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I received a letter from an H&H law office in San Jose CA.   On behalf of Portfolio Recovery Assoc.

I need to respond ASAP can a lawyer please help me?   We are a struggling financial family and I really don't want to go to court.   What should I do?

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1. Portfolio Recovery Assoc

2. H&H can't remember their full names, San Jose

3. $9,456

4. Sent letter saying they are collecting on a debt on their behalf and I have 30  days to dispute according to FDPCA if nothing from me, then a judgement.

5. Not served yet.

6.  I have had no correspondence with them nor have I spoken to them.

7.  I am in CA

8.   Not sure.   Perhaps debt maybe 2 years old.

9.  SOL in CA is 4 years for CC's.

10.   I have not run CR's or disputed with the credit reporting agencies.

What type of letter response should I send ASAP?    What are my rights?

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If you change your title to include California, that will get the attention of the right posters. Who is the original creditor? Portfolio is a junk debt buyer, not an original creditor.

They have to serve you first then you get a chance to show up in court to defend yourself. They don't get a judgment just by sending a letter hoping you don't respond. You may want to check your county court website just to see if there is any case with your name on it but again until you're served, nothing goes forward in court.

If you want to attach the letter (with your personal detail blocked out), it could be reviewed for potential violations. Also, keep all letters received for future reference, such as if final payment date or amount they're trying to collect is different/changing from final balance from alleged original creditor account.

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The usual drill is for law firm to send one or more dunning letters before case filed in court.

Check to see if case filed - probably not if this is first letter from law firm.

If case not filed, there are arguments either way for responding to dunning letter with DV. Personally, I would either (i) not respond and avoid calling attention to myself or (ii)   deter plaintiff from filing case by stating in DV letter general intention to use private contractual arbitration in event of dispute  (don't admit to having any such contract - you're  just saying - let them produce alleged contract from OC  if it ever goes that far - hopefully they just blow away.) Using (ii) waives plaintiff's right to file case in court. They probably can't use AAA to use arbitration against consumer (you), and if JAMS available, very expensive for them.

If case filed, most likely you will eventually be served.

There does not appear to be any reliable defense on the merits.

So most likely forum will recommend private contractual arbitration via MTC or affirmative defense. Here plaintiff had a right to file case in court, but you have a good shot at getting it out of court and into a prohibitively expensive arbitration for plaintiff. In most states, you can respond via motion any time after case filed, but usually people wait to be served. Regardless, you'll have to respond to complaint if you actually get served.

 

 

 

 

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Here us what I received CCRP626 wanted me to post both letter incase they were in violation of something.

What do they have to show me for Debt Validation under the Federal Debt Collections Practice Act in order to legally collect the money from me?   This is all new to me so I am not up with all the abbreviations yet either.    I greatly appreciate your help.

If you say you want mediation do they have to abide by that?

What mediation costs would I be paying if it gets to that point?

image.jpeg

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It has been rough financially my spouse is self employed and I am full time employed.   I have had a previous charge off and my spouse too.   I have cut everything imaginable to keep down expenses but our mortgage has gone up,  basic expenses food gas etc.. honestly at times it is overwhelming.     I have two younger dependents at home too.   We are trying to regroup and if need be relocate to a cheaper state like TX.   

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4 hours ago, Happybluesky said:

The usual drill is for law firm to send one or more dunning letters before case filed in court.

Check to see if case filed - probably not if this is first letter from law firm.

If case not filed, there are arguments either way for responding to dunning letter with DV. Personally, I would either (i) not respond and avoid calling attention to myself or (ii)   deter plaintiff from filing case by stating in DV letter general intention to use private contractual arbitration in event of dispute  (don't admit to having any such contract - you're  just saying - let them produce alleged contract from OC  if it ever goes that far - hopefully they just blow away.) Using (ii) waives plaintiff's right to file case in court. They probably can't use AAA to use arbitration against consumer (you), and if JAMS available, very expensive for them.

If case filed, most likely you will eventually be served.

There does not appear to be any reliable defense on the merits.

So most likely forum will recommend private contractual arbitration via MTC or affirmative defense. Here plaintiff had a right to file case in court, but you have a good shot at getting it out of court and into a prohibitively expensive arbitration for plaintiff. In most states, you can respond via motion any time after case filed, but usually people wait to be served. Regardless, you'll have to respond to complaint if you actually get served.

The purpose of this post is to reiterate above quote.

Based on Dunning letter, it is unlikely that a complaint has been filed.

Letter may contain an  FDCPA violation. For future reference, hang on to letter, and study

https://scholar.google.com/scholar_case?case=11662263773344075501&hl=en&as_sdt=6&as_vis=1&oi=scholarr

Claim is a good chunk of change, so if you do nothing, eventually they will likely file a complaint. And it does not look like you have much chance of winning the case in court.  You wouldn't win in arbitration either, but here, invoking arbitration is merely an artifice to make it legally impossible to pursue you in court, and either legally impossible or too expensive to pursue you in arbitration.

