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Can a JDB sue if they did not answer the DV letter?


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Receiving yet another letter from a JDB that sends a letter to pay and says if you don't notify the office within 30 days the debt is valid and if you don't respond they will obtain  a verification of the debt and they will obtain a copy of the judgement and mail the judgement or verification. Its not from a lawyer- its from the JDB

 

I sent the DV and while they still have time to reply- if they  do file a complaint, and serve, are they in violation if they did not respond to the DV letter?

If they do not respond and they do file a complaint- is this a FCRA violation?

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Moriarity v. Henriques, (E.D. Calif. 2013),  filing a lawsuit in Calif without debt validation is a FDCPA violation, and plaintiff proved her case to the court's satisfaction.

 

 

 

Moreover, other courts which have held that pursuing litigation before providing the requested verification of the debt violates the FDCPA. For example, in Garcia-Contreras v. Brock & Scott, PLLC, 775 F. Supp. 2d 808 (M.D. N.C. 2011), the defendants argued "the summons and complaint are themselves the validation to which [a debtor] is entitled." Id. at 827. The court disagreed, finding the defendants violated the FDCPA "by filing their lawsuit before complying with the verification requirement," because "the critical moment at which Defendants began their `collection of the debt' with respect to the lawsuit was when they filed their complaint with the state court." Id.(emphasis in original). Similarly, in Anderson v. Frederick J. Hanna & Associates, 361 F.Supp.2d 1379, 1383 (N.D. Ga. 2005), the Court held that the filing of litigation after the request for the debt verification was received, constituted a violation of the FDCPA and awarded summary judgment to the debtor. Again, in McDaniel v. S. & Associates, P.C., 325 F. Supp. 2d 1210, 1220 (D. Kan. 2004), the court held that filing a foreclosure petition and having it served without first providing the requested debt verification violated the FDCPA:

The summons and foreclosure petition required the Tribbles to respond to the lawsuit or face the consequences of a default judgment, thus ignoring their rights under the FDCPA. Furthermore, the rest of Defendant's actions in pursuing the foreclosure also violated the grace period provided by the FDCPA. This includes the filing of the amended petition, the sheriff's service of process relating to the amended petition, and the letters to the Tribbles concerning the publication of the lawsuit.

Id. at 1220.

The situation here is similar to the facts presented to the courts in Garcia-Contrerasand McDaniel. Though Plaintiff demonstrates she sought verification of the debt, Defendants fail to explain how filing a lawsuit, obtaining summons, and sending it out for service constitutes "ceasing" collection efforts pending the debt verification. Likewise, the Court rejects Defendants' position that debt verification can be provided in compliance with 15 U.S.C. § 1692g( B) in a complaint for damages—the very purpose of which is to collect the debt.[2] The suggestion that this constitutes ceasing the collection effort is contrary to common sense and the express provisions of 15 U.S.C. § 1692g( B).

Because Plaintiff has presented evidence that she notified Hunt & Henriques of her dispute and they did not provide validation of the debt, summary adjudication of this denied.

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Its been litigated by my wife, and yes its a violation. You have to prove through discovery that they never sent one.

How do you prove it? Its hearsay unless you ask them to furnish a postage receipt for payment with your zip code on it and they come up with something- but they may be sending to multiple people in the same zip code at that time frame. . you can argue that it there is no proof specific to your address.

 

These plaintiffs never send anything certified mail ever. I wonder why- so they think they are above it all and the courts side with them?

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These plaintiffs never send anything certified mail ever. I wonder why- so they think they are above it all and the courts side with them?

 

It is not because they are above it all or whether the courts side with them.  It is very simply business concept "Cost" vs "Benifit".

 

The JDB/CA business model has determined by statistical value research that it is not a necessay cost to incurr.

 

Primary reasoning is the number of suits filed against them versus the number that are not.  With the percentage of people that fight or defend a JDB/CA debt case being in the +/- 5% range, their risk is very small.

 

When it does happen they do what Debtzapper noted and put forth some unreasonable arguement.

 

 Likewise, the Court rejects Defendants' position that debt verification can be provided in compliance with 15 U.S.C. § 1692g( B) in a complaint for damages—the very purpose of which is to collect the debt.[2] The suggestion that this constitutes ceasing the collection effort is contrary to common sense and the express provisions of 15 U.S.C. § 1692g( B).

