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

[SingleDadJames]

You're going to smack me. I know you say requesting DV after a suit has been filed is a waste of time and I agree, 99.9% of the time it is. And after reading this thread I'm 100% confident if I attempt DVing after a case is filed it will NOT halt the case or prevent the plaintiff from proceeding with their efforts. I'm also not worrying about FDCPA violations etc.

But what if, as described above, the summons and complaint are the first you've heard from an attorney attempting to collect on a debt? Would it look "better" in the eyes of the court if the defendant requested validation of the debt..especially in a court where Discovery isn't generally allowed pre-judgement? How else would you have to attempt to verify this debt? If you can't issue requests for productions of documents etc. in a case then I'm thinking the only way you have to verify an account is to request validation from the plaintiff and/or write to the OC to request records. It's nothing that's going to be a huge case maker but it only takes 10 minutes to write to request validation and a few bucks to send via certified mail.

Thoughts?

Edited July 21, 2010 by SingleDadJames

[admin]

James - it still doesn't make any difference. It's not illegal to not answer and file the suit.

[skippy1960]

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.

In the context of the arbitration strategy, if your first contact was the law suit and you "wasted your time" and send DV to attorney and they failed to answer this could give rise to a FDCPA violation, by statue that could amount up to $1000 claim against the offending collector/attorney. I am reading NASCAR's post correctly?

My reason for asking is many times the consumer is asked to initiate a claim and this could give instant FDCPA violation for them to claim, once they get to one of the private arbitraiton forums.

Thanks in advance for clarification....

[retmar]

Admin, I hang my head in shame for not visiting this thread sooner. As you said, what a great discussion, and from so many "angles". WOW!! To all of you, outstanding!!!!

Let's keep this going as after reading all that is present, I find no mention of FDCPA 809© and how it can be used at this point, either before or during the "process", once served. I'm including this section as the primary point everyone is making is in regards to validation after service.

Come on, everyone, share what you have, or know to be true. Let's see where this leads us.

1. Is this section not affording a consumer the right to ask the court to have the plaintiff

show "proof" of claim? Yes, it would be validation.

2. Is the judge required to honor this request from the consumer?

3. Isn't it true that the request is simply a last chance effort to dispute all or part of

claim, having no prior knowledge or chance to do so?

What say all!

[admin]

Let's keep this going as after reading all that is present, I find no mention of FDCPA 809© and how it can be used at this point, either before or during the "process", once served. I'm including this section as the primary point everyone is making is in regards to validation after service.

You can request DV anytime. It's just that after being served - it's not buying you anything.

1) After 30 days, a collection agency is not required to respond to a DV request.

2) You'll do better requesting discovery - something that can be used within the court system.

It's just your energy is much better spent working within the court system like through a counter claim.

[retmar]

Admin,

I'm aware of that, and is not why I made mention of ©. My intent was in regards only to it's importance as an additional protection from "shady" CA/JDB/ATTY's, who try all they can, by relying on the innocent ignorance of the consumer, to prevail.

Too many people today just toss collection letters, or erase messages, and simply do nothing regarding a claim made against them. Until, of course, the day they get served. Then they ask themselves why was I so stupid. And, as you mentioned, DV now does nothing, except add to the aggravation. But, if the consumer still does nothing, just appears in court, they still have the right to ask for proof, even if they only do not agree to the amount claimed due.

You know me well enough by now, I will use each and every section of a statute to my benefit, no one else.

[admin]

But, if the consumer still does nothing, just appears in court, they still have the right to ask for proof, even if they only do not agree to the amount claimed due.

You know me well enough by now, I will use each and every section of a statute to my benefit, no one else.

You ask for proof via Discovery, which the Plaintiff is required to respond to vs. a DV which the Plaintiff is not required to respond to.

[retmar]

Admin,

Please Reread my previous again. I'm talking only about the consumer who does nothing but does appear in court. For example, using my very first collection and suit in the 80's.

The wife and I bought a home in a different city than the rental we lived in, and, had different power companies. I called to have service turned off. They gave me a specific date and failed to turn off for an additional 11 days. House was empty, but ,landlord used our power to prepare for new tenants. Then sent us a closing bill including that time period. I called and told them of their error, to which they said they would correct. Nope! They assigned it to a CA. I called the CA and repeated myself. Again, nothing. Next comes a suit. I did not respond to the suit, have no recall of why, but, did show up in court. When it was my turn, I told the judge exactly what happened. The amount was only about $40 or so, and, was all I had expected to have deducted. I had included that I had told both the power company and this CA that I would pay the total amount due after deducting a reasonable amount of overcharge. The judge let the CA know he was not happy with this, about not checking into my claim, and tying up the court, and, told her so. Then, to my surprise, split the bill in half. I was surprised. I can only assume this to be a punishment of sorts as I did not expect this. He never explained either. The CA never said another word to me, just got up and walked out. Said nothing to the judge, either. In short, I was the know nothing, know-it-all, ignorant of the collection laws, who relied on the system, and a judge protected my rights. What more could I ask of the system? This was my first and only experience until the medical items that brought me to your site.

