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LVNV sueing me before I had a chance to dispute in the first 30 days?


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LVNV's attorney has file a lawsuit against me 23 days after their first letter telling me they havent reviewed the file but I can call to discuss payment and given me 30 days to dispute the validity. Can they do that before the 30 days?

Bank account debt, 4 years old, SOL is 6 years here.

 

I have 3 days to dispute and going to next-day it tomorrow morning.

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You very likely hve a case for "overshadowing" (although they will claim bona fide error):

"Any collection activities and communication during the 30-day period may not overshadow or be inconsistent with the disclosure of the consumer’s right to dispute the debt or request the name and address of the original creditor."

I don't have my case law cheat-sheet with me but I'll check later tonite if no one posts anything in the mean time.

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@duck1098

 

@Harry Seaward

 

@shellieh98

 

"Overshadowing" means contradiction.

 

For instance, in the initial communication that includes the 30-day notice, it would be considered overshadowing if the letter also included a demand for payment within 10 days.  That 10-day demand would contradict the consumers right to have 30 days to request validation.

 

Another example would be "payment due upon receipt".  That would mean is due now which would contradict the 30-day validation notice.

 

They could ask for payment, but they could not give a time limit that would be less than the 30 days you would have to request validation.

 

Also, the FDCPA does not say that a debt collector must stop collection efforts during the 30-day period.  It says that debt collection efforts must stop if the CA receives a DV request during that period.  The OP has not yet requested validation yet. 

 

1692g(b) (in part):

 

Collection activities and communications that do not otherwise violate this subchapter may continue during the 30-day period referred to in subsection (a) unless the consumer has notified the debt collector in writing that the debt, or any portion of the debt, is disputed or that the consumer requests the name and address of the original creditor. Any collection activities and communication during the 30-day period may not overshadow or be inconsistent with the disclosure of the consumer’s right to dispute the debt or request the name and address of the original creditor.

 

Debt collectors are allowed to continue to try to collect within that 30 day period as long as those efforts occur before receiving a DV request. 

 

"The debt collector is perfectly free to sue within thirty days; he just must cease his efforts at collection during the interval between being asked for verification of the debt and mailing the verification to the debtor"   Bartlett v. Heibl, 128 F.3d 497, 501 (7th Cir. 1997).

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Guys, correct me if I am wrong here, but this is not overshadowing.

 

The FTC has consistently stated that debt collectors are not at all prohibited from suing within that 30 days.  It all depends on the specific wording of the letters.  Generally, if they demand payment within that first 30 days, it contradicts or "overshadows"  the 30 day dispute notice that is required on the initial communication.  It is the communication, not the action of suing, that creates the overshadowing condition. 

 

Harry, you said earlier:

 

"Any collection activities and communication during the 30-day period may not overshadow or be inconsistent with the disclosure of the consumer’s right to dispute the debt or request the name and address of the original creditor."

 

Filing a lawsuit does not in any way remove the consumer's right to dispute, nor does it take away their right to request the identity of the OC.  If LVNV sent the OP a letter stating "we will sue you in 15 days unless you pay the balance owed", then THAT would be overshadowing.  Usually, overshadowing requires a demand for action.  The CA demands that the consumer pay, or perform some other action, or else they will sue....or report on a credit report....or some other action.  The key to overshadowing is that they must make a threat to impede upon that 30 days, otherwise you have no overshadowing.  Here's a good old thread that discusses a lot of case law on the matter:

 

http://www.creditinfocenter.com/community/topic/228172-what-is-overshadowing/

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I was dunned by the law firm for my mortgage on July 13, and was sued on July 27th. We did not request debt validation in that time period. We did, however, request DV after the suit was initiated, which did stop the foreclosure proceedings. 19 months into our foreclosure proceedings, they haven't restarted.

 

We did file a class action FDCPA complaint against the law firm for the bank, and filed numerous counter claims and affirmative defenses which have really stifled their efforts to continue the case.

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...

I have 3 days to dispute and going to next-day it tomorrow morning.

If "dispute" means sending DV letter, while the litigation clock is ticking, many would recommend not bothering to send one as the lawsuit has been filed.

