FDCPA Debt Validation Myths

[BV80]

DEBT VALIDATION MYTHS

 

The following are based upon misconceptions regarding the Fair Debt Collection Practices Act (FDCPA) U.S.C. § 1692

 

*NOTE*

 

An initial communication is the first communication received by a consumer in regard to a debt.   If that communication does not contain the name of the current creditor, amount of the debt, and the 30-day notice (1692g), the debt collector must send that information within 5 days.

 

The following "myths" refer to initial communications that DO contain the information in 1692g(a).

 

FAIR DEBT COLLECTION PRACTICES ACT

 

1692g - Validation of debts

 

(a) Notice of debt; contents Within five days after the initial communication with a consumer in connection with the collection of any debt, a debt collector shall, unless the following information is contained in the initial communication or the consumer has paid the debt, send the consumer a written notice containing—

 

(1) the amount of the debt;

 

(2) the name of the creditor to whom the debt is owed;

 

(3) a statement that unless the consumer, within thirty days after receipt of the notice, disputes the validity of the debt, or any portion thereof, the debt will be assumed to be valid by the debt collector;

 

(4) a statement that if the consumer notifies the debt collector in writing within the thirty-day period that the debt, or any portion thereof, is disputed, the debt collector will obtain verification of the debt or a copy of a judgment against the consumer and a copy of such verification or judgment will be mailed to the consumer by the debt collector; and

 

(5) a statement that, upon the consumer’s written request within the thirty-day period, the debt collector will provide the consumer with the name and address of the original creditor, if different from the current creditor.

 

(b) Disputed debts

 

If the consumer notifies the debt collector in writing within the thirty-day period described in subsection (a) that the debt, or any portion thereof, is disputed, or that the consumer requests the name and address of the original creditor, the debt collector shall cease collection of the debt, or any disputed portion thereof, until the debt collector obtains verification of the debt or a 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. Collection activities and communications that do not otherwise violate this subchapter may continue during the 30-day period referred to in subsection (a) unless the consumer has notified the debt collector in writing that the debt, or any portion of the debt, is disputed or that the consumer requests the name and address of the original creditor. Any collection activities and communication during the 30-day period may not overshadow or be inconsistent with the disclosure of the consumer’s right to dispute the debt or request the name and address of the original creditor.

 

(c) Admission of liability

 

The failure of a consumer to dispute the validity of a debt under this section may not be construed by any court as an admission of liability by the consumer.

 

(d) Legal pleadings

 

A communication in the form of a formal pleading in a civil action shall not be treated as an initial communication for purposes of subsection (a).

 

(e) Notice provisions

 

The sending or delivery of any form or notice which does not relate to the collection of a debt and is expressly required by title 26, title V of Gramm-Leach-Bliley Act [15 U.S.C. 6801 et seq.], or any provision of Federal or State law relating to notice of data security breach or privacy, or any regulation prescribed under any such provision of law, shall not be treated as an initial communication in connection with debt collection for purposes of this section.

 

MYTH #1

 

A consumer can send a debt validation letter to a debt collector at any time, and the collector must respond.

 

That is not true.  According to the FDCPA, a letter requesting validation must be sent within 30 days of a debt collector's initial communication.  An initial communication is usually the first debt collection letter which contains the 30-day notice found in § 1692g(a) of the FDCPA. 

 

Once a debt collector receives a timely validation request, it must cease collection efforts until it validates the debt.   It cannot send more letters or make phone calls requesting or demanding payment.  In the event that it is reporting the debt to the credit reporting agencies, it cannot update the collection entry EXCEPT to report that the debt is disputed.   Reporting the fact that the debt is disputed is a requirement in § 1692e(8) of the Act.

 

 

 

MYTH #2

 

A debt collector is required to respond to a timely validation request within 30 days of the receipt of the request.

 

False.   The 30-day requirement is placed on consumers.   While a consumer must send a validation request within 30 days of the first collection letter that contains the 30-day notice, a debt collector can take as long as he chooses to respond.  However, he cannot attempt to collect again until he provides validation.

 

Note that after receiving a timely validation request, debt collector does not have to validate if he chooses to cease collection efforts.  He may never respond at all, or he may send a letter informing the consumer that the file on the account is closed. 

 

If debt collectors were required to respond to validation requests in 30 days, they could not cease collection efforts.

 "[T]here are no time limits for a debt collector to validate the debt under § 1692g(b)." Purnell v. Arrow Fin. Servs., LLC, 303 F. App'x 297, 303-04 (6th Cir. 2008). But until the debt collector provides verification to the consumer, the debt collector must "cease collection of the debt." Id. (quoting § 1692g(b)).

 

They may provide the requested validations and continue their debt collecting activities, or they may cease all collection activities. See Smith v. Transworld Systems, Inc., 953 F.2d 1025, 1031 (6th Cir.1992).

 

Under the FDCPA, a debt collector who receives a written dispute of a debt from a consumer need not verify the debt at all, but can instead cease efforts to collect the disputed debt. See Jang v. A.M. Miller & Assocs., 122 F.3d 480, 483 (7th Cir.1997).

 

Once a consumer disputes a debt, the debt collector has a choice whether to verify the debt or cease collection efforts. 15 U.S.C. § 1692g(b); see Guerrero v. RJM Acquisitions, LLC, 499 F.3d 926, 940 (9th Cir. 2007).

 

 

 

MYTH #3

 

In the event that a consumer has never received a collection letter from a collection agency, a collection entry (also known as "tradeline" or "TL") on a consumer's credit report can be considered an "initial communication" triggering a consumer's right to request validation under 1692g(b).

 

 While some courts have ruled that reporting to credit reporting agencies is a "communication" as defined by 1692a(2), ("the conveying of information regarding a debt directly or indirectly to any person through any medium"), to date, no court has ruled that reporting to credit reporting agencies is an "initial communication".

 

Some courts have ruled that an entry found on a credit report does NOT constitute an "initial communication".

