USELESS AND BASELESS VALIDATION REQUEST

[BV80]

1 hour ago, Goody_Ouchless said:

That makes sense. I may be totally wrong here, but the whole DV thing seems like a distraction - they can just sue, right, rather than sending yet another letter? I'm just talking about the major players, but if they have their house in order regarding not violating, all a DV request does is tell them that they found the right person.

 

 Depending upon how one’s courts have ruled in light of Henson v. Santander, , an entity that is still subject to the FDCPA cannot file a lawsuit after receiving a timely DV request until the debt is validated.    Filing a lawsuit before validating would be considered continued collection activity. 

[Goody_Ouchless]

OK, well that is at least some tangible benefit. I stand corrected.

[fisthardcheese]

14 hours ago, BV80 said:

 

 Depending upon how one’s courts have ruled in light of Henson v. Santander, , an entity that is still subject to the FDCPA cannot file a lawsuit after receiving a timely DV request until the debt is validated.    Filing a lawsuit before validating would be considered continued collection activity. 

Not only does it buy you a little time by forcing them to respond before they can sue, but as I have always said, it is a hoop to make them jump through, if nothing else, just for the sake of "you can".  The clown at the circus practices jumping through hoops and somersaulting to a grand pose on the other side.  He practices this every day of his life and is an expert.  He hits that move without even a stutter step 500 times in a row.  But it only takes that one time that his foot catches the hoop on his jump to cause a crash to the ground on that night. Yes, it is rare, but it happens. When it does, it gives you leverage you can use to help defend yourself.

13 hours ago, Goody_Ouchless said:

OK, well that is at least some tangible benefit. I stand corrected.

You are thinking of this in terms of the big guns like Cavalry and Midland.  But it is rare that they directly sue.  Generally what they do is farm the accounts out to the local attorney collection mill office and the first thing that attorney's office does is send a new collection letter (with the scary looking official attorney header). This letter is now your first contact from a new debt collector and triggers the 30 day DV period again.  THIS is where I find the DV most helpful.  Yes, Midland may have a well oiled machine, but Barney Fife at the local rent-a-lawyer office may not be so refined.  This is where I found my past violations that turned 2 lawsuits against me into situations where I received a check instead.

 

[BV80]

If you locate a site or article that is particularly helpful, please post the link.

Here is one.

https://toughnickel.com/personal-finance/Debt-Collectors-collection-letter-and-debt-collection-lawsuits

 

[womanonfire]

On 2/21/2018 at 6:05 AM, fisthardcheese said:

You are thinking of this in terms of the big guns like Cavalry and Midland.  But it is rare that they directly sue.  Generally what they do is farm the accounts out to the local attorney collection mill office and the first thing that attorney's office does is send a new collection letter (with the scary looking official attorney header). This letter is now your first contact from a new debt collector and triggers the 30 day DV period again.  THIS is where I find the DV most helpful.  Yes, Midland may have a well oiled machine, but Barney Fife at the local rent-a-lawyer office may not be so refined.  This is where I found my past violations that turned 2 lawsuits against me into situations where I received a check instead.

 

I know this is an older post but can you link to a thread of the details of that lawsuit or provide them here? I have two accounts that were just transferred to Hyat, Hyat, & Landau; one B of A (8k) and one Sync (5k). Because both sent me a 30 day notice and I'm trying to negotiate settlement, my strategy is to ask for phone validation at the eve of the 30 day time frame to buy more time. That's the only thing I can come up with. Thanks! 

[fisthardcheese]

On 1/23/2021 at 10:53 AM, womanonfire said:

I know this is an older post but can you link to a thread of the details of that lawsuit or provide them here? I have two accounts that were just transferred to Hyat, Hyat, & Landau; one B of A (8k) and one Sync (5k). Because both sent me a 30 day notice and I'm trying to negotiate settlement, my strategy is to ask for phone validation at the eve of the 30 day time frame to buy more time. That's the only thing I can come up with. Thanks! 

There is no law requiring them to respond to a phone verification.  It must be written.  Are the OC banks still holding the accounts?  If so, it doesn't apply to them at all anyway because the FDCPA only applies to debt collectors not banks.

[BV80]

50 minutes ago, fisthardcheese said:

There is no law requiring them to respond to a phone verification.  It must be written.  Are the OC banks still holding the accounts?  If so, it doesn't apply to them at all anyway because the FDCPA only applies to debt collectors not banks.

