Jump to content

CA Sent a debt to collections that has seen two payments and is now advising of litigation.


jllracer55
 Share

Recommended Posts

I have two notices from a collection agency about a credit union debt that I am not even sure if it is valid. Assuming it was I sent 2 $25.00 payments and have now gotten notices that the account is going to further review which may possibly include litigation, even though I sent the 2 payments to them would it be too late to send a letter of debt validness and does the below format seem to fit the bill if it is not too late? thanks!! (P.S. I wish I knew something like this existed sooner!!)

 

I am writing to obtain written proof that this debt that you have referenced as a collection is valid. I am seeking to also obtain written proof that I have a signed contract with you showing that this debt is valid and owed to you directly vs. the original creditor. I would like proof of this delivered to me at the address above by United States Postal Service Mail.  If proof of this debt being in a valid contract with your company cannot be provided,  I will conclude that this debt is not valid and that communications from your company to me should stop immediately. If proof of this debt being valid is not communicated and communications continue to be sent to me in regards to this non valid debt further actions will be taken as needed. Thanks for your attention to this serious matter.

Link to comment
Share on other sites

I sent the 2 payments to them would it be too late to send a letter of debt validness and does the below format seem to fit the bill if it is not too late? thanks!! (P.S. I wish I knew something like this existed sooner!!)

 

They are only required to cease collection activity if you dispute within the first 30 days of their initial contact.  Now that you have made 2 payments they are free to continue those efforts even if you DV them.

 

I am writing to obtain written proof that this debt that you have referenced as a collection is valid. I am seeking to also obtain written proof that I have a signed contract with you showing that this debt is valid and owed to you directly vs. the original creditor.

 

The only thing they are required to provide in DV is the amount they you owe, the name of the original creditor, and their address if you ask for that.

 

Since you know this is for a credit union debt contact the credit union and verify what this is about.  Once you know directly from them you can decide how to proceed.

Link to comment
Share on other sites

I was able to find out which credit union this is from, it is merely a checking account that went negative supposedly, why do they wait so long to attempt to begin collections on these accounts that supposedly go negative? What if there is another account that we just got the notification on about collecting on it, can we dispute the debt? Those letters were dated February 5 , wouldn't we technically have 30 days to dispute it? 

Link to comment
Share on other sites

I was able to find out which credit union this is from, it is merely a checking account that went negative supposedly, why do they wait so long to attempt to begin collections on these accounts that supposedly go negative? What if there is another account that we just got the notification on about collecting on it, can we dispute the debt? Those letters were dated February 5 , wouldn't we technically have 30 days to dispute it? 

 

Who knows why they wait.  Sometimes they do.  As for the collection letter on another account:  yes you have 30 days to dispute that one and request DV.

Link to comment
Share on other sites

 

 

 

The only thing they are required to provide in DV is the amount they you owe, the name of the original creditor, and their address if you ask for that.

 

 

I've been out of the loop for awhile, and don't mean to get this thread off track, but when did we decide that was enough for validation?  What happened to case law in our favor like Spears v Brennan and Mahon v Whoeverthatwas and Clark v Capital Credit and even the correct interpretation of Chaudry v Gallerizo?  

 

All those make it clear that attempts at validation that don't contain some sort of itemized statement that comes directly from the original creditor, that is then forwarded to the debtor by the CA, that indicates how the balance was computed, isn't proper validation.

Link to comment
Share on other sites

I've been out of the loop for awhile, and don't mean to get this thread off track, but when did we decide that was enough for validation?  What happened to case law in our favor like Spears v Brennan and Mahon v Whoeverthatwas and Clark v Capital Credit and even the correct interpretation of Chaudry v Gallerizo?  

 

All those make it clear that attempts at validation that don't contain some sort of itemized statement that comes directly from the original creditor, that is then forwarded to the debtor by the CA, that indicates how the balance was computed, isn't proper validation.

 

That has NEVER been the standard.  The case law that you quoted is NOT what the FDCPA states nor does the court's ruling support your statement.  Nothing in the actual law requires that an itemized statement directly from the OC showing how the balance was calculated is written in.  NOTHING.  

