What constitutes proper validation?

[msladyindebt]

I received a letter from Asset Acceptance LLC today and it says...

" Thank you for your request for further validatio of you DELL FINANCIAL SERVICES account. Enclosed please find an account statement prepared with the use of information provided to us by the prior creditor. Please contact me...yada yada"

Now all they have enclosed is the account number and the name of the original creditor along with my name and the principal amount owed, the interest/fees(lump sum) and the current balance, the date of last transaction and the last four digits of my SSN. All of this on their own letterhead/statement. NO original statement from the original creditor, or breakdown of the interest/fees or any kind of signed contract or proof otherwise that they are entitled to the money or that I owe the money.

Is this enough to be considered a good debt validation or should I ask for more?

[nascar]

That about covers it.

[cajunbulldog]

I wouldn't consider it proper validation because it is on their letterhead. I would ask for statements or some written proof from original creditor and a cost breakdown showing balance,interest,and any legal fees.

[nascar]

I wouldn't consider it proper validation because it is on their letterhead.

That doesn't matter.

[divemedic]

As long as they are collect what the OC said is owed, that is all they are responsible for.

[cajunbulldog]

As long as they are collect what the OC said is owed, that is all they are responsible for.

I am sure yall realize how absurd your position on this is.I can create the same statement being sent to the op with my office program.That statement in now way validates the debt from a legal standpoint.Everyone is entitled to their own opinion though.

[divemedic]

There is absolutely NO LEGAL OBLIGATION for a CA to send you copies of agreements, or anything else. It merely says they must obtain the verification from the OC.

If you can find a court case that has ruled that they need to send copies of contracts and statements from the OC, show it to me, I have not seen it. The closest is the RJM case, but that is borderline.

As long as they are attempting to collect what Dell says is owed, this is proper validation. If they are adding fees and interest to what the OC claims is due, THEN they must provide the contract or law that allows this additional fee. Otherwise, what they gave is good enough. Remember that this is Civil court, where the standard is "preponderance of evidence," not criminal court, where the standard is "beyond a reasonable doubt."

In order to prevail here, a plaintiff would need to show that the CA provided information that would be false or misleading to the least sophisticated consumer. The FDCPA is not all about "Aha, I gotcha!" There is a reason this statute is there, and learning to operate within that framework allows you to prevail. Go in there with nothing but wishful thinking, and you stand a chance to lose.

[cajunbulldog]

There is absolutely NO LEGAL OBLIGATION for a CA to send you copies of agreements, or anything else. It merely says they must obtain the verification from the OC.

If you can find a court case that has ruled that they need to send copies of contracts and statements from the OC, show it to me, I have not seen it. The closest is the RJM case, but that is borderline.

Dive I am not looking for the whole kit and kaboodle.I simply stated that a statement of what a person owes on a collector's own letterhead fails validation imho. If they would send op something from the oc showing it is their debt,then I would lean more towards validation of debt.

[divemedic]

You can ask for it, but understand that if they are taking this position, there is a good possibility that they will fight it in court. Be prepared for it. Court is a crapshoot, and this is shaky legal ground.

Remember that there is not a single appelate court that has defined what validation is, so there is a lot of latitude for judges there.

[nascar]

Remember that there is not a single appelate court that has defined what validation is, so there is a lot of latitude for judges there.

So true, yet there are many cases that have defined what validation isn't. From those, we know it isn't required for CA's to send more than what Dive has stated.

The FCDPA isn't designed to establish legal ownership, chain of title, status of license or any of those things. It is, as endless court opinions cite, designed primarily to curb abusive collection tactics and prevent collectors from dunning the wrong person.

There are plenty of other laws at your disposal out there which enable you to force answers to the other questions.

[qtptute]

You can ask for it, but understand that if they are taking this position, there is a good possibility that they will fight it in court. Be prepared for it. Court is a crapshoot, and this is shaky legal ground.

Remember that there is not a single appelate court that has defined what validation is, so there is a lot of latitude for judges there.

