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"Initial Communication" Case Law


BV80
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Section 1692g of the FDCPA:

 

(a) Notice of debt; contents

 

Within five days after the initial communication with a consumer in connection with the collection of any debt, a debt collector shall, unless the following information is contained in the initial communication or the consumer has paid the debt, send the consumer a written notice containing—
(1) the amount of the debt;
 
(2) the name of the creditor to whom the debt is owed;
 
(3) 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;
 
(4) 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
 
(5) 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.
 
 
A few federal courts have ruled that this notice (the 30 day validation notice) only has to be provided one time.  That one time is by the first debt collector who sends a collection notice.  Those courts have ruled that subsequent debt collectors are not required to provide the 30 day language. 
 
The courts that have made such a ruling are:
 
Ditty v. CheckRite - Utah
 
Senftle v. Landau - Maryland
 
Nichols v. Byrd - Nevada
 
Oppong v. First Union Mortg. Corp. - Pennsylvania
 
McNall v. CREDIT BUREAU OF JOSEPHINE COUNTY - Oregon
 
One state court has made the same ruling.  That was the Washington Court of Appeals in Donohue v. Nielson.
 
After a validation notice has been timely sent, a subsequent collector does not need to provide additional notice and another thirty-date validation period. Ditty v. CheckRite, 973 F.Supp. 1320, 1329 (D.Ut.1997).
 
Granted, only a few courts appear to have made such a ruling.  However, If a particular court has not ruled on the issue, you can be pretty sure that an FDCPA defendant will reference the above cases.
 
The reason for this post is twofold.
 
1.  To point out that we need to be careful about the information we provide and suggestions we offer to posters.
 
2.  The recent U.S. Supreme Court ruling in Marx v. General Revenue Corp.  The SCOTUS ruled that an unsuccessful FDCPA plaintiff can be held liable for the costs of the debt collector defendant even if the case was not brought in bad faith.
 


 
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Here I go again.  It's like the dialog from 'The Big Lebowski'  "new information has come to light", "there a lot of ins and outs"

 

Aren't all of the rulings listed above for court decisions before 2009, prior to the new set of rules from the FDCPA.  My point is your saying if I get a collection request from an 'assignee' of an OC and I DV them, then I can not DV a JDB further down the line?  AND if years from now a JDB sends out a 'zombie debt' collection request I can't DV them and challenge the validity of their request.  Or the original JDB can sell my debt and I can't DV the new JDB?  It looks like an exercise in frutility and could become costly.  

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Here I go again.  It's like the dialog from 'The Big Lebowski'  "new information has come to light", "there a lot of ins and outs"

 

Aren't all of the rulings listed above for court decisions before 2009, prior to the new set of rules from the FDCPA.  My point is your saying if I get a collection request from an 'assignee' of an OC and I DV them, then I can not DV a JDB further down the line?  AND if years from now a JDB sends out a 'zombie debt' collection request I can't DV them and challenge the validity of their request.  Or the original JDB can sell my debt and I can't DV the new JDB?  It looks like an exercise in frutility and could become costly.  

 

My post was based upon the rulings of the specific courts.    To which new set of rules are you referring?

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My post was based upon the rulings of the specific courts.    To which new set of rules are you referring?

My bad again the FDCPA rules were from 1996, I have been under the assumption that they were initiated in 2009.  So all the information and suggestions that are on this site are bogus and can result in expensive costs to the debtor.  I'm closing my forum account and taking my chances that the courts will rule me 'Judgement proof'  

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BV80 brings up a good point - and something we should all be aware of. Regardless the plain language of a statute or controlling authority interpreting it, some judges will simply refuse to rule on the side of the consumer.  They're just anti-consumer, simple as that. They will find some way to rationalize their decision, no matter how absurd. 

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My bad again the FDCPA rules were from 1996, I have been under the assumption that they were initiated in 2009.  So all the information and suggestions that are on this site are bogus and can result in expensive costs to the debtor.  I'm closing my forum account and taking my chances that the courts will rule me 'Judgement proof'  

 

Which suggestions were bogus?

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Here I go again.  It's like the dialog from 'The Big Lebowski'  "new information has come to light", "there a lot of ins and outs"

 

Aren't all of the rulings listed above for court decisions before 2009, prior to the new set of rules from the FDCPA.  My point is your saying if I get a collection request from an 'assignee' of an OC and I DV them, then I can not DV a JDB further down the line?  AND if years from now a JDB sends out a 'zombie debt' collection request I can't DV them and challenge the validity of their request.  Or the original JDB can sell my debt and I can't DV the new JDB?  It looks like an exercise in frutility and could become costly.  

 

You can DV them anyway.  What these cases are saying is that the CA/JDB who is 2nd or later from the first CA/JDB who did the first notification, does not have to stop collection efforts due to a DV.  I suppose the argument here is that the alleged debtors already know.

