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Is a Summons prior to the 30 days = overshadowing?


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So I received my first contact letter (dunning?) on Dec. 24 from a ca law firm(Howard Lee Schiff) based in Connecticut. It also referenced an instate lawyer/office collecting for Discover.

The letter states:

Discover as the bank

my name as debtor

Balance due

This is to notify you that discover Bank has retained this firm to collect its claim against you for the balance owing on your Discover card account. We suggest that you send us a check or money order for the balance due, payable to "law offices of Howard Lee Schiff, P.C". unless you intend to exercise your rights as stated in the Validation Notice below. All questions and payments should be directed to this firm. Our telephone # is xxx. Please reference xxxx in any correspondence with our office. You may also make payments by phone xxx or web site xxxx.

Then the Validation Notice...

Then the Vt lawyers name

Law Offices Howard Lee Schiff, P.C.

So I immediately DV the Schiff office in Conn. using the return address on the envelope sent certified as well as disputes to CRAs. They received it on 1/9/09. I did not notice that an address for the local lawyer/office was printed in small type on the letter too. I then get a served a Summons on Jan 23, 09 which includes a copy of a Discover statement from Jan 31, 07 (probably around the charge off date) which mostly just shows the balance among other basic limits and such with my name and address.

First question is: since the summons came within 30 days of receiving the original dunning letter and within 30 days of my validation request. Can this be considered "overshadowing" and be a violation.

Second: could the fact that they "suggest that you send us a check or money order for the balance due, payable to "Law Offices..."" Be considered overshadowing as well?

Third: I am assuming that the copy of the Discover statement sent through the summons is not enough for validation... or is it.

So I send out the second Validation request/notice to both offices (and to the court) and an answer to the summons. The letter saying they are now beyond the 30 days in they are in violation of FDCPA for continuing to collect and report and I am planing on suing if I do not hear back... Everyone received these on 2/10/09. In my answer I also include a motion to dismiss for lack of validation/evidence.

I later filed a counter claim for violation of FDCPA. (I can post any of these docs if anyone requests it)

Today I received a notice from the court saying that my motion to dismiss was denied and stating: "Alleged claims/rights under FDCPA, if any, may give use to counterclaim and/or affirmative defense;but complaint does state a cause of action for non-payment of debt.

OK, what are your thoughts? Any will be greatly appreciated. And thank you everyone for all the info on this site. It helps a lot in reliving some pressure.

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since the summons came within 30 days of receiving the original dunning letter and within 30 days of my validation request. Can this be considered "overshadowing" and be a violation.

They are allowed to serve you with suit papers within that 30 days.

could the fact that they "suggest that you send us a check or money order for the balance due, payable to "Law Offices..."" Be considered overshadowing as well?

They are allowed to contact you ONCE after you DV them. They did....with suit papers or an offer to pay.

am assuming that the copy of the Discover statement sent through the summons is not enough for validation... or is it.

I would consider it to be enough validation. If anything, it proves they have some paperwork on you.

The letter saying they are now beyond the 30 days in they are in violation of FDCPA for continuing to collect and report and I am planing on suing if I do not hear back... Everyone received these on 2/10/09. In my answer I also include a motion to dismiss for lack of validation/evidence.

They can sue you anytime they want...they don't have to do it within the 30 days of you sending them a DV. I have heard of some people getting sued 2 weeks after sending a DV and have heard of them getting sued a couple of years after a DV. A DV doesn't protect you from getting sued. Your discover charge-off is pretty recent.

I then get a served a Summons on Jan 23, 09 which includes a copy of a Discover statement from Jan 31, 07 (probably around the charge off date) which mostly just shows the balance among other basic limits and such with my name and address.

You sent them a DV asking them to validate the Discover account (which by your post look like Discover still owns the debt) and they sent you suit papers along with the validation you requested.

I'm just not seeing where Discover is doing anything wrong...or the law firm. It's totally within the law from what I see.

If you want my 2 cents.....I think you should be prepared to pay this debt...You might call Discover and work something out...but at this point with the lawsuit already being filed....they would be crazy to cancel the lawsuit.....they pretty much have a good case for a judgement against you.

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I have learned that the local Attorney working for Discover is a decent person and that it may be easier to make a case for settlement with her as she is local and may be easier to communicate with. However it seems that most threads recommend going direct to the OC. Thoughts on that? Thanks Again.

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This law firm is doing nothing more than calling your bluff. If they filed suit AFTER receipt of your validation request, yes, that is a violation. If it was done before your request, then no. However, the fact that it is a violation doesn't mean anything unless you do something with it.

