawsuit, unless it is truly not your debt or they have absolutely no documentation, it will just slow down a lawsuit and buy you some time.

I do agree, concentrate on the summons, but to say to pass on a timely DV, separate from the lawsuit, in my opinion is foolishly pissing away your rights.

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I'd really like to hammer this down...and please don't consider this an attack. People always say all these things like a "DV will halt a lawsuit" when I don't know of a single case. Trying to come up with facts one way or another.

It's not a violation if you never requested DV in writing. If you request a timely DV in writing, then they have to respond to it, whether it's in litigation or not.

?? Clarification?

I don't think it will halt a lawsuit, unless it is truly not your debt or they have absolutely no documentation, it will just slow down a lawsuit and buy you some time.

It won't stop a lawsuit nor slow it down. Proof otherwise?

I do agree, concentrate on the summons, but to say to pass on a timely DV, separate from the lawsuit, in my opinion is foolishly pissing away your rights.

What exactly do you do if in a lawsuit and you DV them and they don't respond? I don't know of anyone who has gotten one single additional consideration for doing this. If you do, by all means, let's hear it.

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You want case law? How about Romea v. Heiberger & Assocs, 1998 WL 35112, 97 Civ. 3014 (S.D.N.Y. 1998); Soho Tribeca Space Corp. v. Mills,N.Y.L.J., May 13, 1998 at 28, col. 6 (N.Y. Civ. Ct. May 13, 1998); Dearie v. Hunter, N.Y.L.J., Jul. 8, 1998 at 31, col. 3 (N.Y. Civ. Ct. Jul. 8, 1998)

All three of these stop the suit because of debt validation problems created when notice of the suit started the 30 day clock and defendants requested validation.

I believe that now we can put an end to the URBAN MYTH and accept the case law.

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Additionally in In re Martinez, 266 B.R. 523 (B.S.D. Fla.), aff’d, 271 B.R. 696 (S.D. Fla. 2001), aff’d, 311 F.3d 1272 (11th Cir. 2002), the court found that the summons and complaint overshadowed the validation notice in an FDCPA suit.

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I believe that now we can put an end to the URBAN MYTH and accept the case law.

I don’t think you understand the discussion.

Romea v. Heiberger revolved around the question of whether the New York 3-day notice to vacate constituted an initial communication under FDCPA and was thus required to contain the necessary verbage under the act. Nothing about halting a lawsuit.

Your Soho Tribeca Space Corp. v. Mills, same issue. Dearie v. Hunter, again, same issue.

The Martinez cite went back to the old question of whether a complaint, absent any previous communication, was “initial communication” under FDCPA. We beat that question to death a year or so ago.

Look, USofA, I appreciate your attempt to defend your position, but nothing you have cited really has anything to do with the topic of this thread. It is common knowledge that certain acts, like failure to provide validation, etc. can give rise to FDCPA violations after a lawsuit has been brought, and you have pointed that fact out, again – but that’s all they are; violations. They allow the consumer to bring a counter-claim, but FDCPA violations are NOT defenses to lawsuits and the CANNOT be used to halt the progress of a lawsuit.

True, if a creditor ignores a timely validation request and instead files a lawsuit, or files a lawsuit as an initial communication and then ignores a subsequent DV request, he has violated the FDCPA – but – come on people – that’s where it ends. A violation of the FDCPA has its own remedies and cannot be used as an injunctive or procedural method of halting a lawsuit and preventing the entry of a judgment. You must defend against the allegations of the suit. For all you English majors out there, bringing up an FDCPA violation as a defense to a lawsuit is akin to the Ad-Hominem argument fallacy. "I might owe this debt, but, judge, look what he's doing!"

Perhaps you’ll understand this analogy. You’re driving down the highway and you see a red light. You know you’re supposed to stop but you don’t. You’ve run the red light and committed a violation – but you’ve still run the red light. If a police officer saw you, then he can give you a ticket – you can be penalized for running the light. But, the simple fact that the light is red exists does not physically prevent you from running through it – just as the fact that a debt collector violates the FDCPA by doing certain things in the course of a lawsuit does not prevent him from continuing with the lawsuit. Your only option is to be the “police officer” who gives the debt collector a ticket for running the red light.