 

Robinson v. TSYS Total Debt Management, Inc. Dist. Court, D. Maryland, 2006

 

"The above allegations identify two candidates for the 'initial communication' that is required to trigger 15 U.S.C. § 1692g.[6] The first candidate—'when Defendant communicated the debt to Plaintiffs credit report'—cannot support a claim under the FDCPA because it is not a communication with a consumer. See 15 U.S.C. § 1692g(a) (identifying 'initial communication" as "with a consumer in connection with the collection of any debt')."

 

Pretlow v. AFNI, Inc.  WD Virginia, 2008

 

"Plaintiffs have not alleged that they received any communications from Defendant which would form the basis of a debt validation claim.  Their claim is based, rather, on communications between Defendant and was certain credit reporting agencies.  Section 1692g is therefore inapplicable on the facts pled."                      

 

 

Edeh v. Aargon Collection Agency, LLC  U.S. District Court, Minnesota, 2011

 

“Here, Plaintiff alleges that Defendant reported the debt to the credit reporting agencies and that this constituted an ‘initial communication’ under the statute. But . . . the credit reporting agencies are not natural persons.  15 U.S.C. § 1692g(a)(3). Nor are they obligors or alleged obligors of the debt. Thus, the reporting companies are not ‘consumers’ under the FDCPA, and Aargon's reporting of the debt to these agencies did not trigger any notification obligations under § 1692g(a).”

 

 

Toth v. Cavalry Portfolio Services, LLC, Dist. Court, D. Nevada, 2013

 

"As it is undisputed that no notice was provided, the only question remaining is whether Defendant had an "initial communication" with Plaintiff, the consumer[1]. Plaintiff argues that Defendant communicated with Plaintiff 'using the credit reporting bureaus as a vehicle' (#9; 4:8-9). In other words, Plaintiff argues that by reporting Plaintiff's past-due account to the credit reporting agencies, Defendant communicated with Plaintiff via those agencies."

 

"Because Defendant never had an 'initial communication' with Plaintiff, Plaintiff has failed to state a claim upon which relief can be granted."

 

Berberyan v. Asset Acceptance, LLC, Dist. Court, CD California, 2013

 

"In opposition, plaintiff argues that defendant 'communicated' with her through its alleged reporting of a debt that appeared on her credit report, but plaintiff offers no authority that supports such an expansive reading of the term 'communicated.'  Opp'n at 6. Defendant must do something more than allegedly place notice of a disputed debt on plaintiff's credit report to trigger its disclosure duties."

 

Gonzalez v. Midland Funding, LLC, Dist. Court, ND Texas, 2013

 

"Plaintiff fails to allege any facts that can show there was ever an initial communication by defendants to plaintiff, and does not allege that he responded to any such communication within a thirty-day period. It appears that plaintiff may believe that his unsolicited letter demanding validation from defendants qualifies as an initial communication under § 1692g; however, the initial communication is an attempt by the debt collector to collect a debt, not an attempt by a consumer to challenge a debt. "

 

Williams v. LVNV Funding, LLC, Dist. Court, D. Colorado, 2014

 

"Plaintiff attempts to argue that 'the reporting [to the credit agencies] of the account the first time would be an initial communication'; however, the Court is not persuaded by self-serving statements lacking any supporting authority."

 

Perry v. Trident Asset Management, LLC, Dist. Court, ED Missouri, 2015

 

"However, the crux of the dispute here is not whether reporting debt is a 'communication' or 'debt collection activity,'but rather whether it is a 'ommunication with a consumer'that triggers § 1692g(a)'s validation notice requirements. Plaintiff cites no cases finding that reporting to a credit agency is a communication with a consumer, and the Court has found none."

 

Danehy v. Jaffe & Asher, LLP, Dist. Court, North Carolina, 2015

 

"Accessing a consumer report does not constitute an initial communication with a consumer as contemplated by § 1692g(a). Without knowledge as to when, or if, plaintiff would request his consumer report, defendant J&A could not have intended to communicate with plaintiff indirectly through TransUnion."

 

Friend v. Financial Recoveries Limited, Dist. Court, MD Pennsylvania, 2017

 

“Here, as noted above, Plaintiff's 1692g(a) claim appears to hinge upon Financial Recoveries' alleged reporting of information concerning Plaintiff to Credit Reporting Agencies. (Doc. 5, pp. 4, 6-7). However, a plain reading of sections 1692a and 1692g reveal a number of deficiencies with Plaintiff's section 1692g(a) claim. For example, a Credit Reporting Agency is not a ‘consumer’ under the FDCPA because, in part, it is not a ‘natural person.’ 15 U.S.C. §§ 1692a, g. Thus, an alleged communication with a Credit Reporting Agency fails to activate the notice requirements found in section 1692g(a) which serve as the basis for Plaintiff's section 1692g claim.”

 

Leato v. Alliant Capital Management, LLC, Dist. Court, ND Illinois, 2015

 

“But it is frankly absurd to link Section 1692g (a) and its required within-five-day notices with a ‘soft pull’ communication that a debt collector has sent only to a credit reporting agency (and not to the debtors themselves) for the sole purpose of obtaining a consumer report as a purely informational matter.”

 

Williams v. LVNV Funding, LLC, Dist. Court, D. Colorado 2014

 

“Plaintiff attempts to argue that "the reporting [to the credit agencies] of the account the first time would be an initial communication" (Response, ¶ 26); however, the Court is not persuaded by self-serving statements lacking any supporting authority.l

 

Bagramian v. Legal Recovery Law Offices, Inc, Dist. Court, CD California 2013

 

“Defendant must do something more than allegedly make an inquiry into plaintiff's credit report to trigger its disclosure duties.”

 

Horvath v. Premium Collection Services, Inc. U.S. District Court Arizona 2010

”Because the notice obligations under § 1692g are not triggered until after an initial communication, Mr. Horvath's claim under that provision necessarily fails. To the extent that Mr. Horvath contends that PCS communicated him by reporting information to consumer reporting agencies and to his lawyer, those claims also fail. ”

 

MYTH #4

 

A debt collector must provide a copy of a signed contract to validate/verify a debt .

