Is this violation of FDCPA?

[sampson2]

Collection agency hired an attorney to collect an old cc debt from me. I sent a dv to that attorney. 3 weeks later, the same collection agency hired a different attorney for the same old cc debt. I ignored their letter, waiting on validation from attorney #1. Now I have a judgement from attorney #2. Because my debt was not validated, and collection efforts continued, is this a violation? I know I sent the letter to the first attorney, but they were representing the collection agency. My credit report says the SOL has run out with original creditor. Is that useful in court?

[OMGWhatHaveIdone]

Collection agency hired an attorney to collect an old cc debt from me.

Did you ever receive an initial dunning letter from the CA? If so, was your DV sent within the first 30 days of you receiving such letter? Was it sent CMRRR?

I sent a dv to that attorney.

Did you send your DV CMRRR to prove when it was received by the attorney?

3 weeks later, the same collection agency hired a different attorney for the same old cc debt. I ignored their letter

When was their letter sent? Did you at least open it to see what it said? If there was any indication in the letter about the second attorney threatening to take action by filing a suit, then depending on exactly when the SOL was up, THAT would be proof that they took action that they were not allowed under the FDCPA to take. § 807. False or misleading representations [15 USC 1962e] A debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section: (5) The threat to take any action that cannot legally be taken or that is not intended to be taken.

Now I have a judgment from attorney #2.

I don't see how they could have obtained a judgment against you so quickly without ever even having served you with a summons, unless you were served but never responded. You could always appeal the judgment based on the grounds that you were never served a summons (if true) and it went SOL as of such and such date. Also, you could try to state in your appeal that you feel they ignored your Timely DV request (if it WAS in fact timely and you have proof) because they knew the SOL was about to expire and they wanted to obtain judgment quickly. You would have to contact the court that issued the judgment to find out exactly how the summons was supposedly served. I know that there's at least one state which prohibits serving a summons by USPS. Using that information, you *might* be able to argue that since the CA had a current address on you, they failed to make sure the summons was delivered to you in a timely manner so that you could have responded or been provided the opportunity to show up.

Because my debt was not validated, and collection efforts continued, is this a violation?

It *might* be a violation if, again, you can prove that you sent a request for DV to the attorney within 30 days of receiving an initial dunning letter and your DV was sent CMRRR. This will show when you sent a timely DV, when they signed for it and that they refused to comply and continued collection efforts. You could always state that the letter you received from the 1st attorney was the initial correspondence ever received by the CA. I'm not sure how that would wash in court though.

I know I sent the letter to the first attorney, but they were representing the collection agency. My credit report says the SOL has run out with original creditor. Is that useful in court?

Having a copy of the CR that shows when the DOFD was will be helpful in determining the actual SOL time. Take the last date you made a payment and add six months. Then add the number of years for SOL would be for your state. If the CA filed for judgment after the SOL, then you could always argue points I've already stated.

When were you notified about the judgment? What type of judgment was granted? Knowing this will go a long way in determining how you need to file your appeal with the court. You only have a certain number of days to file for an appeal after the judgment has been granted unless you can find some state law which would allow you to re-open your case based on certain grounds. You also may try to file a Motion to Vacate Judgment based on what I've stated above.

I'm *assuming* all of this has only recently taken place, as you did not provide dates to when this started. Going on my assumptions, I would have to say that it *seems* to me the only way I can see how the CA was awarded a judgment so quickly is if they filed a Motion for Summary Judgment (MSJ) Look that up in these threads too.

Also, read the sticky on Sample Motions, Forms, Affirmative Defenses. This may provide additional help.

[nascar]

The scenario you describe did not happen overnight. I would estimate that between the time you received the dunning letter from attorney #1, until the time you received the dunning letter from attorney #2, until attorney #2 obtained a judgment against you, several weeks if not months probably went by. You're in a tough spot now.

This is not the best time to start wondering if anyone has committed any violations. However, the answer to your question is yes, there probably have been violations committed. Will any of them affect that fact that a judgment was obtained against you; well, maybe, maybe not. If you could show that you were sued by a party with no real interest and that you just discovered this fact, you might have a shot at getting the judgment vacated.

