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Question on overshadowing


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As I already posted, after a very long drought, a CA has contacted me. They are unlicensed so have them dead to rights.

However, yesterday I got the exact same initial dunning letter that I received a few days prior. The only thing different was the date of the letter, but they both had the maxi miranda laying out my validation rights. They are word for word with one being dated Feb 6 and the other Feb 7th.

I'm copying the argument I'm planning on using when I send my intent to sue letter. I know they will scream bona fide error. However, we're talking the validation period, probably the biggest right a debtor has.

Chime in with thoughts (and yes I know creditors monitor this board, I could care less, I sent them the links on my last case and made sure they knew my posting handle).

In addition, your letters are confusing to the least sophisticated consumer, a well settled presumption I'm given under the FDCPA regardless of my actual level of sophistication (Gammon v GC Services, 27 F.3d 1254 (7th Cir. 1994), 93-3403, United States Court of Appeals, 7th Cir), or my motives, as there is to be no inquiry into the worthiness of the debtor (Bass vs Stolper, Koritzinsky, Brewster, and Neider, S.C. 111 f3d. 1322, 1330, 7th Circuit, 1997).

You sent me the same letter two times with differing dates, however, both letters advised me of my right to demand verification and the time frame, 30 days upon receipt of the letter, in which I must demand such verification. This is confusing to the least sophisticated consumer, overshadows the verification period and therefore violates the FDCPA.

The above court ruled and held, “A validation notice is overshadowed or contradicted when other communications would make the least sophisticated consumer uncertain about his rights.” Your letters cause me, the least sophisticated consumer, to be uncertain about my rights, specifically when the 30 day validation period starts and ends as you have provided me two different dates. This appears to be a possible attempt to confuse the consumer, in the hopes the consumer will contact your agency by phone to receive clarification.

For obvious reasons debtors are more inclined to pay a collection agency if they are confronted with collection attempts by telephone rather than letter. Using multiple dates for the verification period, in an attempt to force the debtor if they wish to know the true verification period your agency is using, to call your agency is an unfair collection practice and overshadows the verification period.

A debtor should not be required to call your agency and be forced to deal with a trained professional debtor collector, whose job is to secure payment from the debtor, simply so the debtor can be certain what the verification time frame your agency is using.

So in other words, what I'm trying to make the argument of, is it 30 days of me receiving the first letter or 30 days of me receiving the second letter.

Edited by Coltfan1972
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I don't know. I'd argue it and see how it plays out. Certainly put it in your ITS letter if you are so inclined to send one. It's certainly novel. One concern here is the one day difference. A court might be tempted to say that it might be different if they sent them a week apart, but a day apart looks like somebody just forgot to record that the first one was sent.

I was just recently wondering what would happen if first contact was a "Pay us in 10 days, or else" letter, followed up with the 1692g letter. Would the first letter overshadow the second in the eyes of the court?

Edited by usagi555
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I was just recently wondering what would happen if first contact was a "Pay us in 10 days, or else" letter, followed up with the 1692g letter. Would the first letter overshadow the second in the eyes of the court?

You just made my point. You, even though you're not the least sophisicated, would be uncertain do to confusion. Regardless, if the court ruled the letters, in your example, overshadowed or not. There could be no argument the letters made you uncertain, therefore, a violation of the FDCPA even if the letters never actually did overshadow the 30 day period to request validation.

My argument is not like we usually see posted where a payment is requested prior to the 30 days, but the letters caused confusion. The case I cited, the court ruled it is overshadowing if the least sophisicated consumer would be "uncertain" about their rights, not necessiarly if the rights were violated.

This is my example, in a criminal case the police are able, legally, to lie and use trickery to obtain a confession from a suspect (If Miranda was given). If the suspect is confused and uncertain and they confess, the confession is in and Miranda or any other protection was not violated. The suspect became confused but the actual rights were never violated.

Put the FDCPA in the place of Miranda rights. Assume the collector is the police and they given the proper rights warning (the verification period right). Then after they give that right they start using trickery or confusion, such as a second letter changing the validation dispute period.

