Case Law - DV must come FROM OC

[jezter6]

I got the usual Asset "validation" which is just a printout of their own crap and lists the OC and amount. I see a lot of people say that this MUST come from the OC and not on the JDB's own letterhead.

However, I also see threads where the minimum validation is just the name of the creditor and the amount.

Is there case law to back up the first theory? Asset has given me this bogus validation and have hired yet another CA to ring the crap out of my phone.

Also, if I told them that the number they were calling was a cell phone and they do not have permission to call on it, and they send the crap to a CA who calls me 4-5 times a week, sometimes 2-3 times a day (phone number comes up either unknown or for a number I google search to be some collector in Reno, NV) -- does that constitute violations by Asset who KNOWS they're calling me on a cell phone and costs me minutes every time I pick up?

[wahoo238]

The only case law I am aware of to bolster first theory is Chaudry V. Nations Bank, as I recall JDB like LVNV have a slightly different take on Chaudry.

[KentWA]

DV is not well defined. However what is well defined is the TCPA and the $500 per call after you have revoked their dubious "existing Business Relationship". Keep the call logs, detailed bills, voicemails, etc. Cell phones have much stricter regulation than home phones under the TCPA. I would also suggest that the FDCPA prohibition againest the consumer incuring cost apply as well.

Another approach on FDCPA is that since they assigned it to another CA, they likely did not tell them it was disputed and therefore Asset violated. The CA did as well if they do not have in their contract that Asset must tell them of disputes, in that case they "Knew or Should have known". This is not a well defined area of the law as there is only one unpublished Appeals court ruling and 2 district court rulings, however I can tell you that one JDB and CA took the quick path out of the case when they were both sued.

[jezter6]

Ooh, please explain that futher Kent.

Back in the summer I got some random CA dunning letter. I immediately disputed and advised them that the number theywere calling was a cell phone that they did not have permission to call. This alleged account pre-dates my getting this cell number about 4-5 years, so I can be assured that I didn't use that number as contact information when I established the account.

Asset responded with Asset letterhead "validation" which was the name of the OC and the amount they are seeking. That's IT. I kind of let that go since it was, in my mind, meeting the basic definition of validation. Until recently, I've seen a number of posts where people more knowledgable than myself have stated that a repeat of the dunning letter on the JDB letterhead is NOT validation at all since it must come from the OC.

In this instance the OC is Maryland National Bank, which no longer exists and I believe might be part of the B of A mergers of the early 2000s...Don't know if that means B of A should be sending the validation or what.

Basically, I'd like to make some cash out of this if at all possible. These clowns have been extremely rude to me and harassed the crap out of me for a period of time before I told them "Damn right this is a refusal to pay." They disappeared for a while, and just recently this summer have now had 2 different CA's pestering me about this long out of SOL (and now off the Credit Report) debt.

[TheBeeGuy]

I always turn to the FDCPA when this comes into dispute:

"the debt collector shall cease collection of the debt, or any disputed portion thereof, until the debt collector obtains verification of the debt or any 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."

Being that the operative word here is "obtain" it as opposed to "manufacture", it seems pretty clear to me that it has to come from some external source. If that doesn't imply the OC, I can't imagine who else it would be.

In my case law searchings regarding 'validation', I've come across very little establishing what it is and a whole lot establishing what it isn't.

[TheBeeGuy]

Another approach on FDCPA is that since they assigned it to another CA, they likely did not tell them it was disputed and therefore Asset violated. The CA did as well if they do not have in their contract that Asset must tell them of disputes, in that case they "Knew or Should have known".

Something to note with this approach. The SOL of FDCPA claims is one year. If the account was sold more than a year ago, and the buyer sat on it for a year before making contact (a tactic that has become increasingly more common), you cannot sue for this violation of the seller.

[Downto0]

Yes, the DV must come from the creditor, which is not necessarily the OC. The OC can be out of business but someone bought the debt. Whoever bought the debt is the creditor and this is to whom the collector must send for DV.

As far as the case law...I had a debate with Ualbany in this thread and laid out what I thought was persuasive argument for my opinion:

http://www.debt-consolidation-credit-repair-service.com/forums/showthread.php?t=297740&page=5

[jezter6]

So if a JDB "owns" the debt, they are their own validation??

[KentWA]

In that case the question turns on whether the JDB has reliable information to prove the debt, usually not.

In Utah and many other states the "Discovery Rule" comes into play on the SOL where someone sat on the debt after violating. Under the discovery rule the SOL starts to run after you knew or had the likely chance of knowing.