At this juncture, I would totally chill. Just keep an eye on court to make sure no complaint has been filed (very doubtful).

About 2 sentences is all you need to respond with DV letter:

1. Please validate debt alleged in attached dunning  letter. (Obviously, you attach the above dunning letter.)

2. If there is an arbitration clause in original creditor agreement, I elect it and waive your right to file a complaint in court.

Track and get some kind of receipt for your letter. That's it. Hopefully you never hear another word.

 

(Note: On your own, look up original creditor agreement. If doesn't include private contractual arbitration, then there is some question about responding with DV letter. Up to you. I wouldn't.)

(Also, private contractual arbitration per credit agreement is not mediation.)

 

 

 

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1 hour ago, hf456 said:

What do they have to show me for Debt Validation under the Federal Debt Collections Practice Act in order to legally collect the money from me?

If you send a DV letter then under the FDCPA they must tell you who the original creditor is and how much you owe.  IF you ask for it they must also tell you the address of the original creditor.  They do not have to send you statements, contracts, or bills of sale for the account unless there is a law suit AND the court orders them to.  None of those things are required for DV and letters you see on the internet saying to show proof they are legally entitled to collect are wrong.  They do not have to prove that to you to send a dunning letter.

1 hour ago, hf456 said:

If you say you want mediation do they have to abide by that?

Depends on who the original creditor is.  Cap1 has removed the arbitration option or if it is not in the agreement for your account at all you cannot compel arbitration.

1 hour ago, hf456 said:

What mediation costs would I be paying if it gets to that point?

Probably no more than $250.

1 hour ago, BV80 said:

There's no disclaimer about attorney involvement such as "at this time, no attorney has reviewed..."?  Something to that effect?

@BV80 I doubt that statement is necessary as the law firm states they were hired to collect the debt and does not openly threaten litigation.  It is the standard debt collection letter as it appears and nothing more.

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@Clydesmom

Without a disclaimer that no attorney has reviewed the account, it could violate 1692d(3):

(3) The false representation or implication that any individual is an attorney or that any communication is from an attorney.

The FDCPA prohibits collection letters that "appear to be sent by an attorney without the attorney's having both reviewed the debtor's file and gained some knowledge about the specific debt." Irwin v. Mascott, 112 F. Supp. 2d 937, 949 (N.D. Cal. 2000). Thus, "f the attorney did not first conduct an individual review of the debtor's case, or if the attorney did not determine if a particular letter should be sent, or if the attorney did not know the identity of the person to whom the letter was sent, the communication is false and misleading under § 1692e(3)." Id. The use of an attorney's letterhead and signature on a collection letter is "sufficient to give the least sophisticated consumer the impression that the letters [are] communications from an attorney." Dupuy v. Weltman, Wienberg & Reis Co., 442 F. Supp. 2d 822, 825 (N.D. Cal. 2006) (citing  Clomon v. Jackson, 988 F.2d 1314, 1320-21 (2d Cir. 1993)).   A collection letter from an attorney that contains a disclaimer may not violate the FDCPA if the least sophisticated consumer would understand that the attorney had not reviewed the facts of his or her case. Murphy v. Bronson, Cawley, & Bergmann, LLP, No. 3:10-CV-01929 AJB, 2011 WL 2413447, at *7 (S.D. Cal. June 13, 2011) (citing Greco v. Trauner, Cohen & Thomas, L.L.P., 412 F.3d 360, 363 (2d Cir. 2005)).

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In this case after viewing the consent order I'd consider doing verification with them since it's required to be more than the typical FDCPA disclosure (note the two different addresses for documentation-to Virginia and FDCPA verification to Attorney). They are required to provide original account level disclosure showing use of the account. See page 4 for definition of "Legal Collection" then page 35 of 60 among others.

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@CCRP626

15 minutes ago, CCRP626 said:

In this case after viewing the consent order I'd consider doing verification with them since it's required to be more than the typical FDCPA disclosure (note the two different addresses for documentation-to Virginia and FDCPA verification to Attorney). They are required to provide original account level disclosure showing use of the account. See page 4 for definition of "Legal Collection" then page 35 of 60 among others.

Where does the Order require the above?  I can't find it.

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@BV80 those things make your eyes hurt. It's on page 35 at the top (paragraph 120 e).

What do you think about Portfolio having you writing to Virginia to get that documentation but in the attorney letter you write to them at the law offices in San Jose to dispute under FDCPA. Why wouldn't a single letter to Portfolio in Virginia or the attorney cover this all?

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@CCRP626

16 minutes ago, CCRP626 said:

those things make your eyes hurt.

Yep.  I'm one of those people who needs glasses to find her glasses.  :)

Since they provided that disclosure notice to the OP, thankfully he doesn't have to strain his eyes by reading the Order.