This is all I am referring to, not about the normal process of discovery, not about DV in hopes to postpone the inevitable, only that the consumer still has a right available to them, at time of appearance in court, if they even show up. If they fail to do nothing, including not showing up, it is their own fault, no one else. As you, and so many of we older members stress to the new members, as to the importance of responding to all claims, no matter if legit, or not, just how important it is, otherwise, you have no right to complain.

I can only assume by what I have learned in reading the statutes, as well as my studies in college, and since joining your site, that the intent of Congress including © into 809, is for the sole purpose of added protection to the least sophisticated who does not fully understand what is happening to them, and fails to respond accordingly. Otherwise I can see no purpose for it to be written as it is. If it can be proven otherwise, please share.

[admin]

I did read your post. What court venue was this? It sounds like small claims. In that case, the judge is going to rule on the basis of what the parties say and look at any documentation.

If a couple just shows up to court and says "they didn't respond to my DV", that is not going to buy them anything because:

1. How are they going to prove it hasn't been 30 days?

2. How are they going to prove they sent the DV?

3. There are also many cases where the Plaintiff didn't even wait 30 days after sending out the initial notice and filed suit. Perfectly legal.

4. In addition, the threshold for meeting DV requirements is quite low. An unauthenticated copy of a statement is all you need, not definitive proof.

My point is that a DV is totally useless once you get to court. I've never heard of ANY case where a non-response to a DV won the day. What wins is lack of evidence by Plaintiff or violation of procedures.

Edited September 22, 2010 by admin

[FL4answer58]

My point is that a DV is totally useless once you get to court. I've never heard of ANY case where a non-response to a DV won the day. What wins is lack of evidence by Plaintiff or violation of procedures.

While I agree with your assessment Admin but does it (DV) not help establish 'all four corners' of the doctrine to move for MTD? or am I interpreting this wrong - as 'nascar' once pointed out...

“Are you able to provide an actual quotation to support what you are claiming, rather than your own interpretation of what you are reading?”

“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.”

CONSTRUCTION : the act or result of construing, interpreting, or explaining meaning or effect (as of a statute or contract) construction placed upon an agreement.

While ‘nascar’ directed this not at me, I have experienced this first hand. And in all probability, experience it again – if I am to learn. Most of us are not lawyers – the construction and elements can be a difficult logic – but if someone questions your logic, take no offence, and be glad you’re reacquainted with meaning (fact). It’s your best interest to have clarified your own defense.

Edited September 23, 2010 by FL4answer58

[admin]

FL4 -

I'm not saying it's illegal, or you can't do it.

What I'm saying is that it won't help you whatsoever. It is a waste of your time! Instead of writing a worthless DV, you could be directing your energies towards:

• Reading/understanding rules of civil procedure in your court
  
• researching case law
  
• filing the correct motions/documents
  

These things will make the most difference in court. Judges will know you went to the internet school of quickie law if you start talking about how lawyers didn't respond to your debt validation request after they filed suit.

Why not just state the Plaintiff has no evidence to back their claims? You don't need to DV to get this point across. Lack of evidence is a legal point on which you can win.

Where a DV DOES come into the situation: If you can prove that you sent a DV request within 30 days of initial notification and the collection agency continue to call you without sending you anything or responding and is now suing you, that's the time for counterclaims/suits.

Edited September 23, 2010 by admin

[FL4answer58]

FL4 -

directing your energies towards:

• Reading/understanding rules of civil procedure in your court
  
• researching case law
  
• filing the correct motions/documents
  

These things will make the most difference in court.

These are the 'things' I wish I had learned and listened to in retrospect when I first came here - a ‘newb’. (I don’t mind the title – I am one)

The single best advice I was to learn - the hard way unfortunately.

[MrPunch]

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

Do you still need to do DV if you just want to settle? Or how do you otherwise know if they have a right to collect?

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!

But what do you do if it IS a small claim? No discovery, no interrogations? Just go to court and fight?

