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http://www.creditinfocenter.com/forums/collections/307646-fdcpa-1692d-5-how-many-collection-calls-too-many-violate-fdcpa.html

Some discussion on how many calls are too many calls

I am working up a detailed post with case citations on the "in Writing" requirement some collectors put in their dunning notice and should be able to post it Saturday

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antiquedave: Thanks for the information. I have wondered if the excessive calling during the period in which I had to contact them regarding whether they may or may not send the case over to a lawyer firm can be used against them.

QUOTE]

In the voice mails they have left do they identify themselves as a debt collector or just say please call on a very important business matter?

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If people do a refuse to pay, or a cease and desist, ANY call would be a violation, it won't matter of they call once or 20 times, you might even be able to use the TCPA also, and they do stack on the TCPA. Don't be afraid of these monkeys, I have them all with C&D, and didn't sue me. I do have one that won't send a dunning letter and call me wednesday, I got him on 4 clear violations, and plan on suing. They are more the sort of scammers than JDB, so I won't get any money but will get a nice price and enter webrecon.

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antiquedave: Thanks for the information. I have wondered if the excessive calling during the period in which I had to contact them regarding whether they may or may not send the case over to a lawyer firm can be used against them.

QUOTE]

In the voice mails they have left do they identify themselves as a debt collector or just say please call on a very important business matter?

All of the voice mails that have been sent did not even include a message. All I ever heard was the person saying "Hello???" and my name a few times before they would hang up.

As far as me giving them my number, my OC did get my number back when I first was working with them, but I have since not given out my number, nor given them consent to call.

So for an update: I sent the local lawyer firm a DV letter, as was the plan. It took them a while, but they have sent a return letter back to me.

The letter gives the date the account was placed with their firm, the OC's name and address, and my old account number, X'd off to the last 4 digits. They also included a social security number associated with the account, X'd off to the last 4 digits.

I'm going to look around the site for some information on what the next move is. They have provided the debt verification and obviously have my correct information, but technically this doesn't prove that the debt is still mine. It just shows that it was on an account that was in my name.

They've also again "encourage" me to call them about the account, but I don't really see the point. They're just trying to take money from me.

As far as I can see from this letter, there's no part here where I must reply back to them. I asked for debt verification, they sent it to me. It did not default over to automatically show that the debt is mine. Should I just wait until they send another response, or is there a better action to take?

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As far as I can see from this letter, there's no part here where I must reply back to them. I asked for debt verification, they sent it to me. It did not default over to automatically show that the debt is mine. Should I just wait until they send another response, or is there a better action to take?

Yes, start reading in the "Is There A Lawyer In The House" section. I don't know which law firm you are dealing with, and even if I did, I don't know how any of the ones that do business in your state operate. However, if they are like most other collection law firms willing to do business with Midland and it's ilk, there are only a few ways for you to avoid getting sued. You could pay them. You could catch them in some nasty FDCPA and/or state law violations and let them know about it. You could catch them in some nasty FDCPA and state law violations and sue them in Federal. You may possibly be able to elect arbitration if the debt is small enough and especially if JAMS is available to you.

If none of those options are available to you or are appealing to you, you need to be ready to respond to a summons and complaint, send and answer discovery if they don't take you to small claims, understand legalease and the legal theories that these guys sue under. If you do these things now, you will be much, much better off than most people who show up here, including myself when I was sued.

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Yah take some time to at least learn about responding to a summons if nothing else, I wasted the first week after the summons trying to decide what to do,I should not have been surprised that the attorney collector filed suit, I did after all sue them first.........

the "in wiriting" issue has to do with a 1692g(3) violation if the letter is written in such a way that it requires you dispute in wiriting. You can dispute orally, but must submit a written response to get the benefits of 1692g (4) and (5)

You have to always keep in mind that FDCPA is a strict liability statute, 1 violation pays the same as 100 and the size of the violation actually doesn't matter.

Probably the only time in life where that is true..........

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Yah take some time to at least learn about responding to a summons if nothing else, I wasted the first week after the summons trying to decide what to do,I should not have been surprised that the attorney collector filed suit, I did after all sue them first.........

the "in wiriting" issue has to do with a 1692g(3) violation if the letter is written in such a way that it requires you dispute in wiriting. You can dispute orally, but must submit a written response to get the benefits of 1692g (4) and (5)

You have to always keep in mind that FDCPA is a strict liability statute, 1 violation pays the same as 100 and the size of the violation actually doesn't matter.

Probably the only time in life where that is true..........

This is what MCM included in the OP's letter:

Unless you, withing 30 days after receipt of this notice, dispute the validity of the debt, or any portion thereof, we will assume the debt to be valid. If you notify this law firm, in writing, within the 30 day period, that the debt, or any portion thereof, is disputed, our law firm will obtain verification of the debt and mail a copy of the verification to you.