 

16 minutes ago, CCRP626 said:

What do you think about Portfolio having you writing to Virginia to get that documentation but in the attorney letter you write to them at the law offices in San Jose to dispute under FDCPA. Why wouldn't a single letter to Portfolio in Virginia or the attorney cover this all?

I don't see it as a problem.   The Order does not require Law Firm to have that documentation on hand or to provide it to the consumer.

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8 minutes ago, BV80 said:

I don't see it as a problem.   The Order does not require Law Firm to have that documentation on hand or to provide it to the consumer.

Okay. I guess what I'm getting at is the FDCPA states in the verification section to dispute with the debt collector which is both Portfolio and the attorney. Seems like the consumer is covered under FDCPA and the order by just contacting Virginia.

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@CCRP626

1 minute ago, CCRP626 said:

Okay. I guess what I'm getting at is the FDCPA states in the verification section to dispute with the debt collector which is both Portfolio and the attorney. Seems like the consumer is covered by just contacting Virginia.

The OP must DV with the attorney because the attorney is the one who sent the letter.  I don't know of anything that says a consumer is allowed to dispute with any business other than the business who sent the letter.

The documentation disclosure portion is based upon CA law and the CFPB order. 

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1 minute ago, BV80 said:

I don't know of anything that says a consumer is allowed to dispute with any business other than the business who sent the letter.

but the attorney is under the control of Portfolio. If you've sent a dispute/verification/validation and consent order detail request to Portfolio and a lawsuit autostarts before you get any of that, it seems like order paragraph 119 is not being followed since the attorney is supposed to have original account level documents at that time.

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@CCRP626

1 hour ago, CCRP626 said:

but the attorney is under the control of Portfolio. If you've sent a dispute/verification/validation and consent order detail request to Portfolio and a lawsuit autostarts before you get any of that, it seems like order paragraph 119 is not being followed since the attorney is supposed to have original account level documents at that time.

Portfolio would not be required to validate because they're not the ones who sent the letter; therefore, they did not make the initial communication.  HOWEVER, by sending a DV to the attorney, he may not be able to file a lawsuit on PRA's behalf until he validates.

Here's an unpublished CA opinion:

Moriarity v. Henrique, 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)."

 "To collect a debt or claim is to obtain payment or liquidation of it, either by personal solicitation or legal proceedings." Heintz v. Jenkins, 514 U.S. 291, 294, 115 S.Ct. 1489, 1491, 131 L.Ed.2d 395 (1995).

According to the SCOTUS, a lawsuit is an attempt to collect a debt.  Therefore, filing the lawsuit before verifying would be a failure to cease collection activities in violation of 1692g(b).

In this particular situation, unless a lawsuit has been filed, the attorney does not have to have the documentation.

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21 hours ago, BV80 said:

Without a disclaimer that no attorney has reviewed the account, it could violate 1692d(3):

CFPB requires them to include it per the Consent Order.  There was a case I saw talking about the "attorney for" and the Lawfirm Letterhead being an issue for them too if they are not litigating.  Wish I could remember right now...been a long 9 days for me unfortunately.

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On ‎3‎/‎28‎/‎2016 at 5:05 PM, Happybluesky said:

 

 

. And it does not look like you have much chance of winning the case in court. 

What exactly did you see to base this claim on?

There are a lot of victories here in CA courts, for those that aren't interested in arbitration.

 

 

 

 

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On ‎3‎/‎27‎/‎2016 at 3:30 PM, hf456 said:

Here us what I received CCRP626 wanted me to post both letter incase they were in violation of something.

What do they have to show me for Debt Validation under the Federal Debt Collections Practice Act in order to legally collect the money from me?   This is all new to me so I am not up with all the abbreviations yet either.    I greatly appreciate your help.

Read the Fair Debt Buying Practice Act and see all they are required to do and have etc. At this point in time I think it will be more useful then the FDCPA

On ‎3‎/‎27‎/‎2016 at 3:30 PM, hf456 said:

 

If you say you want mediation do they have to abide by that?

They would be more then happy to mediate

On ‎3‎/‎27‎/‎2016 at 3:30 PM, hf456 said:

 

 

What mediation costs would I be paying if it gets to that point?

You would lose the case.

On ‎3‎/‎27‎/‎2016 at 3:30 PM, hf456 said:

 

image.jpeg

I would send them a request for the information just like they said above, however, read the Fair Debt Buyer Practice Act on your rights here first, because I think it gives them far less time then the 30 days they are saying they have here. It also tells you exactly how much documentation they have to give you . This is where I would start. Make sure they comply with the FDBPA (also known as the  "Leno Law"). Look this stuff up and learn about it.

 

On ‎3‎/‎27‎/‎2016 at 3:30 PM, hf456 said:

 

 

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