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Perhaps I did not make myself clear. Under the FDCPA there is never injunctive relief for a consumer. That is limited to States and the FTC. However, the law says and those cases back up that if you timely DV the debt collection attorney must suspend the suit. If they do not, then they have violated the FDCPA and created a new cause of action.

I agree that you can not force a judge to throw out a suit because you have timely DV'ed and they continue to prosecute, but I have personally brought this up in a motion to continue, had the motion granted by the judge until such time as the Plaintiff's Attorny provides validation of the debt, and then the case dismissed for lack of prosecution.

I have also had a judge admonish the Plaintiff to provide validation to my sister before filing another piece of paperwork. Again it was dismissed 6 months later for lack of prosecution. Both of these were in Assoc Circuit Court in Missouri.

The cites I provided show that the complaint is not initial communication, but a summons or discovery request (Not a "Formal Pleading") can be initial communications and are subject to FDCPA requirements.

As to the requirement to cease collections, there is never a way under the FDCPA to make a debt collector or attorney follow the law. the only redress is a suit or counter-suit. But the law requires them to cease collection efforts upon a timely DV until they have provided validation. This is just another tool in a Defendant's toolbox.

As to it being a falacious arguement, that analogy fails. Most courts do not allow you to violate the law in bringing an action, no matter how pro creditor they are. The courtroom is one of the last bastions requiring parties to follow the law.

USofA

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However, the law says and those cases back up that if you timely DV the debt collection attorney must suspend the suit.

What law are you referring to? Unless, I am misunderstanding you, it still seems that you are inferring that "suspend the suit" in this context indicates the existence a procedural mechanism which actually halts the judicial process, rather than an act that constitutes a violation for which there is a separate remedy.

Are you able to provide an actual quotation to support what you are claiming, rather than your own interpretation of what you are reading? I'm providing for your reference a quote from a fairly recent 11th Circuit case, which is one of the very few I have seen that addresses this issue head-on. I will admit, there is new law that identifies these same actions as FDCPA violations, but none delineate the FDCPA from the debt collection action quite as specifically as this case. Nonetheless, it just doesn't seem to support your position as I understand it.

Under the FTC's interpretation, a debt-collector attorney may take legal action even in the face of a dispute of the debt by the consumer; the attorney is restricted only from other collection efforts, such as letters or calls to the consumer. Plaintiff contends that the Law Office's service of process on him on July 24, 2003 (for the lawsuit filed on July 16, 2003) violated the FDCPA. Service of the complaint on Plaintiff was “legal action” within the meaning of Eleventh Circuit and Middle District precedent. See Vega, 351 F.3d at 1337; McKnight, 176 F.Supp2d at 1306. Continuing the legal proceedings, as opposed to other collection efforts (phone calls, etc.) of which there is no allegation or evidence, did not violate the FDCPA as a matter of law. Acosta v. Campbell, 2006 WL 3804729 (M.D.Fla., 2006).

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Yeah, nascar, I agree (but are you surprised?). There is NO language in the FDCPA saying that you can use it as an injunction.

I keep looking at the case law you are presenting, USA, and it is the same thing over and over - basically concerning collection activity after a DV.

We're only arguing whether or not a DV will stop a court case. By your own admission, the court case you cited were NOT halted after debt validation requests, the case proceeded normally and were ruled upon.

This is a great discussion, BTW.

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What if you take a simpler approach?

You DV the CA (not the attorney).

They typically never respond and may be even less likely if they know this account is already placed with attorney.

Watch as they continue to report to your CR the account is not disputed.

Then you go after them for:

1692e. False or misleading representations

(8) Communicating or threatening to communicate to any person credit information which is known or which should be known to be false, including the failure to communicate that a disputed debt is disputed.