 

Debt collectors are not required to provide a copy of a signed contract or credit card application.  The Fourth and Ninth Circuit Courts of Appeals have ruled that "debt collectors do not have to vouch for the validity of the underlying debt."  The requirement to provide a "contract" would require proving that the debt is valid.

 

Chaudhry v. Gallerizzo, 4th Circuit Court of Appeals

 

Contrary to Appellants' contention, verification of a debt involves nothing more than the debt collector confirming in writing that the amount being demanded is what the creditor is claiming is owed; the debt collector is not required to keep detailed files of the alleged debt.  There is no concomitant obligation to forward copies of bills or other detailed evidence of the debt.  Chaudhry v. Gallerizzo, 174 F.3d 394, 406 (4th Cir.1999).  

 

We agree with the district court that  "[v]erification only requires a debt collector to confirm with his client that a particular amount is actually being claimed, not to vouch for the validity of the underlying debt."  Chaudhry at 406.

 

Clark v. Capital Credit & Collection Services, Inc., 9th Circuit Court of Appeals

 

We adopt as a baseline the more reasonable standard articulated by the Fourth Circuit in Chaudhry. At the minimum, "verification of a debt involves nothing more than the debt collector confirming in writing that the amount being demanded is what the creditor is claiming is owed." Clark v. Capital Credit & Collection Services Inc., 460 F.3d 1162 (9th Cir.2006)(citing Chaudhry v. Gallerizzo, 174 F.3d 394, 406 (4th Cir.1999)).

 

Myers v. Midland Credit Management, Inc., M.D.Pennsylvania (2014)

 

"Plaintiff's dispute letter to Midland requests 'a copy of the contract which proves the amount of the alleged high balance which you are claiming. If you do not have a contract, then please provide specific and detailed alternate proof of the alleged high balance.' Again, the FDCPA does not require that Midland comply with this request. Instead, the statute simply requires a debt collector to confirm the amount of the debt and the identity of the creditor, and relay that information to the debtor."

 

Roseborough v. Firstsource Advantage, LLC, M.D. North Carolina (2015)

 

"Here, Plaintiff contends that Defendant violated its duty to verify by providing nothing other than copies of a couple of alleged statements with no signed verification or accounting of the alleged account or copy of any signed contract or agreement.  Plaintiff requests too much. The caselaw clearly repudiates Plaintiff's additional verification demands." See  Chaudhry v. Gallerizzo, 174 F.3d 394, 406 (4th Cir. 1999)("[V]erification of a debt involves nothing more than the debt collector confirming in writing that the amount being demanded is what the creditor is claiming is owed; the debt collector is not required to keep detailed files of the alleged debt.").

 

Smith v. Encore Capital Grp. Inc., E.D. Wisconsin (2013)

 

"However, his allegations include that the April 2, 2012, collection letter failed to include a signed verification or accounting of the alleged account and failed to include a signed contract or agreement.  Smith's allegations regarding this claim are not plausible. He points to no statute or caselaw indicating that verification of a debt must be signed or accompanied by signed contracts."                           

 

Ritter v. Cohen & Slamowitz, LLC, E.D. New York (2015)

 

"Accepting the Plaintiff's allegations as true, in response to her disputing the Debt, the Defendants provided credit card statements covering a period of two years. Those statements, while not providing an itemization of charges, clearly contained the Plaintiff's name and home address, and included a charge-off in the amount of $918.78 — the amount the Defendants claim is owed. District courts within this Circuit have repeatedly recognized such evidence as sufficient to satisfy the verification requirement under the FDCPA, so that the Plaintiff's allegations, even if true, do not allege a violation of the statute."

 

Breen v. Howard Lee Schiff, D. Connecticut

 

"Here, Schiff's September 13, 2010 letter which enclosed a copy of the Plaintiff's Discover Card Statement unequivocally satisfied its obligation under the FDCPA to verify the debt. Indeed, the Statement indicated that the amount being demanded is what the creditor claimed was owed. Moreover, the Statement served the purpose of the verification requirement by ensuring that Schiff was not dunning the wrong person or attempting to collect debts which the consumer had already paid. It appears that Plaintiff is under the misimpression that the Statement included in Schiff's September 13, 2010 letter did not fulfill the verification requirement and that Schiff was obligated to do more. However, the FDCPA does not require the debt collector to keep detailed files of the alleged debt and the information contained in the Statement more than satisfied the verification requirement of Section 1692g(b)."

 

Coats v. Mandarich Law Group, LLP  E.D. California (2014)

 

"The documents included with the letter identify the original creditor as Bank of America, N.A., and the current owner of the debt as defendant Cach.  It also identifies the original and current account numbers and provides the account balance on the placement date ($4,857.71). Id. Also included with the letter is a Bill of Sale and Assignment of Loan, reflecting that the loan was purchased by Cach. Also appended to the letter are credit card statements from the original creditor, reflect the amount plaintiff allegedly owes. Furthermore, defendants included a certificate of assignment signed by an authorized agent for Cach which certified that the information provided was accurate."

 

"Contrary to plaintiff's contention, this response was MORE than adequate to satisfy the verification requirements."

 

Jacques v. Solomon & Solomon, PC - Dist. Court of Delaware  (2012)

 

"Plaintiff also claims that Northland violated the FDCPA by failing to prove that it had a contract with Capital One to collect the debt. Plaintiff does not cite any provision in the FDCPA that requires a collection agency to prove that it had a contract with the creditor, and the Court is likewise unable to identify one."

 

Fassett v. Shermeta, Adams & Von Allmen, PC , W.D. Michigan (2013)

 

"One main issue before the court is whether defendants violated § 1692g(b) by failing to verify the disputed debt. Plaintiff contends that he is entitled to, among other things, ledger statements, contracts, and proof that defendants are licensed to collect debts in Michigan. Defendants contend that they are not required to keep and send "detailed files" of the alleged debt for verification or validation purposes. Contrary to plaintiff's contention, § 1692g(b) does not require defendants to produce exhaustive documentation in support of the creditor's claim."

