chetccr Posted February 13, 2009 Report Share Posted February 13, 2009 I have a CA attorney's office that is moving forward with a summons & complaint on a credit card debt. In a conversation, I informed them that I had never received a letter from them so as I would be able to dispute the debt. I was told "Oh Well...Too Late". If i wanted to settle they were willing to lower the Total debt owed by only $300.00 ! My questions are:1. Doesn't the new CA have to prove they mailed such notice or tried to contact me by some other means?2. What is the best way I can fight this ? Link to comment Share on other sites More sharing options...
Recovering Attorney Posted February 13, 2009 Report Share Posted February 13, 2009 No, they don't. Most collection lawyers don't bother with a dunning letter, they simply sue, since initial pleadings are no longer considered initial communications. The violation is not that they sued you within 30 days of sending you a letter. The violation is that they sued you after receiving your timely response to a dunning letter but before they answered it. Link to comment Share on other sites More sharing options...
rockid9 Posted February 13, 2009 Report Share Posted February 13, 2009 This actually relates to something I am wondering too...In OP's case wouldn't he claim that the suit is overshadowing his right to dispute the debt?Did OP send a dv letter to the CA at some time or did the attorney have it all along? If he sent a letter, was it ignored as timely?Also, if they never sent him a letter, doesn't that violation mitigate timeliness issues since they denied him his rights? And, if the 30 day window starts on the date the mailing is received, then how do they prove that? Link to comment Share on other sites More sharing options...
Aerovette Posted February 14, 2009 Report Share Posted February 14, 2009 If they can provide proof that a letter was generated, it is IMPOSSIBLE to prove you didn't receive something. I wasted a great deal of time arguing with a CA about this. They claimed they sent me a collection letter and heard nothing from me. I know for a fact they did not, but you can't prove the negative. I asked them to resend everything and they refused, telling me they did it once, they are not sending it again. Link to comment Share on other sites More sharing options...
rockid9 Posted February 14, 2009 Report Share Posted February 14, 2009 The CA's are claiming to have sent the dunning letter and refusing to resend it in order to deny the debtor the right to a cease of collection activities until verification. They think if you 'blew your oportunity' to dispute that they can go on doing everything they are doing without sending validation, including verifying to the CRA's, calling, etc. If they can do this, the 1-2 punch doesn't work and the verifications to the CRA they do before sending validation do not count as continued collection activities (no FDCPA violation). I have been reminded about FDCPA 809© that says 'failure to dispute cannot be construed by any court as an admission of liability.' Even if they invented an initial dunning letter and then you didn't respond to their figment of imagination, a court cannot deem that as admitting you are liable. I am wondering how that applies to the 30 thing because of the language of the first part. What I mean is that the 30 day warning says that if you dont dispute in thirty days, the CA will assume the debt is valid. If they assume the debt is valid, the consumer would be liable to pay it by definition of validity, unless outside the SOL. If a consumer can't admit liability by failing to dispute, how can the debt be assumed valid?I would say that if a collection agency can get around the request for validation, then they are able to assume liability for the debt. In your case aerovette, I would tell the CA that in any case, your purported failure to dispute is not seen in the eyes of a court as an admission of liability, and by extrapolation, validity. Remind them that since you disputed the debt, they still have the burden of validating it. Further, by the Recker v. Central Collections case , providing valdiation is a prerequisite to collections activity, so let them know that since the debt is disputed they cannot continue collections activities until it has been verified. In the OP's case, follow Recov Atty's advice and forget about the dunning letter. You need an affirmative defense. If the debt is outside SOL, cite that. If not, find an affirmative defense. I think confusion would work. Don't hold me to that, though, I'm not an attorney. Once you have an applicable defense, you should still be able to alledge the debt is not validated and make, through discovery, the plaintiff prove the debt's validity and that the CA had a right to collect it through proper chain of title. You can also force CA to show how the debt figure was arrived at and see if there are unauthorized charges or fees per the original contract. If it were me, I would refer the matter to an attorney.PS, not to be nitpicking but 809(a) says upon 'initial communication WITH a consumer,' not 'initial communication TO a consumer,' so I would contend that until a debtor has responded, a CA has not had a communication WITH a debtor. They have sent a communication TO a consumer certainly, but WITH implies a junction of things or parties, in the same way that I wouldn't say a conversation has been had if only one person is talking. This is the reason reporting a tradeline is not an initial communication-- it is not a direct two way contact. It's still just one way. Link to comment Share on other sites More sharing options...
NurseRobert Posted February 14, 2009 Report Share Posted February 14, 2009 If they can provide proof that a letter was generated, it is IMPOSSIBLE to prove you didn't receive something. I wasted a great deal of time arguing with a CA about this. They claimed they sent me a collection letter and heard nothing from me. I know for a fact they did not, but you can't prove the negative. I asked them to resend everything and they refused, telling me they did it once, they are not sending it again.Are you in the middle of a suit with them? If so, did you demand it during discovery? Link to comment Share on other sites More sharing options...
Aerovette Posted February 17, 2009 Report Share Posted February 17, 2009 Are you in the middle of a suit with them? If so, did you demand it during discovery?I am not in a suit with them. It started with the basic "Please contact us in reference to case blah blah blah. We are trying to resolve this case prior to filing appropritae paperwork with authorities in your area." Every now and then, they catch me off guard and I answer the phone. The MAIN message I constantly repeat is " I am not refusing to pay, but require more information before making a decision on the validity of the claim" I'll bet I say that at least 15 times per phone call and all they say is "we already mailed you everything". Of COURSE they didn't. I will never pay them and they cannot collect, but they try, bless their little hearts. Link to comment Share on other sites More sharing options...
NurseRobert Posted February 21, 2009 Report Share Posted February 21, 2009 I am not in a suit with them. It started with the basic "Please contact us in reference to case blah blah blah. We are trying to resolve this case prior to filing appropritae paperwork with authorities in your area." Every now and then, they catch me off guard and I answer the phone. The MAIN message I constantly repeat is " I am not refusing to pay, but require more information before making a decision on the validity of the claim" I'll bet I say that at least 15 times per phone call and all they say is "we already mailed you everything". Of COURSE they didn't. I will never pay them and they cannot collect, but they try, bless their little hearts.If its at this point, I would send them a cease communication letter. Let them sue you, then demand, in discovery, all the information they have refused to supply. Link to comment Share on other sites More sharing options...
Recommended Posts