qednick

Preparing against Cavalry and possible violations

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If the card agreement has a small claims clause, If you elect it in writing before they file suit, you get around that clause.  So if you send them a letter saying you dispute the debt, ask for validation, and you elect JAMS (if that is in the agreement) to settle any all all disputes concerning this account, while they may try and file in small claims, you could take your proof of election and compel arbitration.  The clause would be moot.

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If the card agreement has a small claims clause, If you elect it in writing before they file suit, you get around that clause.  So if you send them a letter saying you dispute the debt, ask for validation, and you elect JAMS (if that is in the agreement) to settle any all all disputes concerning this account, while they may try and file in small claims, you could take your proof of election and compel arbitration.  The clause would be moot.

 

I disagree that the Citi contract says you can't use arb if they sue in small claims.  If read properly, I believe, at best, it says if YOU sue in small claims THEY will not remove it to arb.  But even if some contracts claim you are barred from arbitration if they sue you in small claims, there is usually contradicting language before or after that section.  Any confusing or ambiguous language in a contract should be interpreted in favor of the person who did not draft it ... therefore, I would say you are entitled to arb.

 

I do not like to ask for arb in a DV letter.  I believe it has the potential for causing problems later should you suddenly be faced with multiple violations that you want to take to federal court.  You will have shot yourself in the foot and can easily end up in arb with your own letter being used as exhibit A in their MTC.

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I will add that because this is Calvary, you should watch the "amount owed" very closely.  This is where I find they like to violate the FDCPA.  They may send letters claiming you owe X, then report to the CRAs that you owe Y.  Then, it's possible that once they get ready to sue they will send the account to a law firm who will then send a letter stating you owe Z.  Each time they claim a different amount is owed, they have violated FDCPA.

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I disagree that the Citi contract says you can't use arb if they sue in small claims.  If read properly, I believe, at best, it says if YOU sue in small claims THEY will not remove it to arb.  But even if some contracts claim you are barred from arbitration if they sue you in small claims, there is usually contradicting language before or after that section.  Any confusing or ambiguous language in a contract should be interpreted in favor of the person who did not draft it ... therefore, I would say you are entitled to arb.

 

I do not like to ask for arb in a DV letter.  I believe it has the potential for causing problems later should you suddenly be faced with multiple violations that you want to take to federal court.  You will have shot yourself in the foot and can easily end up in arb with your own letter being used as exhibit A in their MTC.

 

I kind of agree with you @fisthardcheese but making sure the arb option stays on the table was more important to me that gambling whether they'll rack up some violations. The alleged debt is $6K. If it had been only $2-3K I wouldn't have worried about it and wouldn't have even mentioned arb at this point. What I was worried about was getting slammed with a small claims suit and then having to fight hard to try and get it to arb if needed. If the alleged debt had been say $11-12K I still wouldn't have mentioned arb, since that's too large for small claims anyway.

It was purely a decision based on the amount of the alleged debt plus the iffy wording in the citi agreements. I thought about the violations thing you had mentioned earlier in this thread and figured I'd need them to rack up 5 or 6 good ones to level the playing field. So far, between Cavalry and all the others I've been dealing with, I haven't yet seen a clear cut violation.

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I will add that because this is Calvary, you should watch the "amount owed" very closely.  This is where I find they like to violate the FDCPA.  They may send letters claiming you owe X, then report to the CRAs that you owe Y.  Then, it's possible that once they get ready to sue they will send the account to a law firm who will then send a letter stating you owe Z.  Each time they claim a different amount is owed, they have violated FDCPA.

 

What about the amount them claiming is suddenly $700 or so less than was reported by Citi on my CR's before those TL's disappeared? Is that a violation?

I checked my (older) CR this morning to double-check it. It seems Cavalry are claiming the amount that was being reported by citi when the a/c was charged off. However, citi kept increasing the balance after the charge off date. Now the TL is gone but Cavalry are only claiming the lower balance.

 

I should add that no TL is being reported by Cavalry as yet.

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The Federal Trade Commission recently studied 5,000 portfolios of debt and found 12 percent had documentation to show the JDB actually had documentation showing the actual contract between the debtor and original creditor.  Without the original documentations they have no standing to sue for a debt or check your credit report.  If they do have the original documentation, your out is to elect arbitration, just like the JDB uses to stop class action law suits.  If they fail to produce original documentation, they violated the FDCPA and owe you.  If they have the original documentation elect arbitration and take away the jurisdiction of the court.

