Bobby2012 Posted February 22, 2012 Report Share Posted February 22, 2012 someone sent an VOD to an attorney collecting for OC within 30 days. Requesting a number of documents. Attorney sends hand full of statements. Later the attorney files lawsuit. The attorney didn't comply with the original requested docs. Is this a violation to file suit without providing the requested docs? Link to comment Share on other sites More sharing options...
1stStep Posted February 22, 2012 Report Share Posted February 22, 2012 The threshold for validating a debt is very low...all they need to do is identify the original creditor and the amount owed - that's it...I'll bet you used the horrifically long DV letter that asks for everything under the sun... Link to comment Share on other sites More sharing options...
Guest usctrojanalum Posted February 22, 2012 Report Share Posted February 22, 2012 Attorney actually went above and beyond what he had to. Really only needed to send one statement, but sent a handful. No violation here. Link to comment Share on other sites More sharing options...
TXlaw Posted February 23, 2012 Report Share Posted February 23, 2012 If attorney did not respond to DV letter from you which was sent within 30 days of the debt notice, then atty is in violation and you can sue. so, the question remains- did the atty respond to your DV letter before filing a lawsuit? if not, then sue him under FDCPA Link to comment Share on other sites More sharing options...
BV80 Posted February 23, 2012 Report Share Posted February 23, 2012 If attorney did not respond to DV letter from you which was sent within 30 days of the debt notice, then atty is in violation and you can sue. so, the question remains- did the atty respond to your DV letter before filing a lawsuit? if not, then sue him under FDCPAThe debt was validated. The attorney sent credit card statements, and that's considered validation.In addition, courts have ruled that it's not a violation of the FDPCA to file suit if a debt has not been validated. "...the Seventh Circuit stated: 'The debt collector is perfectly free to sue within thirty days; he just must cease his efforts at collection during the interval between being asked for verification of the debt and mailing the verification to the debtor.'" The 2nd Circuit Court of Appeals also ruled that filing suit is not in violation of the FDCPA. However, the Plaintiff must include a notice that commencement of a lawsuit does not trump the validation notice. Link to comment Share on other sites More sharing options...
TXlaw Posted February 23, 2012 Report Share Posted February 23, 2012 (edited) The debt was validated. The attorney sent credit card statements, and that's considered validation.In addition, courts have ruled that it's not a violation of the FDPCA to file suit if a debt has not been validated. Edited April 15, 2012 by flashback Link to comment Share on other sites More sharing options...
BV80 Posted February 23, 2012 Report Share Posted February 23, 2012 (edited) Flashback,Is the Plaintiff the original creditor? If the attorney did not validate, that has nothing to do with an original creditor because they are not liable under the FDCPA. In addition, the attorney must be a debt collection attorney. In other words, debt collections must be part of his services. If he only collects debts once in a while, he may not be liable under the FDCPA.If he is a debt collection attorney, violations committed by that attorney would be a separate issue. I don't think you could use them as counterclaims against the Plaintiff. That being said, check GA's debt collection laws. Some states include OCs in those laws. If GA debt collection laws includes OCs, it could depend upon whether or not the Plaintiff could be held liable for the actions of their attorney. If the OC is not liable for the actions of their attorney, then any violations are a separate issue.In addition, you'd have to show that filing suit without providing validation in response to a timely DV is a violation. Edited February 23, 2012 by BV80 Link to comment Share on other sites More sharing options...
TXlaw Posted February 23, 2012 Report Share Posted February 23, 2012 (edited) Plaintiff is the OC. I am certain that atty is a “debt collector” as that term is defined in the FDCPA, 15 U.S.C. || 1692a(6). As such, defendant is subject to FDCPA, 15 U.S.C. || 1692g 809(, which imposes a series of duties and prohibitions. Atty is a collection agency/collection attorneys. I will not be suing the OC who atty is representing, but will sue atty separately as he falls under FDCPA.In addition, you'd have to show that filing suit without providing validation in response to a timely DV is a violation.oh, I believe I have done that in my complaint. Edited April 15, 2012 by flashback Link to comment Share on other sites More sharing options...