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Ok - but STILL if you've been sued, don't waste you're time on a DV. It does NOTHING. If you haven't been sued, sure.

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You stated --(If you've been served with a lawsuit, the time to send a DV is OVER. )--What if it is a ( Summons/Notice To Appear For PretrailConference/ Mediation ) I am in Florida , I just joined , Asked for information but got no replys Thank You For any Help

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You stated --(If you've been served with a lawsuit, the time to send a DV is OVER. )--What if it is a ( Summons/Notice To Appear For PretrailConference/ Mediation ) I am in Florida , I just joined , Asked for information but got no replys Thank You For any Help

after your sued, you then request Discovery thru the courts, Your Demanding Proof

Before your sued you request Debt Validation :your asking for proof

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The Eleventh Circuit has held that a debt collector

may file suit and a lien at the same time a demand letter

is sent, before a consumer has made any request for

verification without violating the FDCPA. Shimek v.

Weissman, Nowack, Curry & Wilco, P.C., 374 F.3d

1011, 1013 (11th Cir.2004). Acosta v. Campbell, 2006 WL 3804729, 4 (M.D.Fla.)

I would like to do more research on this. In short, at this point it appears that if you send your validation request after the lawsuit is filed in a federal district court bound by the 11th Circuit of the U.S. Court of Appeals there is no violation of the FDCPA if the creditor continues prosecuting the lawsuit. However, the case does distinguish this scenerio from when a validation request is sent prior to the lawsuit. It should be interesting to see how this develops throughout the jurisdictions.

Just remember, this case is not binding on other federal circuits. This is only binding on federal courts in Florida, Georgia, and Alabama.

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The Eleventh Circuit has held that a debt collector

may file suit and a lien at the same time a demand letter

is sent, before a consumer has made any request for

verification without violating the FDCPA. Shimek v.

Weissman, Nowack, Curry & Wilco, P.C., 374 F.3d

1011, 1013 (11th Cir.2004). Acosta v. Campbell, 2006 WL 3804729, 4 (M.D.Fla.)

i think this is true because i've seen this in the opinion letters on the ftc letters.

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Please visit my active thread concerning Discovery in the Tennessee General Sessions Court.

http://www.debt-consolidation-credit-repair-service.com/forums/showthread.php?t=298404

Since the General Sessions does not allow Discovery prior to the hearing, but only Post Discovery. It appears that in this lower Court a DV would be OK. Since the Summons appears to be the first communication or dunning letter. This may be the only legal opportunity to ask for a DV, should this appear on a credit report as a judgment or collection violation and appealed to a higher court.

Although, once in a higher court one could then perform Discovery, but one may have lost out on the Violations aspect of the FDCPA.

Especially, if this was the first contact from a Collection Attorney that is acting as a Debt Collector as per 15 U.S.C. 1692a(6) and can be served at their office address.

The Civil Warrant was a "communication" in an attempt to collect a debt as that term is defined by 15 U.S.C 1692a(2).

Please provide feedback to my observations, so I may know how to proceed in my current case contained in the above pasted link.

Thank you.

Edited by Survival
Additonal thoughts

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Since the General Sessions does not allow Discovery prior to the hearing, but only Post Discovery. It appears that in this lower Court a DV would be OK. Since the Summons appears to be the first communication or dunning letter. This may be the only legal opportunity to ask for a DV, should this appear on a credit report as a judgment or collection violation and appealed to a higher court.

Although, once in a higher court one could then perform Discovery, but one may have lost out on the Violations aspect of the FDCPA.

Especially, if this was the first contact from a Collection Attorney that is acting as a Debt Collector as per 15 U.S.C. 1692a(6) and can be served at their office address.

The Civil Warrant was a "communication" in an attempt to collect a debt as that term is defined by 15 U.S.C 1692a(2).

Why waste time on a DV that will not help you when you could be devoting your efforts to the court case. A DV is COMPLETELY useless once you're in court. We never said you couldn't just that it's a waste of your precious time.

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