809 (a)(2) the name of the creditor to whom the debt is owed;

[Lecasbas]

Who is this creditor? The OC or the JDB?

In Definitions, the FDCPA says the JDB is a debt collector yet the JDB is "to whom the debt is owed".

[swirlgirl]

I believe the creditor is determined by who has ownership of the debt. If the OC sells the debt, then the JDB becomes the creditor.

[Lecasbas]

According to the FDCPA, the JDB could never be considered a creditor:

but such term does not include any person to the extent that

he receives an assignment or transfer of a debt in default solely for the purpose of facilitating collection of such debt for another.

[Lecasbas]

You know what? I'm confused.

(4) The term "creditor" means any person who offers or extends credit creating a debt or to whom a debt is owed

The FDCPA here says that the JDB would be the creditor.

(6) The term "debt collector" means any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts

Here the JDB would be a debt collector.

It seems that the JDB is both.

[nascar]

One of the leading cases on this question is Holmes v. Telecredit Service Corp., 736 F. Supp. 1289 (D. Del. 1990):

By use of the language "owed or due another" Congress was attempting to exclude those entities that extend credit from the effects of the Act. Congress intended to protect borrowers from "third persons who regularly collect debts for others." [The purchaser] is a third party collecting a debt originally owed to another. . . . It cannot escape the spirit of the Act by the technicality of purchasing the debt upon default so that title technically rests in itself.

In a later opinion citing Holmes,

Congress intended the FDCPA to protect borrowers from "third persons who regularly collect debts for others." S. Rep. No. 95-382, 95th Cong. 1st Sess., reprinted in 1977 U.S.C.C.A.N. 1695, 1697 (emphasis added). CrossCheck is a third party collecting a debt that was originally owed to Firestone. Although CrossCheck, like other check authorization services, "may facilitate the transactions of its subscribers, it is not in the business of extending credit." Holmes v. Telecredit Serv. Corp., 736 F. Supp. 1289, 1293 (D. Del. 1990). Holmes involved a check authorization service, Telecredit, that, like CrossCheck, used a computer database to advise its merchant subscribers on whether to accept or decline a consumer's check. 736 F. Supp. at 1290. Telecredit also entered into agreements with its subscribers to purchase checks authorized by Telecredit that later defaulted. Id. In a case challenging Telecredit's practices under FDCPA, the Holmes court concluded that Telecredit could not "escape the spirit of the [FDCPA] merely by the technicality of purchasing the debt upon default so that title technically rests in itself." 736 F. Supp. at 1293.Winterstein v. Crosscheck, Inc., 149 F. Supp. 2d 466 (N.D. Ill. 2001).

Finally, this Colorado opinion expresses more distinctly, im my opinion, the reasoning behind these other opinions:

The first part of § 1692a(4) defines the universe of creditors as either those who originate a debt or those to whom a debt is owed; in either case, the creditors are not collecting the debts for others. The second part of § 1692a(4), the assignee exception, then purports to exclude from this universe those persons who collect assigned or transferred debts that are already in default when assigned or transferred. To say that this exception applies only to those who collect debts for others would be to render the exception superfluous and meaningless; those who collect debts for others are not in the original definitional universe, and there is therefore no need to exclude them. Rather, the excluding factors in the exception are that the debts are the result of an assignment or transfer and that the debts were already in default at the time of assignment or transfer. With the phrase 'for another' at the end of the exception, Congress merely intended that the debts should have originally belonged to another and that the creditor was therefore in effect a third-party or independent creditor.Commercial Serv. of Perry, Inc. v. Fitzgerald, 856 P.2d 58 (Colo. App. 1993).

[Lecasbas]

Okay...so congress never intended for a JDB to be referred to as a "creditor".

So when the FDCPA instructs a debt collector to send a written notice to the consumer containing "the name of the creditor to whom the debt is owed", should the debt collector introduce itself as the "creditor" or should it give the OC's name?

[nascar]

So when the FDCPA instructs a debt collector to send a written notice to the consumer containing "the name of the creditor to whom the debt is owed", should the debt collector introduce itself as the "creditor" or should it give the OC's name?

The FDCPA, in 1692g(a), requires the 5 day notice to list the "creditor's" name. It is possible for a debt collector to collect on behalf of a creditor who is not the original creditor if the debt was assigned prior to delinquency.

In 1692g(, which states what the debt collector must provide upon a timely request for validation, the debt collector must provide the name 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 a 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."

[Lecasbas]

Okay, I think I understand.

A JDB who has bought a debt from any debt clearing house is "any person to the extent that he receives an assignment or transfer of a debt in default solely for the purpose of facilitating collection of such debt for another".

Even though that JDB is the owner of the debt, the JDB is collecting that debt for another via assignment.

So...I think the answer to my underlying question is that a JDB should list the OC as the "creditor to whom the debt is owed", not itself.

My reason for digging into this matter is because I noticed that most JDBs' list themselves as the creditor. Accoridng to the FDCPA then, the JDBs' who do this, are misrepresenting the debt.

[nascar]

Accoridng to the FDCPA then, the JDBs' who do this, are misrepresenting the debt.

I haven't quite looked at it from that perspective, but technically, it would seem so - if you interpret it in the same context as the rest of the Act. I wonder how a court would see that?

[henry1018]

After all that said, I would like to know what constitutes a "legal transfer of rights". I think it also proves the importance of questioning the JDB's chain of custody.

[puck]

Okay, I think I understand.

A JDB who has bought a debt from any debt clearing house is "any person to the extent that he receives an assignment or transfer of a debt in default solely for the purpose of facilitating collection of such debt for another".

Even though that JDB is the owner of the debt, the JDB is collecting that debt for another via assignment.

So...I think the answer to my underlying question is that a JDB should list the OC as the "creditor to whom the debt is owed", not itself.

My reason for digging into this matter is because I noticed that most JDBs' list themselves as the creditor. Accoridng to the FDCPA then, the JDBs' who do this, are misrepresenting the debt.

What is the purpose of DVing the third party? I thought the whole purpose of that was the third party or who bought the debt had to come up with paperwork from the OC. I might be over analyzing but I am confused.

www./consumeradvocate2008.blogspot.com

[Lecasbas]

What is the purpose of DVing the third party? I thought the whole purpose of that was the third party or who bought the debt had to come up with paperwork from the OC. I might be over analyzing but I am confused.

It seems like you asked and answered your own question. You would DV the third party for the paperwork from the OC.

My purpose of this thread was to ferret out who is the "creditor to whom the debt is owed" to which the FDCPA instructs the debt collector to send notice of within 5 days after initial communication.

Even though these instructions are in the validation section, it is something that is supposed to happen prior to validation.