Now suppose the court rules the validation period started with receipt from the second letter, therefore the consumer had not only 30 days but really got 31 to dispute. Furthermore, the court ruled there was no overshadowing of the 30 days because the debtor was given a fresh 30 days with the second letter.

Fine, however, there is now the argument the letters caused the debtor, the least sophisicated consumer, to be uncertain even with the court ruling no 30 days overshadowing. But unlike in criminal the Collector is not allowed to use confusion, even unintentional (strict liability) therefore, while there is no violation under overshadowing the 30 day period, the collector, I would argue, still caused the least sophisicated to be uncertain and according to the courts, causing that uncertanity violates the FDCPA.

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I would still worry about them actually pulling a bona fide error defense off here. One possible option here is to wait until the last day under the second letter, and send them a DV on that day. See what they do. According to the 1692g letter in front of me, the letter states that you have 30 days from the receipt of the letter. If they ignore it, you have a misleading statement.

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Certainly put it in your ITS letter if you are so inclined to send one.

Well I'm sending one. I think, even though not required, it's good to be able to tell the court, if they ask, you did contact the other side prior to suing. It will be demands there is no way in this world they will agree with. It's just going through the motions and playing the game, instead of straight to the courthouse.

I'm not even attaching a copy of the lawsuit to the letter. It will be a settlement attempt in name only. It's really just notification that the invitation to Arkansas is about a month away so start booking your flights and hotel rooms. :twisted:

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Well I'm sending one. I think, even though not required, it's good to be able to tell the court, if they ask, you did contact the other side prior to suing. It will be demands there is no way in this world they will agree with. It's just going through the motions and playing the game, instead of straight to the courthouse.

I'm not even attaching a copy of the lawsuit to the letter. It will be a settlement attempt in name only. It's really just notification that the invitation to Arkansas is about a month away so start booking your flights and hotel rooms. :twisted:

LOL. What's even funnier is they probably get ITSs all the time, and will totally ignore yours. For now.

I'm filing Monday. I was going to today, but things weren't quite ready. If I find out something wasn't quite in order, it'll be Tuesday. I've got you beat by a month 8-)

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Hey USAGI, scoreboard baby!! I've got you on the overall count. :D

Good luck, I've read all your pleading you've sent me. It all looks great and they are in for a battle for sure.

DAMNED SCOREBOARDS!

Forgetting about the score, I'd probably still go through with it if I were in your shoes. You have them dead to rights on other claims. You never know what you're going to discover in discovery. It might actually be a clerical error. Then again, it might be that they like to jerk people around and aren't smart enough to cover it up. You can always amend your pleadings later to remove that claim if it looks like it's not going to go anywhere.

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Oh I'm leaving it in there and forcing them to spend a ton just to defeat that part of the suit. They will have to argue the bona fide error as an affirmative defense. You know how I love affirmative defenses and can never find holes in those. ;)

I won't have atty fees and live across the street from the courthouse. No way in a million years, even if they defeat that portion of the suit, they get fees award under the FDCPA for the filing of a frivilous claim.

Heck, I might win that part of the claim. They are going to have to fight and spend tons if they want to defeat it. Then look at the hand they will be left holding even if they win on that argument, an unlicensed agency that can claim they make clerical errors.

It's going to be like a criminal being charged with armed robbery and attempted murder, but found not guilty of resisting arrest. They get 40 years in prison, but by God they beat that misdemeanor resisting charge and did not get another $500.00 fine tacked onto their sentence.

I'm pretty confident they won't be able to claim a bona fide error for not being licensed to operate in my state. :twisted:

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The fact that they are unlicensed seems to be a major crack in their armor. I would stick a big old crow bar into that crack and pry it open. This seems to be another FDCPA violation.....if you are not licensed, you have no legal right to pursue collection against anybody, much less CIC's version of Freddy Krueger.

Let's see what we can come up with here.....

Violation of:

§ 805. Communication in connection with debt collection

Forget the qualifying rules, the CA has no legal right to initiate any contact of any kind if they are not licensed.

§ 807. False or misleading representations

(5) The threat to take any action that cannot legally be taken or that is not intended to be taken.

