Be Very Careful With What You Send to the Other Side !!

[Coltfan1972]

For regulars this is common sense, however, felt the need to post because I/we see some let's just say interesting communications being sent to the other side.

I sued a debt collector in federal court. As part of the federal rules each side has mandatory disclosures that must be made that have nothing to do with discovery.

So I get mine today and guess what is in there. My dispute and refusal to pay letter from March of this year, my intent to sue a month later after they violated the C&D, my photo of my caller id, the voice mail, and my cover letter sending them a courtesy copy after the lawsuit was filed.

It was very nice to open the attachments and see a right to the point three sentence dispute, refusal and C&D letter, then a right to the point you violated the FDCPA on this date by doing XXX and suit will be filed on XXXX if you do not wish to settle for XXXX (and a reasonable amount). Also the cover letter was just one sentence that said enclosed find a courtesy copy (you know I'm very courtesy) of the lawsuit filed on XXX date.

There was no laundry lists of demands, no threats about mail fraud, no demands full of the world will come to an end if you don't do this or that, no BBB complaints, no typical stuff you might expect to see.

It really just shows that I was right to the point and very matter of fact. Some of that stuff was from eight months ago. I know it might seem like common sense, but be very careful when sending letters, emails or whatever to the other side.

While we all know I'm pretty much insane and the loosest of the loose cannons, on paper I do not come off that way. You might not think it will matter, but I can assure you I'm glad I'm not having to answer to why I threatened them with mail fraud or made a bunch of threats I did not follow up. Every single thing I said I would do I did and on the exact date I said. Their mandatory disclosures now do nothing but paint me as a calm and reasonable person.

So take it from one of the posters on this board that loves to fight more than anybody, save that to do verbally and remember all your letters you might see again one day, but more importantely a judge and/or jury also.

I'm glad I have come off on paper the complete opposite of what I really am.

[saytar]

Cough, cough, cough....................:roll:

OK just like a Cobra curled way up and ready to strike.

Not bad advice. Sometimes less it better. (if its going from me to them)

Edited November 3, 2012 by saytar
Just cause

[Coltfan1972]

OK just like a Cobra curled way up and ready to strike.

That is a very good example.

[ASTMedic]

It's nice to hear this. I think this is something that most new members don't fully grasp. They get the summons and start trying to grab hold of very fine details where mistakes were made. This is not what you need to be doing, it's usually a waste of time and it will most likely be in effective. You need to attack the large mistakes that just about all JDB make. Attack it calmly and directly and you will be VERY effective.

[bravoflaca2000]

Do you happen to have a copy? , I am not sure what kind of wording to do ...

I saw a post that I am planning to use but would like some direction

I had this so far:

This is not my debt , I deny that this is my debt , and if it is my debt I deny that I owe you this debt .

I wish I had looked into this two year ago , if you recall i am in court with midland on one account .

I have since learned more and I have disputed several accounts I have 5 of them and one more from midland for different account than what I am in court for .

2 out of 3 have replied the others I am waiting for reply I have recieved same old crap midland sent one statement and their usual letter nothing else , the other called the bureaus actually sent me 1 statement ,bill of sale , assigment all that good stuff.

I have been poking around at all your post would just like some direction . I send debt validation because once I ran my credit because I got summons all of the sharks have come out .Since they recieved my letter there has been a dead silence for last two weeks in my home .

[Coltfan1972]

Bravo,

I don't think you're quite comparing apples to apples here. I'm the one that is doing the suing. I sued them, they did not sue me. In my case the underlying debt is irrelevant, in fact, it's only mentioned one time and the liability of it is not even addressed.

[saytar]

Colt is taking the fight to the enemy.

Now who was it said" a good defense is a better offense".....................

[antiquedave]

This is not my debt , I deny that this is my debt , and if it is my debt I deny that I owe you this debt .

I have been poking around at all your post would just like some direction . I send debt validation because once I ran my credit because I got summons all of the sharks have come out .Since they recieved my letter there has been a dead silence for last two weeks in my home .

You are talking about a kind of graduated denial, used when being sued, if you search for that term you will see the treads where it was discussed, some people in the past advocated using graduated denials, many do not now including me.

If you sent that in a letter to DV the collector they would probably see that as a refusal to pay.

[My~Cuz~n~Vinny~]

Good post Coltfan! Thanks.There really is no need to give them anything in a debt validation letter except....

Dear Occupants of debt collector address.

"I don't know who you are ,and your presupposed attempt of an alleged debt collection is invalid. "

.... Really is that simple isn't it? !!

1. They never have a name signed on the dunning letter.Just a company address.

2. They don't even need any FDCPA regulation telling them if they don't respond they are in violation. When they do VIOLATE...they will soon know it. They should have ceased and desisted further communications until their suit is filed as an attorney on the alleged debt.

3. They are totally in the dark as to if you are the debtor WHO ...they.... think you are.

So there is no need to tell them anything. They can bring a law suit anyway whether you respond or not. So why give them any idea who they are up against.