It will not stop them from obtaining a judgment against you. You must still defend against the lawsuit. That being said, it does give you a cause of action to file a counterclaim. IMO, if your timeline is as you have indicated, it would be to your advantage to strongly consider doing so. If nothing else, you might gain some leverage to negotiate a dismissal and release.

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nascar....now I'm confused. So a company cannot file suit against you after you DV them???? I'm not sure how that is a violation.....They are allowed to contact you once after you DV them.

The majority of opinions which have dealt with this subject agree that a filing a lawsuit against a consumer who has requested a timely validation defeats the purpose of the FDCPA. The reasoning behind that is, since the FDCPA is designed to prevent, among other things, attempts to collect from the wrong person, allowing a lawsuit to be filed as a response to a timely DV runs counter to the spirit of the Act.

Your statement that they are allowed to contact you once after you DV them is not quite correct. I think you're referring to the final response allowed after the consumer sends a cease communication letter. In response to a timely DV, the debt collector is obligated to cease collection efforts until they provide the requested validation, which, by the way, cannot come in the form of a summons.

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The majority of opinions which have dealt with this subject agree that a filing a lawsuit against a consumer who has requested a timely validation defeats the purpose of the FDCPA. The reasoning behind that is, since the FDCPA is designed to prevent, among other things, attempts to collect from the wrong person, allowing a lawsuit to be filed as a response to a timely DV runs counter to the spirit of the Act.

Your statement that they are allowed to contact you once after you DV them is not quite correct. I think you're referring to the final response allowed after the consumer sends a cease communication letter. In response to a timely DV, the debt collector is obligated to cease collection efforts until they provide the requested validation, which, by the way, cannot come in the form of a summons.

I have seen opinions that as long as they deliver validation prior to them filing suit, they can sue in the 30 day DV window.

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So I immediately DV the Schiff office in Conn. using the return address on the envelope sent certified as well as disputes to CRAs. They received it on 1/9/09. I did not notice that an address for the local lawyer/office was printed in small type on the letter too. I then get a served a Summons on Jan 23, 09 which includes a copy of a Discover statement from Jan 31, 07 (probably around the charge off date) which mostly just shows the balance among other basic limits and such with my name and address.

The courts have already ruled on this point. In Recker v. Central Collections (1:04-cv-02037-WTL-DFH), the court ruled that you can file the suit, but must provide the validation FIRST, not at the same time. By filing suit and sending the validation with the summons, Schiff violated 1692c©(3) by continuing to attempt to collect the debt prior to providing validation.

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I have seen opinions that as long as they deliver validation prior to them filing suit, they can sue in the 30 day DV window.

Yes, sure. Once they have provided validation, the debt collector's duty under the FDCPA is discharged. The 30 day time frame is not a grace period.

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The majority of opinions which have dealt with this subject agree that a filing a lawsuit against a consumer who has requested a timely validation defeats the purpose of the FDCPA. The reasoning behind that is, since the FDCPA is designed to prevent, among other things, attempts to collect from the wrong person, allowing a lawsuit to be filed as a response to a timely DV runs counter to the spirit of the Act.

Your statement that they are allowed to contact you once after you DV them is not quite correct. I think you're referring to the final response allowed after the consumer sends a cease communication letter. In response to a timely DV, the debt collector is obligated to cease collection efforts until they provide the requested validation, which, by the way, cannot come in the form of a summons.

Thanks, well I guess you learn something new everyday. I have DV'ed CA's before and recieved letters back basically saying "we won't collect from you again" or "this matter is now being turned back over to ????"

I wonder how much Jkap's discover bill is for?

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I was reading some caselaw recently that stated that a CA suing within the 30-day DV period can also overshadow if the CA does not carefully state that them suing does not overshadow your validation rights.....can't remember what circuit this was in. Will try to find it.

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Do you agree that attorneys who operate as debt collectors are subject to the FDCPA?

Attorneys acting as debt collectors can be subject to the FDCPA. I am assuming that the OP's counter claim under the FDCPA is against the OC and not the attorneys. Only on rare occassions can the OC be sued under the FDCPA.

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Attorneys acting as debt collectors can be subject to the FDCPA. I am assuming that the OP's counter claim under the FDCPA is against the OC and not the attorneys. Only on rare occassions can the OC be sued under the FDCPA.

Could any of those occasions include instances of vicarious liability?

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Yes! Thank you nascar and NurseRobert! I was hoping you guys would join the thread. It was clear to me that the attorney was acting as a CA, but I was not aware that they could not use the summons as the validation. Great! Somewhere to start.

So I have them on a 1692c©(3) violation. Now is there anything else I can tack on? Discover is still reporting to the CBs, so I assume I can not include that as collection activity prior to validation violation, correct?

Nascar could you explain the "vicarious liability"? Do you feel that applies?