Chaudhry v Gallerizzo 174 F 3d 394 4th Cir 1999

Graziano v Harrison 950 F 2d 107 111 3d Cir 1991

Validation is nothing more than consulting with the OC and "parroting" what they say. If you specifically asked for more, Graziano says their response MUST be responsive to your request.

Clark v Capital Credit Collection Services LLC (9th circuit) follows both Chaudhry and Graziano.

[divemedic]

While it is true that the courts have defined what validation is NOT, Chaudhry is a poor case to cite. That case involved attorney work product, and is thus a poor case. Graziano is old. There are other, more recent cases.

GUERRERO v RJM ACQUISITIONS The only information disclosed in the letter was the date that the account was opened, the date that the last payment was posted, the name and social security number listed on the account, and the current balance. The letter did not indicate the amount or basis of the charges underlying the current balance, nor did it indicate the dates on which such charges were incurred.

Stonehart v. Rosenthal(S.D.N.Y. Aug. 13, 2001). The letter also failed to indicate whether interest was factored into the current balance, and, if so, at what rate and for what time period. Particularly in this case, where Defendant added interest at a rate different from the original, contractual rate for Plaintiff's account, the limited information provided in the June 14, 2002 letter was insufficient to verify the alleged debt.

Fields v Wilber (7th Cir 2004) debt collectors must still clearly and fairly communicate information about the amount of the debt to debtors. This includes how the total amount due was determined if the demand for payment includes add-on expenses like attorneys’ fees or collection costs.

The Fields case is an appeals case, but in that one there was no dispute of the initial charges, but a dispute did exist about add on charges.

[divemedic]

A good case can be made for prohibiting a CA from blindly parroting what the OC says.

Section 1692f(1) prohibits “[t]he collection of any amount (including any interest, fee, charge, or expense incidental to the principal obligation) unless such amount is expressly authorized by the agreement creating the debt or permitted by law.” There is no ambiguity here; the provision contains no knowledge or intent requirement.

A CA that is claiming a debt better make sure that the charges are authorized by law or the contract, or else they may be held to task for that violation. As the Seventh Circuit has explained, “[w]hether the collection of a debt violates 1692f(1) depends solely on two factors: (1) whether the debt agreement explicitly authorizes the charge; or (2) whether the charge is permitted by law. The provision is silent as to the debt collector’s intent, yet it is clear that a collector who collected a charge unauthorized by the debt agreement or by law, even by accident, would violate § 1692f(1).” Turner v. J.V.D.B. & Assocs., Inc., 330 F.3d 10 991, 996 (7th Cir. 2003); accord Johnson v. Statewide Collections, Inc., 778 P.2d 93, 101 (Wyo. 1989).

[qtptute]

A good case can be made for prohibiting a CA from blindly parroting what the OC says.

Section 1692f(1) prohibits “[t]he collection of any amount (including any interest, fee, charge, or expense incidental to the principal obligation) unless such amount is expressly authorized by the agreement creating the debt or permitted by law.” There is no ambiguity here; the provision contains no knowledge or intent requirement.

A CA that is claiming a debt better make sure that the charges are authorized by law or the contract, or else they may be held to task for that violation. As the Seventh Circuit has explained, “[w]hether the collection of a debt violates 1692f(1) depends solely on two factors: (1) whether the debt agreement explicitly authorizes the charge; or (2) whether the charge is permitted by law. The provision is silent as to the debt collector’s intent, yet it is clear that a collector who collected a charge unauthorized by the debt agreement or by law, even by accident, would violate § 1692f(1).” Turner v. J.V.D.B. & Assocs., Inc., 330 F.3d 10 991, 996 (7th Cir. 2003); accord Johnson v. Statewide Collections, Inc., 778 P.2d 93, 101 (Wyo. 1989).

Dive--

I am not saying that is wrong. In fact, that is inherently correct. It violates f1 if they collect an amount not due by contract or by law. You are changing the subject.

HOWEVER, if the OC says it is due, that is verification. Verification can violate f[1], e[2], e[10] and other provisions. However, that does NOT give rise to a g violation.

The g validation requirement is that they get information and spout it back, UNLESS YOU REQUEST SOMETHING SPECIFIC. (thats why you should demand specific things in your DV).