 

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These plaintiffs never send anything certified mail ever. I wonder why- so they think they are above it all and the courts side with them?

They don't because they aren't required to.  It's called "common law mailbox rule".  They can produce account notes stating they prepared a response and the testimony of their mail clerk that says it was sent with their regular business mail and that's all that is required of them.

 

 

Mahon v. Credit Bureau, 171 F.3d 1197 (9th Cir. 1999).

 

Debt collection agency must prove only that the § 1692g notice was sent, not received by the consumer. Absent any evidence other than the consumer’s bare denial of receipt, the common law mailbox rule controlled where uncontroverted evidence showed that the collection agency properly mailed the notice.

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They don't because they aren't required to.  It's called "common law mailbox rule".  They can produce account notes stating they prepared a response and the testimony of their mail clerk that says it was sent with their regular business mail and that's all that is required of them.

 

 

Mahon v. Credit Bureau, 171 F.3d 1197 (9th Cir. 1999).

There you have it, learned something new today, Thanks to Harry!

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In Mahon v Credit Bureau, the court held that 1692g only requires that a debt validation notice is sent, not that it is received.  Nevertheless, Credit Bureau did have to prove to the court's satisfaction that it had procedures in place so that the letter was likely sent. They didn't just say, "We sent it." and that ended the matter.

 

 

 

 

As part of its regular course of business, the Credit Bureau uses computerized collection tracking and filing software, known as Columbia Ultimate Business Systems ("CUBS"). CUBS automatically generates standardized collection notices for the CreditBureau. The collection notices are then mechanically addressed, stuffed, and posted by another machine. Prior to mailing, employees ensure that the number of outgoing notices corresponds with the number assigned to the daily "batch." CUBS also acts as an electronic filing system for each collection account, recording all collection activities, including which notices are sent to whom and on what date. Account personnel monitor collection activity on each account, routinely noting whether an envelope is returned undelivered.

On September 21, 1995, CUBS printed a standardized collection letter regarding the Mahons' delinquent account with Dr. Bowen (the "September 21 Notice"). In accordance with its standard business practice, the Credit Bureau mailed the letter to the Mahons' home address. The Mahons had lived at that address for 45 years. Although an "exact" copy of the letter was not produced, the Credit Bureau produced a letter substantially similar to that sent. The letter referenced the debt owed Dr. Bowen, the principal amount of the debt ($279.70), the accrued interest due ($52.34), and included the Credit Bureau's Standard Validation of Debt Notice, as required by the FDCPA. The Mahons did not respond to the letter, and the letter was not returned to the Credit Bureau by the Postal Service.

On October 12 and November 13, 1995, CUBS generated second and third standardized letters, which were also mailed to the Mahons' home address. The Mahons did not respond to these letters either. The Mahons contend these letters were returned to the Credit Bureau as undeliverable. They base this contention on a June 10, 1996 letter to James Mahon in which the Credit Bureau's president, Eugene Bellisario, stated, "We also mailed notices on October 12, 1995 and November 13, 1995, and then mail was returned." In his deposition, Mr. Bellisario testified this statement was a mistake, due to his cursory review of the file—in fact, no mail addressed to the Mahons was returned to the Credit Bureau. This is consistent with the CUBS printouts, which do not indicate that any mail sent to the Mahons was ever returned.

 

 

 

 

The Credit Bureau's standard business practice established that the September 21, 1995 Notice was sent to the Mahons' home via first class mail. The Credit Bureau's CUBS system generated 1202*1202 the Notice, and then another machine mechanically addressed and stuffed the Notice into an envelope addressed to the Mahons. The Notice was mailed. Before mailing, Credit Bureauemployees ensured that the number of outgoing notices corresponded with the number assigned to the daily "batch" of notices to be sent.

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In Kimmel v Calvary Portfolio, despite the evidence Calvary introduced about its standard business practices for mailing out DV notices, the court found the evidence "insufficent to create a presumption of doubt that a letter was sent to plaintiff."