Your recourse at this point, assuming that all this happened less than a year ago is to file suit against the attorney/debt collectors for FDCPA violations for among other things, continued collection activity after validation request (maybe) and filing suit on a time-barred account (maybe). There are other violations as well, but it doesn't really matter; you're only entitled to 1k per action anyway, regardless of the violations (excluding any other damages you might be entitled to).

Again, none of this directly affects the judgment already obtained against you. It's been said before, but is worth repeating; FDCPA violations are not defenses to lawsuits. They are grounds for counterclaim or for the maintenance of a separate suit, but not as a defense to lawsuit for money owed. Your best alternative at this point is to discuss your situation with an attorney who regularly handles FDCPA claims.

[nascar]

Having a copy of the CR that shows when the DOFD was will be helpful in determining the actual SOL time. Take the last date you made a payment and add six months. Then add the number of years for SOL would be for your state.

That is not correct. You're mixing the reporting time for credit reports with the SOL for filing lawsuits. The SOL for filing lawsuits begins to run from the time a cause of action accrues. Generally, this is the date your account becomes past due but technically, it happens upon any act that constitutes a "default" in accordance with the terms and conditions of your agreement.

The six-month waiting period you refer to pertains to the 7-1/2 year reporting period for negative information on credit reports. It does not translate over to calculating time for the filing of civil actions.

[OMGWhatHaveIdone]

That is not correct. You're mixing the reporting time for credit reports with the SOL for filing lawsuits. The SOL for filing lawsuits begins to run from the time a cause of action accrues. Generally, this is the date your account becomes past due but technically, it happens upon any act that constitutes a "default" in accordance with the terms and conditions of your agreement.

The six-month waiting period you refer to pertains to the 7-1/2 year reporting period for negative information on credit reports. It does not translate over to calculating time for the filing of civil actions.

Okay, I pulled that information directly from CIC's site on SOL. See here:

http://www.creditinfocenter.com/rebuild/statuteLimitations.shtml#2

If I'm wrong, then so is the article I went by.

[nascar]

Okay, I pulled that information directly from CIC's site on SOL. See here:

http://www.creditinfocenter.com/rebuild/statuteLimitations.shtml#2

If I'm wrong, then so is the article I went by.

Kristi, can you please fix this.

[sampson2]

I'm sorry, I guess I left out some information...dunning letter from attorney#1 was dated on 4-19. My dispute to them CMRRR was sent out on 5-13. Signed by someone in their office on 5-19. Dunning letter from attorney #2 came on 6-17. Like I said, I ignored it cause I already sent dv to attorney #1. I think this is a summons, not a judgement. I have to admit or deny their claim in twenty days. Also, their date is 4-04 which is when accout was closed. Date of last payment on credit reports is 8-03. I have no copies or knowledge of ever receiving any letter from the collection agency itself.

[nascar]

Dunning letter from attorney #2 came on 6-17. Like I said, I ignored it cause I already sent dv to attorney #1. I think this is a summons, not a judgement. I have to admit or deny their claim in twenty days.

This is not by chance a dunning letter designed to look like a legal document, is it? If it is/was a summons and you had twenty days from 6-17, what did you do? Did you respond at all?

Have you checked with the court to see if you have been sued? Is it possible you are misinterpreting something?

[Recovering Attorney]

Let me take a guess: Letter 1 was from Fred hanna and Letter 2 ( or teh summons) was from a lawyer in your state?

You have 2 avenues: First, you can sue the creditor and the lawyers for continuing collection without validating. And if you can show the item was clearly outside the SOL and the culprits knew it, you can add a cause of action for suing on a time barred debt. That would be in fed court.

Second, go to your courthouse and pull thefile. Get a copy of everything. And move to vacate the judgment. You prbably will find the service affidavit is funky, and suing on the time barred debt would be a meritorious defense the court could rely on to vacate it for you. Forget the DV issue when trying to vacate.

