Demurrer Question

[bigjohnstud4200]

So I open get my mail today and there is a letter from the defense attorney called a "Demurrer" and a motion to dismiss and be awarded costs for their behalf based on the following:

"Even taking the bare facts as pled, it is clear that Plaintiff has not pled a claim showing an entitlement to relief under 15 U.S.C § 1692g, because Plaintiff states that he contacted the Defendant sua sponte after noticing what he believed to be five erroneoous entries on his credit report. However, the provisions of § 1692g only operate in situation where a debt collector contacts a debtor in an attempt to collect a debt and the debtor requests verification of a debt, See, 15 U.S.C § 1692g(a). It does not apply, as here, where a debtor merely sends a letter to a debt holder disputing a debt reported on a credit report."

I have to appear on Wednesday to hear the what the judge orders on the request to dismiss. Anyone have any suggestions for me?

[Recovering Attorney]

If you are lucky, the judge says " Why don't you folks go out and talk this over." If not, he dismisses the complaint,

[bigjohnstud4200]

If you are lucky, the judge says " Why don't you folks go out and talk this over." If not, he dismisses the complaint,

Do you think the judge will order me to pay their cost? To make a long story short, I disputed with a CA that I found on my report (never received a dunning letter). In 90 days they never responded even though I called them once and was put on perma-hold. I sent a follow-up letter 60 days after initial dispute. I then filed suit in small claims and they showed up with attorney and motioned for removal to district court which was granted. I am now thinking of filing a motion to dismiss without prejudice so that I may obtain representation if we cannot resolve this dispute, reiterating the points of my claim and their refusal to resolve this issue with me during my disputes is solely the cause of there expenses.

[direred]

Is this in federal?

Demurrer basically means "we did it, so what, it's not illegal." There are no demurrer pleadings in federal court.

[bigjohnstud4200]

Is this in federal?

Demurrer basically means "we did it, so what, it's not illegal." There are no demurrer pleadings in federal court.

No, it is not federal.. btw, if it were dismissed per their request, would this prevent me from filing a federal suit once I had representation?

[IHateCAs]

I have been wondering for a while what a court would rule on that particular scenario.

However, 1692g(a) does not say that the debt collector has to initiate contact, only that there has to be communication with the consumer. If the consumer writes or calls, that is a communication with the consumer.

[nascar]

If the consumer writes or calls, that is a communication with the consumer.

Do you really think "sua sponte" letter from the consumer to the CA would be considered communication between the CA and consumer for purposes of 1692g(a)? This attorneys logic is pretty good and would seem to deal a real body-shot to the "1-2 punch". I haven't really thought much about this, but when I initiate contact with a CA who isn't sending trying to collect, I always ask them to send me something. I don't ever dispute before that point.

On another note, I don't see how they could make the same claim if the dispute was initiated pursuant to FCRA.

[bigjohnstud4200]

Do you really think "sua sponte" letter from the consumer to the CA would be considered communication between the CA and consumer for purposes of 1692g(a)? This attorneys logic is pretty good and would seem to deal a real body-shot to the "1-2 punch". I haven't really thought much about this, but when I initiate contact with a CA who isn't sending trying to collect, I always ask them to send me something. I don't ever dispute before that point.

On another note, I don't see how they could make the same claim if the dispute was initiated pursuant to FCRA.

Thanks for the advice, I will use this in the future. However, I think I still may have them since about 90 days after my dispute they did finally send some validation. It was incomplete, just a print off from the CA's computer, but it did contain the "This letter is from a debt collector..." My follow up to this letter was notice of pending suit (filed just one day before I received their leter) and that I did not believe this was a complete validation as required by law.

We will see how it goes.

[IHateCAs]

In that case, I don't think you have much of a case if you are only suing for "incomplete validation".

[IHateCAs]

Do you really think "sua sponte" letter from the consumer to the CA would be considered communication between the CA and consumer for purposes of 1692g(a)?

Yes. Why wouldn't it?

[nascar]

Yes. Why wouldn't it?

I don't know.

[direred]

Can I just say: I love you guys?

I love these discussions.

[IHateCAs]

I don't think the problem is proving that a sua sponte letter from the consumer to the CA regarding a debt seen on the CR is considered a communication under the FDCPA.

I can't believe that Congress intended 1692g only to apply when the debt collector contacts the consumer first, not when the consumer finds out about the debt collection on his own and initiates contact.

The statute says "5 days after communication with a consumer", not "5 days after being the party to initiate communication with the consumer".

The problem is trying to make a violation out of "incomplete validation" with no continued collection activity allegations.

What's more interesting is that, even if what their attorney says is true, did they supply the entire validation notice in their response to you or within 5 days of their response?

[IHateCAs]

So taking the position of the deft, if a consumer notices a collection TL and calls the number provided, since consumer initiated the contact, CAs aren't required to do anything required under 1692g because the debt collector did not contact the consumer.

Yeah right.

[nascar]

So taking the position of the deft, if a consumer notices a collection TL and calls the number provided, since consumer initiated the contact, CAs aren't required to do anything required under 1692g because the debt collector did not contact the consumer.

Yeah right.