They still have to accurately state the legal status of the debt, not use false and misleading information, collect an amount not permitted, or do so in a harassing manner.

[Master Debator]

IMO it is not a proper validation, i am currently responding to the same exact letter from Asset Accept LLC myself

there might not be a specific law that says they must provide copies from the OC to validate, but the law does insinuate they must obtain proof from the OC, and any reasonable person should assume that means after the dispute (the FTC sees it this way)

when i DV them, i am actually asking for validation of thier records, so sending me a new peice of paper with info from their own records which is what i am disputing in the first place does not cut it, i expect proof of contact with the OC after my DV for proper DV i can't even imagine any reasonablecourt seeing differently

that is why in my Original DV it says this is an attempt to correct your records, and i am requesting an investigation, this shows that i believe their records to be incorrect, and if they are responding then they have in a sense agreed to investigate it, and should have to go to the OC to do so correctly

i was under the impression that this train of thought was well drawn out in the DV section of CIC with the FTC opinion letter and the case of Fields v. Wilber Law Firm, Donald L. Wilber and Kenneth Wilber, USCA-02-C-0072, 7th Circuit Court, Sept 2004

[nascar]

the case of Fields v. Wilber Law Firm, Donald L. Wilber and Kenneth Wilber, USCA-02-C-0072, 7th Circuit Court, Sept 2004

You have to consider one more thing - there's case law, then there's case law that is considered as controlling. Concerning proper DV, Fields isn't considered as controlling, Chaudhry, on the other hand, is.

If you're going to successfully argue to a court what proper DV is, and you don't like Chaudhry, you first have to get over the hurdle of why Chaudhry isn't proper DV, before you can argue that something else is better.

I don't think anyone really likes the Chaudhry definition, but until it is overruled by something else, that's what we have to work with. Our personal opinions as to what DV is really don't mean anything.

Chaudhry is equally good and bad for both creditor and debtor. Study it and the cases on both sides that relied upon it, and you'll have much better success in formulating an argument that will hold water in court than arbitrarily deciding that some other case is better and ignoring the controlling case because it mignt not be as favorable.

[IHateCAs]

You have to look beyond what the judge said and look at what the facts of the case(s) were.

In every verification case when the judge said "that's proper verification", there was a communication between the DC and the creditor in response to the dispute.

The true problem for the consumer, is that it's easy for the DC to "fake" contacting the creditor AND you'll never know if they actually did unless you sue.

Look at their wording "prepared with the use of information provided to us".

That looks like one of those sentences designed to make you think something other than what they are actually saying. I can't put my finger on exactly why, but it's just one those times when it looks like they are choosing their words carefully to make you think one thing when they did another.

In other words, it's probably "technically correct" that the information did come from the creditor at some time. Probably in the past. Probably many years in the past when it was communicated to the JDB from the JDB they bought it from, who in turn got it from a JDB who bought it from an OC.

You never really know what the collector did in response to your dispute. If their process after getting a dispute letter is merely "send response to dispute letter a-1", then it's a violation since no communication and comparing took place.

It's clear from court cases that the DC is not obligated to have the records to verify the debt. They use that one in support all the time. But it's a double edged sword. It means they cannot possibly ever verify until they contact those who DO have the records to verify the debt (any other interpretation would be absurd). Until that communication there can be no verification.

That means that, in response to a dispute, a DC must consider all information they have regarding that debt to be questionable. They can't rely on it until further notice.

[nascar]

Look at their wording "prepared with the use of information provided to us".

That looks like one of those sentences designed to make you think something other than what they are actually saying. I can't put my finger on exactly why, but it's just one those times when it looks like they are choosing their words carefully to make you think one thing when they did another.

Right on target as usual.

Problem is, it will probably work.

[Master Debator]

Problem is, it will probably work.

glass could be half full

I know SecretAgentWoman received this same letter from this same CA not too long ago and won when it went to court, it was also here in TX

then again i dont think she ever loses

[DucknCover]

This is a basic question I see all the time that has no clear answer. The mini maranda that states "...If you notify this office within thirty days that you dispute the validity of the debt, we will obtain verification of the debt or a copy of the judgment. If you request it within 30 days, we will provide you with the name and address of the original creditor (if different from the current creditor)."