Sounds like you could use some help. See a NACA member

[sampson2]

The document in question is indeed a summons. It was hand delivered to my door on 1-31-09. It states I have 20 days to enter my plea. I checked with the District Court and the case has been filed.

What would you suggest as my next move? Thank you for your time and advice.

[sampson2]

This is not by chance a dunning letter designed to look like a legal document, is it? If it is/was a summons and you had twenty days from 6-17, what did you do? Did you respond at all?

Have you checked with the court to see if you have been sued? Is it possible you are misinterpreting something?

The document in question is indeed a summons. It was hand delivered to my door on 1-31-09. It states I have 20 days to enter my plea. I checked with the District Court and the case has been filed.

What would you suggest as my next move? Thank you for your time and advice.

[Lecasbas]

I've been researching the op's situation - one collection agency hiring attorney after attorny to collect the debt, where each attorney, when dv'ed, goes away and the next attorney comes in.

I thought that this would be a violation by each attorney since they had stated in their dunning letters that they would send validation upon request from the consumer if the request was within the 30 day time period.

I found a case which suggests this may not be so:

The court also noted that the statute does not require debt collectors to actually provide validation. Rather, it requires that the debt collector cease all collection activity until it provides the requested validation to the debtor.

The entire case can be found here:

http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=7th&navby=case&no=963173

There are difference...the OC, Discover, had hired ca's to collect the debt and Discover made a mistake which seemingly was not thought to be a mistake of the CA's.

I agree that the op should put the dv process on the back burner for the moment, but I thought I would insert this info in case the op wished to incorporate these possible violations into the op's affirmative defenses. They may not be violations...or they may be.

[Alpha314]

Something seems amiss. The summons was hand delivered to your door on 1-31-09. WAs it delivered personally to you?

Does your State allow door step summons delivery?

It sounds like you were just recently served so you have less then 20 days to reply.

[sampson2]

Something seems amiss. The summons was hand delivered to your door on 1-31-09. WAs it delivered personally to you?

Does your State allow door step summons delivery?

It sounds like you were just recently served so you have less then 20 days to reply.

Yes, the summons was hand delivered to me. Iowa does have a process server law and this is a legal process under Iowa law.

I will be going to the courthouse today to get copies of the evidence the CA has submitted.

[sampson2]

I've been researching the op's situation - one collection agency hiring attorney after attorny to collect the debt, where each attorney, when dv'ed, goes away and the next attorney comes in.

I thought that this would be a violation by each attorney since they had stated in their dunning letters that they would send validation upon request from the consumer if the request was within the 30 day time period.

I found a case which suggests this may not be so:

The entire case can be found here:

http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=7th&navby=case&no=963173

There are difference...the OC, Discover, had hired ca's to collect the debt and Discover made a mistake which seemingly was not thought to be a mistake of the CA's.

I agree that the op should put the dv process on the back burner for the moment, but I thought I would insert this info in case the op wished to incorporate these possible violations into the op's affirmative defenses. They may not be violations...or they may be.

As to the information you supplied governing the debt collector's need to prove validation of the debt BEFORE continuing collection efforts; the debt collector failed to provide validation and is continuing with collection efforts by issuing a summons to me and filing at the courthouse. This is definitely a violation of the FDCPA since they have not validated the debt as I have requested.

[Lecasbas]

The attorneys probably made several mistakes.

According to the case cited the first attorney did not, however, violate the FDCPA by not returning your request for dv because it ceased its collection activities and apparently returned the debt back to the CA.

Then, the 2nd attorney didn't receive a dv letter so it is not guilty of failing to return an answer for dv.

The one to level violations of the FDCPA against for not providing dv would be the CA itself. The 1st attorney should have passed your letter onto the CA and the CA should be guilty via "vicarious liability".

I am trying to point out that not everybody is guilty of the same thing as nascar seemed to have previously suggested.

Original post by nascar:

Your recourse at this point, assuming that all this happened less than a year ago is to file suit against the attorney/debt collectors for FDCPA violations for among other things, continued collection activity after validation request

You can file a counterclaim against the ca but not either of the attorneys for the dv thing.