 

I looked up Spears v. Brennan and no where did Spears assert that they did not provide an actual copy of an itemized statement from the OC.  The crux of his FDCPA claim was that they did not notify him that he had 30 days to dispute the debt:

 

Spears initially contends that Brennan's debt collection notice violated 15 U.S.C. 1692g(a)(3) because it failed to inform Spears that he could dispute any portion of the debt.   - See more at: http://caselaw.findlaw.com/in-court-of-appeals/1189212.html#sthash.brKdjwf4.dpuf

 

We also conclude that Brennan's debt collection notice did not adequately inform Spears that he had thirty days from his receipt thereof to dispute the validity of the debt and, thus, failed to comply with 15 U.S.C. § 1692g(a)(3). - See more at: http://caselaw.findlaw.com/in-court-of-appeals/1189212.html#sthash.brKdjwf4.dpuf

 

Finally, Spears maintains that Brennan's notice advising him that “verification of the debt ․ will be provided upon written request” imposed an invalid requirement that he dispute the validity of the debt to American General in writing.   Record at 33.   Without deciding whether the FDCPA prohibits a debt collector from requiring a debtor to dispute the validity of a debt in writing,6 we determine only that Brennan did not violate the FDCPA by advising Spears that verification of the debt would be provided if requested in writing.  15 U.S.C. § 1692g(a)(4) clearly requires that a debt collector's notice contain a statement that verification of the debt will be provided if requested in writing within thirty days of receipt of the debt collection notice.   Brennan properly advised Spears of this verification right under the FDCPA. - See more at: http://caselaw.findlaw.com/in-court-of-appeals/1189212.html#sthash.brKdjwf4.dpuf

 

NO where in their ruling does it require that a consumer be sent an itemized statement in DV.  The last paragraph of their ruling clearly states that a statement of verification is required to be sent if requested in writing within 30 days.  All that means is the creditor can send a letter stating they have verified the information provided by the OC as [creditor] at [address] states you owe [amount] to them and we request you pay up.

 

I am not going to look up the other cases especially one you can't even remember one of the key litigants but I suspect they say the same thing.

  • Like 1
Link to comment
Share on other sites

I disagree with you guys' conclusions because I have real experience using those cases  to get rid of debt collectors, both in and out of court.  It may have been because I was right, or because they just didn't want to go through the trouble or expense in arguing it, but whatever, it always gets rid of them.

 

The confirmation in writing that Chaudry received was a complete accounting of the debt and it came from  the original creditor.  Additionally, that quote was made as an 'obiter dictum' statement by the judge, so it isn't even a binding legal precedent.  A lot of sleazy debt collectors have used that quote for years as a Jedi mind trick to avoid having to properly validate.

 

The validation that Mahon and Clark received was also a complete accounting of the debt that came from the original creditor and the Spears v Brennan case helped defined debt validation even further after the debt collection attorney sent a copy of the signed contract to the debtor:

 

We cannot agree.

 The contract in no way provides sufficient verification of the debt.   A review of the document reveals that it identifies only the terms of Spears' loan, including a 17.99% annual interest rate and the original loan amount of $2,561.59.   The loan agreement contains no accounting of any payments made by Spears, the dates on which those payments were made, the interest which had accrued, or any late fees which had been assessed once Spears stopped making the required payments.

 

(In that particular case, it was ruled that obtaining a default judgement against the debtor was continuds collection activity after failing to properly validate.)

 

The FDCPA itself requires a debt collector to obtain proper validation.  It doesn't say what or from whom, but when they just write a letter caliming the debt is valid, they haven't obtained anything.

 

In any case, I don't think a debtor should just roll over when a CA or JDB just arbitrarily declares a debt to be valid.  We should hold them to higher standards.

Link to comment
Share on other sites

I disagree with you guys' conclusions because I have real experience using those cases  to get rid of debt collectors, both in and out of court.  It may have been because I was right, or because they just didn't want to go through the trouble or expense in arguing it, but whatever, it always gets rid of them.

 

Or it could be that because you live in Texas.  My guess is they walked away because Texas is one of maybe three states that actually has consumer protection state laws that have teeth to them.  The OP is from Iowa which is VERY creditor friendly and affords no such protection to their citizens.  The second problem is that things are VERY different than they were five years ago at the height of the recession.  Tactics that used to work against JDBs are failing consistently now because they have adapted to the typical defenses consumers use(d) in these cases.  Even Texas residents are being sued more often and LOSING the cases despite valiant efforts at a defense.