(10) The use of any false representation or deceptive means to collect or attempt to collect any debt or to obtain information concerning a consumer.

The mini miranda states and conveys the impression that the CA is legally authorized to collect this alleged debt, which is not true, since the CA is not licensed to operate in the state of AR. Such a representation is false and misleading, and might lead to (plaintiff Coltfan) relinquishing private information and / or entering into a settlement agreement with individuals who are not entitled to either.

§ 812. Furnishing certain deceptive forms

(a) It is unlawful to design, compile, and furnish any form knowing that such form would be used to create the false belief in a consumer that a person other than the creditor of such consumer is participating in the collection of or in an attempt to collect a debt such consumer allegedly owes such creditor, when in fact such person is not so participating

"Dunning letters" sent by a CA which is unlicensed create the false belief that they are participating in the collection of a debt, when in fact they have no legal right to do so.

Then we get into reporting this CA to any appropriate state or federal agency such as consumer protection, banking commissions, attoneys general, the FTC, and anything else we can think of.

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Legal,

Trust me !! The issue of them not being licensed is my case. I'm just trying out another theory since I have them nailed. I already have, in writing, confirmation from the head of the state board of collection agencies these clowns are not licensed.

This is the same person that was under subpoena three years ago when I sued another unlicensed agency and was more than eager to show up in court. She also is an atty and hands down qualifies as an expert witness due to her position and knowledge of AR. collection laws. Her expert opinion is these clowns are illegally operating.

:trainwreck:

The unlicensed and illegally operating attack jets are fueled and fully armed with every weapon available at 100% capacity. They are just sitting on the aircraft carrier waiting on the call to attack and wipe these clowns off the face of the earth.

Now I'm just testing theories and arguments and have the illegally operating attack jets ready to fly in and save the day if those arguments start losing or need some "assistance." It's not a matter of beating them. They will be beat. It will just be how bad and by how much. That will be their choice. xxHellxx::BigGun::

Edited by Coltfan1972
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I assume they would be subject to criminal penalties for this in your state. I wouldn't threaten them with that, but I would make them aware of the appropriate statute. What does your unfair trade practices statute cover? I seem to remember looking at it, maybe it is just for retail, not like ours, which covers every aspect of commerce. Here it is, you can go through it.

http://pages.suddenlink.net/getactivesagemeadows/documents/adtpa.pdf

4-88-107 para 10 may work. (maybe 8, but that's a stretch unless you use the unsophisticated consumer angle) Many courts have held that the collections industry and the actions of law firms (entrepreneurial) fall within the definition of commerce. Could be a new argument, but I'm sure if anybody can make it, you can. All you need is one lawyer working at this CA and you have an in.

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Actually the state board of collection agencies has enforcement power over an agency not licensed. They can get the courts and attorney general involved. Oh and it's $500.00 a day they are not licensed but collecting anyway. I'll yield to those guys on the criminal side.

Rest assured they are going to have their hands more than full. By the time I'm through with them they are probably going to pull an Otis on Andy Griffith just so I'll leave them alone and they will have a safe hangout.

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  • 1 month later...
Oh please continue updating this thread. I have a similar situation with a CA and the double dunning letters. I'm awaiting their response to my DV.

Federal lawsuit has been drafted and 98% complete. Intent to sue has been sent with date to respond quickly getting ready to expire.

Final touches to the suit are in progress. Killing a few trees getting the discovery requests ready to go.

Process server has already been located and put on notice and registered agent info has been obtained.

The suit will be filed at 9:00 AM the day the ITS expires, then it's an all out onslaught. I'm actually counting down the days praying they don't settle. I just know you really need to try and not make court your first stop or I would have sued right out of the box. It's on in few weeks. ::BigGun::

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Keep us posted!

It will be my pleasure, and already planned on it. I hope they don't even give me the courtsey to decline my offer to settle or even discuss the case.

Blowing me off and dismissing me as somebody just bluffing for a settlement is just going to add fuel to the fire and give me that more motivation to destroy them at every stage in the process. It's on !! :twisted:

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