 

"Here, defendants' October 3, 2011 letter in response to plaintiff's request for verification identified the creditor as Capital One, identified the credit card account, identified the current balance due as $12,522.89, stated that defendants represented Capital One, and referenced the enclosed documents which validated the debt pursuant to § 1692g."

 

"In summary, defendants October 3, 2011 letter confirmed in writing the identity of the creditor and the amount which plaintiff owed as of the date of the letter. Nothing more is required under § 1692g."

 

Tilmon v. LVNV Funding, LLC - District Court of Illinois (2014)

 

"The record reveals that the letter provided: the reference number for the account; the account number; name of the current creditor; name of the debtor; name of the original creditor; last date of payment; balance due; date account was opened; and, date account was charged off."

 

"Upon review of the record, the Court FINDS it is evident that BHLM provided sufficient verification and did not violate Section 1692g(b)."

 

Himes v. Client Services, Inc. - District Court of New Hampshire (2014)

 

"Furthermore, Himes's belief that validation requires disclosure of the signed loan agreement, a sworn accounting ledger, and affidavits attesting to the current status and validity of the debt grossly overstates a debt collector's obligations under the FDCPA. To sufficiently validate a debt, the debt collector need only demonstrate that the creditor has provided some evidence that the debtor owes the specific amount demanded; a credit card statement indicating the delinquent balance serves that purpose."

 

Daniel v. Midland Funding, LLC - E.D. Michigan (2016)

 

"Moreover, as the Magistrate Judge concluded, Midland's verification of the debt in the form of those 18 itemized credit card statements permitted Plaintiff to 'sufficiently dispute the payment obligation.'"  See  Haddad v. Alexander, Zelmanski, Danner & Fioritto, PLLC, 758 F.3d 777, 785 (6th Cir. 2014).

 

Goodwyn v. Capital One, NA - M.D. Georgia, (2015)

 

"When United Recovery received Goodwyn's dispute letter, it contacted Capital One regarding the dispute. In response, Capital One sent documentation of the debt to United Recovery. That documentation stated the account number and contained a calculation of the deficiency balance, which matched the amount United Recovery sought to collect. Based on the documentation, United Recovery confirmed the amount of the debt, to whom it was owed, and by whom, and sent that information to Goodwyn with supporting documentation. United Recovery thus satisfied its obligations under Chaudhry." See Chaudhry v. Gallerizzo, 174 F.3d 394, 406 (4th Cir.1999).

 

Glowacki v. Law Offices of Howard Lee Schiff, PC, District of MA (2014)

 

"Therefore, to sufficiently validate a debt, the debt collector need only demonstrate that the creditor has provided some evidence that the debtor owes the specific amount demanded. Here, the credit card statements provided by Schiff indicating the delinquent balance serve that purpose."

 

 

 

MYTH #5

 

A debt collector must provide a detailed accounting of a debt in order to show how the balance was calculated, i.e. "explain and show me how you calculated what you say I owe."

 

That is not required.  

 

[V]erification of a debt involves nothing more than the debt collector confirming in writing that the amount being demanded is what the creditor is claiming is owed; the debt collector is not required to keep detailed files of the alleged debt. Chaudhry v. Gallerizzo, 174 F.3d 394, 406 (4th Cir. 1999).

 

This provision is not intended to give a debtor a detailed accounting of debt to be collected. Maynard v. Cannon, 401 F. App’x 389, 396 (10th Cir. 2010).

 

The Eighth Circuit Court of Appeals confirms that the verification requirement is satisfied where the debtor "could sufficiently dispute the payment obligation." See Dunham v. Portfolio Recovery Assocs., LLC, 663 F.3d 997, 1004 (8th Cir.2011).

 

Proof could consist of:

 

1.  A credit card statement (such as a charge-off statement) that matches the balance claimed.by the debt collector.

 

2.  A list of charges that total the amount claimed in the intial communication.

 

 

 

MYTH #6

 

A debt collector must provide proof that it is licensed to collect in one's state in order to validate a debt.

 

That is false.   Due to the fact that not all states require that a debt collector be licensed to collect a debt, such a requirement could not be part of the validation requirement.   Even if a debt collector is required to be licensed in a particular state, it has nothing to do with validating a debt.   Read the provided court rulings.  

 

In the event a state requires a debt collector to be licensed, an unlicensed collection agency might be in violation of another provision of the FDCPA, (perhaps 1692e) but it would not be in violation of the validation section of that Act.  (1692g).

 

 

 

MYTH #7 

 

An initial communication can validate a debt.

 

That is such a ridiculous claim.  1692g(a) requires that an initial communication or a letter within 5 days of that initial communication include the name of the creditor to whom the debt is owed and the amount of the debt.   If an initial communication could serve to validated a debt, it would render 1692g(b) to be meaningless.  Why would a debt collector be required to "cease collection of the debt, or any disputed portion thereof, until the debt collector obtains verification of the debt" if the initial communication served to satisfy the validation requirement in 1692g(b)?

 

The Act, however, gives the consumer the right to notify the debt collector that the debt "is disputed," in which event the collector must cease all efforts to collect until it has verified the debt and mailed verification to the consumer. The consumer's right to take the position, at least initially, that the debt is disputed does not depend on whether the consumer has a valid reason not to pay. The consumer, for example, may not recognize the name of the creditor, may not know whether she incurred the debt, may have a question whether the debt (or part of it) has been paid, or may be unsure of the amount.  DeSantis v. Computer Credit, Inc.,269 F.3d 159, 162 (2d Cir. 2001).

 

This takes us to the next myth.

 

 

 

MYTH #8

 

A validation response from a collection agency can merely repeat the information provided in the initial communcation without providing documentary evidence of the debt.

