Jeepfreak81

Should I send a Debt Validation letter even after 30 days?

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Hi Everyone,

So I've actually posted a question in the collections section of the forums here but while waiting for a response there I've been reading and have a new question concerning Debt Validation.  I have 2 accounts that were sold to Portfolio Recovery, the amounts listed that I owe are aprx $5600 and $8600.  The first round of letters I ignored, now I got a pair of letters from them saying my accounts are being reviewed by the litigation department and gave me some payment options to consider before thier lawyers look at my accounts.

It sounds like I'm past the 30 day initial contact from the JDB, so is it worth me sending a DV letter?  Will this just draw more attention to my account that I still can't afford to pay?  I wouldn't mind coming to a payment agreement with them but I doubt they'll go for the small amounts I can afford to pay.  I also do not wish to goto court if possible. 

So basically I'm trying to find out my next step, and if Debt Validation is worth pursuing at this point.  Thanks in advance.

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Who are the OCs for both accounts?  If arbitration is in the card agreements, then that is a good option against PRA.  If you file in arbitration before they sue, they would not be able to file a suit in court without violating the FDCPA.  PRA does not arbitrate because the costs to them is too high and even if they win the case, they still lose money in the end.

I would send a dispute letter to them along with my arbitration filing paperwork, if this were me.

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On 5/21/2017 at 7:31 AM, fisthardcheese said:

  If you file in arbitration before they sue, they would not be able to file a suit in court without violating the FDCPA. 

I'm thinking one would need to research court rulings or speak to attorneys who are familiar with arbitration and/or the FDCPA.

The reason is because the FAA states that one must file a MTC arbitration upon refusal of the other party to arbitrate.   So I don't think we can say for sure that a JDB's filing of a lawsuit in court when no MTC has been filed is a violation of the FDCPA.

Also, what section would one claim that the JDB has violated by filing in court?

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1 hour ago, BV80 said:

I'm thinking one would need to research court rulings or speak to attorneys who are familiar with arbitration and/or the FDCPA.

The reason is because the FAA states that one must file a MTC arbitration upon refusal of the other party to arbitrate.   So I don't think we can say for sure that a JDB's filing of a lawsuit in court when no MTC has been filed is a violation of the FDCPA.

Also, what section would one claim that the JDB has violated by filing in court?

It's written very explicitly in the card agreements that upon "election" (or as we take it to mean, "filing") of arbitration, court is no longer an option.  Therefore, the JDB would be taking an action not legally allowed to take.  They would be violating the law "breach of contract" and other potential state law by suing when the contract says they can not sue in a particular situation.

The FAA remedy of MTC in court and the FDCPA violation would both be true at the same time when this occurs.  Each remedy is not mutually exclusive.

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2 minutes ago, fisthardcheese said:

It's written very explicitly in the card agreements that upon "election" (or as we take it to mean, "filing") of arbitration, court is no longer an option.  Therefore, the JDB would be taking an action not legally allowed to take.  They would be violating the law "breach of contract" and other potential state law by suing when the contract says they can not sue in a particular situation.

The FAA remedy of MTC in court and the FDCPA violation would both be true at the same time when this occurs.  Each remedy is not mutually exclusive.

 

I respectfully disagree. 

I have yet to see a credit card agreement that defines "elect".   You have to look to the FAA.   It states that one should file a MTC when the other party refuses to arbitrate.  Without a MTC, the consumer has not complied with the FAA.

 

Quote

Therefore, the JDB would be taking an action not legally allowed to take. 

That's 1692e of the FDCPA.  Courts have ruled that a violation of that section must be material in nature.  It must confuse the consumer as to his response or choices.

Claims brought under § 1692e are also subject to a materiality inquiry. Jensen v. Pressler & Pressler, 791 F.3d 413, 421 (3d Cir. 2015).

Representations are material if they "frustrate a consumer's ability to intelligently choose his or her response." Donohue v. Quick Collect, Inc., 592 F.3d 1027, 1034 (9th Cir. 2010) (citation omitted).

 

Quote

  They would be violating the law "breach of contract" and other potential state law by suing when the contract says they can not sue in a particular situation.

The arbitration provision is not the contract.   It's usually severable from the contract.  

Case law shows that one cannot claim a breach of contract if that party was the one to first breach the contract.  If the consumer is going to claim a breach of something, it would have to be a breach of the arbitration provision.   That might go back to the language in the arbitration provision and what is required by the FAA.

That's a reason to contact an attorney.

 

 

 

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13 hours ago, BV80 said:

 

I respectfully disagree. 

I have yet to see a credit card agreement that defines "elect".   You have to look to the FAA.   It states that one should file a MTC when the other party refuses to arbitrate.  Without a MTC, the consumer has not complied with the FAA.

 

That's 1692e of the FDCPA.  Courts have ruled that a violation of that section must be material in nature.  It must confuse the consumer as to his response or choices.

Claims brought under § 1692e are also subject to a materiality inquiry. Jensen v. Pressler & Pressler, 791 F.3d 413, 421 (3d Cir. 2015).

Representations are material if they "frustrate a consumer's ability to intelligently choose his or her response." Donohue v. Quick Collect, Inc., 592 F.3d 1027, 1034 (9th Cir. 2010) (citation omitted).

 

The arbitration provision is not the contract.   It's usually severable from the contract.  

