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h8spleadingpaper

Can I Nail Midland on an FDCPA Violation?

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1.  Am I correct in thinking that the tradeline would be considered the first communication? Or would it be this letter?

 

2.  Regardless, a proper dunning letter was never sent after this correspondence either.  But how I could prove this, since I would imagine that they would just generate a fake one, along with a false POS and backdate both if sued?  

 

Thanks for any insights.  I’d love to hurt these guys, if it’s possible.

 

1.  No you are not correct.  The trade line is NOT communication with you directly and therefore does not count towards the 5 day window to send a letter from first communication.  If they sent you a letter as their first communication they are not required to send another within 5 days.  The 5 days starts ticking if they speak to you on the phone as initial contact.

 

2.   They don't have to send a second "proper" dunning letter after the initial one.  As for the mini "miranda" stating you have 30 days to dispute:  better look on the back side of that letter from Midland.  That is generally where they stick that disclaimer.  Add to that, they don't have to prove that you received their letter only that they sent it.  Unless you can prove they fabricated a first letter then they only have to show a copy of one in a court case to demonstrate that they complied with the law.

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@h8spleadingpaper

 

CA Civil Code 1788.52(d)(2) & (3):

 

(d) (1) A debt buyer shall include with its first written

communication with the debtor in no smaller than 12-point type, a

separate prominent notice that provides:

 

(2) When collecting on a time-barred debt where the debt is not

past the date for obsolescence provided for in Section 605(a) of the

federal Fair Credit Reporting Act (15 U.S.C. Sec. 1681c):

   "The law limits how long you can be sued on a debt. Because of the

age of your debt, we will not sue you for it. If you do not pay the

debt, [insert name of debt buyer] may [continue to] report it to the

credit reporting agencies as unpaid for as long as the law permits

this reporting."

   (3) When collecting on a time-barred debt where the debt is past

the date for obsolescence provided for in Section 605(a) of the

federal Fair Credit Reporting Act (15 U.S.C. Sec. 1681c):

   "The law limits how long you can be sued on a debt. Because of the

age of your debt, we will not sue you for it, and we will not report

it to any credit reporting agency."

Sorry to bug you again @BV80, but I just have to ask one last question about this.  Midland is claiming that the last payment on this alleged account was made in February 2011, while their first correspondence with me was in September of 2014.  So at the time of their first correspondence, the alleged account would not have been time-barred for legal recourse (though it is now).  

 

Does CA Civil Code 1788.52(d)(2) & (3) indicate that they would have to include the language about not being able to sue or report only if the initial communication is delivered after the SOL has expired?  Or does it mean that even if the initial communication is made within the SOL limits (4 years in California), that they still need to send another letter indicating that they won’t sue or report once the SOL limit is reached, even if they previously communicated with me beforehand?  Sorry if I’m being dense about this; I often read legalese different ways and don’t know which is correct.

 

Thanks, everyone.

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@h8spleadingpaper

 

You're not bugging me at all.  :-)

 

Does CA Civil Code 1788.52(d)(2) & (3) indicate that they would have to include the language about not being able to sue or report only if the initial communication is delivered after the SOL has expired?

 

 

That's partly correct.  If the debt is outside the SOL for collection, but is still within the 7-year credit reporting period, they only have to inform you that they won't sue.   If the debt is also outside the credit reporting SOL (7 years), they must inform you of both.

 

They only have to provide that information if they send a collection letter.   They can stop collection attempts before either of the SOLs expire and never have to send another letter again.

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@h8spleadingpaper

 

You're not bugging me at all.  :-)

 

 

That's partly correct.  If the debt is outside the SOL for collection, but is still within the 7-year credit reporting period, they only have to inform you that they won't sue.   If the debt is also outside the credit reporting SOL (7 years), they must inform you of both.

 

They only have to provide that information if they send a collection letter.   They can stop collection attempts before either of the SOLs expire and never have to send another letter again.

Okay.  So in my case, they sent an initial collection letter before the SOL kicked in (as well as many others since), but none have contained the language about not being able to sue or report, despite the fact that the alleged debt was supposedly purchased in mid-2014 (after the new rules took effect).  So is there a violation here, or did they never need to send a letter with the “not able to sue/report” because the first correspondence was sent before the SOL was up?

 

Also, according to my credit reports, Midland has continued to report on this alleged account well into 2015, despite the fact that the SOL was up in 2014.  Would this be a violation as well?  Thanks.