 

While courts are divided as to what constitutes proper validation , they certainly have not ruled that validation may be accomplished by merely repeating the information required by 1692g(a).

 

In Chaudhry  (see Myth #3), the Fourth Circuit Court of Appeals ruled that verifying a debt "involves nothing more than the debt collector confirming in writing that the amount being demanded is what the creditor is claiming is owed; the debt collector is not required to keep detailed files of the alleged debt".   However, documentation had been provided by the debt collector in that case.

 

Allowing a debt collector to validate a debt by merely repeating the information in its intial communication would be the same as allowing the collector to say "because I say so".  It would be contrary to the language in 1692g(b) and would render that subsection meaningless.  

 

 

 

MYTH #9

 

A consumer should reference sections of the FDCPA and FCRA (Fair Credit Reporting Act) in a debt validation request in order to put a debt collector on notice that he is aware of his rights.

 

It is not necessary to include any references to the FDCPA and FCRA in a dispute and validation request letter.  Simply disputing and requesting validation is enough to show that a consumer is aware that he has certain rights.  In addition, it's not the consumer's responsibility to inform a debt collector of the debt collector's responsibilities that are outlined in either Act.   If the debt collector is unaware of his responsibilities, it's his problem.

 

 

 

MYTH #10

 

Upon receiving a summons and complaint, a consumer can request validation, thereby preventing any further action by the plaintiff until the debt has been validated.

 

As has been stated, a validation request is valid only when sent within 30 days of an initial communication.   A summons and complaint is not an initial communication that would trigger the 30-day validation period.

 

1692g(d):

 

(d) Legal pleadings

 

A communication in the form of a formal pleading in a civil action shall not be treated as an initial communication for purposes of subsection (a).

 

 

 

MYTH #11

 

A consumer can include both a request to validate a debt and a demand to cease and desist communications in a timely debt validation letter which would serve to prevent a lawsuit due to the fact that the "cease and desist" would prevent the debt collector from responding to the validation request.

 

That is incorrect because a consumer can waive his rights.   Requesting validation could be considered consent to allow the debt collector to contact the consumer strictly for the purpose of validating the debt.

 

 Clark v. Capital Credit & Collection Services, Inc. - 9th Circuit Court of Appeals, 2006

 

Focusing on that level of sophistication, we will enforce a waiver of the cease communication directive only where the least sophisticated debtor would understand that he or she was waiving his or her rights under § 1692c(c)."

 

"Applying our newly articulated waiver standard to the facts before us, it is obvious that even the least sophisticated debtor would recognize that Mrs. Clark's request for information constituted consent for Hasson, Capital's attorney, to return Mrs. Clark's telephone call in order to provide the specific information she requested." 

 

 

 

MYTH #13

 

A validation letter requesting specific documentation and citing the FDCPA and FCRA will put a debt collector "on notice" that a consumer is serious and knows his rights.

 

That could depend upon the debt collector.   A recently formed collection agency that has little experience might be intimidated by such a letter.   However, seasoned debt collectors will most certainly NOT be intimidated.   In that instance, it would merely depend upon how serious a particular agency is about collecting a debt.

 

Requesting documentation and stating demands that are not required to validate and setting time limits not provided for in the FDCPA shows a debt collector that you do not know your rights.  

 

There are a number of websites that provide validation letters that request documentation and state demands that are not necessary to validate a debt.    As previously provided, signed contracts, detailed files, and collection agency licenses are not required.

 

The suggested letters may demand that a debt collector respond in 30 days.  As has been shown in Myth #2, a debt collector is not required to respond in 30 days. 

 

Those letters may also demand that the a debt collector cease collection activities for 30 days after sending validation because the consumer requires 30 days to investigate information validating the debt.     Nothing in the FDCPA or rulings by courts supports that demand.

 

Debt collectors have seen those internet letters.  They know what is NOT required  to validate a debt (such as a signed contract and license to collect).  All such a letter shows is that you can copy and paste a letter you found on the internet.

 

As previously stated in Myth #9, it's not necessary to reference various federal laws nor is it necessary to describe documentation that should be provided. 

 

It's not the consumer's responsibility to inform the debt collector of laws and what is required to abide by those laws.  That is the responsibility of the debt collector.   I cannot emphasize that statement enough. 

 

The best validation letter is a simple one.  In your own words, simply state that you dispute the referenced debt and request validation.  Nothing else is required of the consumer under the FDCPA.  (See 1692g(a) and 1692g(b)).  As I previously stated, it's the collection agency's problem if it doesn't know the laws. 

 

 

[CCRP626]

@BV80

5 hours ago, BV80 said:

or a copy of a judgment against the consumer

I'm wondering when this comes into play since it seems like many people posting about a judgment find out about it when they notice their bank account is lighter due to a wage garnishment surprise resulting from years earlier sewer service and a default judgment.

[Clydesmom]

10 hours ago, CCRP626 said:

I'm wondering when this comes into play since it seems like many people posting about a judgment find out about it when they notice their bank account is lighter due to a wage garnishment surprise resulting from years earlier sewer service and a default judgment.

It comes in play when they send a letter first attempting to collect on the judgment (some do that) and the consumer disputes.  Then they would have to send a copy of the judgment showing they have it.  It also happens when the judgment creditor sells the judgment to someone else as either a direct sale or part of an acquisition when buying a defunct company's assets or corporate merger.  (LVNV bought Arrow Financial and is now trying to collect on their REALLY spurious judgments from sewer service)  If a consumer got a letter about that debt/judgment LVNV would have to produce a copy of it in response to the DV letter.

[neweuquol]

Thanks for posting this.   I get so many calls from people who misunderstand what is required of a debt collector when a DV is sent.   If I get one more call about how the DC did not send them the credit slips they signed at Winn Dixie, I may lose my mind.

[Clydesmom]

9 minutes ago, neweuquol said:

I get so many calls from people who misunderstand what is required of a debt collector when a DV is sent.   If I get one more call about how the DC did not send them the credit slips they signed at Winn Dixie, I may lose my mind.