Case law shows that one cannot claim a breach of contract if that party was the one to first breach the contract.  If the consumer is going to claim a breach of something, it would have to be a breach of the arbitration provision.   That might go back to the language in the arbitration provision and what is required by the FAA.

That's a reason to contact an attorney.

 

 

 

There is no legal definition of "elect", however, if you have filed a case in arbitration there can be no mistake of your intent.  The action of filing can easily be said that you have now "elected" arbitration. 

I don't see the FAA remedy and the FDCPA violation as being intertwined.  Yes, if the JDB ignores the arbitration filing, then under the FAA you would file an MTC to remedy that issue.  However, there still exists the violation.  If it's not due to a "breach of contract", then it would easily fall under filing a suit in the wrong venue, which is also an action not legally allowed to be taken.

To me, the easiest way to handle such a situation is to file the MTC and then in the arbitration case, I would add the FDCPA violation and name any costs associated with having to file the MTC as actual damages.

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On 5/22/2017 at 3:45 PM, fisthardcheese said:

It's written very explicitly in the card agreements that upon "election" (or as we take it to mean, "filing") of arbitration, court is no longer an option.  Therefore, the JDB would be taking an action not legally allowed to take.  They would be violating the law "breach of contract" and other potential state law by suing when the contract says they can not sue in a particular situation.

The FAA remedy of MTC in court and the FDCPA violation would both be true at the same time when this occurs.  Each remedy is not mutually exclusive.

Violating 1692e (taking an action not legally allowed to take) requires a material misrepresentation.   It must confuse or mislead the consumer as to his next action.  Courts are specific on that issue.

Where is the case law regarding breach of contract?

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I'm a little late getting back to this, I'd like to thank you guys for responding.  The original accounts for both from Synchrony bank, 1 for Wal-mart card, and 1 for Lowe's.  I'll have to do some research regarding the card agreement and some of the other things you guys are talking about, the acronyms are over my head at this point.  I actually just got a 2nd notice in the mail a couple of days ago on these 2 accounts.  I love how they come in plain white envelopes with no markings or company names, I throw alot of that stuff right in the trash.

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14 minutes ago, Jeepfreak81 said:

I'm a little late getting back to this, I'd like to thank you guys for responding.  The original accounts for both from Synchrony bank, 1 for Wal-mart card, and 1 for Lowe's.  I'll have to do some research regarding the card agreement and some of the other things you guys are talking about, the acronyms are over my head at this point.  I actually just got a 2nd notice in the mail a couple of days ago on these 2 accounts.  I love how they come in plain white envelopes with no markings or company names, I throw alot of that stuff right in the trash.

The reason for the plain white envelopes is that the FDCPA prohibits any names or symbols on the envelope that might indicate that the letter is from a debt collector.  

A company can use its business name if it doesn't indicate that the company is in the business of collecting debts.   However, that doesn't stop some consumers from suing in an attempt to get a pay day.   As a result, some companies have decided it's better to be safe than sorry and don't include anything other than their address.

 

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@Jeepfreak81 I responded to your other thread and touched on the arbitration option there, but to answer your original question in this thread, there is no real benefit to sending a debt validation letter when the initial 30 days have passed.  A debt collector can completely ignore your letter.  In fact, since anything they send you could potentially be used against them, it's safest for them to ignore you and that's what they will probably do.

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Synchrony has free JAMS.  It's a good contract for you. This means you can use JAMS arbitration and the card agreement says they will pay all your filing fees (so you don't have to pay the $250 filing fee for each account).

Did you send the dispute letter?

If this were me, I would file 2 separate JAMS claims. One for each account.  I would check my credit reports to see if there are any errors or inconsistencies. If there are, those can be used as a good claim to add to your arbitration cases.  With PRA, it is possible they will ignore this and file in court anyway.  That is the potential that @BV80 and I were discussing and disagree on how to proceed should that happen.  What we don't disagree on, is that if you already have an arbitration case filed and then PRA sues you anyway, that you should file a Motion to Compel Arbitration (MTC) in court.  There are many samples in my history of posts, but we can guide you on that if and when it gets to that point.  The MTC is simply asking the court to dismiss or stay the court case pending arbitration.  When the MTC is granted, it pins PRA in a corner they don't want to be in. They are given a court order to participate in arbitration which will cost them $5k - $10k per case.  That is why, even if they win, they lose money and instead 99% of the time just cut their losses and drop the case.

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On 6/6/2017 at 1:19 PM, fisthardcheese said:

That is the potential that @BV80 and I were discussing and disagree on how to proceed should that happen.  What we don't disagree on, is that if you already have an arbitration case filed and then PRA sues you anyway, that you should file a Motion to Compel Arbitration (MTC) in court. 

Yep, we agree that a MTC should be filed.  :)

The reason I disagree with a breach of contract claim in the event a JDB files suit after a consumer submits a claim to arbitration is for the same reason I've mention in past posts.   The party who first breaches a contract cannot make that claim for a later breach committed by the other party.   Just about every state has case law that addresses the issue.

 

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OK, so let me do some research on JAMS and what that entails.  One reason I haven't been checking back here often enough is because I'm very busy trying to get my house read to sell.  Plan to use some of the profits to pay off my credit card debts and possibly settle these accounts if need be.  Is filing JAMS going to speed up the process of them suing me?  As much as I hate to goto court, it sounds like with PRA it might be unavoidable, but it would be nice to prolong it.  Especially if they hold out another 1.5 yrs or so, lol.  3 years is the SOL in NH for consumer debt.

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