 

If I was comfortable that I had my answer/pre-answer motion/response ready to go and did not need to spend time on it with a deadline fast approaching, I would probably send one just to see what it produces.

 

If I did not have my response to the lawsuit dialed in and pretty much ready to go I would probably prefer to focus on that instead of spending time on a DV dispute letter not likely to produce a lot of gold.

 

I have stated, in a timely pre-lawsuit DV letter, that I considered the attorney's letter to be overshadowing based on its wording/format. In that case the attorney could not help but respond that it was not overshadowing and blah blah blah. I received more than my moneys worth in that DV response envelope. YMMV

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You are facing LVNV, and they do not typically validate even when properly requested.  They also have a track record of not caring about the law's requirements, so I would not bother with a DV.  It would only waste your time in my opinion.  Better to focus on the case and start building your defense.

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Here's another one to support the non-overshadowing point of view.

Hillaire v. Delta Funding Corp., 2002 WL 31123860 (E.D.N.Y. Sept. 26, 2002).

The district court held that the debt collector’s letter adequately explained how the two ideas—that the consumer retained the right to dispute the validity of the debt, but that such right did not affect the creditor’s right to initiate a lawsuit—fit together and did not confuse even the least sophisticated consumer.

 

 

 

I think where I was getting sidetracked is that, while it's not a violation to actually file suit within the 30 days, threatening to do so is a violation.

 

Blum v. Lawent, 2003 WL 22078306 (N.D. Ill. Sept. 8, 2003).

A threat of a lawsuit within 30 days of receipt was confusing for an unsophisticated consumer in the letter containing the validation notice, and did not fall within the Bartlett decision’s safe harbor.

 

Rachoza v. Gallas & Schultz, 1998 WL 171280 (D. Kan. Mar. 23, 1998).

Collection letters which include the required statutory thirty-day validation notice and statements that payment must be made within a period less than thirty days or a lawsuit may be commenced did not comply with the requirements of § 1692g(a) as a matter of law. The potentially conflicting deadlines in the collection letter would be misleading to a hypothetical least sophisticated consumer and violate the FDCPA.

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You are facing LVNV, and they do not typically validate even when properly requested.  They also have a track record of not caring about the law's requirements, so I would not bother with a DV.  It would only waste your time in my opinion.  Better to focus on the case and start building your defense.

If I was confident that LVNV would not comply with the FDCPA that would be more reason to send a valid and timely DV letter (that could bolster one's "defense" with additional leverage) IMHO.

 

As always, it is about managing ones resources, if you can easily do two things that may be beneficial do them. If not focus on the priority. In this case a timely response to a complaint.

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@Harry Seaward

 

Good case law.  Thank you!

 

That's what I meant about "'overshadowing' means contradiction".   Statements by a debt collector that  demand a certain action be taken by the consumer in less than 30 days or implies that the debt collector will take a certain action in less than that time period  contradicts the validation notice.

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If I was confident that LVNV would not comply with the FDCPA that would be more reason to send a valid and timely DV letter (that could bolster one's "defense" with additional leverage) IMHO.

 

As always, it is about managing ones resources, if you can easily do two things that may be beneficial do them. If not focus on the priority. In this case a timely response to a complaint.

I see your point, but in this situation that does not apply.  There has not, to my recollection, been one single case where a court ruled that the debt collector must stop a lawsuit in order to comply with the validation rule.  Once a lawsuit is filed, it is filed.  I may be wrong on this, but I do believe that once they file the suit, you cannot force them to stop it by demanding validation.  If I have that wrong, someone please post up case law, I would love to see it and I'm sure that many others would too.

 

Also, remember that we are talking about the FDCPA here.  No matter how many times they violate the FDCPA, you can sue for a maximum of $1000 in statutory damages.  The penalty is potentially the same if they violate once or a hundred times.  And believe me, you WILL find other violations during this lawsuit.  ANYTHING that they do that is not 100% honest in the interest of winning a case against you is a violation of the FDCPA. 

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I see your point, but in this situation that does not apply.  There has not, to my recollection, been one single case where a court ruled that the debt collector must stop a lawsuit in order to comply with the validation rule.  Once a lawsuit is filed, it is filed.  I may be wrong on this, but I do believe that once they file the suit, you cannot force them to stop it by demanding validation.  If I have that wrong, someone please post up case law, I would love to see it and I'm sure that many others would too.