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Howdy, 

 

(d) (1) A debt buyer shall include with its first written
communication with the debtor in no smaller than 12-point type, a
separate prominent notice that provides:

"You may request records showing the following: (1) that [insert
name of debt buyer] has the right to seek collection of the debt; (2)
the debt balance, including an explanation of any interest charges
and additional fees; (3) the date of default or the date of the last
payment; (4) the name of the charge-off creditor and the account
number associated with the debt; (5) the name and last known address
of the debtor as it appeared in the charge-off creditor's or debt
buyer's records prior to the sale of the debt, as appropriate; and
(6) the names of all persons or entities that have purchased the
debt. You may also request from us a copy of the contract or other
document evidencing your agreement to the debt.
"A request for these records may be addressed to: [insert debt
buyer's active mailing address and email address, if applicable]."

(2) When collecting on a time-barred debt where the debt is not
past the date for obsolescence provided for in Section 605(a) of the
federal Fair Credit Reporting Act (15 U.S.C. Sec. 1681c):

"The law limits how long you can be sued on a debt. Because of the
age of your debt, we will not sue you for it. If you do not pay the
debt, [insert name of debt buyer] may [continue to] report it to the
credit reporting agencies as unpaid for as long as the law permits
this reporting."

 

notice that the statute specifies "within its first written communication".  Any subsequent letters would not need to include the disclosure.  When you said that the SOL was up, do you mean the collection SOL or the credit reporting SOL?
 
Wheels up, 
 
Stick

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Thanks, @stick&rudder.  Midland got in their first communication before the SOL for filling a Complaint (suing) was up, but have continued to send collection letters right up to the present.  They get a pass on the initial collection letter (since SOL had not lapsed at that point), but I’m wondering if the more recent letters would be required to contain the “can’t sue” language due to the SOL for suing having lapsed last year.  I’m assuming now that they wouldn’t have to send me anything with the “we can't report” language until 7 years after the alleged delinquency, based on the info BV80 gave me previously.

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I would read (d)(2) separate from (d)(1). If the debt is past the SOL and they are trying to collect, it should contain the language.

The Asset Acceptance Consent Order required the language on EVERY attempt communication..... I would think the CFPB would expect it from all.

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@h8spleadingpaper

 

 

Thanks, @stick&rudder.  Midland got in their first communication before the SOL for filling a Complaint (suing) was up, but have continued to send collection letters right up to the present.  They get a pass on the initial collection letter (since SOL had not lapsed at that point), but I’m wondering if the more recent letters would be required to contain the “can’t sue” language due to the SOL for suing having lapsed last year.  I’m assuming now that they wouldn’t have to send me anything with the “we can't report” language until 7 years after the alleged delinquency, based on the info BV80 gave me previously.

 

Collection letters for the debt for which they're currently suing?

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@h8spleadingpaper

 

 

 

Collection letters for the debt for which they're currently suing?

No sir (or ma’am).  They've never sued.  I was just trying to clarify, since stick&rudder asked me to differentiate whether I was referring to suit SOL or reporting SOL.  So I was just referring to the SOL for lawsuits, which Midland missed without filing a Complaint.  Thanks and sorry for any confusion.

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@h8spleadingpaper

 

Okey dokey.  I would think the notice(s) (whenever applicable) would need to be included in letters sent after the initial written communication as well, but we'll see.  Hopefully, calawyer can clear this up.  

 

And, yes, the "we can't report" need only be included if the 7-year reporting period has passed.

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Howdy all, 

 

The one thing that fixes for me on this is that the law does not specifically state that the disclosure is required on all notices.  The courts are required to adopt a more or less "plain language" approach to interpreting the law whenever possible.  If the authors of the law intended that to be required on every written communication, then the courts would most likely say that said authors would have no doubt specified that when they wrote the statute.  The only thing mentioned in there at all is regarding the initial communication.  I see d(2) as an extension of d(1), otherwise it would not be d(2), but would be a different subheading all its own.  I read that to say that the specified disclosures must be in the first written communication, and then stating that each individual disclosure must be added if the certain circumstance is present at that time.  Just my $.02 though.

 

Wheels up, 

 

Stick

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@stick&rudder

 

Here's how I made my determination.

 

Section 1788.52, subsection (a) lists 6 paragraphs:

 

1788.52.  (a) A debt buyer shall not make any written statement to a debtor in an attempt to collect a consumer debt unless the debt buyer possesses the following information:
   (1) That the debt buyer is the sole owner of the debt at issue or has authority to assert the rights of all owners of the debt.
   (2) The debt balance at charge off and an explanation of the amount, nature, and reason for all post-charge-off interest and fees, if any, imposed by the charge-off creditor or any subsequentpurchasers of the debt. This paragraph shall    not be deemed to require a specific itemization, but the explanation shall identify separately the charge-off balance, the total of any post-charge-off interest, and the total of any post-charge-off fees.
   (3) The date of default or the date of the last payment.