 

My own counter argument would be if the 2nd or later CA/JDB failed to provide enough initial information in their own communication to provide for a match up to the first communication, then the alleged debtor cannot know, and has a right to the response from a DV.  It is so ******* trivial for for a CA/DJB to properly identify every debt they try to collect on that I don't even see why we should have to deal with this.  Obviously our lawmakers succumbed to the industry's lobbying to uphold their right to keep consumers confused and in the dark about debts they owe or even don't owe.

 

So how many courts have ruled the other way and awarded to plaintiffs that sued collectors for doing collection after a DV to THEM, despite there being previous collections by others.  What tiny fraction has gotten it wrong?

 

Edit:

 

Let me add one more thing ...

 

If the actions involving an earlier collector get to carry over to subsequent collectors handling that account ... then I argue ALL actions should.  So if I C&D the FIRST collector, that should carry over to the 2nd collector, and every CA/JDB thereafter.

 

At least in those 5 Federal Districts.

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My bad again the FDCPA rules were from 1996, I have been under the assumption that they were initiated in 2009.  So all the information and suggestions that are on this site are bogus and can result in expensive costs to the debtor.  I'm closing my forum account and taking my chances that the courts will rule me 'Judgement proof'  

 

No!  The information and suggestions on this site are not bogus. The cases I posted were specific to those states.   We provide suggestions and case law and readily admit that we are not attorneys.

 

Based upon those suggestions and case law, it's up to you to do your own research.  The Supreme Court ruling was in Feb. 2013.  Do not blame the members on this site for that very recent ruling. 

 

If you cannot do your own research, you have no one but yourself to blame.

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If the actions involving an earlier collector get to carry over to subsequent collectors handling that account ... then I argue ALL actions should.  So if I C&D the FIRST collector, that should carry over to the 2nd collector, and every CA/JDB thereafter.

 

At least in those 5 Federal Districts.

 

 

Those courts made specific rulings.  They were based solely on initial communications for the purposes of validation. 

 

I understand what you mean, but don't read something into it that's not there.

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All right so after you get the 30 days notice, from the first collector all subsequent collectors are basically exempt from sending a dunning letter, all right, but I would argue the same should go the other way, if I C&D the first collector that C&D should carry over too, it's clear at least for me that what they are trying to say is that is the same debt so there's no need for a dunning letter every time, and I would argue the same for a C&D is the same debt so no need to send a new one every time, that would sound good to me would save me the 6 bucks every now and then, but since I normally collect from them, my cost are pretty low.

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Don't read more to this that there is. The instances cited here are isolated to a very specific set of facts. The court's holding in Nichols illustrates without doubt how narrow a ruling we're dealing with:

 

"We agree with the District of Maryland and find that where a validation notice had been sent by a debt collector, another debt collector hired to litigate for collection of that same debt need not supply a second validation notice. In such a situation, the lawsuit is a subsequent communication that does not trigger the requirements of § 1692g." Nichols v. Byrd, 435 F.Supp.2d 1101 (D. Nev. 2006).

 

Arguably, the court's ruling in Nichols would not apply to a subsequent debt collector not hired to litigate. Moreover, even though it is likely that one debt collector will know whether other debt collectors have had the debt before them (i.e., they know whether they are collecting 1sts or 2nds, etc.), they're not likely to gamble on whether prior debt collectors have complied with the law, and even less likely to be able to prove it. (If various debt collectors shared files, internal collection practices, etc., they'd lose the ability to claim their internal practices are trade secrets . . .  they aren't going to do that.) In all the instances here, the entities were closely enough related to know with certainty that a 1692g notice had been sent.

 

In sum, the cases described here are the exception, not the rule. Debt collectors are still going to send the 1692g(a) notices and consumers will continue to be able to dispute debts.

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All right so after you get the 30 days notice, from the first collector all subsequent collectors are basically exempt from sending a dunning letter, all right, but I would argue the same should go the other way, if I C&D the first collector that C&D should carry over too, it's clear at least for me that what they are trying to say is that is the same debt so there's no need for a dunning letter every time, and I would argue the same for a C&D is the same debt so no need to send a new one every time, that would sound good to me would save me the 6 bucks every now and then, but since I normally collect from them, my cost are pretty low.

 

What Nascar said.  :-)

 

Again, my reason for posting those cases, and perhaps I wasn't clear, was simply to point out that we should be careful when we make blanket statements.  We've always said that a CA/JDB has to include the validation notice.  Well, that's not necessarily the case in those states.  

 

I found one of the rulings by accident.  That made me realize that we should be careful when making a blanket "one size fits all" statement.  We know to be careful about state laws and court rules.  Now we also know the same regarding another part of the FDCPA.

 

Florida courts and the 11th Circuit Court of Appeals have not made the same ruling as the courts in the cases I cited.  You go by what your courts have ruled.

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Those courts made specific rulings.  They were based solely on initial communications for the purposes of validation. 

 

I understand what you mean, but don't read something into it that's not there.

 

I'm not saying my suggested interpretation is there.  I'm suggesting it follows the same logic, which could potentially use the same construction as its own basis.