[ipigott]

Ok so I get that DV after being served is useless......but what about if I havent been served??? In my case, I know that a case has been filed in my local court by a JDB over a month ago, but I have NOT been served. I have, however, received 2 letters from the JDB (not the atty who filed the suit) offering to settle the acct.

I have NOT been served, I have NEVER contacted the JDB, and they are not calling anymore ~~~only sending letters.

I do live in Texas and have read over and over that it is a consumer friendly state when it comes to debt......

What do I do in the mean time???? Just sit and wait to be served?

[admin]

ipigott - same difference. Useless.

[ipigott]

thanks admin---

any suggestions on what I should do in the mean time...while waiting to be served?

the court website shows the petition was filed, but no date for answer due, no payment for process service~~~~ just shows the $34.00 citation fee was paid.

[admin]

Start thinking about a defense, study up, get familiar with your state laws and rules of civil procedure.

[dian]

Ok so I get that DV after being served is useless......but what about if I havent been served??? In my case, I know that a case has been filed in my local court by a JDB over a month ago, but I have NOT been served. I have, however, received 2 letters from the JDB (not the atty who filed the suit) offering to settle the acct.

I have NOT been served, I have NEVER contacted the JDB, and they are not calling anymore ~~~only sending letters.

I do live in Texas and have read over and over that it is a consumer friendly state when it comes to debt......

What do I do in the mean time???? Just sit and wait to be served?

In Nyankojo vs northstar capital acquistions 298 Ga App. 6 (2009)

A creditor seeking to collect on a debt must introduce competent evidence to show chain of assignment actually leads back to the debtor.

If this cannot be shown by documentation then the casew should be dismissed.

Again in Wirth vs Cach llc 300 Ga App 488 (2009) A creditor must prove the entire chain of assignment of debt by competent evidence in order to collect on it.

These junk debt buyers have been providing bogus computer generated papers that are usually part of a lumped amount of accounts purchased from the original creditor in bulk. its estimated that 90 percent of these debt collectors do not have the evidence to support validation of the debt that will satisfy the court.

So this would be a great place to start I would think? But what do I know? I've been just trying to figure out what to do myself after being served with a lawsuit for an old Capital One debt.

This site and everyones posts have given me a lot of information and I just hope its accurate as I am counting on much of it.

: )

[Seadragon]

Just to show diligence. Trial judges are not going to let you control their case management. In my case it didn't even phase the judge when I said they haven't validated the debt in response to my letter filed right after FRPD(First request for production of Documents). They said "not part of the Code of Civil Procedure" so basically it is outside the box. I tried to cite Komarova v. north shore acceptance(2004) which dismantles the "Litigation Shield" but he said" the supreme court says CCP 47 is controlling."

it seems that trial judges have "discretion" to warp space time so the laws of physics and reality don't have to apply in their zones. It is kinda surreal. I hate court. In my case The RFDCPA is absolutely no help to Pro Pers because judges won't enforce it and will give the plaintiff's and their affiants more credibility than us.

Whatever you do, make sure you don't give them more time. demurrer(California)/&answer, BoP, Letter demanding responses (people say ten days so give them 5), Motion to exclude, FRPD mailed day before Hearing for MTE, Motion to strike complaint, ETC. ETC. keep them on a tight leash but let them answer discovery before sending another. and put a freeze on your credit report so they can't get it.

They will also let other JDB's know they found you by updating credit report putting a freeze stops all that.

Yes I know this is supposed to be about DV's but it is a so I thought something more useful than DV would help. I mean people think the FDCPA is like a big harry potter wand that will make the bad men go away. Get over it the Fed govment does not give a crap about debtors because not one of us can afford to donate to political campaigns but the Banks and JDB's can because they get default judgments because people waste their time on stuff like DV'ing when they should be answering, and securitization instead of arbitration. The deck is stacked against us enough already why would we choose the jokers instead of aces. I tried it it. didn't work for me and in the time it took you to read my post you could have looked up 1 case that you could have used in your case. Try searching for CCP 2015.5 if your in california, try searching http://lexisnexis/clients/CAcourts. Look up How to subpoena, or write a trial brief, THE FDCPA CAN NOT HELP YOU WHEN YOU ARE SUED, YOU ARE ON THE DEATH STAR NOW BE OBI WAN NOT THE DROID.

I know it sounds like a rant but at least it stop the endless rattle about the weakest part of the FDCPA d*$% I wish they would take it out of it already just so I don't have to hear the same s^$% about it.

Just My opinion don't get mad just get to work on your case.

