Determined1

FDCPA validation vs. overshadowing

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Hi all,

 

I received a debt collection notice from a JDB for an alleged debt with Comcast. The notice was dated 7/4/14 with an offer of settlement at 80% of the alleged debt. It should be noted that I rarely if ever mention the name of a party in my posts. In this case, for this particular company, I'll make an exception.  I responded with a debt validation request pursuant to the FDCPA, and sent it CMRRR. The JDB received it 8/1/14. They provided no information from Comcast that validated the debt, no proof of any account - not even dates of service. Instead, the JDB responded with an identical copy of their original invoice, with the same settlement offer of 80%, now dated 8/5/14. I know the bar for validation is low, but this seems too low. Does a duplicate of the original JDB's invoice without even the dates of alleged service constitute validation?

 

I don't owe any debt to Comcast. I've lived in communities where Comcast Cable TV was provided free to the community (as part of my lease payment or monthly maintenance payment).  At some point in time, approx. 5 or 6 years ago, my company had high speed internet service with them, but it was a business account, and was paid and closed. The present billing dispute is in my name personally, not my business name.

 

My primary question is did the JDB "overshadow" in violation of the FDCPA by sending me a second invoice before I was given 30 days to investigate the first invoice? If they received my DV letter on 8/1/14 and sent out a second invoice 8/4/14, it would appear this is the case. However, 31 days separate the dates of their two invoices, so they may argue they did not overshadow. When exactly does the 30 days time period to investigate begin?

 

I am considering invoking the arbitration clause in the Comcast Agreement, filed in my County's public records. I can't stand this company, and would enjoy the proposition of making them pay thousands of dollars in Arbitration fees over a small billing dispute, and then FDCPA damages if I prevail.  I could sue, too.  xboxingx

 

Any thoughts on this? Did they overshadow? Did they validate? Does the least sophisticated consumer standard apply?

 

 

P.S. Anyone reading this with a billing dispute with Comcast, please read your contract for services. It likely contains an Arbitration clause which they've inserted to try to avoid class actions. However, it does not prevent the consumer from invoking arbitration for their individual dispute, and forcing Comcast to pay the arbitration costs.

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@Determined1

 

There's no overshadowing.  That term means "to contradict".   A demand for payment in less than 30 days would contradict the 30-day notice.  For instance, if a letter includes the 30-day notice but then, in that same letter, there is a demand for payment in less than 30 days, that's overshadowing.  That would also apply to a subsequent sent within 30 days demanding immediate payment or payment upon receipt. 

 

In your case, what you might have is continued collection in violation of 1692g(b).  Unless the debt collector said that the letter was in response to your DV, you don't know for sure that the subsequent letter was a validation response.  The date they received your DV and the date the 2nd letter was sent are awfully close.   You might have to show that they had time to process your request before sending the 2nd letter.

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Thank you @BV80. So by spacing their letters 31 days apart, they were possibly trying to avoid an accusation of overshadowing.

 

The other key issue is, can their invoice sent to date, providing no proof of any kind from the original creditor, and the JDB not bothering to even state what the dates of service are from the alleged debt, or what type of service (ie. cable TV or high speed internet) be considered legal validation?  

 

 It would appear they may get tripped up on the least sophisticated consumer standard.  I'm fairly sophisticated (on a good day, after coffee) and I still don't know what they're billing me for.

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@Determined1

 

Yes, by spacing the letters apart, they avoided overshadowing.

 

The validation question is tricky.  Usually, a validation response would include some sort of indication that they were indeed responding to your DV.   They might state, "In response to your request for validation".   If the 2nd letter didn't include any statement that indicates they were responding to your DV request, it's hard to say that the 2nd letter was such a response.

 

If it was a response, whether or not they validated would depend on the 11th Circuit.  Most circuits have ruled on specific types of validation that were sufficient to validate.  They've never ruled on exactly what needs to be provided. 

 

The 6th Circuit recently came closer to defining what constitutes sufficient validation in Haddad v. Alexander.

 

The verification provision must be interpreted to provide the consumer with notice of how and when the debt was originally incurred or other sufficient notice from which the consumer could sufficiently dispute the payment obligation. This information does not have to be extensive. It should provide the date and nature of the transaction that led to the debt, such as a purchase on a particular date, a missed rental payment for a specific month, a fee for a particular service provided at a specified time, or a fine for a particular offense assessed on a certain date.

 

But that's 6th Circuit.  Other courts have not ruled that such detail is necessary.

 

If their response was an attempt at validation, I don't think they met it.  But if it wasn't an attempt to validate, you'd have a claim for continued collection if you could prove they had time to process your DV before sending the 2nd letter.

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That's incredibly helpful @BV80 - thanks!  I think I'll give them 30 days from the date they received by DV, before taking action, just to see if this second invoice was continued collection activity, and now if they actually validate with some meaningful info. I doubt they would want to arbitrate such a dispute, but I may wish to send them an engraved invitation to court because of my deep and abiding love for the company ;-)

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http://scholar.google.com/scholar_case?case=1658340181110271878&q=debt+validation&hl=en&as_sdt=4,10,121,325,326,327&as_ylo=2014

 

A July 2014 1692g case, from FL.  Read the sections "Assumption of Debt" and "Count 2."  A debt collector's motion to dismiss was denied, based on the language used in the debt validation letter.

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There is a major difference between verification (which you quoted in the case law) and validation.

 

In a validation request which is what you sent ALL they have to provide you is the amount they allege you owe and the name/address of the original creditor.  Since you know the amount and it is Comcast they have done that.

 

They do not have to provide documents, invoices, dates of services, or anything else that you demand unless they sue you.

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@Clydesmom

 

Actually, there's not really any difference in the terms for the purpose of the FDCPA.  The title of the section in the FDCPA is Validation of Debts.  The section references verification, and the courts use the terms interchangeably.

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http://scholar.google.com/scholar_case?case=1658340181110271878&q=debt+validation&hl=en&as_sdt=4,10,121,325,326,327&as_ylo=2014

 

A July 2014 1692g case, from FL.  Read the sections "Assumption of Debt" and "Count 2."  A debt collector's motion to dismiss was denied, based on the language used in the debt validation letter.

 

Thanks Debtzapper, great case reference for Florida!

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Something that seems to get overlooked in the validation process is that the debt collector must "obtain" the verification they send in response to a DV letter.

 

 

the debt collector shall cease collection of the debt, or any disputed portion thereof, until the debt collector obtains verification of the debt or any copy of a judgment, or the name and address of the original creditor, and a copy of such verification or judgment, or name and address of the original creditor, is mailed to the consumer by the debt collector.

 

@Clydesmom is right in that the bar is low for what most courts will accept for validation, but it still has to come from someone other than the debt collector.

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