Vinny agrees....remember all your letters you might see again one day, but more importantly a judge and/or jury also.

Edited November 3, 2012 by My~Cuz~n~Vinny~

[nascar]

Just curious. Has your lawyer ever litigated a debt collection case in federal court?

[BTO429]

Miranda v Arizona. In 1963,

Anything you say or do can and will be used against you in a court of law.

[KentWA]

I learned my lesson in the first suit where I sued a JDB. The depo went on for hours and they asked questions about every sentence in every letter I sent to them. I used that old DV letter when I first started and that letter ended up taking a lot of my time up. They got nothing they could use, but it was a valid inquiry since they alleged unclean hands and bad faith in their answer. What it cost me was 3 hours answering very stupid questions about FDCPA, TCPA, and State Law.

Now my DV letters are straight to the point, "The alleged debt is disputed, validation is demanded. I request the name and address of the original creditor. All calls are inconvenient, and communication must be by USPS". Note the second sentence, they will miss that when and if the answer the DV and not provide the address 99.99% of the time.

All subsequent letters are just as straight forward, short and to the point. I never bluff, huff and puff or go on and on about the law. Let them figure out the law.

[screenname]

I get the impression that JDBs are borderline incompetent when suing debtors en masse, but somehow become very knowledgeable about every letter of the law when the tables are turned. Is this true at all?

[ladyhunter]

I get the impression that JDBs are borderline incompetent when suing debtors en masse, but somehow become very knowledgeable about every letter of the law when the tables are turned. Is this true at all?

NO!!!

[Oarman1954]

Excellent advice!

[Coltfan1972]

I get the impression that JDBs are borderline incompetent when suing debtors en masse, but somehow become very knowledgeable about every letter of the law when the tables are turned. Is this true at all?

Not at all, but if you give them something to question you on they will run with it. A FDCPA suit is very cut and dry. FDCPA is a strict liability statute. You either violate it or you don't. The opps did not mean to are very, very limited and are basically for things like transposing numbers or other minor errors.

So if you give them anything that can steer the debate off the real issues, like alleging they have to do something when there is no legal requirement they must, then they will try to run with it.

It's like when you were a kid and did something wrong. You tried to talk all around what you really did and looked for anything you could use to mitigate what you did.

I'm just saying not to give them that opportunity. My experience is that the lawyers for JDB really don't understand the true bottom line of the FDCPA, which is the LSC standard and the underlying debt is irrelevant. I had a JDB lawyer spend one whole round of discovery on the underlying debt.

I've heard Kent's story before about his depo lasting many hours just trying to trip him up on the two page DV letter he sent. I think the lawyers probably just jumped all over that to try and trip him up.

[antiquedave]

Those looong letters should disapear when the site is rebooted too they really are counter productive

[ArtVandelay]

Just curious. Has your lawyer ever litigated a debt collection case in federal court?

I have learned a lot from reading your post and you seem to be very knowledgeable when it comes to the FDCPA. I definitely agree with what COLFAN1972 and others here say about keeping everything as short as possible. I subscribe to the theory that the person who does the most talking/writing is more likely to make the most mistakes. I have a few of questions about the Federal level.

If someone has a solid FDCPA case what are the chances they will actually take it to trial?

Also from your experience how long do the JDBs drag the negotiations out when they settle? Assuming it is a solid violation.

Do you think its wise to be proactive and file an FDCPA claim before you are actually sued? This is assuming the other side has committed a few violations and you are sure they are going to sue. The reason I ask is if it possible to have the debt dropped/cancelled as part of the settlement.

Is it possible for any FDCPA information to be brought up and used against you in the local credit lawsuit where you are the defendant?

Thanks!

AV

[1stStep]

Only 1 of my 5 FDCPA suits went to SJ. The defendants in that one, after losing SJ, moved for a bench trial...they ended up taking thier judgment only because id be prepping aggressivley for that trial.

[Coltfan1972]

If someone has a solid FDCPA case what are the chances they will actually take it to trial?

I've had one I sued in state settle in record time. I had another that took it two days prior to trial, even after I demolished them and defeated their motion for summary judgement.

I had a federal one earlier this year where the atty for the defense (who is on retainer with the ACA) settled with me before they even filed an answer and gave me every dime I asked for.

I have this current one where I have the agency nailed on violations where I could win with summary judgement hands down now wanting to depose me. I'm not even filing for summary judgement. I have no problem with them wasting money.

So in other words who knows. I've made it personal a couple of times and basically bullied the other side to fight. Then the federal case in April it was just a 100% business like phone call and all done quickly and this attorney has appeals court cases and even a U.S. Supreme Court on his resume.

I've read online that 95% never go to trial. Now don't know if that includes all the summary judgement motions. I would assume it does. In other words no real formula. Obviously the merits of your case will play a huge role. In my current case, this could have been over months ago, but I'm not interested in that at this time, but I was already advised their insurance company was "eager" to settle.

