who has the burden of proof on validation?

[mycorrado]

Just a general question, but If I claim an FDCPA violation based on no response to validation (like continued collection etc),

who has the burden of proof on the non-receipt?

Would the ca just testifying under oath that they sent it kill my argument?

In other words, what happens typically when they claim to have mailed it and the plaintiff claims not to have received it? (and there is no Certified mail or other proof of delivery).

Thanks

[ShortBus]

I'm not familiar with case law as it relates to a DV response, but this question comes up from time-to-time when someone claims to have never received an initial dunning letter. I would suspect that things are similar.

The CA has to prove to the judge's satisfaction that their "normal course of business" includes sending out responses. Since all but the most incompetent CAs have some sort of system (or even specialized software) in place, it's a pretty low burden of proof. Unless the CA has a history of violations, you're pretty much out of luck.

I sued a JDB for not responding to my DV, yet they decided to report on my CR (continued collection). The incident was settled out of court to my satisfaction. I knew they didn't have much of a leg to stand on because they started reporting almost exactly 30 days after the date of their dunning letter. It was fairly easy to see that the whole thing was automated and my DV didn't interrupt the process. What's the timeline in your situation?

[debtorshusband]

First, let's make sure we all understand that it is not a violation of the FDCPA to not respond to debt validation/dispute letter. The violation occurs if they continue collection activities without responding to the DV letter.

Next, for the reasons you mention (it being a he-said-she-said situtation), I wouldn't sue right off the bat for continued collection activity.

I would write a letter, to build a paper trail which may eventully get me a win in court. This letter would inform the CA that their continued collection activity before responding to a DV violates the FDCPA, and I will take necessary steps to enforce my rights, and I urge them to comply with the law, etc.

Then see what their response is. Maybe they'll say your DV was untimely. Maybe they'll say they sent documentation. Maybe they'll ignore you. Your next step depends on what they do.

The bottom line is, IMHO, you don't want to be in a contest in front of the judge when it's just your word against theirs. Fight that exchange outside the courts, with an exchange of letters. At some point, you may just put an end to the exchange by sending them a Cease and Desist.

Regards,

DH

[mycorrado]

Agreed, I am building that trail.

Here's my timeline:

CA sends initial letter date 9/16/08

I responded timely 10/13/08 via FAX that day and certified letter which they received 10/22.

No response to date except for continued collection as follows:

Sent another dunning Letter to me on 10/7/08 (before fax.. ok) ** THIS IS NOT CONTINUED COLLECTION.. sent before my DV.

Reported to TU on 11/19/08 - Dating as account opened 09/15/08

Reported to Experian in November with account opened date 09/01/08

I sent second reminder of continued collection without validation on

04/20/09 which they received 04/22/09.

Derrog is still present, no validation provided, entries not marked as disputed.

I am giving them another 10 days and I will sue them. They were warned in both letters that inaction on their part could have legal consequences.

Is this good enough of a trail? Sounds similar to ShortBus, the 30 day automated process regardless of my DV correspondence = win I hope..

One last thing before suing is the CRA dispute/verify cycle.

Do I need to send a third ITS?

[admin]

If you sent them a DV request on 10/17 and they had sent you another dunning letter on 10/7 before receiving your DV request - I don't see where there is a violation.

[mycorrado]

Yes, my bad. I will mark it so.