BV80 Posted February 23, 2012 Report Share Posted February 23, 2012 You sent a timely DV. That's good. Continued collection activity before responding to a timly DV is definitely a violation. However, you have to show that filing suit is considered continued collection activity. The FDCPA is not specific in regards to that claim. What you're basically claiming is called overshadowing. By filing suit and not responding to your DV, they overshadowed your right to debt validation. Overshadowing is a violation. But again, you have to show that filing suit without validation is overshadowing. I'm not saying you definitely don't have a claim. What I am saying is that you have to prove your claim. See what I stated before about the 2nd Circuit Court of Appeals. They stated that a notice should be included to let the defendant know that the filing of a suit does not interfere with the Defendant's right to request a timely DV. However, the 7th Circuit only stated they can file suit, but then still have to validate. I would think, and again I'm not an attorney, if they continued the suit and requested hearings, etc. without validating, that would be continued collection activity. You're just going to need some convincing arguments. If GA district courts or the 11th Circuit Court of Appeals hasn't ruled on the issue, you need good case law from other courts. I guarantee that unless the attorney doesn't want to fool with the lawsuit, he's going to be looking for case law to defend himself. Link to comment Share on other sites More sharing options...
Coltfan1972 Posted February 23, 2012 Report Share Posted February 23, 2012 Is this a violation to file suit without providing the requested docs?No, they don't have to produce what is requested by the consumer only what is required to disclose and produce according to the law. A consumers demands are irrelevant. A DV letter should only state the debt is disputed and validation is requested/demanded. A DV letter should at the very max be about four sentences, more like two. You can throw in your responding to their collection letter or include some C&D language, nothing more. Link to comment Share on other sites More sharing options...
purplebb Posted February 27, 2012 Report Share Posted February 27, 2012 Is it normal to not have any correspondance with an attorney for the collection agency before you are served? Link to comment Share on other sites More sharing options...
usagi555 Posted February 27, 2012 Report Share Posted February 27, 2012 Is it normal to not have any correspondance with an attorney for the collection agency before you are served?That depends on the law firm, but the answer is yes. They'd rather use their letterhead to scare you into paying than actually having to litigate. Link to comment Share on other sites More sharing options...
antiquedave Posted February 27, 2012 Report Share Posted February 27, 2012 That depends on the law firm, but the answer is yes. They'd rather use their letterhead to scare you into paying than actually having to litigate.The sending of a dunning letter on attorney letterhead can itself be a violation Lesher v Kay and there is supporting caselaw since then Link to comment Share on other sites More sharing options...
usagi555 Posted February 27, 2012 Report Share Posted February 27, 2012 The sending of a dunning letter on attorney letterhead can itself be a violation Lesher v Kay and there is supporting caselaw since thenExactly, and I will be using that case. It's just the old story that it is more profitable for them to violate and collect than it is to follow the law. Link to comment Share on other sites More sharing options...
purplebb Posted February 27, 2012 Report Share Posted February 27, 2012 I had no correspondence with the attorney before i was served. Link to comment Share on other sites More sharing options...
TXlaw Posted February 29, 2012 Report Share Posted February 29, 2012 The sending of a dunning letter on attorney letterhead can itself be a violation Lesher v Kay and there is supporting caselaw since thenI am aware of this one. However, I didn't include this violation in my original complaint (which I may still revise based on your feedback) because I thought it's not a misrepresentation on the attorney's part- they really are a law firm dealing with collections. do you still think it is sufficient to qualify as a violation? Link to comment Share on other sites More sharing options...
Guest usctrojanalum Posted March 1, 2012 Report Share Posted March 1, 2012 The sending of a dunning letter on attorney letterhead can itself be a violation Lesher v Kay and there is supporting caselaw since thenTry to avoid over generalized statements like this. Attorneys are allowed to send dunning letters if certain conditions are met. The way you posted, you made it sound like attorneys are not allowed to send dunning letters at all. Link to comment Share on other sites More sharing options...
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