It is unclear from the face of the Act whether contact with the debt collector which is initiated by the putative debtor qualifies as a “communication”[.] Beattie v. DM Collections, Inc., 754 F.Supp. 383 (D.Del., 1991)

[direred]

It is unclear from the face of the Act whether contact with the debt collector which is initiated by the putative debtor qualifies as a “communication”[.] Beattie v. DM Collections, Inc., 754 F.Supp. 383 (D.Del., 1991)

The other side probably didn't argue enough about the grammatical usage of the word "with."

[IHateCAs]

It is unclear from the face of the Act whether contact with the debt collector which is initiated by the putative debtor qualifies as a “communication”[.] Beattie v. DM Collections, Inc., 754 F.Supp. 383 (D.Del., 1991)

I've noticed that the district of Delaware has produced a lot of opinions that aren't followed by any other courts.

[bigjohnstud4200]

WOOOHOOOO!!!! I won! I'm at work but really excited to tell you all what happened so I'm going to do it as quickly as possible, excuse any errors.

1) I sent a DV letter to a CA after finding them on my CR followed by one follow up letter after not receiving anything within about 60 days.

2) At the 90 day mark, I filed a small claims suit against them and one day after filing the suit (they hadn't been served yet), I get a response from my original DV. The response covered 5 alleged collections, 3 of which are not mine but my fathers, Joe Blow Sr. The other two were successfully validated, for the most part but were out of SOL and being reported past their allowed time so I sent another letter to the CA demanding they stop reporting or come to court.

3) Small claims court day comes and they show (CA is in AZ and I'm in VA, so they hired a local attorney to defend them). The attorney files a motion of removal to General District Court which is granted and ask for a bill of particulars..

4) I submitt my bill of particulars on the very last day of the court order which is slightly short of a month from the trial date.

5) About a week later, the defense notifies me with a motion of Demurrer stating that they did the things I claimed and that they were not illegal. The biggest point for their defense was that I contacted them first and 1692g(a) of the FDCPA only applies when the Debt Collector initiates contact which they did not do. They ask for the case to be dismissed and that I pay their costs.

6) I show up to court on the date to hear their Demurrer claim and I respond with IHateCAs response of, "1692g(a) does not say that the debt collector has to initiate contact, only that there has to be communication with the consumer. If the consumer writes or calls, that is a communication with the consumer." I then reiterate the other claims alleged in my claim.

7) Judge agrees with me that I have a claim and that 1692g(a), which I provided to him, is not clear whether or not a debt collector must initiate contact for them to be liable under the statute and orders us to show in court on our court day.

8) I walk out with the defense attorney and he offers to me that their client will stop reporting if I am willing to stop the suit, which I agreed on since I was not out for money but to have it removed from my credit.

This was all over 3 of 5 debts that did not belong to me and 2 that did which did belong to me, one for $15 and and for $18 (medical bill claims I did not pay my co-pay). All of the debts were past SOL and even though I didn't win money, I'm glad that I cost the CA $$ in attorney fees. My settlement offer will require them to have the entry removed within 10 days of their signature and that if they ever report these claims again, they will be liable for $10,000.

One sweet victory!

[onthedot]

That's AMAZING! Good job! Fascinating story, and just an example of why CAs are a bunch of low-life pukes, especially since they weren't your debts to begin with!

[IHateCAs]

Nice.

I thought your suit had merit to defeat a dismissal (demurrer). Going to trial with it would have been tricky. Good job though.

You probably should have gotten more in the settlement such as an agreement not to re-report, not to re-sell, not to attempt collections etc on the debts.

[IHateCAs]

Actually I think that was the right decision completely and not as tricky as I thought at first.

To take the defts side, that means anytime a consumer checks his CR or calls an OC to pay an old debt and get directed to a CA, by initiating the contact, all his 1692g rights are out the window.

That's just absurd.

[direred]

Congrats. I think you did great!

[bigjohnstud4200]

Nice.

I thought your suit had merit to defeat a dismissal (demurrer). Going to trial with it would have been tricky. Good job though.

You probably should have gotten more in the settlement such as an agreement not to re-report, not to re-sell, not to attempt collections etc on the debts.

Yes, my settlement did include not to re-report, re-sell, etc.. I used one of the forms from the Good Credit is Sexy CD. I definitely jumped the gun on filing suit on this CA.. but I've learned from my mistakes, I know where I was weak in my claim and will not repeat that again and most of all, I ULTIMITELY BEAT THEM!

[Optimus_SubPrime]

most of all, I ULTIMITELY BEAT THEM!

I love hearing stories like this. Congratulations for standing up to them. (What I don't understand is why they were willing to pay attorney fees to collect debts totaling a whopping $33.)

[bigjohnstud4200]

I love hearing stories like this. Congratulations for standing up to them. (What I don't understand is why they were willing to pay attorney fees to collect debts totaling a whopping $33.)

Actually, the $33 was only the amount I owed, allegedly. They also reported debts due by my father with a similar name, Joe Blow Sr. vs Joe Blow Jr., that totaled something like $3200. Still is a mute point since all of the debts were past SOL. When I filed my small claims suit I sent one last offer to settle by them simply removing the entries from my CR. This particular CA only works in AZ, why in the heck they decided to hire an attorney in another state 2300 miles away over debts that are all past SOL and nearing the end of the 7 year reporting period rather than just simply giving in is beyond me. They never even attempted to counter suit me. They spent their entire case trying to get me dismissed before my day in court???