But then, you can do anything you want...it's your trial and you are the one who will suffer or gain from what ever you put forward.

Read the case again and see if you get anything more out of it than you did the first time. It seems that when I do, I always walk away with a little more of an understanding that I missed the first time.

[sampson2]

Ah... I see very clearly what you are saying, only the CA is guilty via vicarious liability. I would think Attorney#1 would be guilty of not providing the DV letter I sent them to the CA?? Of course, attorney #1 would give a reason to CA for not continuing collection efforts on their behalf?

This is all so confusing, so many rules within rules....

I went to courthouse and received a copy of the "evidence" submitted by Attorney#2.

1. Statement of Account from the CA showing Original Creditor, Original Account Number, Last Payment Date- Supposedly from original creditor's records, on plain paper from CA, not from Credit Card Company. Accrued Interest and Principal Amount due at time account was charged off and sold to the CA.

2. Copy of Notice to Cure from Attorney #2.

3. General CC Terms and Conditions.

4. Return of Service document for hand delivered summons notice.

There is no copy of credit card agreement with my name, no document showing date of default with CC Company and no agreement or contract with CA showing I owe them said money.

I pulled my Credit Reports from all 3 Bureaus, they all show last date of payment on 9-2003, which would mean the debt is past the SOL.

Could I submit this as evidence that the debt is past SOL since CA has no proof otherwise?

Thanks again for your responses.

3.Standard Credit Card Terms and Conditions

[Lecasbas]

I would think Attorney#1 would be guilty of not providing the DV letter I sent them to the CA?? Of course, attorney #1 would give a reason to CA for not continuing collection efforts on their behalf?

Ideally, yes. It all comes down to what you can find to support your claim.

For example, how do you prove that 1st attorney received the dv letter? You have a signature from someone at the attorney's office but this doesn't prove what was in the envelope.

If that was the only letter that you ever sent to the attorney's office then they would either have to admit to the dv or come up with another letter (which you did not send).

Then you have to prove that the ca received that dv letter from the 1st attorney. Here, you have one of the rascals by the neck because you can pretty much prove that the dv was delivered to the 1st attorney.

At this point the 1st attorney is guilty of not passing the dv to the ca - if it did not, or the ca is guilty of continuing collection activities on the alleged debt because it received the dv from the 1st attorney and did not heed the stay order of the FDCPA.

But this is something that can be used for your Counterclaims and can be put on the back burner for now. You should concentrate on your Answer and Affirmative Defenses first.

There is no copy of credit card agreement with my name, no document showing date of default with CC Company and no agreement or contract with CA showing I owe them said money.

If you will be denying the debt, then the ca will have to come up with this. If the ca ends up providing a pamphlet style agreement, it will need an affidavit from the oc which states that that agreement was in effect at the time of first delinquency of the account.

3. General CC Terms and Conditions.

Is this the pamphlet style agreement I referred to? Still no good without the affidavit.

I pulled my Credit Reports from all 3 Bureaus, they all show last date of payment on 9-2003, which would mean the debt is past the SOL.

Could I submit this as evidence that the debt is past SOL since CA has no proof otherwise

I hesitate to say yes because everything rides on the accuracy of these dates. If, for example, someone somewhere made a mistake and the dofd (date of first delinquency) should be 2004 then you have just admitted to the debt and the debt is within sol.

If you know that the dates are accurate, then the ca would have a hard time proving otherwise.

Did the 2nd attorney get a copy of your cr? If so, you might try writing a letter, cmrrr, telling the 2nd attorney about the sol issue which you will bring up at the trial. It will also make the attorney look bad because you attempted to settle a matter out of court and the attorney was just plain being silly by not seeing the error of its ways.

I think I would formulate my Answer, Affirmative Defenses, and Counterclaims and send them with the letter about sol.

You might be pleasantly surprised at how things might change for the better.

[sampson2]

Ideally, yes. It all comes down to what you can find to support your claim.