Part of the problem is when a consumer who decides they are going to clean up their credit or gets a collection letter out of no where "Googles" debt validation and finds numerous copies (this site included) of a REALLY bad letter that they tell consumers the collector must comply with when in reality 95% of it is not required at all.  If I have to tell one more consumer they made a HUGE mistake sending this letter to a collector I may lose my mind.  All this letter does is tell the creditor/collector you have NO clue what your rights are and can cut and paste bad information from the internet.

WARNING:  DO NOT USE THIS LETTER or do so at your own peril.  It is meant as an example of what NOT to do:

To Whom It May Concern:

Be advised this is not a refusal to pay, but a notice that your claim is disputed and validation is requested. Under the Fair Debt collection Practices Act (FDCPA), I have the right to request validation of the debt you say I owe you. I am requesting proof that I am indeed the party you are asking to pay this debt, and there is some contractual obligation that is binding on me to pay this debt. This is NOT a request for “verification” or proof of my mailing address, but a request for VALIDATION made pursuant to 15 USC 1692g Sec. 809 (b) of the FDCPA. I respectfully request that your offices provide me with competent evidence that I have any legal obligation to pay you.

At this time I will also inform you that if your offices have or continue to report invalidated information to any of the three major credit bureaus (Equifax, Experian, Trans Union), this action might constitute fraud under both federal and state laws. Due to this fact, if any negative mark is found or continues to report on any of my credit reports by your company or the company you represent, I will not hesitate in bringing legal action against you and your client for the following: Violation of the Fair Debt Collection Practices Act and Defamation of Character. I am sure your legal staff will agree that non-compliance with this request could put your company in serious legal trouble with the FTC and other state or federal agencies. If your offices are able to provide the proper documentation as requested in the following declaration, I will require 30 days to investigate this information and during such time all collection activity must cease and desist.

Also, during this validation period, if any action is taken which could be considered detrimental to any of my credit reports, I will consult with legal counsel for suit. This includes any listing of any information to a credit-reporting repository that could be inaccurate or invalidated. If your offices fail to respond to this validation request within 30 days from the date of your receipt, all references to this account must be deleted and completely removed from my credit file and a copy of such deletion request shall be sent to me immediately. It would be advisable that you and your client assure that your records are in order before I am forced to take legal action.

CREDITOR/DEBT COLLECTOR DECLARATION Please provide the following:

• Agreement with your client that grants you the authority to collect on this alleged debt.

• Agreement that bears the signature of the alleged debtor wherein he/she agreed to pay the creditor.

• Any insurance claims been made by any creditor regarding this account.

• Any Judgments obtained by any creditor regarding this account.

• Name and address of alleged creditor.

• Name on file of alleged debtor.

• Alleged account number.

• Address on file for alleged debtor.

• Amount of alleged debt.

• Date this alleged debt became payable.

• Date of original charge off or delinquency.

• Verification that this debt was assigned or sold to collector.

• Complete accounting of alleged debt.

• Commission for debt collector if collection efforts are successful.

Please provide the name and address of the bonding agent for «COLLECTIONAGENCY» in case legal action becomes necessary. Your claim cannot and WILL NOT be considered if any portion of the above is not completed and returned with copies of all requested documents. This is a request for validation made pursuant to the Fair Debt Collection Practices Act. Please allow 30 days for processing after I receive this information back.

[BV80]

5 minutes ago, neweuquol said:

If I get one more call about how the DC did not send them the credit slips they signed at Winn Dixie, I may lose my mind.

 

3 minutes ago, Clydesmom said:

Part of the problem is when a consumer who decides they are going to clean up their credit or gets a collection letter out of no where "Googles" debt validation and finds numerous copies (this site included) of a REALLY bad letter that they tell consumers the collector must comply with when in reality 95% of it is not required at all.  

Agreed.  It's amazing how many sites claim that a copy of an agreement containing the consumer's signature or a complete accounting is required to validate a debt.    Recently,  a member (who is no longer with us) posted a link to an article in which the author makes ridiculous claims.  Of course, that author provided nothing to support his claims.

[legalfight909]

For those savy enough, there are other legitimate legal ways to beat the JDB at their own game.  Hint, the burden of proof is on them. Seek and ye shall find...

[BV80]

9 minutes ago, legalfight909 said:

For those savy enough, there are other legitimate legal ways to beat the JDB at their own game.  Hint, the burden of proof is on them. Seek and ye shall find...

That theme is prevalent throughout this site. 

[1stStep]

My DV letters are short and to the point:

"Dear Collector/JDB:

I dispute the alleged debt. I request validation pursuant to the FDCPA.

Sincerely,

Me"

[legalfight909]

For those savy enough, there are other legitimate legal way to beat the JDB at their own game.  Hint, the burden of proof is on them. Seek (harder) and ye shall find...

I would send a FOIA request "Certified Mail" with "return receipt" to their custodian of records demanding ...

- Proof they are licensed to collect in my state.

- Evidence that they are licensed to conduct interstate commerce.

- Their surety bond to see who will indemnify me if I am damaged. 

- Proof they have a contract with me making me the surety for their claims. 

FOIA Improvement Act of 2016 (Public Law No. 114-185

Found a couple of videos of a fella named "Corey P Smith" on youtube that has some very interesting information and definitely worth checking out. I hope it helps someone out there. 

[Clydesmom]

1 hour ago, legalfight909 said:

I would send a FOIA request "Certified Mail" with "return receipt" to their custodian of records demanding ...

- Proof they are licensed to collect in my state.

- Evidence that they are licensed to conduct interstate commerce.

- Their surety bond to see who will indemnify me if I am damaged. 

- Proof they have a contract with me making me the surety for their claims. 

And you would be ignored. NOTHING in the FDCPA requires they provide any of that.  Not sure where you got that information but it is completely wrong.

[Harry Seaward]

9 hours ago, legalfight909 said:

I would send a FOIA request

FOIA doesn't apply to businesses. It's only controlling on government agencies. 

