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Attorney violation


Bobby2012
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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?

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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

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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

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.

"...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.

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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 by flashback
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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 by BV80
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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(B), 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 by flashback
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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.

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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.

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The sending of a dunning letter on attorney letterhead can itself be a violation Lesher v Kay and there is supporting caselaw since then

Exactly, 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.

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The sending of a dunning letter on attorney letterhead can itself be a violation Lesher v Kay and there is supporting caselaw since then

I 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?

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Guest usctrojanalum
The sending of a dunning letter on attorney letterhead can itself be a violation Lesher v Kay and there is supporting caselaw since then

Try 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.

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