 

Plus, I completely disagree with the bolded part.  NOTHING always works.  No one can guarantee that using the cases you mention, especially one that is non binding opinion will work. Non-binding is exactly that:  the courts are not required to follow it but may CHOOSE to do so.

 

In any case, I don't think a debtor should just roll over when a CA or JDB just arbitrarily declares a debt to be valid.  We should hold them to higher standards.

 

NO one here told the OP to simply roll over.  You can attempt to hold a debt collector to any standard you want but if it is not in line with state or Federal law they are free to continue to do business as usual.  

Link to comment
Share on other sites

You're missing the point.  You never give a CA anything.  You never acquiese to anything.  You advised the OP to just roll over and accept flimsy validation and that's what I disagree with.   When you don't pay a CA, there is always a chance  you will be sued, so you want to give yourself as much hope as possible to beat them in court.

 

Sometimes people are either unable or unwilling to pay (or both) so then their mission becomes to get the CA to leave them alone, and to do that they have to convince the CA that they aren't ever going to pay willingly and a lawsuit will be defended against and have a countersuit attached to it.   Asserting that they did not properly validate, then violated when they continued collection activity and quoting that case law and the FCPCA in certified letters to them is a good way to accomplish this. 

 

At least that's worked for me every time so far.  The only time I got sued by a JDB was when I didn't include that case law in my initial letters to them, but when I used it in my defense and counter suit they wanted a mutual dismissal with a release form.

 


This is all why it's often a necessary evil to request validation within the 30 day time frame, so you can use it against them when they are lazy about it.  If you just accept that they have validated, you have prevented yourself from having that leverage.

 

I know all this has been criticized as an immoral guerrilla tactic, but if they don't want a debtor to have a cause of action against them, they need to follow the FDPCA and actually obtain verification and mail it to the debtor like it says to do. 

 

I also know that some misuse validation to try to get the CA to prove the debt actually exists or that they have the right to collect it, which isn't what validation is for, but that's no worse than the methods CA's often use.  These aren't honorable people we're dealing with.

 

I'm curious as to the amount the OP is being asked to pay, because if it's a lot, then an FDCPA counter-suit may not offset it by much, though.

 

Link to comment
Share on other sites

You're missing the point.  You never give a CA anything.  You never acquiese to anything.  

 

You are missing the point.  The OP assumed the debt was valid and made 2 payments to the CA long before they posted here.  It is too late to DV now.  They have reset the SOL on filing a suit by making payments and acknowledged the debt is theirs as well.  Any DV or verification sent now is preventing nothing and will not provide a defense in a suit.

 

Read the first statement in post #1:

 

"I have two notices from a collection agency about a credit union debt that I am not even sure if it is valid. Assuming it was I sent 2 $25.00 payments"

 

You advised the OP to just roll over and accept flimsy validation and that's what I disagree with.

 

NO ONE here advised that and even though you keep saying it, it won't make it accurate.

 

Asserting that they did not properly validate, then violated when they continued collection activity and quoting that case law and the FCPCA in certified letters to them is a good way to accomplish this. 

 

Try and follow along:  the OP never asserted the debt wasn't valid and disputed with the first contact.  They PAID the CA twice assuming the debt was valid.  It is TOO LATE to dispute this debt.  

 

There is a second debt from another CA and they were advised to dispute that one because it is within 30 days of the first collection attempt.  

 

You are welcome to keep your BVDs bunched up about the whole situation but it won't  help and won't accomplish anything. The reality is the FDCPA, FCRA, and case law doesn't support your arguments no matter how many times you repeat it.  We are going to have to agree to disagree because what you are advocating for doesn't work in creditor friendly states and while you can keep whining you won't change my opinion or belief on this situation. 

 

You have hijacked the thread long enough.

Link to comment
Share on other sites

what type of response will I be looking for back to show that it is valid? Seems the whole validity point has brought up some interesting discussions on this one post. 

 

Who the original creditor is, the amount you owe, and the creditor's address.  Despite the machinations of some posts the reality of the FDCPA is that they are not required to provide anything more than this. If you copied and pasted a DV letter (especially the one from this site) they can and will ignore the rest of the list.  A judgment is the only thing they are required to give you a copy of.  