[BackFromTheDebt]

Someone with two posts, but tons of misinformation.  

Alas, there are plenty of people in this world who will believe an armchair general who has never faced battle over seasoned veterans of the credit wars.  

The methods I learned mostly on this forum, and to a lesser extent on the “other” board, personally saved me over $100,000.  The cases I know of in my state, including those who worked with a consumer attorney recommended by someone on this board, add up to over $1 million saved.  

Or, you can listen to some internet quack who tells you he has all the answers.  

[legalfight909]

Duly noted. Thanks for everyones input. I'm here to learn and take correction. 

[legalfight909]

What about representing yourself "Pro per" in a collection lawsuit? Anyone have experience, suggestions or advice about that? I've heard of people picking apart the summons for defects and challenging jurisdiction. Just trying to think outside the box. 

[Robby8900]

Challenging  jurisdiction, is as simple as asserting an ''affirmative defense'' in an answer to the complaint stating ''Lack of Jurisdiction'' due to a underlying arbitration clause wherein both parties agreed to arbitrate all claims.

[legalfight909]

12 hours ago, Clydesmom said:

And you would be ignored. NOTHING in the FDCPA requires they provide any of that.  Not sure where you got that information but it is completely wrong.

Clydesmom, Thank you. You are correct. Im just trying to think outside the box and want to glean everything I can. The challenge for me is sorting through all the good information and mis-information. 

I know that in CA, the Secretary of States office requires law firms to have a surety bond filed with them in order to conduct business in California. 

http://www.calgold.ca.gov/Results.aspx?location=432&businessTypes=123&greenBusiness=False

Since some attorneys and their law firms are not always on the up and up, I suppose one could FOIA request the law firm's bond information from the Secretary of State's office and the attorneys oath of office from the State Bar association. As you may know, not all attorneys are model citizens and someone has to keep them accountable. 

https://www.courts.ca.gov/25857.htm

Believe it or not, JDB and their legal representation do not always play by the rules. I guess what I'm saying is that if you present yourself as low hanging fruit, your chances of being picked are much greater. 

https://www.consumerfinance.gov/about-us/newsroom/cfpb-takes-action-against-the-two-largest-debt-buyers-for-using-deceptive-tactics-to-collect-bad-debts/

[legalfight909]

40 minutes ago, Robby8900 said:

Challenging  jurisdiction, is as simple as asserting an ''affirmative defense'' in an answer to the complaint stating ''Lack of Jurisdiction'' due to a underlying arbitration clause wherein both parties agreed to arbitrate all claims.

Thanks for your reply Robby8900. 

I'm definitely going do more research and look into this much more extensively.  

 

[legalfight909]

2 hours ago, BackFromTheDebt said:

Someone with two posts, but tons of misinformation.  

Alas, there are plenty of people in this world who will believe an armchair general who has never faced battle over seasoned veterans of the credit wars.  

The methods I learned mostly on this forum, and to a lesser extent on the “other” board, personally saved me over $100,000.  The cases I know of in my state, including those who worked with a consumer attorney recommended by someone on this board, add up to over $1 million saved.  

Or, you can listen to some internet quack who tells you he has all the answers.  

BackFromTheDebt,  My apologies. I'm defiantly no expert and my options are only worth 2 cents, so please take them for what their worth.

There is no doubt that there are many members on this forum that are extremely knowledgeable and seasoned veterans on the subject matter. That's why I'm here, and I'm so thankful for the "seasoned veterans of the credit wars", I'm learning a lot. 

I believe it is of value to me to consider everyones thoughts on the subject matter.  Even if they are wrong, I've just learned what not to do. Even a "quack" on the internet throws a few golden nuggets here and there, and I have found many nuggets this way. I would never consider anyone to have all the answers. "We are all ignorant, just in different areas." 

[Clydesmom]

1 hour ago, legalfight909 said:

I know that in CA, the Secretary of States office requires law firms to have a surety bond filed with them in order to conduct business in California. 

Many states have the same requirement but you have no private right of action if they do not have the bond.  ALL you can do is report it to the AG and see if they will pursue it.

1 hour ago, legalfight909 said:

Since some attorneys and their law firms are not always on the up and up, I suppose one could FOIA request the law firm's bond information from the Secretary of State's office and the attorneys oath of office from the State Bar association. As you may know, not all attorneys are model citizens and someone has to keep them accountable. 

Even if a JDB does not have a bond with the state they can still hire a lawyer to sue you.  They just can't send a dunning letter first.

Also, the state is not going to necessarily give you their bond information but will only confirm they are bonded. A FOIA request isn't even needed.  The SOS keeps that information publicly searchable on their database.

1 hour ago, legalfight909 said:

Believe it or not, JDB and their legal representation do not always play by the rules. I guess what I'm saying is that if you present yourself as low hanging fruit, your chances of being picked are much greater. 

95% of the low hanging fruit is the consumer who simply ignores the dunning and lawsuit resulting in default judgment. Of the small percentage who do answer the suit and show up the majority of those are scared and panic into settling.  The incredibly small percentage of consumers who represent themselves do just fine.  Sending FOIA request and badly worded DV letters labels you as low hanging fruit not just being a pro-se.  HOW you represent yourself says more than simply representing yourself.

You are WAY WAY over thinking all of this.

[fisthardcheese]

On 6/1/2019 at 12:58 PM, legalfight909 said:

What about representing yourself "Pro per" in a collection lawsuit? Anyone have experience, suggestions or advice about that?

Yeah. Most of us.

[Theorist]

On 6/1/2019 at 2:13 PM, legalfight909 said:

BackFromTheDebt,  My apologies. I'm defiantly no expert and my options are only worth 2 cents, so please take them for what their worth.

There is no doubt that there are many members on this forum that are extremely knowledgeable and seasoned veterans on the subject matter. That's why I'm here, and I'm so thankful for the "seasoned veterans of the credit wars", I'm learning a lot. 