   (4) The name and an address of the charge-off creditor at the time of charge off, and the charge-off creditor's account number associated with the debt. The charge-off creditor's name and address shall be in sufficient form so as to  reasonably identify the charge-off creditor.
   (5) The name and last known address of the debtor as they appeared in the charge-off creditor's records prior to the sale of the debt.  If the debt was sold prior to January 1, 2014, the name and last known address of the debtor as they appeared in the debt owner's records on December 31, 2013, shall be sufficient.
   (6) The names and addresses of all persons or entities that purchased the debt after charge off, including the debt buyer making the written statement. The names and addresses shall be in sufficient form so as to reasonably identify each such purchaser.

 

Note how the explanation in subsection (a) ends with "the following information", is punctuated with a colon, and then followed by paragraphs 1-6.
 

 

However, in the subsection we're referencing, subsection (d), there is no explanation.  It just goes straight into paragraphs (1), (2), and (3).  There is no explanation before the listed paragraphs that states that the "following information" must be included in the initial communication.   "First written communication" is only referenced in paragraph (1).  That term is not referenced in an explanation before the listed paragraphs.

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133. Encore, Encore's officers, agents, servants, employees, and attorneys, and all other persons in active concert or participation with any of them, who receive actual notice of this Consent Order, whether acting directly or indirectly, are permanently restrained and prohibited from:

 

a. Collecting or attempting to collect any Time-Barred Debt through litigation or arbitration;

 

b. Collecting or attempting to collect any Time-Barred Debt through any means, including but not limited to telephone calls and written communications, without clearly and prominently disclosing to the Consumer:

i. for those Consumer accounts where the Debt is Time-Barred and generally cannot be included in a Consumer report under the provisions ofthe FCRA, 15 U.S.C. § 1681c(a), but can be collected through other means pursuant to applicable state law, Encore will include the following statement:

"The law limits how long you can be sued on a debt and how long a debt can appear on your credit report. Due to the age of this debt, we will not sue you for it or report payment or non-payment of it to a credit bureau;"

 

and

 

ii. for those Consumer accounts where the Debt is Time-Barred but can be collected through other means pursuant to applicable state law, and may be included in a Consumer report under the provisions of the FCRA, 5 U.S.C. § 1681c(a), Encore will include the following statement:

 

"The law limits how long you can be sued on a debt. Because of the age of your debt, we will not sue you for it."

 

Provided, however, that with regard to telephonic communications, Encore is not required to make either disclosure to any individual person more than once per 30 day period. 

 

 

This comes from the recent CFPB Order (Sept 2015) against Encore et al.  The fact that they are communicating in writing, reads to me like the last line would require the language on every writing...  

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@stick&rudder

 

 

 

Note how the explanation in subsection (a) ends with "the following information", is punctuated with a colon, and then followed by paragraphs 1-6.

 

 

However, in the subsection we're referencing, subsection (d), there is no explanation.  It just goes straight into paragraphs (1), (2), and (3).  There is no explanation before the listed paragraphs that states that the "following information" must be included in the initial communication.   "First written communication" is only referenced in paragraph (1).  That term is not referenced in an explanation before the listed paragraphs.

You make a good point.  I'd like to offer one as well.  

 

What size text must the disclosure appear in for (d)(2)?  If the author of the law thought well enough to require 12 point lettering for the first disclosure, what you are contending would mean that no such requirement exists for the post-SOL disclosures, and so a debt collector would be able to bury those as small as possible somewhere so they would get lost in the bulk.  But I do not for one moment believe that the authors intended for that to be the case.  The fact that they make this specific requirement shows that they fix the importance of the issue.  If the individual disclosures were intended to be completely separated like you are saying, then each one would have to list its own specific requirements for size of text.  They do not.  Also, a law is just as important for what it does not say oftentimes as for what it does say.  If there was intent to require that disclosure on every written communication, why would the authors not state that clearly?    Believe this, the debt collectors and banks have a hand in these laws.  Why else do nearly all of the consumer protection laws provide no real damage when a consumer sues?  

 

I'd have to believe that if the original intent of the law was to force them to disclose this on every written communication, that the authors would have specified this.  Since they did not, that says something to me.  The authors specified the minimum size of the text for the disclosure--they placed that much importance upon this.  Why would they, in the same section of the law, not state the specific need to disclose in every letter if that is what they had in min, in the same regard?