 

There are a handful of states that have consumer laws with teeth that require that kind of documentation but Iowa is not one of them.  They are very creditor friendly and don't have to provide you with one shred of anything unless they sue you.

Link to comment
Share on other sites

I still don't have proof that I owe this debt considering they have sent the exact same letter almost 8 months apart from each other. Are we no longer able to request information from the original creditor to Prove that a debt with them does exist? so we can either A. Settle or B. Pay off said debt to avoid further collection activities. My goal is not to skimp on the debt if it is legit. It is to simply determine if it is so the account can be settled and not have another collection hurting the credit report. appreciate the information being shared, did not mean to cause problems with said information. 

Link to comment
Share on other sites

I still don't have proof that I owe this debt considering they have sent the exact same letter almost 8 months apart from each other. Are we no longer able to request information from the original creditor to Prove that a debt with them does exist? so we can either A. Settle or B. Pay off said debt to avoid further collection activities. My goal is not to skimp on the debt if it is legit. It is to simply determine if it is so the account can be settled and not have another collection hurting the credit report. appreciate the information being shared, did not mean to cause problems with said information. 

 

Nothing in the FDCPA requires they send you proof as part of validation except for a judgment already attained.  Then they must send a copy of the judgment.  ALL that they are required to send as part of validation is the name/address of the OC and the amount you owe.  If they don't do that then all they are required to do is cease collection activities until they do send it.

 

If you want to know if they are legitimately collecting contact the credit union and ask them about the debt.  If they hired this CA they will tell you.  As for settling if you do get all the conditions in writing.  Verbal promises are worthless.  I have settled several debts for less but always include language that any remaining balance is disputed and cannot be sold to anyone else for collection.

 

As for causing trouble:  you have not caused any.  One person who has no understanding of the laws, got lucky, and happens to live in a state with consumer protections most of us don't have did.

Link to comment
Share on other sites

@jllracer55

 

 

http://www.nationallist.com/image/cache/White_Paper_Iowa_Debt_Collection.pdf

 

 

 

Iowa has a right to cure law:

 

 

Prior to commencing any legal action, the creditor must give the consumer a notice of right to cure default under Iowa Code section 537.5111. The creditor cannot attempt to enforce the obligation until twenty days after the proper notice of right to cure has been given. However, the federal Fair Debt Collections Practices Act requires thirty days prior to enforcing the obligation, so thirty days is given on notices of right to cure, in order to comply with the Federal statute and prevent a claim of over-shadowing. This notice of right to cure must be in writing and must state the name, address, and telephone number of the creditor, a brief identification of the credit transaction and consumer’s right to cure, statement of the nature of the right to cure the default, statement of the nature of the alleged default, statement of the total payment, including itemization of any delinquency or deferral charges, and the exact date by which the amount must be paid or performance tendered.

 

 

Iowa also requires specific documentation prior to bringing suit:

 

 

It is important that creditors have all the necessary documentation when trying to recover a claim in court. When dealing specifically with credit card debt, courts in Iowa require specific documentation as stated in the case of Capital One Bank (USA), N.A. v. Denboer, 791 N.W.2d 264 (Iowa App. 2010). This case requires that the lender or creditor provide a copy of the account agreement, a “charge-off” statement, and an affidavit signed by a representative of the lender. A “charge-off” statement is an account billing statement that shows the total amount owed on the statement and is representative of the sum total due on  the account.

 

 

I made an earlier post on this thread and overlooked this information.  Iowa does afford some protections to debtors.

 

.

Link to comment
Share on other sites

So I recently sent notification to one of the collectors disputing its validness since this was a notification we just got and only knew about it after doing a credit report pull. What happens if they never validate and you have proof you attempted to gain such information? Can't we then go to the credit bureaus and advise they remove said items since they cannot be validated with the original creditor? And thanks for posting the above information about Iowa as well. I dont recall any of these companies doing the above or very few anyways. Good information to know. Thanks for that!  

Link to comment
Share on other sites

Join the conversation

You can post now and register later. If you have an account, sign in now to post with your account.

Guest
Reply to this topic...

×   Pasted as rich text.   Paste as plain text instead

  Only 75 emoji are allowed.

×   Your link has been automatically embedded.   Display as a link instead

×   Your previous content has been restored.   Clear editor

×   You cannot paste images directly. Upload or insert images from URL.

 Share

×
×
  • Create New...