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@BV80 that's what I thought actually. I'm beginning to get the impression that all these JDB's have really tightened up with the whole violations thing. Maybe they got tired of being sued. Anyhoo, we'll see what happens next.  :-)

 

This is not my experience.  xtookewlx   They may not blatantly violate anymore by cursing you out on the phone or making personal attacks to you or your family .... but they are still the disorganized, chaotic and unscrupulous JDBs.  It just requires patience and a good awareness to catch them.

 

It is likely that they only put the amount due at charge off, because that is the only number the minimum wage employee was trained to look for and enter into their computer system when they got the stack of 5,000 new portfolios from Citi.  But now they are stuck, because if they want to correct the amount to the higher owed amount, they can't without causing a violation. 

 

Here's where I would start poking around for violations; As soon as it hits my credit reports, I would dispute the amount as inaccurate.  When they verify the amount and it does not match the last amount I had from Citi, they have just violated the FCRA and the FDCPA.  There is $2k right there.  I would also wait to see if they start calling my cell phone and let them rack up some good TCPA calls at $500 each.

 

While it may seem like you need to have violations that exceed or equal the dollar amount they are claiming against you before it is wise to sue them, that is not necessarily true.  You also should factor in the fact that they would also owe your costs and attorney fees, which can be multiple times what your claims are.  So, for instance, if you sued them for a single FDCPA violation worth a max of $1k, they would also be on the hook for another $5k to your attorney.  That is on top of the fact that they really don't want a judgement filed against them that will be public record, so they almost always want to settle.  Part of the settlement can include wiping out your alleged debt.

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Those are good points! I also want to take this opportunity to thank everyone for the great advice and feedback.

 

As far as the TCPA goes, I get quite a lot of calls from PRA and others but I have call filter on my phone and they go straight to voicemail. They very very rarely leave a message. So it begs the question: if I don't speak to them, and they don't leave a message, and they call within the times classed as "convenient", it would be difficult to get any violations there right??

I should mention that I do have an automatic call recorder on my cell. However, I've seen plenty of posts here and elsewhere from folks that recommend to absolutely NOT talk to these people on the phone.

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Those are good points! I also want to take this opportunity to thank everyone for the great advice and feedback.

 

As far as the TCPA goes, I get quite a lot of calls from PRA and others but I have call filter on my phone and they go straight to voicemail. They very very rarely leave a message. So it begs the question: if I don't speak to them, and they don't leave a message, and they call within the times classed as "convenient", it would be difficult to get any violations there right??

I should mention that I do have an automatic call recorder on my cell. However, I've seen plenty of posts here and elsewhere from folks that recommend to absolutely NOT talk to these people on the phone.

 

Not talking on the phone and answering are two different things.  "hello". "Hi this is PRA..." *click*.  That is not talking, but enough to get a call log to appear on my phone bill. :)

 

However, it doesn't matter because the TCPA is different than the FDCPA.  The TCPA only says they can not "cause a phone to ring" by using an auto dialer.  The call does not have to be completed, only initiated.

 

Although I believe there are good arguments around it, it would also be best if you never voluntarily provided your cell number to the OC.  If you did, you can always send a letter to the JDB saying you revoke permission to auto dial your cell phone.  However, I would still go after any previous calls as TCPA violations using the following case law:

 

Edeh v. Midland Credit Management, Inc., 748 F. Supp. 2d 1030 - Dist. Court, Minnesota 2010

 

Midland first objects to Judge Noel's finding that it violated the TCPA. Midland asserts that, notwithstanding the undisputed fact that it made an automated call to Edeh's cellular phone for a non-emergency purpose, there is a factual dispute over whether Edeh previously consented to receive automated calls to his cellular phone about the disputed debt. Midland Obj. R & R at 9. Midland argues that it obtained Edeh's phone number when it bought Edeh's debt, and that it "reasonably relied upon the seller of the debt to provide the appropriate contact information" for Edeh. Gustad Aff. Ex. B at 14 [Docket No. 46-1].

That is beside the point. Midland's call to Edeh's cellular phone was permissible only if it was made "with [Edeh's] prior express consent." 47 U.S.C. § 227(B)(1)(A)(iii) (emphasis added). "Express" means "explicit," not, as Midland seems to think, "implicit." Midland was not permitted to make an automated call to Edeh's cellular phone unless Edeh had previously said to Midland (or at least to Midland's predecessor in interest) something like this: "I give you permission to use an automatic telephone dialing system to call my cellular phone." Midland has no evidence that Edeh gave such express consent. In fact, uncontroverted evidence, in the form of Edeh's affidavit, shows that Edeh did not consent to receive automated calls on his cellular phone. Edeh Aff. ¶ 10 [Docket No. 41-3]. The Court therefore overrules Midland's objection to the R & R as it relates to TCPA liability.