There's no need to apologize to members of this forum who refuse to treat you with civility. Just ask yourself why they would behave that way.

Also don't let their behavior---and odd tendency to mix-in tales of personal past woe---taint what still is an incredible resource thanks to contributions made by some rare individuals truly deserving of sainthood.

Your comment that "the burden of proof is on them" is the most on-point statement on the page, at least as a response to what may be otherwise demotivating points---valid or not---being made. Because, if the mission of this forum isn't to keep what you said as the central focus, then I guess it would need to be re-named the "Roll Over and Let 'Em Have Their Way With You Infocenter".


 

[BV80]

4 hours ago, Theorist said:

There's no need to apologize to members of this forum who refuse to treat you with civility. Just ask yourself why they would behave that way.

Also don't let their behavior---and odd tendency to mix-in tales of personal past woe---taint what still is an incredible resource thanks to contributions made by some rare individuals truly deserving of sainthood.

Your comment that "the burden of proof is on them" is the most on-point statement on the page, at least as a response to what may be otherwise demotivating points---valid or not---being made. Because, if the mission of this forum isn't to keep what you said as the central focus, then I guess it would need to be re-named the "Roll Over and Let 'Em Have Their Way With You Infocenter".


 

Before saddling up your high horse, you should read legalfight909’s post again.  

First, the poster starts out with “for those savvy enough”.   What was the poster’s implication when those are the very first words of his post?

This site has been in existence for over 15 years.   It includes laws and case law updated when applicable,   

His next point:

On 6/1/2019 at 12:21 AM, legalfight909 said:

there are other legitimate legal way to beat the JDB at their own game.

Is the poster referring to debt validation or a lawsuit?  This thread concerns the validation of debts.

 

On 5/20/2019 at 8:14 PM, legalfight909 said:

Hint, the burden of proof is on them. Seek and ye shall find...

This thread is about debt validation and the FDCPA.  Therefore. the burden of proof for violations of the FDCPA is on the consumer.

Legalfight909’s reference to “burden of proof” indicates he/she is either referring to a debt collection lawsuit, or he/she does does not understand which party bears the “burden of proof” in an FDCPA lawsuit.   

Based upon legalfight909’s posts, he/she needs some help with seeking and finding.

Do a search of this site.  In regard to debt collection lawsuits, you will have no problem locating posts which point out that the burden of proof is on the debt collector.   It’s obvious that legalfight909 did not read other threads.

Then he references the FOIA Improvement Act.  It doesn’t take much research to determine that the Act he cited applies ONLY to federal agencies.  Therefore, it is quite apparent that legalfight909 has done no research at all.   I quote:

On 6/1/2019 at 1:45 PM, legalfight909 said:

Since some attorneys and their law firms are not always on the up and up, I suppose one could FOIA request the law firm's bond information from the Secretary of State's office and the attorneys oath of office from the State Bar association. 

Legalfight909 referenced state agencies.   However, he/she cited the federal Act.   

Note Myth #5 in the very post which is the subject of this thread.

“Due to the fact that not all states require that a debt collector be licensed to collect a debt, such a requirement could not be part of the validation requirement.   Even if a debt collector is required to be licensed in a particular state, it has nothing to do with validating a debt.” 

States have their own “freedom of information” requirements.   If one’s state requires debt collectors to be bonded in order to collect debts, an FOIA request is not necessary.   It is also not necessary to make an FOIA request for an attorney’s oath of office   If the attorney is licensed by a particular state, he took the oath.

In other words, it is possible that legalfight909  read some information on the internet that sounded great but has no basis in law.  If one chooses to accept random information as fact, then starts a post on a site with “for those savvy enough”, that poster opens himself/ up herself to a certain amount of criticism.

Your response appears to be based upon the fact that you did not get the support you desired based upon the limited amount of information you were willing to divulge.  

This site will always rely upon statutes and court rulings.  

 

 

[Theorist]

The phrase, "For those savvy enough", is not an insult. Victim card not redeemable here.

My point about civility stands, and my motive which you're trying to assign on my behalf is rooted in appreciation for all that I have learned from this forum.

To lob the first insult never makes a meaningful point more intelligent or compelling. For this forum in particular, readers are best to view the motives of those who bully with a healthy dose of skepticism.

Note that I don't think you're a bully.

I do think you're often a downer, but as long as you're not being insulting, and given that I've never significantly doubted the accuracy of your statements, then the fascinating question of whether you're an exceptionally deft mole for the other side who seeks to only very gently subtract from readers' optimism without blowing your cover, or rather are in fact the most caring member of the forum who provides it with necessary realism, is entirely moot. The information you provided at the top of this thread is of a negative bent but seems valuable and very diligently assembled, with legalfight909's crime being that he injected a counterbalancing smidgen of optimism. As long as readers are however able to apply their own judgment regarding poster intent, contrary perspectives are great, even from moles.

Thus my chiming-in about never apologizing to bullies.

[BV80]

3 minutes ago, Theorist said:

The phrase, "For those savvy enough", is not an insult. Victim card not redeemable here.

No one here is playing the “victim card”.   The case law cited throughout this site supports valid claims and discredits invalid claims.  

 

14 minutes ago, Theorist said:

My point about civility stands, and my motive which you're trying to assign on my behalf is rooted in appreciation for all that I have learned from this forum.

To lob the first insult never makes a meaningful point more intelligent or compelling. For this forum in particular readers are best to view the motives of those who bully with a healthy dose of skepticism.

Speaking for myself, I offer information that I can support with law and /or court rulings.  If my suggestions are my opinion, I state as much.  That  applies to the majority of members on this site.   

7 hours ago, Theorist said:

Because, if the mission of this forum isn't to keep what you said as the central focus, then I guess it would need to be re-named the "Roll Over and Let 'Em Have Their Way With You Infocenter"

Considering the fact that the  CENTRAL FOCUS of this thread is debt validation and the requirements of the FDCPA, please show me where it indicates in any way “Roll Over and Let ‘Em Have Their Way With You.”