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Interesting FDCPA Case Law


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If CA #1 "screwed the pooch" then your rights were not given to you.  Works the same with Miranda in criminal.   I really don't see this as a big deal.   You're given your Miranda rights and then each new officer that comes in to interrograte you does not have to read your Miranda rights all over again.  However, if you were not properly Mirandazied then of course all other parties can't rely on somebody that screwed the pooch. 

This is why if CA#1 never responded to then CA#2 ... in courts that consider the DV clause to run with the debt ... then CA#2 is violating (IMHO) if they try to collect on the (unvalidated) debt ... unless they first validate.

 

 

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My question then, is how does a DV request factor in here?

 

Let's say Citi sells an account to ABC. ABC gets timely DV request and rather than play, sells the account to XYZ.

 

Using the logic of the court, one could reasonably argue that XYZ is bound by the DV request sent to ABC and any collection activity they engage in prior to providing that validation is a violation.

 

Thoughts?

Exactly.

 

But this could be handled loosely.  Go ahead and DV XYZ anyway.  If ABC did not answer DV and then XYZ also does not answer DV, then it should be clear the debt was never validated by either, and XZY cannot get around the law by claiming an attachment to the initial communication by ABC.

 

It's the case where ABC does respond to the DV that would make it hard to pursue XYZ on that in some courts.

 

My next question is, if a court does say the DV response by ABC extends to XYZ ... what if I had C&D'd ABC ... under the same principle, the C&D should "ride with the debt" and therefore apply to XYZ as well.

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This is why if CA#1 never responded to then CA#2 ... in courts that consider the DV clause to run with the debt ... then CA#2 is violating (IMHO) if they try to collect on the (unvalidated) debt ... unless they first validate.

 

What courts would that be? I know that there have long been discussions about the DV running with the debt but I was unaware that any courts had actually ruled on it. I'd be interested to get some more info there.

 

 

Exactly.

 

But this could be handled loosely.  Go ahead and DV XYZ anyway.  If ABC did not answer DV and then XYZ also does not answer DV, then it should be clear the debt was never validated by either, and XZY cannot get around the law by claiming an attachment to the initial communication by ABC.

 

It's the case where ABC does respond to the DV that would make it hard to pursue XYZ on that in some courts.

 

My next question is, if a court does say the DV response by ABC extends to XYZ ... what if I had C&D'd ABC ... under the same principle, the C&D should "ride with the debt" and therefore apply to XYZ as well.

 

Excellent point. These rulings could be potential land mines for debt collectors.

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Exactly.

 

But this could be handled loosely.  Go ahead and DV XYZ anyway.  If ABC did not answer DV and then XYZ also does not answer DV, then it should be clear the debt was never validated by either, and XZY cannot get around the law by claiming an attachment to the initial communication by ABC.

 

It's the case where ABC does respond to the DV that would make it hard to pursue XYZ on that in some courts.

 

My next question is, if a court does say the DV response by ABC extends to XYZ ... what if I had C&D'd ABC ... under the same principle, the C&D should "ride with the debt" and therefore apply to XYZ as well.

 

This is where you need to see how your courts have ruled.  If your courts have ruled that the 30 day validation notice does not have to be provided by subsequent debt collectors, you might be able to argue that you shouldn't have to provide a C&D to subsequent CAs.

 

BUT, if your courts have ruled that each CA attempting to collect for the same debt must provide the 30 day notice, then it would stand to reason that you'd have to provide a C&D to each collector.

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This is where you need to see how your courts have ruled.  If your courts have ruled that the 30 day validation notice does not have to be provided by subsequent debt collectors, you might be able to argue that you shouldn't have to provide a C&D to subsequent CAs.

 

BUT, if your courts have ruled that each CA attempting to collect for the same debt must provide the 30 day notice, then it would stand to reason that you'd have to provide a C&D to each collector.

 

Exactly.  But this is how we turn the bad situation in courts/states where the DV is ruled to ride with the debt and argue that C&D must therefore ride with it to ... in those courts/states.

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Exactly.  But this is how we turn the bad situation in courts/states where the DV is ruled to ride with the debt and argue that C&D must therefore ride with it to ... in those courts/states.

 

That's what I said.  "If your courts have ruled that the 30 day validation notice does not have to be provided by subsequent debt collectors, you might be able to argue that you shouldn't have to provide a C&D to subsequent CAs."

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