If Hoyt sent the letter with the 30-day notice, it applies to the debt collection law firm.  

[womanonfire]

On 1/30/2021 at 3:00 PM, fisthardcheese said:

There is no law requiring them to respond to a phone verification.  It must be written.  Are the OC banks still holding the accounts?  If so, it doesn't apply to them at all anyway because the FDCPA only applies to debt collectors not banks.

Thanks. I'm not sure if they have been sold or not. It is something that I plan on asking but the letters contain my right to request validation. Could just mean that they're covering their bases. 

A little off topic but do you think that debt collectors hang out on these boards? 

 

[BV80]

9 minutes ago, womanonfire said:

Thanks. I'm not sure if they have been sold or not. It is something that I plan on asking but the letters contain my right to request validation. Could just mean that they're covering their bases. 

A little off topic but do you think that debt collectors hang out on these boards? 

 

Debt collection law firms are bound by the FDCPA.  If the letters from the law firm were their initial communication with you, they were required to include the 30-day notice.  As @fisthardcheesepointed out, the request must be sent in writing.

It is possible that debt collectors read the posts on this site.  However, we have no way of identifying them.

[womanonfire]

1 minute ago, BV80 said:

Debt collection law firms are bound by the FDCPA.  If the letters from the law firm were their initial communication with you, they were required to include the 30-day notice.  As @fisthardcheesepointed out, the request must be sent in writing.

Even if they're collecting for the OC and the account has not been sold? 

[BackFromTheDebt]

1 hour ago, womanonfire said:

Thanks. I'm not sure if they have been sold or not. It is something that I plan on asking but the letters contain my right to request validation. Could just mean that they're covering their bases. 

A little off topic but do you think that debt collectors hang out on these boards? 

 

Yes. 
 

I know of several cases in which posts on either this forum or the now defunct “other” board were used in court cases.  

In one situation an attorney’s office spent thousands of dollars figuring out that a well known CIC poster was the defendant.  In a deposition he just said “that’s me “, and they had nothing to do afterwards. He did nothing wrong.

I once admitted to posting in CIC in a depo.  They tried to make a big deal about it, but it wasn’t a big deal.  
 

The only thing is not to be an idiot.  On the “other” board there was a poster who was essentially harassing the opposing attorney on the board, including making sexual comments about a female attorney.  The judge clobbered him for that, to the tune of about $60k in sanctions. Some of us tried to warn him, but others were egging him on. 
 

As long as you don’t post anything that would look really bad in front of a judge, don’t worry.  

[BV80]

1 hour ago, womanonfire said:

Even if they're collecting for the OC and the account has not been sold? 

Absolutely.  The definition of a “debt” as defined by the FDCPA makes no exclusion for a defaulted debt that is still owned by the OC.   It excludes a collection agency affiliated with the OC (such as the OC’s internal collection department) from the definition of “debt collector”;  however, an outside collection agency is bound by the FDCPA.  1692a(6) of the Act defines a “debt collector” as one who regularly collects debts “owed or due or asserted to be owed or due another.”  An outside collection agency is collecting for another business.

In Heintz v, Jenkins, a debt collection attorney was collecting for the original creditor. The Supreme Court of the United States ruled that “the Act applies to attorneys who “regularly’ engage in consumer-debt-collection activity, even when that activity consists of litigation.” See Heintz v. Jenkins, 514 U.S. 291, 299 (1995). The court ruled in favor of the consumer.

In Owen v. IC System, Inc. (11th Circuit Court of Appeals, 2011), IC System (ICS) was collecting for an original creditor. The court states, “The FDCPA defines ‘debt collector’ as ‘any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another.’ 15 U.S.C. § 1692a(6). It is undisputed that ICS falls within this statutory definition.”

 

[BV80]

20 minutes ago, BackFromTheDebt said:

As long as you don’t post anything that would look really bad in front of a judge, don’t worry.

That would include an admission that one “baited” the collection agency in an attempt to get the agency to violate the Act.  😀

[BackFromTheDebt]

19 minutes ago, BV80 said:

That would include an admission that one “baited” the collection agency in an attempt to get the agency to violate the Act.  😀

Yes, if one recalls the whole Coltfan saga, realize that Coltfan made comments in his post that he was essentially trying to trap the other side into violations.  The judge did not look kindly on that.  