 

 

Here, Plaintiff contends that Defendant did not provide him with written notice of his rights pursuant to 15 U.S.C. § 1692g(a) within five days of sending its December 8, 2009 debt settlement letter. (Compl. ¶ 16). As a result, Plaintiff argues, he was not aware that he could dispute or request validation of the debt. (Id. ¶ 17.) Defendant responds that, before its December 8, 2009 communication, it had sent a letter on October 1, 2009, which notified Plaintiff of his rights and conformed with the requirements of 15 U.S.C. § 1692g(a). (Def.'s Mot. Summ. J. Pl.'s Claims 6-7.) Defendant has introduced a copy of this letter, (id., Ex. A), as well as an affidavit from Walter F. Pawul, Jr., Executive Vice President of PCI Group, Inc., the company which prints and mails Defendant's collection letters. (Id., Ex. B.) Mr. Pawul certifies that "a letter was mailed to [Plaintiff's address] on October 1, 2009 and December 8, 2009, via the United States Post Office. The letters were mailed using first class postage. Neither of these letters were returned as undeliverable." (Id., Ex. B.) Plaintiff denies ever having received the October 1, 2009 letter. (Pl.'s Resp. Opp'n 19.)

The Court finds that the evidence submitted by Defendant is insufficient to create a presumption that the October 1, 2009 letter was sent to Plaintiff. Mr. Pawul's affidavit merely states that "a letter" was mailed to Plaintiff on October 1, 2009 and December 8, 2009. From this language, it is not clear that Mr. Pawul has personal knowledge of the mailing procedures that were in place at the time the October 1, 2009 letter was allegedly mailed. In addition, there are no affidavits or other testimony from any of Defendant's own employees regarding how and when the October 1, 2009 letter was submitted to PCI Group, Inc. for printing and mailing. Because Defendant has failed to provide adequate evidence concerning its customary mailing practices, an issue of fact exists as to whether the October 1, 2009 letter was mailed to Plaintiff. The Motion for Summary Judgment on Plaintiff's 15 U.S.C. § 1692g(a) claim is denied

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In Kimmel v Calvary Portfolio, despite the evidence Calvary introduced about its standard business practices for mailing out DV notices, the court found the evidence "insufficent to create a presumption of doubt that a letter was sent to plaintiff."

 

 

Here, Plaintiff contends that Defendant did not provide him with written notice of his rights pursuant to 15 U.S.C. § 1692g(a) within five days of sending its December 8, 2009 debt settlement letter. (Compl. ¶ 16). As a result, Plaintiff argues, he was not aware that he could dispute or request validation of the debt. (Id. ¶ 17.) Defendant responds that, before its December 8, 2009 communication, it had sent a letter on October 1, 2009, which notified Plaintiff of his rights and conformed with the requirements of 15 U.S.C. § 1692g(a). (Def.'s Mot. Summ. J. Pl.'s Claims 6-7.) Defendant has introduced a copy of this letter, (id., Ex. A), as well as an affidavit from Walter F. Pawul, Jr., Executive Vice President of PCI Group, Inc., the company which prints and mails Defendant's collection letters. (Id., Ex. B.) Mr. Pawul certifies that "a letter was mailed to [Plaintiff's address] on October 1, 2009 and December 8, 2009, via the United States Post Office. The letters were mailed using first class postage. Neither of these letters were returned as undeliverable." (Id., Ex. B.) Plaintiff denies ever having received the October 1, 2009 letter. (Pl.'s Resp. Opp'n 19.)

The Court finds that the evidence submitted by Defendant is insufficient to create a presumption that the October 1, 2009 letter was sent to Plaintiff. Mr. Pawul's affidavit merely states that "a letter" was mailed to Plaintiff on October 1, 2009 and December 8, 2009. From this language, it is not clear that Mr. Pawul has personal knowledge of the mailing procedures that were in place at the time the October 1, 2009 letter was allegedly mailed. In addition, there are no affidavits or other testimony from any of Defendant's own employees regarding how and when the October 1, 2009 letter was submitted to PCI Group, Inc. for printing and mailing. Because Defendant has failed to provide adequate evidence concerning its customary mailing practices, an issue of fact exists as to whether the October 1, 2009 letter was mailed to Plaintiff. The Motion for Summary Judgment on Plaintiff's 15 U.S.C. § 1692g(a) claim is denied

 

In the Kimmel case, as opposed to Mahon, there seems to be a distinct lack of evidence.  Cavalry only  had testimony of an affiant and an example of the letter that was alleged to have been sent.  The affiant himself does not describe the letter and neither did he demonstrate personal knowledge about mailing procedures nor how and when the letter was submitted to their servicer for mailing to the consumer.