For example, how do you prove that 1st attorney received the dv letter? You have a signature from someone at the attorney's office but this doesn't prove what was in the envelope.

If that was the only letter that you ever sent to the attorney's office then they would either have to admit to the dv or come up with another letter (which you did not send).

Then you have to prove that the ca received that dv letter from the 1st attorney. Here, you have one of the rascals by the neck because you can pretty much prove that the dv was delivered to the 1st attorney.

At this point the 1st attorney is guilty of not passing the dv to the ca - if it did not, or the ca is guilty of continuing collection activities on the alleged debt because it received the dv from the 1st attorney and did not heed the stay order of the FDCPA.

But this is something that can be used for your Counterclaims and can be put on the back burner for now. You should concentrate on your Answer and Affirmative Defenses first.

If you will be denying the debt, then the ca will have to come up with this. If the ca ends up providing a pamphlet style agreement, it will need an affidavit from the oc which states that that agreement was in effect at the time of first delinquency of the account.

Is this the pamphlet style agreement I referred to? Still no good without the affidavit.

I hesitate to say yes because everything rides on the accuracy of these dates. If, for example, someone somewhere made a mistake and the dofd (date of first delinquency) should be 2004 then you have just admitted to the debt and the debt is within sol.

If you know that the dates are accurate, then the ca would have a hard time proving otherwise.

Did the 2nd attorney get a copy of your cr? If so, you might try writing a letter, cmrrr, telling the 2nd attorney about the sol issue which you will bring up at the trial. It will also make the attorney look bad because you attempted to settle a matter out of court and the attorney was just plain being silly by not seeing the error of its ways.

I think I would formulate my Answer, Affirmative Defenses, and Counterclaims and send them with the letter about sol.

You might be pleasantly surprised at how things might change for the better.

Thank you for all of the great advice, I will be formulating my Answer and everything else over the weekend and mail off on Monday;CMRRR of course.

[Lecasbas]

This sticky is at the top of the page for future reference. There is a conglomerate of defenses and counterclaims, among other things, available to choose from:

http://www.debt-consolidation-credit-repair-service.com/forums/showthread.php?t=252142

I don't know if you have dealt with a summons before...

Your Answer is basically a refutation of the claims against you in the summons. Read each numbered accusation, analyse what it is saying, decide whether it is true or not, and give your rebuttal.

Some things probably will be true, such as your residence. You can easily admit to this since it probably is correct. This just establishes that the court has jurisdiction to hear the case (for this particular point).

Most of the other points you will not agree with. Figure out exactly why they are wrong and simply say "deny".

Unless the plaintiff states specifically that the debt is within sol in its claim, and it probably does not, you should wait until you get to your Affirmative Defenses to deal with this issue.

The Answer part is relatively easy...either the points are true or they are not. No explanation necessary. Deny or admit.

The Affirmative Defenses come next. Your sol defense should be the first one since, if proven, will end the court action immediately. If the court knows that it does not have jurisdiction it should dismiss the case with prejudice since it is not within sol and therefore not actionable in any court forever.

We had a recent debate about the defendant entering the sol defense without having its own proof:

http://www.debt-consolidation-credit-repair-service.com/forums/showthread.php?t=292817&page=2

But wait...you'd like some money, wouldn't you? Well, then, bring forth your Counterclaims. This is where you list the violations of the FDCPA by the ca et alia. The more you can find, the more of the $1000 you can get. There may be some issues with the FCRA also but this is a hard act to follow...no pun intended.

Several of us have been debating this act and I think what nascar has said in the past pretty much goes..."Stay away from the FCRA".

Once your Answer, Affirmative Defenses, and Counterclaims are done, put then in a envelope. You don't really need to cmrrr this one since you will be sending a copy to the clerk of court along with a copy to all interested parties. To be timely, only the clerk of court must receive a copy in the allotted 20 days, not the plaintiff.

The follow-up letter about the sol to the 2nd attorney should be cmrrr, however.

Well, so much for that snowman building event you were going to have with the family and friends this weekend.