Dolmite73 - if you find the info on the 30 day overshadow issue, I would like to add that too.

The claim is for ~$17k.

Would you all review my summons answer and counter claim I filed? I am concerned I may have mixed some language or exposed myself. Also any recommendations on amendments I should make to add the 1692c violation would be helpful.

ANSWER OF THE PLAINTIFF

Defendant, appearing pro se, for its reply to the Complaint DISCOVER BANK C/O DFS SERVICES LLS Plaintiff as follows: All answers correspond to the numbered paragraphs of the Complaint(s). All allegations of the Complaint(s) are denied unless expressly admitted herein.

ANSWERS TO CLAIM 1

As to the incorporated reference of paragraph 1 of count 1 Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment.

ANSWERS TO CLAIM 2

Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment

DEFENSES

1. Discover Bank c/o dfs Services LLC through its attorney, xxxxxxx, Esquire of Law Office Of Howard Lee Schiff, P.C. has not proven that they are authorized and licensed to collect claims for others in the State of Missouri, or solicit the right to collect or receive payment of a claim of another.

2. xxxxxxx, Esquire of Law Office Of Howard Lee Schiff, P.C.has not proven that they were retained by Discover Bank c/o dfs Services LLC as it’s representative in this matter.

3 xxxxxxxx, Esquire of Law Office of Howard Lee Schiff, P.C has not proven that Discover Bank c/o dfs Services LLC is the real party in interest. Defense demands proof of ownership specifically that the alleged account is still the legal property of Discover Bank c/o dfs Services LLC with all of the original creditor’s rights and privileges intact.

4. Plaintiff's Complaint violates the Statute of Frauds as the purported contract or agreement falls within a class of contracts or agreements required to be in writing. The purported contract or agreement alleged in the Complaint is not in writing and signed by the Defendant or by some other person authorized by the Defendant and who was to answer for the alleged debt, default or miscarriage of another person.

5. Plaintiff failed to state a claim upon which relief can be granted. Plaintiff's Complaint and each cause of action therein fail to state facts sufficient to constitute a cause of action against the Defendant for which relief can be granted.

6. xxxxxxx, Esquire of Law Office of Howard Lee Schiff, P.C has provided no sworn statement testifying to the accuracy or validity of their recollection of the alleged account.

7. Defendant reserves the right to plead other affirmative defenses that may become applicable and/or available at a later time, (for example, if a real party in interest is established for alleged account).

8. Defendant claims Lack of Privity as Defendant has never entered into any contractual or debtor/creditor arrangements with the Plaintiff.

9. Defendant reserves the right to submit counterclaims that may become applicable and/or available at a later time, (for example, if a real party in interest is established for alleged account) including, but not limited to, violations of the Federal Truth in Lending Act, the Fair Debt Collection Practices Act, and the Fair Credit Reporting Act.

Defendant prays this case be dismissed with prejudice along with any further relief the court deems just and proper. Further the defendant sayeth not.

By the Defendant acting pro se.

Oh Crap! I just re read this and realized that in the Defenses line 1 I referred to the state of Missouri instead of VT! Maybe not too much of an issue as that issue is not one I feel is being violated.

Continued on next post...

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Counter Claim

Defendant, appearing pro se, for its reply to the Complaint DISCOVER BANK C/O DFS SERVICES LLS Plaintiff as follows: Issue a Counter Claim against the Plaintiff specifically xxxxxxx, Esquire. Law offices of Howard Lee Schiff, P.C. and states the following against the Plaintiff:

1. Plaintiff who is acting by and through its Attorney with its offices located at xxxxxxxx, VT

2. As of 12/24/08 xxxxxxxxx, Esquire. of Law offices of Howard Lee Schiff, P.C acting as a debt collector as determined by the FDCPA contacted the Defendant by mail regarding the alleged debt .

3. January 9, 2009, Defendant sent Howard Lee Schiff P.C., by way of certified mail, request for validation of alleged debt, including a questionnaire about said debt and a request for documentation. .

4. On January, 23, 2009 Defendant was served with Summons concerning alleged debt.

5. Similar letters and request for validation were sent to Law offices of Howard Lee Schiff by way of certified mail on February 9, 2009 and February 23, 2009. Notices of same delivered to agent xxxxxx, Esquire.

6. Up until the date of this filing, no attempt at validation was received from Howard Lee Schiff P.C , yet through their agent, xxxxxxx, Esquire., continued to collect on alleged debt.