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Just giving an update on this and I think I may have a violation by Cavalry now. I mailed off a DV and dispute letter to Cavalry a couple weeks ago CMRRR. I got the green card back signed for on Dec 28th. I just received another Dunning letter from Cavalry (identical to first one) but dated Dec 29th. I have not received any validation from them whatsoever yet.

So am I correct in assuming this would be a violation since they are making collection efforts after receiving my DV letter and before validating??? I requested validation per the Texas Finance Code which gives them 30 days to validate.

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Pre-electing arbitration is not the best idea.  As @fisthardcheese has pointed out on occasion, if the JDB commits any statutory violations, you want to be able to sue them.  By pre-electing arbitration, they could then elect arbitration even if they don't have a valid agreement, and you wouldn't be able to oppose it because they'd have your letter showing that you were the first to invoke it.

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3 hours ago, qednick said:

Just giving an update on this and I think I may have a violation by Cavalry now. I mailed off a DV and dispute letter to Cavalry a couple weeks ago CMRRR. I got the green card back signed for on Dec 28th. I just received another Dunning letter from Cavalry (identical to first one) but dated Dec 29th. I have not received any validation from them whatsoever yet.

So am I correct in assuming this would be a violation since they are making collection efforts after receiving my DV letter and before validating??? I requested validation per the Texas Finance Code which gives them 30 days to validate.

Depends on what that letter says.  If it contains the name of the original creditor and the amount they allege you owe then they have complied with validation for the FDCPA.  Regardless of anything else you demanded like proof of the debt, right to collect, license numbers, agent etc.  NONE of that is required for DV.  

Does the letter contain the name of the OC and the amount they allege you owe?

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19 minutes ago, Clydesmom said:

Depends on what that letter says.  If it contains the name of the original creditor and the amount they allege you owe then they have complied with validation for the FDCPA.  Regardless of anything else you demanded like proof of the debt, right to collect, license numbers, agent etc.  NONE of that is required for DV.  

Does the letter contain the name of the OC and the amount they allege you owe?

It does but it's just the same dunning letter they had sent previously. Nothing about it being in response to my validation request.

EDIT: I should add that it being the same dunning letter, it states the typical "unless you notify us within 30 days of receiving this letter blah blah we will assume the debt is valid".

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1 hour ago, BV80 said:

Pre-electing arbitration is not the best idea.  As @fisthardcheese has pointed out on occasion, if the JDB commits any statutory violations, you want to be able to sue them.  By pre-electing arbitration, they could then elect arbitration even if they don't have a valid agreement, and you wouldn't be able to oppose it because they'd have your letter showing that you were the first to invoke it.

The objective wasn't so much to go out of my way to sue them for violations but to have some extra ammunition in case they sued me. If they start racking them up then I will probably regret it but I'm more worried about preventing a lawsuit against me at the moment.

 

It looks to me like they have to cease all collection efforts until they specifically deny, admit, or state they haven't had sufficient time to deny or admit. The letter I just received is a standard dunning letter and states nothing about denying, admitting, or not having enough time to investigate my dispute...so I wouldn't assume this is validation under the Texas Finance Code simply because it contains the original creditor and amount.

Per the Texas Finance Code:

Sec. 392.202. CORRECTION OF THIRD-PARTY DEBT COLLECTOR'S OR CREDIT BUREAU'S FILES. (a) An individual who disputes the accuracy of an item that is in a third-party debt collector's or credit bureau's file on the individual and that relates to a debt being collected by the third-party debt collector may notify in writing the third-party debt collector of the inaccuracy. The third-party debt collector shall make a written record of the dispute. If the third-party debt collector does not report information related to the dispute to a credit bureau, the third-party debt collector shall cease collection efforts until an investigation of the dispute described by Subsections (b)-(e) determines the accurate amount of the debt, if any. If the third-party debt collector reports information related to the dispute to a credit bureau, the reporting third-party debt collector shall initiate an investigation of the dispute described by Subsections (b)-(e) and shall cease collection efforts until the investigation determines the accurate amount of the debt, if any. This section does not affect the application of Chapter 20, Business & Commerce Code, to a third-party debt collector subject to that chapter.

(b) Not later than the 30th day after the date a notice of inaccuracy is received, a third-party debt collector who initiates an investigation shall send a written statement to the individual:

(1) denying the inaccuracy;

(2) admitting the inaccuracy; or

(3) stating that the third-party debt collector has not had sufficient time to complete an investigation of the inaccuracy.

 

 

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They haven't used their 30 days yet.  