Edited April 15, 2011 by Seadragon
linky bad

[Seadragon]

But it is abundantly clear to me(having had my A&^ handed to me) that if you don't even try to get the basics of litigation down, the court is not gonna listen to what you have to say. Attack their standing, the credibilty of their affiant, and the bookkeeping practices of The OC. the real issues are do you owe and can they rustle up some docs to prove their little allegations. If you try to bury them in paper it is gonna piss the judge off because he is gonna have to read it and they have 100's of people to bury you.

So in conclusion think short timeline. answer not on the last day gut it out and answer in the first 5 days let them know your not a punk and when they try to drag it out while they get the docs motion to strike the complaint/affadavit that they sent to support their future case.

That would be the way to win. not endless reading of fanciful theories that get shot down by 30 seconds of research on Opp. attorneys part.

Dredge up dirt on them (past violations) use that instead of DV.

Dang I did it again see trying to talk like attorneys about DV will not make it viable.

[Seadragon]

You need allies not the FTC, but your attorney general and any other agency that helps regulate the collection industry. If you are having trouble why not get the media involved. write an article about your experience to the local paper about how the lawsuit went. If you were improperly served let everyone know that that process server caused you to get a default. Complain about him/her. If the lawyer doesn't give you your discovery picket outside his office(after calling the media) and I'm sure he will give it to you or at least meet and confer. Don't mess with the court though (that would be foolish). Take out an ad in the paper warning them about improper service of summons from the dangers of not answering a lawsuit as a public message. the only way to stop the default express is to shine a light on it. invite the media to your trial (Local boy vs. Big bad snidely whiplash) they might give 2 sides of the triangle pause and could level the playing field (worked for OJ first time).

Oh and stop pissing off the clerks. They just tattle to the judge. They could care less if you win or lose as they only see you 8 times at the most. They view us as the reason their days go bad. have all the paperwork ready for time stamping and no mistakes.

Thank you for your attention. Hi. my name is Seadragon (high seadragon) I am a post whore ( :clapper::clapper:)

[skyshopper]

New fan here. Nidland Scumding Michigan victim. Been reading this site for a few days now. Am preparing my Answer and still have another week so I want to be sure I got everything covered. With regards to this subject, I was going to include a Request for Document Production simultaneously to get their 30day clock ticking so as to hopefully not drag this out longer than necessary BUT noticed a somewhat recent change in Mich pleading rule (1/11) that I will paste here. My question is since they only included the silly affidavit from some legal aide in MN, can I somehow do something with this 'omission' to the original complaint?

(F) Exhibits; Written Instruments.CHAPTER 2 CIVIL PROCEDURE Chapter Last Updated 1/11/2011

(1) If a claim or defense is based on a written instrument, a copy of the instrument or its pertinent parts must be attached to the pleading as an exhibit unless the instrument is

(a) a matter of public record in the county in which the action is commenced and its location in the record is stated in the pleading;

( in the possession of the adverse party and the pleading so states;

© inaccessible to the pleader and the pleading so states, giving the reason; or

(d) of a nature that attaching the instrument would be unnecessary or impractical and the pleading so states, giving the reason.

(2) An exhibit attached or referred to under subrule (F)(1)(a) or ( is a part of the pleading for all purposes.

I should note that the affidavit does not state any of the above reasons. It is the usual ambiguous document with dollar amounts and vague references. (very similar to singledadjames)

[CashOnly78]

Is it true that the Plaintiff has to actually find someone who worked for the orginal creditor and bring them to court- we hired an attorney and paid 1500 to handle our citation/court suit from Equable Ascent Fin- on some old Wamu debt from 2008? We were served end of Jan 2011- filed the answer in Feb and filed a response to request for admission on March 19- So the silence has been bothering me- I ran a credit a report and the WAMU debt is still on their- How long can this linger in the court system for TX cases? I am starting to worry and want this behind me ASAP

[spider21]

Hi i been sued by credit card company Capital One in California. Plaintiff claims to be OC Capital One but from what i've learned by reading your posts, i know that it's the attorneys (Hunt & Henriques)suing me and not OC. During Discovery I asked for production of document and bills of particular for plaintiff to produce written contract or statements. They produce some credit card statement but they objected to give anything else. They claimed that any other document are protected from discovery under attorney/client privilege or work of product. Now there is a case management order issue by the court for a Non-Jury trial set for 11-9-11. Any advice your can provide on what could i do to defend myself against this Junk deb collectors. Any extra help will be highly appreciated > you already had helped a lot> thanks so much.

[ausag]

Thanks for the info.