 

CommoSGT, I understand what you are saying.  However, you are talking about a consent order, and not the law in question itself.  As example, the law makes no requirement at all that a debt collector provide these disclosures over the telephone, only in the first written communication.  But the consent order does.  That all by itself shows us that the standard of the consent order is different than that of the law.  We cannot therefore rely upon what the consent order states as a correct representation of this law.

 

Wheels up, 

 

Stick

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@stick&rudder

 

You make good points, as well.   Courts that have ruled on the FDCPA validation notice in 1692g(a) have referenced the location and font size of that disclosure because it's in the initial communication and the validation language must be noticeable in order to assure that consumers are aware of their validation rights.    I don't know that the same has been said about 1692e(11) and subsequent communications that contain "attempt to collect a debt" language.

 

This is why someone from CA should contact an attorney or Department of Consumer Affairs to get an explanation.

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@CommoSGT

 

I have to agree with @stick&rudder on the consent order.  Violating the order would not necessarily become an FDCPA or state law violation.  I haven't found anything in the order that implies a violation of the order would equate to a violation of a statute allowing a private right of action by a consumer.

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On December 29, 2015 at 9:40 AM, CommoSGT said:

133. Encore, Encore's officers, agents, servants, employees, and attorneys, and all other persons in active concert or participation with any of them, who receive actual notice of this Consent Order, whether acting directly or indirectly, are permanently restrained and prohibited from:

 

a. Collecting or attempting to collect any Time-Barred Debt through litigation or arbitration;

 

b. Collecting or attempting to collect any Time-Barred Debt through any means, including but not limited to telephone calls and written communications, without clearly and prominently disclosing to the Consumer:

i. for those Consumer accounts where the Debt is Time-Barred and generally cannot be included in a Consumer report under the provisions ofthe FCRA, 15 U.S.C. § 1681c(a), but can be collected through other means pursuant to applicable state law, Encore will include the following statement:

"The law limits how long you can be sued on a debt and how long a debt can appear on your credit report. Due to the age of this debt, we will not sue you for it or report payment or non-payment of it to a credit bureau;"

 

and

 

ii. for those Consumer accounts where the Debt is Time-Barred but can be collected through other means pursuant to applicable state law, and may be included in a Consumer report under the provisions of the FCRA, 5 U.S.C. § 1681c(a), Encore will include the following statement:

 

"The law limits how long you can be sued on a debt. Because of the age of your debt, we will not sue you for it."

 

Provided, however, that with regard to telephonic communications, Encore is not required to make either disclosure to any individual person more than once per 30 day period. 

 

 

This comes from the recent CFPB Order (Sept 2015) against Encore et al.  The fact that they are communicating in writing, reads to me like the last line would require the language on every writing...  

I agree with CommoSGT fully that 133.b.ii would apply in my case (Midland is specifically named as a subsidiary of Encore in the CFPB report, the alleged debt at issue is definitely time-barred in California, and no language to the effect of, "The law limits how long you can be sued on a debt. Because of the age of your debt, we will not sue you for it” has been included with any of the letters Midland has sent).  

So I guess my question is, how do I use this to my advantage?  We’ve established that a violation of the Consent Order does not constitue an FDCPA violation.  If I’m not being sued on the alleged debt currently, is there anything in the Consent Order violation that I can use to my advantage?  Thanks for your thoughts.

 

PS - Interestingly enough, in the last month, Midland’s calls (which were almost daily) and letters seem to have stopped.  For some reason however, I expect they will start up again.  Just a hunch based on their past behavior.

 

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@h8spleadingpaper. 1692e(10) - false and deceptive - lieing by omission is still lieing.  They are required to include the language and the Consent Order told them they had to again.

At least that is how I understand it and I was discussing it with an attorney friend and he said "that is how I would argue it".

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Thanks, CommoSGT.  

What I mean is, other than at Trial, how could I use this information?  A violation of FDCPA can result in a monetary claim, but what does the violation of a Consent Order get a consumer who isn’t currently being sued?  Leverage somehow against further collection activity maybe?  Thanks.

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UPDATE - After a cessation of a month or two, it looks like Midland has started up again.  Just got another collection/settlement letter in the mail.  This time however, it contains the language about them not suing, due to the age of the alleged debt.  Guess they finally got the memo.

Looks like I can safely send them the “go pound sand” letter now, since they know they can’t sue.

 

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@h8spleadingpaper

You could have sent a "go pound sand" letter even if they didn't know they couldn't sue.  It's not your responsibility to tell them the debt is time-barred.

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