Jump to content

Sue CA for lack of DV response & lawsuit filed


Recommended Posts

Hello, here's my situation:

  • CA (they are also a law firm) sent me a debt notice.
  • I timely requested DV, which they ignored and instead, filed a lawsuit on behalf of OC. the lawsuit is in still in progress and I am waiting for a hearing on my Motion to Dismiss.


In response to their non-validation of debt, I filed a lawsuit against a CA/law firm in SMALL Claims Court for a violation of

FDCPA Section 809. Validation of debts [15 USC 1692g]

(B) If the consumer notifies the debt collector in writing within the thirty-day period described in subsection (a) that the debt, or any portion thereof, is disputed, or that the consumer requests the name and address of the original creditor, 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.

I wish my complaint was a little broader and was not limited just to this provision. I could have come up with more violations against them (overshadowing is one of them).


Do you guys know if I can MODIFY my complaint in SMALL claims to include more FDCPA violations. My complaint specifically states the above FDCPA 1692g 809b violation, but could I expand onto other FDCPA violations at the hearing without modifying my complaint?

I got a certified letter from CA/law firm today saying my complaint is frivolous, accused me of abusive litigation & requested that I dismiss it. I am not going to dismiss it, but need to have a firm ground and good case law to present this FDCPA violation in court. If they don't file their response to my lawsuit (due next week), I will request a default judgement.

Similar CASE LAW that I know of is Spears vs. Brennan Converted file ewn

The appeals court determined:

"Brennan (plaintiff collection agency attorney) violated 15 U.S.C. § 1692g(B) when he obtained a default judgment against Spears (defendant) after Spears had notified Brennan in writing that the debt was being disputed and before Brennan had mailed verification of the debt to Spears."

Spears argues that Brennan “overshadowed, undermined, and truncated” the FDCPA-required 30 day debt validation period when he scheduled the hearing for Nov.13,'96.

However, in my original case (6+ months later) there has been no default judgement (I filed MTD) and no hearings so far.

Despite of this, I think it's an analogous o Spears vs. Brennan. What are your thoughts on this?

I want to get as much case law on 1692g as possible. Has anyone sued CA for this or know other case law?

Edited by flashback
Link to comment
Share on other sites

there is Ellis v. Solomon Docket No.

but the difference is that the defendant was served summons during the 30 days validation period. In my case, a case was filed but I wasn't served yet. Either way, i never got the validation letter and

there was no accompanying statement informing her that the lawsuit did not affect her right to request validation during the 30 day period.*
The defendants failed to inform Ellis that commencement of the lawsuit had no effect on the information contained in the validation notice. The District Court found that the service of the summons and the compliant overshadowed the validation notice in violation of the FDCPA.  ... and for the reasons that follow, we affirm the District Court.

Do you think that Ellis v. Solomon is applicable to support my position?

Link to comment
Share on other sites

I sued several CAs for continuing collection after my demand for validation....have they filed an answer yet?

If not, then you may have to file a motion for default judgment.

1stStep,

when you say you sued for "continued collection", did you sue under1682g 809b?

They have not filed an Answer yet, but they still can do it till Tuesday.

Even if I file for default judgement, often there is a hearing scheduled for later and they may show up at the hearing, so I need to be prepared.

Edited by flashback
Link to comment
Share on other sites

I just checked my mail and got their Answer:

1. Plaintiff's complaint fails to state a claim upon which the relief can be granted. (this is news, I put a detailed complained)

2. Def.asserts the Defense of Insufficiency of Service of Process.

3. Def. asserts the Defense that the named Defendant is a non-entity.

Def. asked for dismissal and denied my paragraphs where I stated his address and identified them as a "debt collector".

I don't know how this could have happened, I usually pay attention to details, but on my Secretary of State, they got 2 addresses listed - one for P.C., one for LLC. The former is dissolved- that's where I got them served & named as their principal place of business and the latter LLC with a different address & "active" status. The address on their paperwork is the address I got them served. this is all in the same county and the RA is the same atty, just got a different address listed.

It appears I need to serve them again?

Would I be able to amend my original complaint in small claims court?

Link to comment
Share on other sites

No because the FDCPA limits you to $1,000 per action - no matter the number of violations.

I know that the max FDCPA award is $1K. By "expand on violations" I mean that in case if they throw out my complaint on that one particular FDCPA violation, they can still be liable for others.

If I include only one FDCPA violation in the complaint, would I be prohibited to argue other FDCPA violations (in case if I need to) if my original complaint includes only 1?

The Insufficiency of Service and revising complaint/expanding on the FDCPA violations is my new headache...

Link to comment
Share on other sites

Failure to state a claim does not mean you did not state a cause of action. It just means that if you take everything that you allege in your complaint, assume it's all true, you still don't have a case you could win.

In other words they are saying that even if they did not validate the debt and sued you, assuming that is true, it's not a violation of the FDCPA.

Or another argument they are making is that everything you allege is 100% correct, but they are not a debt collector by definition, therefore not required to comply with the FDCPA so even though everything you allege they did they did, but you still lose because they are not a "debt collector" by definition.