 

"Because Defendant has failed to provide adequate evidence concerning its customary mailing practices, an issue of fact exists as to whether the October 1, 2009 letter was mailed to Plaintiff."

 

 

Also, Kimmel is not from the 9th Circuit.  Both the OP and Mahon are from the 9th.

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I know the OP and Mahon are from the 9th--I quoted from Mahon in #13.   But as I noted in  that post, Credit Bureau had to jump through some hoops to satisfy the court to that it had it proper procedures in place in order to have a rebuttable presumption that a DV was sent.  It could not just say, "We sent it."  The court commented on its procedures and agreed it had presented sufficient evidence to satisfy the court.

 

In Johnson v Professional Collection Consultants, (S.D. Calif. 2010),  Professional tried to rely on Mahon and the mailbox rule, but as the court noted in denying their MSJ,

 

"Defendant contends that "the common law mailbox rule cases ... establish that the only obligation imposed upon a debt collector by 15 U.S.C. § 1692g is to send a 1692gvalidation notice. ..." (Doc. # 15 at 5-6). However, as stated in Mahon, the mailboxrule cases require that the letter be properly mailed."

 

 

This kind of claim is not easy for a plaintiff to win, but they are not always easy for debt collectors to win either.

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  • 4 weeks later...

I have had two CA's not respond to a DV and continue to make collection calls.  I keep very accurate records and save everything.  I sent both of them demand letters with a draft complaint to test the waters and see how they would respond.  Both of them responded with a letter stating they sent validation with the "date" it was sent.  

 

I would never sue with this as the only violation but if they filed suit I would 100% use continued collection after failure to validate as a counterclaim.  Even if they plan on fabricating false evidence to "prove" their story, half the battle once it hits the courtroom is the economics.  Make it cost them more time and money than it is worth for them.  If you have a valid counterclaim use it as leverage and a sword.

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Just sit and wait - and like BV80 notes above, keep an eye on filings with your court.

 

I have experienced varying responses & timelines to DV requests. I've received responses (a validation or letter stating they were deleting the account) in as little as 3 weeks. Some took 3 months. On a few I never heard back.The one time I did get a validation (about a year ago)  I never heard from them after that, and that account recently went SOL.

 

YMMV.

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@credit2011

 

 

Other than keeping an eye on your court docket, that's correct.

So are you saying I should see the cases coming up from my court and see if I am on it in case they fail to serve? I swear, I think I am going to try to adapt a law with the FCRA people that debt collectors have to send certified mail  just like we do. So many across the country run into issues that were served with complaints and did not even know about it and got judgements because of this.

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@credit2011

 

Yes, watch the dockets in case they fail to serve you.  Even if a summons and complaint were to be served at some point, you'd have a heads-up and know it's coming. 

 

[A]lthough a debt collector may choose to file suit without initially communicating with the debtor, the law is clear that once an initial communication is made and the debtor requests verification, the debt collector must provide the verification before resuming collection efforts. 15 U.S.C. § 1692g(b).  Anderson v. Frederick J. Hanna & Assocs., 361 F.Supp.2d 1379, 1383 (N.D.Ga. 2005); see also Bartlett v. Heibl, 128 F.3d 497, 501 (7th Cir.1997)("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").

Moriarity v. Henriques, Dist. Court, ED California 2013

Though Plaintiff demonstrates she sought verification of the debt, Defendants fail to explain how filing a lawsuit, obtaining summons, and sending it out for service constitutes "ceasing" collection efforts pending the debt verification. Likewise, the Court rejects Defendants' position that debt verification can be provided in compliance with 15 U.S.C. § 1692g(b) in a complaint for damages—the very purpose of which is to collect the debt.  The suggestion that this constitutes ceasing the collection effort is contrary to common sense and the express provisions of 15 U.S.C. § 1692g(b).

Because Plaintiff has presented evidence that she notified Hunt & Henriques of her dispute and they did not provide validation of the debt, summary adjudication of this claim is DENIED.

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