 

Also, remember that we are talking about the FDCPA here.  No matter how many times they violate the FDCPA, you can sue for a maximum of $1000 in statutory damages.  The penalty is potentially the same if they violate once or a hundred times.  And believe me, you WILL find other violations during this lawsuit.  ANYTHING that they do that is not 100% honest in the interest of winning a case against you is a violation of the FDCPA. 

I am not discussing whether the collector must stop/not file suit. Barring case law to the contrary, AFAIK, a timely DV letter must be responded to whether or not there is an active suit.

 

I have not/am not debating the issue of a overshadowing being a violation or not in a situation such as the OP's.

 

My comments were regarding how to determine how best to prioritize ones resources and whether it makes sense to send a timely DV letter with an active lawsuit moving forward.

 

I am confused how LVNV can simultaneously "not typically validate" and "not caring about the law's requirements" while avoiding violating the FDCPA in regard to responding to a timely DV letter. It would seem a contradiction. They either comply or they do not.

 

If I believed, as I understood the bolded comments, that LVNV would not comply with the FDCPA by validating I would assume they would violate and therefore I would be encouraged to send a DV letter.

 

I could be wrong, but I don't recall case law that opined that multiple violations of different sections of the FDCPA, against one consumer, is limited to $1,000. I believe the courts to have interpreted the $1,000 limit to typically fall under repeated violations of the same section.

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@Credator

 

I could be wrong, but I don't recall case law that opined that multiple violations of different sections of the FDCPA, against one consumer, is limited to $1,000. I believe the courts to have interpreted the $1,000 limit to typically fall under repeated violations of the same section.

 

 

The $1000 statutory limit is "per action" (lawsuit).  One can prove violations of different sections of the FDCPA, but if they are all in one lawsuit, the statutory limit is $1000.

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@kraftykrab

 

I see your point, but in this situation that does not apply.  There has not, to my recollection, been one single case where a court ruled that the debt collector must stop a lawsuit in order to comply with the validation rule.  Once a lawsuit is filed, it is filed.  I may be wrong on this, but I do believe that once they file the suit, you cannot force them to stop it by demanding validation.  If I have that wrong, someone please post up case law, I would love to see it and I'm sure that many others would too.

 

 

This is exactly why the FDCPA needs to be revamped or amended and the requirements reexplained.

 

There is nothing in that section that implies that a certain condition can nullify the 30-day notice before the 30 days are up.

 

If a lawsuit filed within that 30-day period (before receiving a DV request) nullifies the notice, every JDB could send the letter, then file suit the next day, therefore preventing the consumer from requesting validation.

 

1692g(b) is specific in that if a consumer requests validation within 30 days of an initial communication, the debt collector must cease collection efforts until the debt is validated.   The 6th Circuit has ruled that a lawsuit is an attempt to collect a debt.  Therefore, it could be argued that because a lawsuit is such an attempt, if that suit is filed within the 30 day period, a timely DV sent after the lawsuit is filed would still require the collector from proceeding until the debt is validated.

 

Like I said, the FDCPA needs to be revamped or amended.

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@Harry Seaward

That's what I meant about "'overshadowing' means contradiction".   Statements by a debt collector that  demand a certain action be taken by the consumer in less than 30 days or implies that the debt collector will take a certain action in less than that time period  contradicts the validation notice.

I'm with ya. I still find it odd that if a CA threatens to file a lawsuit within the 30-day window they are in violation, but they can go right ahead and do it with no notice and not be in violation.

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@Credator

 

1692k(a)(2)(a)

 

(a) Amount of damages

Except as otherwise provided by this section, any debt collector who fails to comply with any provision of this subchapter with respect to any person is liable to such person in an amount equal to the sum of—
 
(2) (A) in the case of any action by an individual, such additional damages as the court may allow, but not exceeding $1,000;
 
While statutory damages for violation of the FDCPA in § 1692k are limited to actual damages, plus maximum statutory damages of $1000 per action, not per violation, Wright v. Finance Service of Norwalk, Inc., 22 F.3d 647, 650 (6th Cir.1994); Harper v. Better Business Services, Inc., 961 F.2d 1561, 1563 (11th Cir. 1992).
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@Harry Seaward

 

I can see where filing suit within the 30 days is not a violation if the consumer has NOT requested before the suit is filed. 