Also from your experience how long do the JDBs drag the negotiations out when they settle? Assuming it is a solid violation.

See above. It depends a lot on the other person also. You can't really negotiate with somebody that won't come off a 100K demand so of course it will drag out. If you were to call them and say 500.00 makes this go away you would have it settled in about ten seconds.

Do you think its wise to be proactive and file an FDCPA claim before you are actually sued?

Wise? I don't know but I've never not been the first party to sue. I've been counter sued after I sued (easily got dismissed and actually led to another FDCPA violation), but wise? All depends on your case, your knowledge and your comfort level with the process. Around here from the regulars you will see a lot of taking the fight to the other side. It's really just a risk v reward decision you would have to make.

The reason I ask is if it possible to have the debt dropped/cancelled as part of the settlement.

Oh that happens all the time, assuming the party you're suing owns the alleged debt. Shoot in a case five years ago they tried that with me. I told them I was not interested as the debt was past the statute of limitations and I hoped they sold it to another sucker. That went over well, but to answer your question, that is a main goal of many when the do sue and it happens all the time.

Is it possible for any FDCPA information to be brought up and used against you in the local credit lawsuit where you are the defendant?

Like what? The underlying debt in a FDCPA action is irrelevant. But if you sue the record is public so anybody would have access to it.

[antiquedave]

I do not file my own FDCPA suits, I have always had an attorney that filed them for me.

Of the 8 we have filed so far a couple settled fairly quickly and a couple drug out for 6 months, none have gone to trial, they usually pay within 30 days or less of settling, sometimes you can get them to agree to issue the check in 10 days or less as a condition of settling.

None of the debts have been owned by a collector so none of them have been eliminated and like Colt said a lot of debts get eliminated if the JDB owns them BUT we have had agreements where the CA agreed not to collect further on the debt and send it back the OC (which sends it out again)

I believe in being proactive, We file a FDCPA suit when we have a violation, I don't wait to be sued or hold a violation for a later date, If we sue and settle before a suit is filed against me and they violate again I have a second chance at them. The fastest we filed was two days after receiving a dunning letter,

best one was collecting 3 times on the same debt from 3 different CA's

I think that if you have a solid case with caselaw to back you up that there really is no reason for the CA to fight it out, even with just a simple foti violation, we had two calls where they did not identify themselves and said they were calling on an important business matter. The violation was clear the only thing to argue about was the settlement.

It all depends on what you are comfortable with doing and what your goals are,

I have a great attorney here in Michigan with a lot of experience with FDCPA so I just document well and send him everything.

[ladyhunter]

Also from your experience how long do the JDBs drag the negotiations out when they settle? AV

My case took 13 months; however, once AA decided to settle, they seemed like they could not scrape me off them fast enough.

The attorney was all over me to get the settlement document to me via e-mail and get my signature on it, when before that he refused to use any technology to speed up anything. I wanted to take time to send it to a CIC mentor of mine to read it and have a slow read myself, being sure I was not giving up anything I didn't want to, and the attorney was like, "Where is your signed paper? We can't do anything until we get it." An hour later, "Where is your signed paper? We don't have it yet!"

Then I noticed he left out a couple of things we had verbally agreed to, such as the writing of my book not being under the NDA. When I pointed it out, he was frustrated that it would delay everything because he had to finalize the changes with AA. (Awwwww, I felt so bad. )

Feeling that kind of power over a big bully is intoxicating!

Edited November 5, 2012 by ladyhunter

[bmc100]

In the 6 FDCPA lawsuits I have filed, all but one settled fairly quickly. Like within 2-3 weeks. I had so much documentation that they could not get around it.

Every single FDCPA suit was filed by an attorney. The one that did not settle quickly took 6 months...but they settled and cut a check fairly quickly after that.

In fact all you should send a CA or JDB is a short Validation letter and a C&D. Once you get the return receipt that they received it or if you emailed it or faxed it...as long as you have confirmation of it, when they breach it, you have an easy win.

It is simple for an attorney...here is receipt of the Validation and C&D...here is the phone records for the Plaintiff showing calls after they received.

Two, if they send you a letter that does not comply with the FDCPA, send them a letter asking them to correct their mistake...if they do not, then you show both letters...easy win.

[antiquedave]

Two, if they send you a letter that does not comply with the FDCPA, send them a letter asking them to correct their mistake...if they do not, then you show both letters...easy win.

I never ask them to correct a mistake, I just scan the letters and send them in to the attorney as I get them. Its not my job to instruct them in their violations of FDCPA I rely on my attorney to do the teaching.

and he knows how to use that ruler to crack knuckles!

[ArtVandelay]

Thanks for all the replies guys!

Its funny that I'm more nervous about my FDCPA claim now than my actual trial that I handled as a Pro Se. I guess I'm the type that's more comfortable representing myself than having someone else represent me. I'll just sit back and wait to hear from the attorney now. I'll post the outcome if its not a condition of a settlement.

Thanks again!

AV