[BV80]

@womanonfire

I failed to include the following in my response to your question about a debt that has not been sold.  This is from 1692g(a):

(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.

The above states that a consumer can request the name and address of the original creditor IF it is different from the current creditor.  “If it is different” implies that the name of the original creditor might not be different from the current creditor.

In other words, if the original creditor is already named as the current creditor, thee would be no reason to request the name of the original creditor.  The fact that the current creditor and original creditor can be one and the same shows the FDCPA applies to debts still owned by OCs.

[Clydesmom]

1 hour ago, BackFromTheDebt said:

Yes, if one recalls the whole Coltfan saga, realize that Coltfan made comments in his post that he was essentially trying to trap the other side into violations.  The judge did not look kindly on that.  

His first intentional act was baiting the CA in to a baseless FDCPA violation.  He NEVER disputed the bill for his visit to the ER he simply wanted to go to federal court.  He made the situation far worse than a simple frivolous lawsuit but the ongoing saga on the now defunct board.  I was one of maybe 2 or 3 people who staunchly opposed his plan and took a LOT of grief for opposing his antics. Some of the worst was his open broadcast (posting) of his plans to deliberately engage in antics that had no legal basis but whose sole purpose was to dramatically increase the costs on the other side. ALL of it was introduced as evidence against him (which he opposed and lost) and ultimately cost him $60k in legal fees to the other side.  Worse was the long term damage to legitimate consumers with a case by setting this precedent in the Federal circuit.  

When it was all said and done he privately apologized to me and admitted he screwed the entire thing up and slunk away.  Heaven knows where he is now.

[BackFromTheDebt]

6 hours ago, Clydesmom said:

His first intentional act was baiting the CA in to a baseless FDCPA violation.  He NEVER disputed the bill for his visit to the ER he simply wanted to go to federal court.  He made the situation far worse than a simple frivolous lawsuit but the ongoing saga on the now defunct board.  I was one of maybe 2 or 3 people who staunchly opposed his plan and took a LOT of grief for opposing his antics. Some of the worst was his open broadcast (posting) of his plans to deliberately engage in antics that had no legal basis but whose sole purpose was to dramatically increase the costs on the other side. ALL of it was introduced as evidence against him (which he opposed and lost) and ultimately cost him $60k in legal fees to the other side.  Worse was the long term damage to legitimate consumers with a case by setting this precedent in the Federal circuit.  

When it was all said and done he privately apologized to me and admitted he screwed the entire thing up and slunk away.  Heaven knows where he is now.

I emphasized that part.  He appealed to the Court of Appeals, which he lost, and which set the precedent for that circuit.  

Last I heard Coltfan got a job working for the law firm that represented him in his case.  One condition of employment was that he never post on these boards again.  

I did try to warn him about what he was doing, admittedly not as vociferously as @Clydesmom

[womanonfire]

19 hours ago, BackFromTheDebt said:

Yes. 
 

I know of several cases in which posts on either this forum or the now defunct “other” board were used in court cases.  

In one situation an attorney’s office spent thousands of dollars figuring out that a well known CIC poster was the defendant.  In a deposition he just said “that’s me “, and they had nothing to do afterwards. He did nothing wrong.

I once admitted to posting in CIC in a depo.  They tried to make a big deal about it, but it wasn’t a big deal.  
 

The only thing is not to be an idiot.  On the “other” board there was a poster who was essentially harassing the opposing attorney on the board, including making sexual comments about a female attorney.  The judge clobbered him for that, to the tune of about $60k in sanctions. Some of us tried to warn him, but others were egging him on. 
 

As long as you don’t post anything that would look really bad in front of a judge, don’t worry.  

Wow that is really interesting. So you and others posts on these forums... what do you suppose their angle is? I could see that they make lurk to get information but other than that, I don't see the point in making someone admit they are posting here. That is of course, outside the unusual circumstances outlined above. 