If an officer writes me a ticket for going 70 MPH in a 60MPH zone, but it turns out the speed limit was actually 70 MPH, I admit 100% to going 70 MPH but argue they failed to state a claim. It's not exactly the same, criminal calls it something else, but it's the same theory. Basically you admit to everything and say but it still is not a violation of the law.

That is all failure to state a claim means.

Link to comment
Share on other sites

Coltfan, thank you for your explanation about Failure to state a claim. makes sense now.

as for the "debt collector" argument, even on their web site they state that they're "an experienced collections law firm".

ColtFan, I will PM you in a few minutes.

Link to comment
Share on other sites

Does not matter what they call themselves, it matters under the law if they meet the definition of a debt collector.

I'm suing a collection agency right now in federal court. They refer to themselves as a consulting firm. They can call themselves a consulting firm or for that matter call themselves astronauts, heart surgeons or social workers. I don't give a rats behind what their name is or what they call themselves. I care what they meet or do not meet the legal definition of.

On a side note, I have no idea if they are a debt collector, sounds like they are. I was just explaining their possible argument(s).

Link to comment
Share on other sites

I didn't know you could file an FDCPA suit in small claims.

Civil liability [15 USC 1692k](d)

An action to enforce any liability created by this title may be brought in any appropriate United States district court without regard to the amount in controversy, or in any other court of competent jurisdiction, within one year from the date on which the violation occurs.

I've filed two in small claims. They filed a counter on one of them which moved it to state circuit court. Of course that was my intent. I hand wrote the complaint and then when they paid to move it, I amended it and let them have it. They were none too happy.

I'd never want a FDCPA case in small claims, but unless the small claims court specifically declines to hear FDCPA cases (which I've heard of some small claims courts doing) they have jurisdiction.

Link to comment
Share on other sites

"Failure to state a claim upon which relief can be granted" is misused quite a bit. All the complaint has to do is put you on notice as to what the plaintiff intends to prove. Apparently, there is no requirement that they state specific state approved causes of action such as account stated, breach of contract, etc. This is in reference to collections cases, of course.

If you defrauded me in a mortgage transaction and I sue you under the state banking law statutes, I have failed to state a claim upon which relief can be granted. Why? Because there is no private right of action under banking law. Only the banking commissioner can sue and enforce. If I charge you with fraud or negligence or misrepresentation, that's tort law, which allows me to sue. It's just a matter of knowing what you can use as your cause of action.

Can I grab up Coltfan for speeding in Arkansas and charge him with transporting underage girls across state lines? No. (Not unless he opens the trunk of his car) It's the same in civil cases. The "cause of action" has to be "justicible" in civil court. You can't sue Coltfan because you caught him in bed with a dead girl (ruined your carpet with icky stuff) and use the state criminal statute for necrophilia. (she couldn't say no) He'll get me for this, count on it. He's right in his analysis, but mine is funnier.

Link to comment
Share on other sites

I just checked my mail and got their Answer:

1. Plaintiff's complaint fails to state a claim upon which the relief can be granted. (this is news, I put a detailed complained)

2. Def.asserts the Defense of Insufficiency of Service of Process.

3. Def. asserts the Defense that the named Defendant is a non-entity.

Def. asked for dismissal and denied my paragraphs where I stated his address and identified them as a "debt collector".

I don't know how this could have happened, I usually pay attention to details, but on my Secretary of State, they got 2 addresses listed - one for P.C., one for LLC. The former is dissolved- that's where I got them served & named as their principal place of business and the latter LLC with a different address & "active" status. The address on their paperwork is the address I got them served. this is all in the same county and the RA is the same atty, just got a different address listed.

It appears I need to serve them again?

Would I be able to amend my original complaint in small claims court?

I could be off base, but this is my understanding. They claimed the defendant is a non-entity. If, in your Complaint, you used the name of the dissolved entity, you sued an entity that doesn't exist anymore.

Read your rules. You may have to file an amended Complaint. I don't know how that works.

Also, are you sure the law firm is considered a debt collector? Just because the firm is trying to collect in this case doesn't necessarily mean they fit the description of a debt collector.

Link to comment
Share on other sites

BV80, you're spot on about the dissolved corp. CA uses P.C in their letter & address of the dissolved corp, which is where I got them served. So, I served P.C. (dissolved name vs. LLC) and used the address that's on their letters (and they still signed for it), but that's also the address of the dissolved corp.

On the Secretary of the State website, they use INC. as their "active" name with a different address.

Interestingly, although I got them served at their "dissolved" address, sheriff's paper states the person served is one of the employees in charge of the office.

I have been looking for applicable case law, but cases I found had the issue of getting sued/served within the 30 days.

Mine has the issue of requesting DV on time, received no DV from the CA, and got served after the 30 days.

I found no case law so far where getting sued after 30 days and no DV was an FDCPA violation. Perhaps I am off base here suing them for continued collection activity, I hope not...