There is no violation. It states exactly what's written in the FDCPA.

The first sentence means he can dispute any way he wants, and they won't assume the debt to be valid. The second sentence is in regard to validation. That must be in writing.

As far the "pre-legal notification" is concerned, I found one case involving that term. It was an Indiana case against Midland. The court dismissed it.

Ruiz v. Midland Credit Management, Inc - Google Scholar

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There is no violation. It states exactly what's written in the FDCPA.

I don't recall seeing references to law firms in the language, its not exact, it also doesn't include the reference to judgments. The inclusion of the reference to this law firm was intentional and to me adds to the overshadowing of the notice, they want you to know they are a law firm first.

The first sentence means he can dispute any way he wants, and they won't assume the debt to be valid. The second sentence is in regard to validation. That must be in writing.

If they want to draw a distinction between these different rights in disputing and validation they really need to separate the sentences so that it does not imply that a written response is required.

I have seen a number of dunning letters that have a space between (3)(4)

(5) its not mandated but you can see that some collectors are thinking about this.

As it stands the OP's letter (at the least) implicitly requires a written response on first impression although an explicit requirement to dispute in writing is required to satisfy what the courts discussed in CAMACHO and BAEZ to be a violation.

As far the "pre-legal notification" is concerned, I found one case involving that term. It was an Indiana case against Midland. The court dismissed it.

In an earlier post on this thread I including links to Ruiz and noted the loss, and Graziana v Harrison but also including links to CAMACHO v. BRIDGEPORT FINANCIAL INC, No. and Baez v. Wagner & Hunt which disagree with RUIZ and HARRISON and find that explicitly requiring a written response to dispute per 1692g(3) is a violation.

"Unless you, within 30 days after receipt of this notice, dispute the validity of the debt, or any portion thereof, we will assume the debt to be valid. If you notify this law firm, in writing, within the 30 day period, that the debt, or any portion thereof, is disputed, our law firm will obtain verification of the debt and mail a copy of the verification to you. Upon your written request within the 30 day period, our law firm, will also provide you with the name and address of the original creditor, if different from the current creditor. This is a communication from a debt collector. This communication is an attempt to collect a debt and any information obtained from this communication will be used for that purpose."

My impression without seeing the actual letter is that the legal references overshadow, was there a disclaimer regarding attorney review? the language implicitly requires a written response, that their miranda does not include the reference " or a copy of a judgment" (unless the OP forgot it)

FDCPA Language

a statement that unless the consumer, within thirty-days after receipt of the notice, disputes the validity of the debt, or any portion thereof, the debt will be assumed to be valid by the debt collector; (3)

a statement that if the consumer notifies the debt collector in writing within the thirty-day period that the debt, or any portion thereof, is disputed the debt collector will obtain verification of the debt or a copy of a judgment against the consumer and a copy of such verification or judgment will be mailed to the consumer by the debt collector;  and (4)

a statement that upon the consumer's written request within the thirty-day period the debt collector will provide the consumer with the name and address of the original creditor, if different from the current creditor (5)

"The federal court noted that “Whether a Dunning letter that requires a consumer to dispute a debt in writing violates the FDCPA is a question of first impression in this Circuit.” Baez, at 1276.

The only circuits to address the issue - the Third Circuit and the Ninth Circuit - have reached different conclusions: the Third Circuit held that subsection (a)(3) requires written notice, see Graziano v. Harrison, 950 F.2d 107, 112 (3d Cir. 1991), while the Ninth Circuit held that written notice is not required, see Camacho v. Bridgeport Fin., Inc., 430 F.3d 1078, 1080-81 (9th Cir. 2005).

In agreeing with the Ninth Circuit’s analysis, the district court concluded that the plain language of the statute does not require that the validity of the debt be disputed in writing, and refused to add that requirement to the statute. Baez, at 1277."

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I don't recall seeing references to law firms in the language, its not exact, it also doesn't include the reference to judgments. The inclusion of the reference to this law firm was intentional and to me adds to the overshadowing of the notice, they want you to know they are a law firm first.

The OP knows it's from a law firm. They would probably argue that they were making sure he knew to send a DV request to them...not to MCM. If he sent a DV to MCM instead of the law firm, he could miss out on validating within the 30 day period.

Using the words "law firm" did not change the intent of the notice.

As far as leaving out the part about a judgment, no judgment has been obtained. I think you'd have a hard time arguing that your rights were violated by not including the part about a judgment when there hasn't been a judgment.

If they want to draw a distinction between these different rights in disputing and validation they really need to separate the sentences so that it does not imply that a written response is required.

A written response simply to dispute was not implied. The first sentence is plain. And courts have ruled as much.