FIRST CAUSE OF ACTION

Statement of Claim

1. In the entire course of its action, Plaintiff willfully and/or negligently violated provisions of the Fair Debt Collection Practices Act (hereafter “FDCPA”) in the following respects:

(a) by failing to cease collection of an alleged debt after the Defendant notified Plaintiff in writing that the alleged debt was disputed, therefore violating 15 USC 1692g(b

NOW THEREFORE, DEFENDANT PRAYS FOR THE FOLLOWING RELIEF:

PRAYER FOR RELIEF:

A. For Defendant’s First Cause of Action

1) Punitive damages as specified in 23 O.S. Supp. 1995 §9.1 in the amount of $5,000 or as so deemed by judge or jury ;

2) Statutory damages as specified in 15 USC 1692k in the amount of $1,000;

3) That any and all contracts having balances owed to the Plaintiff by the Defendant be declared null and void.

Dated: December 2, 2004

What do see see as my next steps? Should I contact the attorney with my facts and evidence against them to try to negotiate prior to going to court?

Should I file for Discovery?

Thank you, Thank you! I contacted a few local attorneys to get some opinions. They were very discouraging, somewhat understandably, because it is hard for them to get paid defending people with little or no supporting docs. So they want ~$2,000 up front. I am hoping that if I can lay out all the facts, docs, and site case law, I can get one to take the case as they will be paid by the plaintiff. And so we can add the attorney fees as an incentive for them to dismiss with prejudice.

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This law firm is doing nothing more than calling your bluff. If they filed suit AFTER receipt of your validation request, yes, that is a violation. If it was done before your request, then no. However, the fact that it is a violation doesn't mean anything unless you do something with it.

It will not stop them from obtaining a judgment against you. You must still defend against the lawsuit. That being said, it does give you a cause of action to file a counterclaim. IMO, if your timeline is as you have indicated, it would be to your advantage to strongly consider doing so. If nothing else, you might gain some leverage to negotiate a dismissal and release.

A serious question now.......

The claim is for ~$17k.

Nascar, do you still think Discover is bluffing? Do you think that if OP files a counterclaim against them for a $1000 or 2 or the lawyers sending a summons before validating..is going to make them throw this out or negotiate a dismissal or release? Do you still think there is a chance the judge is going to throw this case out b/c the attorney didn't validate?

See, I think maybe if the claim was for 1 or 2 thousand...then maybe....but he is looking at $17k. That's a lot of money. I can't see any court throwing something out due to one small violation.....and it was only a gap of a week or so.

I'm seriously not trying to argue with anyone. I know Nascar has way more experience with this than me. My question is....doesn't the amount of the lawsuit make a huge difference in what some bill collectors would do?

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Nascar, do you still think Discover is bluffing? Do you think that if OP files a counterclaim against them for a $1000 or 2 or the lawyers sending a summons before validating..is going to make them throw this out or negotiate a dismissal or release?

Absolutely not. The fact that the debt is in the neighborhood of 17K, which we did not know until recently, makes a difference. If you're saying that the debt collector doesn't care whether they make some violations along the way, or whether the OP threatens suit, I think you're right.

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Absolutely not. The fact that the debt is in the neighborhood of 17K, which we did not know until recently, makes a difference. If you're saying that the debt collector doesn't care whether they make some violations along the way, or whether the OP threatens suit, I think you're right.

I understand how the amount makes a difference. I apologize, as that was not intentionally omitted. Are you suggesting I fold? Or could you give a recommendation of action? Is it worth asking for production of documents to see what they have? If they have to show some kind of signed doc. it would have to be ~18 yrs old.

Does the CA receive any kind of professional damage which they care to avoid by loosing a violation ruling? I appears you are suggesting that if the potential reward is high enough they will just take the hits.

If I have to negotiate a settlement I just need as many points to drive it down as low as possible (of course). I believe my proof of hardship case is strong and my options for payment are minute. I was hoping time would help put me in a stronger financial position. Defend to the end and surrender only under imminent defeat, right? Of course there is defense til death... or suicide. Which I would prefer to avoid ;).

Everyone's comments are tremendously appreciated. I am happy if my issues are helping educate others too.

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I can only tell you what I would do...or what I think they will do. Truth is...nobody knows for sure.

I don't think they will accept a settlement now unless it's close to the $17k mark. They have already filed....so it's in their best interest to obtain a judgement against you. A judgement last 10 yrs...and in some states they can get an additional 10 years.

I don't think anybody should ever just fold. Everybody should question the statements and the amount they are asking for. So I am a big believer in your statement :

Defend to the end and surrender only under imminent defeat, right?

If anything...it buys you a little time.

If you have a banking account...I would close it. Keep cash. A judgement could wipe your bank account out. Be prepared. Use the violations in your claims.....but I don't think they will hold much air....but it's worth using them.

Good luck. I've enjoyed learning something I didn't know.

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