1. Is it being reported by them on your CRA?

2. I don't think the 1 day difference of when they received, and the next day mailed out a letter will make much difference,  but I could be wrong.  You might get that letter in the next few days

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19 minutes ago, shellieh98 said:

They haven't used their 30 days yet.  

1. Is it being reported by them on your CRA?

2. I don't think the 1 day difference of when they received, and the next day mailed out a letter will make much difference,  but I could be wrong.  You might get that letter in the next few days

True, they still have a couple of weeks. It's not being reported to CR's. The statute does specifically say though that collection efforts must cease upon receipt of my dispute until they either admit, deny, or state they haven't had enough time to admit or deny the debt. I'm guessing if they don't specifically admit or deny within the 30 days, they will not be able to add TL to my CR's (or remove the TL if they put it on there).

Would it help if I post a redacted copy of the letter I just received?

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6 hours ago, qednick said:

True, they still have a couple of weeks. It's not being reported to CR's. The statute does specifically say though that collection efforts must cease upon receipt of my dispute until they either admit, deny, or state they haven't had enough time to admit or deny the debt. I'm guessing if they don't specifically admit or deny within the 30 days, they will not be able to add TL to my CR's (or remove the TL if they put it on there).

Yes the statute does say this however there is another major problem:  the courts are deeply divided on whether a trade line is collection activity.  Until the Supreme Court accepts a challenge to this and issues a ruling your chances of the court declaring this a FDCPA violation are not good.  

They most certainly can add the trade line because it isn't communication with YOU directly to collect.  It is merely reporting the status of the account they purchased.  They would not have to remove the trade line if they reported it and didn't validate with you.

6 hours ago, qednick said:

Would it help if I post a redacted copy of the letter I just received?

YES.

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I'm attaching redacted letter sent one day after they received my dispute/DV request per Texas Finance Code. This letter is identical to the one they sent initially and which prompted me to dispute & DV.

My DV request was not per federal law but per the Texas law. I believe the Texas law specifically states TL's must be removed if they don't respond within 30 days.

I should add that they tried calling me last night too.

 

Cavalry Redacted.jpg

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A few things:

 

First, my opinion is that this letter sent 1 day after they received your DV is a violation.  I would consider it a violation in two areas, #1 continued collections without proper verification and #2 (depending on timing) either overshadowing the initial 30 day period, or by being deceptive by stating you now have another 30 days to dispute.

Now, given that there is only a 1-day difference, I would not sue exclusively on this violation alone, but I would definitely use it as part of a larger suit.    The fact that they called you yesterday is good news.  If you had answered that call and they asked for payment, you would have a golden ticket.  As it sits now, you can't prove that they didn't just call to ask how your day is going and not to "continue collections".  This is why it is best to answer those calls.  Calls from collectors are essentially $1k checks waiting to be cashed, especially when you haven't gotten a proper reply to DV.  There are likely state violations with your TX statute, but I am not familiar with that one.

I would suggest just holding tight until your 30 days is up for the TX statute and see what else they might do. 

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24 minutes ago, fisthardcheese said:

A few things:

 

First, my opinion is that this letter sent 1 day after they received your DV is a violation.  I would consider it a violation in two areas, #1 continued collections without proper verification and #2 (depending on timing) either overshadowing the initial 30 day period, or by being deceptive by stating you now have another 30 days to dispute.

Now, given that there is only a 1-day difference, I would not sue exclusively on this violation alone, but I would definitely use it as part of a larger suit.    The fact that they called you yesterday is good news.  If you had answered that call and they asked for payment, you would have a golden ticket.  As it sits now, you can't prove that they didn't just call to ask how your day is going and not to "continue collections".  This is why it is best to answer those calls.  Calls from collectors are essentially $1k checks waiting to be cashed, especially when you haven't gotten a proper reply to DV.  There are likely state violations with your TX statute, but I am not familiar with that one.

I would suggest just holding tight until your 30 days is up for the TX statute and see what else they might do. 

I agree totally. There's nothing in that letter that purports to it being in response to my DV or dispute. I also didn't think about the possible "deception" by them stating I have yet another 30 days to dispute--thanks for pointing that out!! I will take their number off my call blocker and if they call again I will answer it. My cell records calls by default. :)  

As far as I can tell, the Texas Finance Code is similar to the federal statute except:

  1. I can request DV at any time--not just within the first 30 days of initial contact
  2. They have 30 days to respond--unlike the federal where there's no time limit
  3. If they don't respond or can't validate within the 30 days then all TL's must be permanently deleted from my CR's

Perhaps @TomnTex or someone else knowledgeable on the TX statute can confirm this??

 

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