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patentatty

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  1. Is anyone out there objecting to the class settlement (as opposed to excluding themselves from it?) My firm is representing an objector to the settlement and I'm wondering if there are any others. This settlement is atrocious. Matt
  2. I agree with you - sending a notice of dispute outside of the 30 day window, followed by a dispute with the CRA would lead them into an an (e) violation and therefore would have some usefulness, assuming you get the dates to line up properly. Even a little further out on the limb would be a claim under 1692f(1), to the extent that the amount that they are reporting you owe (therefore, collecting...) includes fees or other charges not provided for by the contract.
  3. You're absolutely right Sassy (good to see you again!) - all 1692g requires is that if they do contact you, they must supply you with the (g) notice within 5 days of the initial contact. From my standpoint, I don't mind the client who comes in with just a "baddie" and no communication from the d/c. I'll have that guy dispute with the CRAs (which by the way is ALWAYS necessary to trigger liability under the FCRA) and send every bit of documentation that he has to show that he doesn't owe the debt. I know that none of the 3 CRAs forward this documentation to the d/c (or to any other furnisher for that matter). When the d/c verifies, I now have a great case against the CRA and the d/c under the FCRA. Punitive damages are now on the table. I'd MUCH rather be suing under the FCRA than the FDCPA. Remember, the point of the FDCPA was to stop abusive collection practices. It's somewhat difficult for the d/c to abuse you if they're not contacting you, with the exception of the reporting the debt on your consumer report. In that case, you deal with it as I just described. (As a side point, you always want the CRA in the suit with the d/c. They point the finger at each other - the CRA states that they just reported what the d/c told them to. The d/c states that they would have figured out the truth if that CRA had just forwarded them the docs!! Neither performed a proper investigation (Check the 4th Circuit decision Johnson v. MBNA. Investigation really does mean investigation). Both are liable.)
  4. The cap for the FDCPA suit is $1,000 so far as statutory damages go. The FCRA on the other hand excludes the language found in the FDCPA damages section (compare the language of 15 USC 1692k with that of 15 USC 1681n or o). If you can establish a good claim against the furnisher (the d/c in this case) under 15 USC 1681s(2)-b (failure to conduct an investigation after notification of the dispute by the CRA), you can start adding on FCRA claims that will increase your total take, if the money is your goal. It is always to your benefit to get a NACA attorney involved in your case - there are plenty of us willing to help you and the threat of our fees alone will get you the results you're looking for in many cases.
  5. Let me back out for a second - yes, you have the right to demand verification at any time after the 30 day period expires. You also have the right to demand that they take you to Outback for dinner. Both carry about the same chance of success. Under 1692g your demand for verification only carries consequences for the debt collector if it is made in the initial 30 day period after the (g) notice is received. Therefore if you notify the DC in writing on or after the 31st day after receipt of the (g) notice, continued collection activity does not constitute an FDCPA violation. I'm wondering if anyone has seen caselaw that states otherwise. I sure haven't.
  6. Doc - what part of the FDCPA leads you to believe that you have the right to request verification of the debt "anytime". It's certainly not in 1692g.
  7. You'll want to contact Chris Kittell - he's a NACA lawyer in MS and one of the top FCRA guys out there -- Christopher E. Kittell Organization: Webster, Gresham & Kittell Address: P.O. Drawer 760 City: Clarksdale State: MS ZIP: 38614 Email: cekittell@wgklawers.com Phone: (662) 624-5408 Fax: (662) 627-5530
  8. Whychat: Thanks for those very kind comments. My overreaching problem was that attorneys generally are worried about being seen to have given any legal advice in a public forum because inevitably, someone is going to claim to have relied on it to their detriment - thus, the reason I've stayed away from the boards lately. I didn't have a problem with having my name on your site, only that it seemed to imply that I endorsed a certain legal position. As I said in my 2nd email to you, I think you've done a great service to not only the members of this board but also consumers generally by taking the time to put your website together and helping those who have been pushed around for so long start to feel empowered again.
  9. Whychat: Since we're on the subject of SOL, please respond to my request that my name be removed from the Virginia portion of your website. Your page makes it appear that I endorse the 3 year SOL for credit card debt and this is not the case. I've re-sent my original email to this effect. Thanks....
  10. I wouldn't get very many new clients that way, now would I? <grin>
  11. Sassy is correct. The DOLA clock absolutely does not restart when a payment is made. It was probably the banks/OCs that made sure this provision was in the law - they'd never be able to collect anything! Please take everything you read on this board, with a grain of salt. In the short time I've been practicing in this area, I've seen a couple of people get burned pretty bad by following advice given to them here and on CN.
  12. Yes, that's another really good point. I think a lot of people are quick to sue simply because they have a grievance which may or may not be supported by ADMISSIBLE evidence, or even the statute itself. More to the point, I think a lot of the strategies offered on this board rely primarily on the lawsuit itself as the factor which will motivate the other side to do what you want them to do. In reality, you may have what you believe to be a very easy case (failure to mark in dispute, for example) but before going to court, it is absolutely crucial that you make a list of every element you need to prove your case and, for that element, list the evidence you can enter. For example, is it really enough in a failure to mark in dispute case to show that the CA received a dispute letter from you and that your credit report doesn't show the entry as disputed? There's another link there - the link between the CA and the CRA. How can you prove that the CA didn't tell the CRA to mark it as being in dispute? Do you really want to rely on calling the CA to the stand? They lie to consumers all the time, why wouldn't they do it to save themselves from a judgment? As the plaintiff, you have the burden of proving each element essential to your cause of action. One last thing, the real-world reality of these cases is that they are decided by judges and juries, who are just regular people at the end of the day. Do these people really care that the CRA responded to your procedure request on the 16th day as much as they should? The attitude I've encountered so far is that the thing judges/juries care most about is whether you really are responsible for the underlying debt. No, this isn't fair but it is a practical consideration that people need to think about before bringing a case, IMHO.
  13. Well thanks, but the credit belongs entirely to the defendant. All I had to do was wait for my client to get the surprised look off of his face and say yes.
  14. In the future, I doubt that I'll be in a position where I have a hostile federal judge in front of me who's given me 5 minutes to reach a settlement. If I had it to do over again, I still would have taken their offer as it was very reasonable, and again, I wasn't going to be the one to tell the judge that I turned down the amount that was offered to me. Your comments on negotiating in general are well taken though, thanks for your input.
  15. This was actually a CA who brought it to federal court and basically the judge was letting us know that he didn't think federal court was the place to resolve cases based on "technical violations" and wasn't going to let things go any further until we had explored the possibility of settlement with the other side. I hadn't approached the other side with the possibility of settlement before this point because my approach to litigation is to let the other side believe that I don't want to settle, much less am I going to be the one to bring up the topic. Anyway, when the judge took a recess, the first number out of their mouth was 50% higher than the amount I had decided was my bottom line (inclusive of what my client wanted, my fees, filing costs, etc), so I immediately agreed and we called the judge back in. In a different situation, I might have tried to go higher, but given the hostility of the judge and the fact that I will be litigating other cases before him in the future, I didn't want to be the one to tell him that I had turned down a very reasonable settlement offer. So we're done.

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