Edited by flashback
Link to comment
Share on other sites

BV80, you're spot on about the dissolved corp. CA uses P.C in their letter & address of the dissolved corp, which is where I got them served. So, I served P.C. (dissolved name vs. LLC) and used the address that's on their letters (and they still signed for it), but that's also the address of the dissolved corp.

On the Secretary of the State website, they use INC. as their "active" name with a different address.

Interestingly, although I got them served at their "dissolved" address, sheriff's paper states the person served is one of the employees in charge of the office.

I have been looking for applicable case law, but cases I found had the issue of getting sued/served within the 30 days.

Mine has the issue of requesting DV on time, received no DV from the CA, and got served after the 30 days.

I found no case law so far where getting sued after 30 days and no DV was an FDCPA violation. Perhaps I am off base here suing them for continued collection activity, I hope not...

I'm not trying to discourage you, but you need to make sure the law firm is considered a debt collector. Some law firms may try to collect a debt for a client, but it's not something they do often. As a result, they may not fit the definition.

Link to comment
Share on other sites

They focus on collections. In fact, on their website they advertise as a "professional collections law firm".

....... didn't you post that they filed the suit on behalf of the OC?

They could just be acting as the law firm for the Plaintiff .... in this case.

Hopefully I'm wrong here but I didn't think that Banks were governable by the FDCPA. I can't even see anything in your posts that might indicate the alleged debt is even related to the banking industry.

Straighten me out on this please.

Link to comment
Share on other sites

The bank would not be under the FDCPA as the bank would be the original creditor. The law firm or collection agency collecting for the bank would be under the FDCPA.

However, still the law firm, even though being a third party collector, might still not meet the definition of a debt collector as defined by the FDCPA.

That is why if you get sued by Chase and the attorney for Chase pre-lawsuit violates the FDCPA you can't counterclaim against Chase, you have to file a separate lawsuit against the law firm.

However, if a junk debt buyer is involved and the JDB violates pre-lawsuit, you can counterclaim against them. A JDB falls under the FDCPA. The JDB steps in the shoes of the original creditor that is not under the FDCPA, but they don't assume the title of the original creditor.

None of what I posted means it applies to the OP situation. It was just answering Savoir.

Link to comment
Share on other sites

True, they filed a suit against me on behalf of the OC, which I am defending pro se.

they function as a collection agency law firm. I am suing CA (not OC) for FDCPA violation (continued collection). After I timely requested DV, after 30 days of DV window they filed a suit against me. I see it as a continued collection activity b/c they never validated the debt, unless the argument is that lawsuit itself is DV.

Their notice includes the following disclosure:

Please be advised that we have been retained by XX to collect $$$ plus interest and atty fees from you.

We are debt collectors. We will assume this debt to be valid unless you dispute the validity of all or any part of it within 30 days of receipt of this letter. If you notify us in writing that you dispute all or a portion of the debt, we will obtain and send to you verification of the debt or a copy of he judgement to you. Upon written request within 30 days after receipt of this notice, we will provide you with the name and address of the OC, if different from the creditor named above. This is an attempt to collect debt and any information obtained will be used for this purpose.

Before filing a lawsuit which would unnecessarily increase the indebtedness by adding court costs, interest and ((where applicable) attorney's fees, we are giving you an opportunity to adjust your account amicably.

Since it's the desire of our client that you take care of this account directly with us, your attention to this matter will eliminate the above mentioned course of action.

Link to comment
Share on other sites

You really need some case law from GA courts, if possible. There were no state court cases, so I found a couple of GA Federal Court cases. Hopefully, they will help:

The first 3 quotes are from Anderson v. Frederick J. Hanna & Associates, 361 F. Supp. 2d 1379 - Dist. Court, ND Georgia 2005:

"Third, although a debt collector may choose to file suit without initially communicating with the debtor, the law is clear that once an initial communication is made and the debtor requests verification, the debt collector must provide the verification before resuming collection efforts."

"Finally, defendants' argument that a lawsuit to collect a debt is not "collection activity" is patently frivolous."

"Fourth, the Eleventh Circuit's holding that a debt collector may file a lien at the same time a demand letter is sent, before a consumer has made any request for verification, Shimek v. Weissman, Nowack, Curry & Wilco, P.C., 374 F.3d 1011, 1013 (11th Cir.2004), does not mean that the debt collector may file a lawsuit after such a request has been made."

"Other courts, moreover, have similarly found that lawsuits do constitute debt collection activities and must be suspended once a consumer gives notice that she is contesting the debt." Taylor v. HEATH W. WILLIAMS, LLC, 510 F. Supp. 2d 1206 - Dist. Court, ND Georgia 2007.

The Taylor case is a little different from yours in that the Defendant disputed the debt after the Plaintiff filed an action, but I included the case law because it states that other courts have found that lawsuits are a collection activity.

Link to comment
Share on other sites

Guest
This topic is now closed to further replies.
 Share

×
×
  • Create New...

Important Information

We have placed cookies on your device to help make this website better. You can adjust your cookie settings, otherwise we'll assume you're okay to continue.. For more information, please see our Privacy Policy and Terms of Use.