As I read it, they can obtain verification of the debt from any source they choose... even their own records. I read all over the internet that the CA must obtain "verification" from the OC. It's parroted over and over. I have as of yet found nothing to substantiate this commonly held belief.

If anyone can enlighten me, please do. This is one circumstance where I would LOVE to be wrong.

[divemedic]

The FDCPA says (emphasis mine):

( If the consumer notifies the debt collector in writing within the thirty-day period described in subsection (a) that the debt, or any portion thereof, is disputed, or that the consumer requests the name and address of the original creditor, the debt collector shall cease collection of the debt, or any disputed portion thereof, until the debt collector obtains verification of the debt or any copy of a judgment, or the name and address of the original creditor, and a copy of such verification or judgment, or name and address of the original creditor, is mailed to the consumer by the debt collector.

[DucknCover]

I hear ya Dive. It just seems to me a poorly written section of the law. Just adding the source of the verification would have made things a bit more cut and dry. As it is everyone is free to add or ignore emphasis as the wish to suite their position. I've been playing footsies with a CA for over a year now and all they have sent as validation is the standard affadavit from their own offices. I've disputed it as hearsay but if they decide to take me to court a judge might just take it as fact.

[nascar]

This is not yet an officially reported case, so cite at your own peril, but I think (for the purposes of this board) it reinforces for us the general consensus of courts across the county and helps to clarify the misconception that a debt collector is required to provide anything more than verification of what the creditor is claiming is owed.

The verification requirement is intended to permit the consumer to dispute the debt, including the assertion of any specific facts or circumstances that the consumer considers relevant to such a dispute….At a minimum, the debt collector must contact the creditor and verify the nature, status, and balance of the debt and then convey that information to the consumer. … Unlike the Fair Credit Reporting Act (“FCRA”), which requires the creditor to “conduct an investigation” upon notification of the consumer's dispute of the debt, 15 U.S.C. §1681s-2((1), the FDCPA only requires that a debt collector “obtain verification of the debt.” … However, proper verification does not require the debt collector to provide evidence to the consumer that is sufficient to conclusively establish liability for the debt in a court action. Erickson v. Johnson, 2006 WL 453201 (D.Minn., 2006).

[IHateCAs]

See!

At a minimum, the debt collector must contact the creditor and verify the nature, status, and balance of the debt and then convey that information to the consumer

[kdcool]

I have a similar ongoing issue with a ca RJM, I sent the 1st debt validation ltr & also at the same time disputed with the cra.

I recieved a response 3days later on RJM green letterhead:

---------------------------

RE * John Doe

Original Creditor *XYZ BANK (overdrawn)

Original Creditor Account# * 1xxxxxxxxx

Appears on your credit reprot as * 1xxxxxxx

RJM File # 1xxxxxxxxxx

Acct Balance * 1xx.xx

SS#* 000-000-0000

Dear John Doe,

Rjm Acquaisitions LLC has recieved a Consumer Dispute Verification ("CDV") inquiry from CRA in which you questioned some aspect of our reporting of the above referenced account.

RJM is the owner of the above referenced account

RJM takes seriously its duty to verify and maintain accurate information concerning this account.

Accordingly, after thorough investigation, we have responded to CRA.

If you disagree with what we are reporting on this account, or if you dispute all of any portion of this account, or both kindly write to us and be sure to include the tear-off section below in the postage paid envelope provided.

----------------------------

So my question is are they responding to the Dispute letter sent from the CRA or My Debt Validation letter ???

I personally believe they are responding ONLY to the dispute request from the CRA.

I also checked my online dispute status with the CRA and the outcome says "Remains" . They are obviously have not even throurougly investigated this, and I don't want to wait til the 30 day expiration to enforce my rights under the FCRA.

At the same token, I just want this off my report , so Should I also walk into a local branch pay it off with the OC (by passing the CA) before the validation period is up???

Thanks for your replies..

ANY TAKERS or suggustions ???>