[womanonfire]

17 hours ago, Clydesmom said:

His first intentional act was baiting the CA in to a baseless FDCPA violation.  He NEVER disputed the bill for his visit to the ER he simply wanted to go to federal court.  He made the situation far worse than a simple frivolous lawsuit but the ongoing saga on the now defunct board.  I was one of maybe 2 or 3 people who staunchly opposed his plan and took a LOT of grief for opposing his antics. Some of the worst was his open broadcast (posting) of his plans to deliberately engage in antics that had no legal basis but whose sole purpose was to dramatically increase the costs on the other side. ALL of it was introduced as evidence against him (which he opposed and lost) and ultimately cost him $60k in legal fees to the other side.  Worse was the long term damage to legitimate consumers with a case by setting this precedent in the Federal circuit.  

When it was all said and done he privately apologized to me and admitted he screwed the entire thing up and slunk away.  Heaven knows where he is now.

That would be an interesting case to read, do you happen to know it? 

[womanonfire]

On 1/30/2021 at 3:00 PM, fisthardcheese said:

There is no law requiring them to respond to a phone verification.  It must be written.  Are the OC banks still holding the accounts?  If so, it doesn't apply to them at all anyway because the FDCPA only applies to debt collectors not banks.

@fisthardcheeseand @BV80 You might find this interesting: 3rd Circuit Allows Oral Disputes Under FDCPA, Overturning Decades-Old Authority

 https://www.jdsupra.com/legalnews/3rd-circuit-allows-oral-disputes-under-55529/

Updated to add that it also looks like it is a new rule under the CFPB but it actually doesn't go into effect until Nov. 2021. 

"If you believe you do not owe the debt, you may dispute all or part of it by calling or writing the collector. If you send a written request, the debt collector must stop collection on the amount you’ve disputed until they can provide you with information that shows you owe the debt."

 https://www.consumerfinance.gov/about-us/blog/how-can-debt-collector-contact-you-our-new-rule-will-help-clarify/

 

 

 

 

[BV80]

49 minutes ago, womanonfire said:

@fisthardcheeseand @BV80 You might find this interesting: 3rd Circuit Allows Oral Disputes Under FDCPA, Overturning Decades-Old Authority

 https://www.jdsupra.com/legalnews/3rd-circuit-allows-oral-disputes-under-55529/

 

Thank you for posting this.  The ruling is Riccio v. Sentry Credit, Inc. Yes, consumers in states in the 3rd Circuit can orally dispute a debt.  The court specified 15 U.S.C. 1692g(a)(3) because it does not contain a writing requirement.

(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;

The court stated, “In sum, we no longer think § 1692g(a)(3) requires written disputes.”  

However, the ruling has no effect on a request for validation because 1692f(a)(4) does include a writing requirement   If a consumer wants a debt collector to send validation, the request must be made in writing.

(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; 

[fisthardcheese]

On 2/3/2021 at 5:32 AM, womanonfire said:

Wow that is really interesting. So you and others posts on these forums... what do you suppose their angle is? I could see that they make lurk to get information but other than that, I don't see the point in making someone admit they are posting here. That is of course, outside the unusual circumstances outlined above. 

To intimidate you.  And sometimes to convince a small claims judge that you are acting in bad faith or somehow your information, however legally sound, is invalid due to learning about the law from a message board.

[fisthardcheese]

On 2/5/2021 at 9:08 AM, BV80 said:

Thank you for posting this.  The ruling is Riccio v. Sentry Credit, Inc. Yes, consumers in states in the 3rd Circuit can orally dispute a debt.  The court specified 15 U.S.C. 1692g(a)(3) because it does not contain a writing requirement.

(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;

The court stated, “In sum, we no longer think § 1692g(a)(3) requires written disputes.”  

However, the ruling has no effect on a request for validation because 1692f(a)(4) does include a writing requirement   If a consumer wants a debt collector to send validation, the request must be made in writing.

(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; 

There also is the issue of proving an oral dispute.  Having everything in writing when dealing with law is always best practice imo.

[BV80]

58 minutes ago, fisthardcheese said:

There also is the issue of proving an oral dispute.  Having everything in writing when dealing with law is always best practice imo.

Excellent point.  👍

[womanonfire]

3 hours ago, fisthardcheese said:

There also is the issue of proving an oral dispute.  Having everything in writing when dealing with law is always best practice imo.

I agree with having everything in writing however I record all calls when dealing with any OC, CA or in any event that I might have a legal issue. Since most of these places record calls anyway, we are over the consent hurdle. I recommend tapeacall.