 

BUT, because of the language in 1692(b), the consumer should still have the right to request validation within that 30 day period even if a lawsuit has already been filed, and the debt collector should have to respond before continuing with the legal proceeding. 

 

30 days means 30 days.

 

Again, if filing a lawsuit within the 30-day period nullifies 1692g(b), then what is the purpose of the 30-day notice?  It means nothing.

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@BV80 I agree. And I also see the legal logic, but to the "least sophisticated consumer"...

It clearly confused the OP, and took me a few beasts to wrap my head around it as well. I'm willing to accept that I'm below the bar set for the least sophisticated consumer, so I'm not sure my state of confusion means much. :-D

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@Credator

 

1692k(a)(2)(a)

 

(a) Amount of damages

Except as otherwise provided by this section, any debt collector who fails to comply with any provision of this subchapter with respect to any person is liable to such person in an amount equal to the sum of—
 
(2) (A) in the case of any action by an individual, such additional damages as the court may allow, but not exceeding $1,000;
 
While statutory damages for violation of the FDCPA in § 1692k are limited to actual damages, plus maximum statutory damages of $1000 per action, not per violation, Wright v. Finance Service of Norwalk, Inc., 22 F.3d 647, 650 (6th Cir.1994); Harper v. Better Business Services, Inc., 961 F.2d 1561, 1563 (11th Cir. 1992).

 

It is almost as if Congress intended for violated consumers to file complaints early and often. ;)

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@kraftykrab

 

This is exactly why the FDCPA needs to be revamped or amended and the requirements reexplained.

 

There is nothing in that section that implies that a certain condition can nullify the 30-day notice before the 30 days are up.

 

If a lawsuit filed within that 30-day period (before receiving a DV request) nullifies the notice, every JDB could send the letter, then file suit the next day, therefore preventing the consumer from requesting validation.

 

1692g(b) is specific in that if a consumer requests validation within 30 days of an initial communication, the debt collector must cease collection efforts until the debt is validated.   The 6th Circuit has ruled that a lawsuit is an attempt to collect a debt.  Therefore, it could be argued that because a lawsuit is such an attempt, if that suit is filed within the 30 day period, a timely DV sent after the lawsuit is filed would still require the collector from proceeding until the debt is validated.

 

Like I said, the FDCPA needs to be revamped or amended.

I am in full agreement with you.  I also believe that the penalties are nowhere near good enough.  Most debt collectors could care less about having to pay $1000 on the rare occasion that a consumer knows their rights and takes action.  it is way more than balanced out by all the default judgments that they get.  Maybe they should make it "$1000 per violation"....then it would have some teeth.  I have seen cases with literally dozens of violations.  I actually settled myself with a debt collector a couple years back that came howling at me over--get this--a $17 doctor bill for a doctor that I had never been to.  If the FDCPA allowed $1000 per violation, I could have sued that debt collector for something like $19K....over a $17 bill....

 

Also, someone mentioned if the violations were all sued upon in the same suit.  I could be mistaken on this, but I seem to recall a court decision that went against consumers filing one lawsuit for every violation of the FDCPA.  Imagine how much we could clog up the court system then!!

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@kraftykrab

 

I agree that $1000 is nothing.  It's pocket change to most debt collectors and is like you or me finding some pennies under our sofa cushions. 

 

Also, someone mentioned if the violations were all sued upon in the same suit.  I could be mistaken on this, but I seem to recall a court decision that went against consumers filing one lawsuit for every violation of the FDCPA.  Imagine how much we could clog up the court system then!!

 

 

Yes, if one attempted to file separate lawsuit for each violation, the suits would be consolidated into one suit.

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If the FDCPA allowed $1000 per violation, I could have sued that debt collector for something like $19K....over a $17 bill....

So what would be a reasonable statutory limit on a $17 debt? Keeping in mind, of course, the FDCPA allows for unlimited actual damages for people that are actually harmed by a debt collector's actions.

http://www.calejl.com/forum/viewtopic.php?f=116&t=993

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