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All right so after you get the 30 days notice, from the first collector all subsequent collectors are basically exempt from sending a dunning letter, all right, but I would argue the same should go the other way, if I C&D the first collector that C&D should carry over too, it's clear at least for me that what they are trying to say is that is the same debt so there's no need for a dunning letter every time, and I would argue the same for a C&D is the same debt so no need to send a new one every time, that would sound good to me would save me the 6 bucks every now and then, but since I normally collect from them, my cost are pretty low.

 

What if the first collector does not respond to the DV at all.  Efforts to collect are closed off until the response is sent that meets the trivial legal requirement.  That means ... in those jurisdictions ... that the subsequent collector must provide the response before they can try to collection.  And this is ON TOPIC for the precedent, as opposed to the C&D which is simply following the same logic of construction.

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within five days after the initial communication with a consumer in connection with the collection of any debt...

 

Excepting instances where the CA had an old address, I've never received a call before a dunning letter.  The letter has always been the initial communication, and it has always contained the DV language. Nascar makes an excellent point--I don't think you're going to come across a 2nd/3rd/4th etc. CA that intentionally withholds a dunning letter.  It's too dangerous for them. However, these rulings do favor CAs that through negligence or a lack of swiftness don't get you a letter in the period.  In a way, an implicit statement of these rulings to the 2nd+ CA is, "Didn't send out the disclosures on time or at all? Eh, Don't worry about it!"

 

The C&D angle doesn't logically follow--it would be more valid to say that if a consumer C&D'ed a CA and later transferred the liability of his debt to another consumer, then said 2nd consumer shouldn't have to send a C&D to the CA.  Of course, that's just abstract accounting and naturally would never happen. Despite the narrowness of those rulings, they are still totally enraging.  It's like a a team's QB gets injured and the backup gets told by the coach before hitting the field that he can break a few rules because Johnny Begood spent half the game playing by them.

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Aftyer I got back from Ieaq and retired, I had tons of debts that were in collections, most of them were outside the sol, most of them were covered under the soldiers and sailors act, and they were notified that I was leaving and have proof but they thought, like most creditors do, that what the hell he is 10000 miles away and the Marines will not let him come home just to fight this suit, so we will get a fast default and he can deal with it.

 

I have received tons of calls with no letters at all. I am suing several of them but I have to do one at a time.

My biggest challenge is the fact that my house was foreclosed on and I had no idea until I came home. IO was not married until 05. So i had no one at home to notify me what was going on. I am working with an attorney that is real savvy with foreclosure law, I figured I better not take this case alone with not having that much experience with the courts. He says it is definitely a case of an illegal foreclosure. And i have posted before that the judge in the case was found guilty of illegal dealings and was removed from his chair.

 

So what I have to say is this, most judges I have come across have the misconception that you need to pay what you owe no matter how old the bill is or no matter what yours records may say you really owe on the account. They let the collection agencies get by with a lot of crap that should never be allowed. Until enough consumers take a stand and show the courts we will fight these debt collectors tooth and nail, we can expect nothing less than judgments against us.

 

The next county over from me, is notorious for judging against the consumer no matter what, I now see why no attorneys will even attempt to fight a debt collection case in that county. I used to live in that county and i always wondered why no attorney would represent a person in civil court, its because they already know what the judge will rule, they also know they cannot make any money is civil court.

 

I have sewer leins in that county for an address where I was renting before I bought my farm. Those sewer bills were issued 6 months after I moved. But, the landlord never rented the house again because it was flooded in a bad storm. Since the court cannot get the owner in court, they sued the former tenant(ME) I argued that I did not live there at the time of the sewer bills but the judge says because i did not file my change of address before that time they were issued I am libel for them. I have proof when I file my change of address but the court argues that they have records that say other wise, but i was denied being able to see those court records.

 

I see it this way, the judge was appointed by the mayor of that city and the city is the one that is suing me so why on earth would he rule against his employer. The one thing I do have on my side is they cannot attach the lien to my current house because it is in a different county, and the judges here in my county continuously deny other counties from attaching liens. 

 

I am in the process of taking this to the state appeals court, which has continuously ruled, and I have case law on this, that the owner is ultimately responsible for sewer liens.

 

This is just an example to show that i agree with NASCAR on his statement that some Judges will rule against the consumer, no matter what.

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Can these unethical rulings not be appealed? I sure as hell wouldn't let some bottom rung judge's ruling put me out of the fight.

 

Of course they can.  Are you offering to pay?  Things like this cost money (often in the form of spending all your time working on it).

 

What is needed is the light of day to show where things get unethical.  For example, any case against that city should never be heard in a court managed or paid by that city.  The light of day could be a web site that exposes all this.  The trouble is, there are still two (or more) sides in court cases, and they don't become final for a long time.

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http://www.scotusblog.com/case-files/cases/first-american-financial-corp-v-edwards/

 

I posted the wrong link earlier.  Read the brief filed by the ACA on the bottom.  "First American v. Edwards." was not heard by SCOTUS this time, but they are expected to eventually hear a similar  Art. lll challenge to RESPA, the FRCA, the FDCPA or another law created by Congress to award statutory damages enforceable through a PROA.  The 9th Cir affirmed RESPA was constitutional, but who knows how a conservative SCOTUS may rule in the future.

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