[Downto0]

No, because they have to obtain verification. They cannot use what they already have. They would need an outside source, such as the OC, if they were still in business. If the OC is out of business then the JDB would need to send for verification from whomever it bought the debt.

This is why a well-written DV letter will stop a JDB in their tracks. Most of them buy hundreds of debts in a portfolio. It would be time consuming and costly to chase down someone who is authorized to verify a debt...not to mention the fee that the source would charge for the verification.

Now, if you have a CA collecting a debt for a JDB, there may be an argument for the CA sending to the JDB, its client, for verification. My counter argument would be that the CA was an agent for the creditor, thus, the two are one in the same.

The point would be that you are asking for verification of the debt. If the JDB bought a corrupt debt and passed it on to the CA for collection, any verification coming from the same file would also be corrupt. The only way to verify is to consult with an authorized source outside of the collection circle.

[KentWA]

Ooh, please explain that futher Kent.

A good basic primer on the TCPA and Debt Collectors can be found here:

http://bankruptcy-law.freeadvice.com/collections/more-debt-collectors-calling-cell-phone.htm

[TheBeeGuy]

In Utah and many other states the "Discovery Rule" comes into play on the SOL where someone sat on the debt after violating. Under the discovery rule the SOL starts to run after you knew or had the likely chance of knowing.

This is certainly true if your claims are based on state laws. Unless I'm mistaken and the state laws somehow override the verbiage of the FDCPA, if you are suing on FDCPA claims, you have to bring the action within a year of the violation.

[TheBeeGuy]

A good basic primer on the TCPA and Debt Collectors can be found here:

http://bankruptcy-law.freeadvice.com/collections/more-debt-collectors-calling-cell-phone.htm

This is awesome, man! I have one calling my cell phone now, even after I've DV'd 'em and specifically told them the number they are calling is a cell.

Cha-ching!

Thanks!

Edit: Do they have to be specifically aware that they are calling a cell phone or are they obligated to do the research before they call?

Edited November 18, 2009 by TheBeeGuy

[jezter6]

No, because they have to obtain verification. They cannot use what they already have. They would need an outside source, such as the OC, if they were still in business. If the OC is out of business then the JDB would need to send for verification from whomever it bought the debt.

This is why a well-written DV letter will stop a JDB in their tracks. Most of them buy hundreds of debts in a portfolio. It would be time consuming and costly to chase down someone who is authorized to verify a debt...not to mention the fee that the source would charge for the verification.

Now, if you have a CA collecting a debt for a JDB, there may be an argument for the CA sending to the JDB, its client, for verification. My counter argument would be that the CA was an agent for the creditor, thus, the two are one in the same.

The point would be that you are asking for verification of the debt. If the JDB bought a corrupt debt and passed it on to the CA for collection, any verification coming from the same file would also be corrupt. The only way to verify is to consult with an authorized source outside of the collection circle.

I DV'd a collector, and Asset responded with this validation BS. They've since hired a NEW collector to harass the crap out of me. Is that collection without proper validation? Or is it only if the orignal collection agency continues to collect? I never DV'd asset directly...

[Downto0]

As I said earlier, I view the CA and the JDB as one in the same. They share the same file. When the CA duns you, you ask for validation. The CA should then inform the JDB that you want validation. The JDB, to fulfill its obligation, must obtain verification.

Is that collection without proper validation? Or is it only if the orignal collection agency continues to collect? I never DV'd asset directly...

The CA which you asked for DV apparently ceased its collection activities. They have not violated the FDCPA. The JDB has, however. It made an attempt at validation by passing on information from the same file. They did not obtain verification from an authorized source outside of the original file. You cannot verify if a file is corrupt or not by looking in the same file for support.

When you send your next DV letter to the new CA, I would tell them that the FDCPA instructs that their client needs to obtain verification. This means that they must seek confirmation from an source not affiliated with their office.

[KentWA]

This is certainly true if your claims are based on state laws. Unless I'm mistaken and the state laws somehow override the verbiage of the FDCPA, if you are suing on FDCPA claims, you have to bring the action within a year of the violation.

That is not the case in the Tenth Circuit that issued the first FDCPA specific review of "Discovery Rule" in Utah not long ago, relying on rulings in cases where the Discovery Rule was applied in other Consumer Protection cases.

[TheBeeGuy]

That is not the case in the Tenth Circuit that issued the first FDCPA specific review of "Discovery Rule" in Utah not long ago, relying on rulings in cases where the Discovery Rule was applied in other Consumer Protection cases.

Good to know! Thanks!