The first sentence said:

Unless you, withing 30 days after receipt of this notice, dispute the validity of the debt, or any portion thereof, we will assume the debt to be valid.

There's nothing in that sentence about "writing".

The Baez and Camacho cases were about including the words "in writing" in the first sentence...subsection (a)(3). They weren't referring to subsection (a)(4). Here's what the CA said in the Camacho case:

"Unless you notify this office in writing within 30 days after receiving this notice that you dispute the validity of this debt or any portion thereof, this office will assume this debt is valid."

The CA included "in writing" in the first sentence. By doing so, it meant the debtor had to dispute in writing so that the debt would not be considered valid. That's what the court said was wrong.

"In this case, the Court does not find a sufficient justification for inserting the phrase "in writing" into subsection (a)(3)."

The courts ruled that "in writing" should not be in the first sentence. However, it is supposed to be included in the 2nd sentence (subsection (a)(4)) which has to do with requesting validation.

As far as to the rest of the OP's letter, he didn't write everything that was in the letter. We don't know if the attorneys included a disclaimer about attorney involvement or not.

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making an incomplete statement in the validation notice can violate FDCPA whether a judgment exists or not they are supposed to include the complete statement in the mini miranda.

leaving out portions of the statutory language has been cited in a number of cases

Kaschak v Raritan Valley Collection Agency did not include may dispute debt in whole or in part

Grief v Wilson

Baker v GC Services

There are quite a few cases that deal with not including all of the required language, I see possibilities to explore, I am not going to discount a potential violation out of hand,

my point in bringing some of these things up is the need to look closely and explore all the possibilities.

Not including all of the required language can and has been a valid violation.

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Leaving out the part about a judgment when none has been obtained doesn't change the intent of the notice or violate any of your rights.

"A plain reading of the statute as well as plain logic compel the conclusion that a debt collector can not be required to disclose that it will furnish a copy of a judgment which does not exist." Beeman v. Lacy, Katzen, Ryen & Mittleman, 892 F. Supp. 405 - Dist. Court, ND New York 1995.

"However, Plaintiffs have not cited any authority that requires such a complete recitation of the statutory language when the creditor has not obtained a judgment. To the contrary, courts considering this issue have concluded that a debt collector need not offer to provide a copy of a judgment that does not exist." Shimek v. Weissman, Nowack, Curry & Wilco, PC, 323 F. Supp. 2d 1344, 1348 - Dist. Court, ND Georgia 2003

The 2nd Circuit stated this:

"Despite Emanuel's assertion to the contrary, there simply is no requirement that the letter quote verbatim the language of the statute." Emanuel v. American Credit Exchange, 870 F. 2d 805, 808 - Court of Appeals, 2nd Circuit 1989.

I understand and agree that leaving out a portion of the notice can be a violation. However, the cases you've cited were about omitted portions that affected the consumers' rights and changed the intent of the notice.

In Grief v. Wilson, the CA included this in their letter:

"Unless you notify us within thirty (30) days after the receipt of this notice that the validity of this debt, or any portion of it, is disputed, we will assume that the debt is valid. If you notify us within thirty (30) days after receipt of this notice that you dispute the validity of this debt, or any portion of it, we will obtain a verification of the debt and mail it to you.

Also, if so requested by you within thirty (30) days after receipt of this notice, we will provide you with the name and address of the original creditor if different from the current creditor above."

There's nothing in the above about disputing in writing. Requesting DV in writing is an essential part of the FDCPA. By leaving out the words "in writing", the consumer was not notified of the fact that the FDCPA requires a DV be sent in writing. Congress intended that we request validation in writing. The omission of those words changed the intent of the section.

This is like the Camacho, but in reverse. In Camacho, by including "in writing" in section (a)(3), the intent of that section was changed. The FDCPA does not require that in order to simply dispute, we must do so in writing.

In Baker v. GC, the notice did not include that the consumer could dispute only a portion of the debt. Just like the Grief case, the notice left out words that were essential to the consumer's rights.

I don't know about the Kaschak case. I can't find the case. The only time I found it cited was in relation to statutory damages.

I appreciate that you're pointing out how we should carefully examine any letters we receive for possible violations beyond the complete omission of the mini-miranda. I completely agree.

Edited by BV80

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Is the number they are calling the same number that you had when you got credit from the OC, or did they skip trace your new number? If you have never gave the OC or the Collector the number they are calling they have also violated the Telephone collection Practices act of 1991. They violated it because they did not have your express consent to call that number. 500 dollars per call or triple damage per call if you can prove willful negligence.

A debt collector does not have to have your permission to call your cell unless they use an autodialer or leave a robomessage. If they dial by hand and don't leave a robomessage, they're not in violation of the TCPA.

I know that most CAs will use an autodialer. However, it's up to us to prove it.

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