Ok I know this has been discussed to death

[pryan67]

you left out part of FDCPA:

 

( 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 any 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

 

9th circuit notwithstanding, I don't believe that they MUST provide validation...

 

however, if you DV them, and they DO verify it, they're in vioaltion of FCRA (reporting information which they know, or should know, to be inaccurate, not marking as in dispute, etc)

I didn't forget.

 

The ruling of the 9th circuit was that, since the suit was brought under 1692g(a)(4), the language clearly stated that they must provide verification. 1692g( is an extra protection.

 

The plain language of 1692g(a)(4) says the the CA WILL obtain verification. Not might or if they feel like it or not if they cease collection. That is the law in the 9th circuit.

 

Yes they must cease collection of the debt, but they must also obtain verificaton.

 

Providing verification of the debt is not a collection activity, or alternatively it would be considered activity exempt from the cease collection provision of 1692g(.

 

Now in the 7th circuit, the law is that they are allowed to cease collection completely and that is acceptable. IIRC, that was a ruling on 1692g(, and the 9th circuit distinguished their ruling from the 7th circuit since it was brought under 1692g(a)(4).

 

 

Do you mean providing verification to the consumer, or verifying with the CRAs?

[pryan67]

See this is what happens I'm not a legal mind.

 

I feel so stupid

 

I am really trying to understand this.

 

So I sent midland a DV, they have not responded yet. So if they don't respond they have to

cease collection activity until they send me verification of the debt.

Even though I did not respond after the original 30 day notice in the mail.

 

I still think someone really good at this sort of thing could argue the point that they

did not receive the initial communication via mail since they don't send cmrrr.

Or because they no longer lived at the address that it was sent to.

 

That just seems wrong for that 30 day period to actually have that much weight

since there are so many variables to consider.

 

No...the CAN continue collection activity (everywhere but Texas)...HOWEVER...if they verify with the CRAs...they're then reporting information which they know, or have reason to believe, is inaccurate. If they don't mark it as "in dispute", they're ALSO in violation of FCRA AND FDCPA

 

as far as them proving you received the letter, the court would say that they sent it, and that's enough...provided they sent it to your current address...

[Cheryl1968]

See this is what happens I'm not a legal mind.

 

I feel so stupid

 

I am really trying to understand this.

 

So I sent midland a DV, they have not responded yet. So if they don't respond they have to

cease collection activity until they send me verification of the debt.

Even though I did not respond after the original 30 day notice in the mail.

 

I still think someone really good at this sort of thing could argue the point that they

did not receive the initial communication via mail since they don't send cmrrr.

Or because they no longer lived at the address that it was sent to.

 

That just seems wrong for that 30 day period to actually have that much weight

since there are so many variables to consider.

 

 

They only have to cease collection activity if you respond within 30 days of their first written notice. I agree the point could be argued regarding the initial communication as never being received.

 

Seems to me the CA would spend the $5.00 to insure they had a paper trail.

 

If they never sent an inital letter, then you would be protected by your DV since that would in effect be the first communication.

[captaincredit]

See this is what happens I'm not a legal mind.

 

I feel so stupid

 

I am really trying to understand this.

 

So I sent midland a DV, they have not responded yet. So if they don't respond they have to

cease collection activity until they send me verification of the debt.

Even though I did not respond after the original 30 day notice in the mail.

 

I still think someone really good at this sort of thing could argue the point that they

did not receive the initial communication via mail since they don't send cmrrr.

Or because they no longer lived at the address that it was sent to.

 

That just seems wrong for that 30 day period to actually have that much weight

since there are so many variables to consider.

 

 

They only have to cease collection activity if you respond within 30 days of their first written notice. I agree the point could be argued regarding the initial communication as never being received.

 

Seems to me the CA would spend the $5.00 to insure they had a paper trail.

 

If they never sent an inital letter, then you would be protected by your DV since that would in effect be the first communication.

 

CA's typically sent hundreds if not thousands of letters a day. Spending $5000 a day isn't a good business practice.

[Cheryl1968]

See this is what happens I'm not a legal mind.

 

I feel so stupid

 

I am really trying to understand this.

 

So I sent midland a DV, they have not responded yet. So if they don't respond they have to

cease collection activity until they send me verification of the debt.

Even though I did not respond after the original 30 day notice in the mail.

 

I still think someone really good at this sort of thing could argue the point that they

did not receive the initial communication via mail since they don't send cmrrr.

Or because they no longer lived at the address that it was sent to.

 

That just seems wrong for that 30 day period to actually have that much weight

since there are so many variables to consider.

 

 

They only have to cease collection activity if you respond within 30 days of their first written notice. I agree the point could be argued regarding the initial communication as never being received.

 

Seems to me the CA would spend the $5.00 to insure they had a paper trail.

 

If they never sent an inital letter, then you would be protected by your DV since that would in effect be the first communication.

 

CA's typically sent hundreds if not thousands of letters a day. Spending $5000 a day isn't a good business practice.

 

oh yea you're right!

[normal1]

It still looks like fifty thousand different opinions. Is there something we can all agree on in regards to DV'ing after the 30 days. Perhaps agreeing on how a Judge may interpret(sp) the law as it pertains to the topic?

[captaincredit]

It still looks like fifty thousand different opinions. Is there something we can all agree on in regards to DV'ing after the 30 days. Perhaps agreeing on how a Judge may interpret(sp) the law as it pertains to the topic?

 

There are no opinions.

 

There is right and there is wrong.

 

The FDCPA only makes provisions for the 30 day window.

 

If you DV within the 30 day window, collectors MUST cease collection activity until they obtain and forward validation.

 

If you DV after the 30 day window, well, there's no verbiage that says collectors must cease collection activity.

 

 

Different circuits have different caselaw regarding this. As always, some state laws will create extenuating circumstances.

Edited March 24, 2006 by captaincredit

[normal1]

There are no opinions.

 

There is right and there is wrong.

 

The FDCPA only makes provisions for the 30 day window.

 

If you DV within the 30 day window, collectors MUST cease collection activity until they obtain and forward validation.

 

If you DV after the 30 day window, well, there's no verbiage that says collectors must cease collection activity.

 

 

Different circuits have different caselaw regarding this. As always, some state laws will create extenuating circumstances.

 

This seems pretty clear. So if you DV after the 30 days you're basically at the mercy of the laziness of the CA. I guess a better way to do it would be to dispute with the CA as "not mine" and hope that the CA sends a dunning letter?

[StupidCredit]

you left out part of FDCPA:

 

( 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 any 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

 

9th circuit notwithstanding, I don't believe that they MUST provide validation...

 

however, if you DV them, and they DO verify it, they're in vioaltion of FCRA (reporting information which they know, or should know, to be inaccurate, not marking as in dispute, etc)

I didn't forget.

 

The ruling of the 9th circuit was that, since the suit was brought under 1692g(a)(4), the language clearly stated that they must provide verification. 1692g( is an extra protection.

 

The plain language of 1692g(a)(4) says the the CA WILL obtain verification. Not might or if they feel like it or not if they cease collection. That is the law in the 9th circuit.

 

Yes they must cease collection of the debt, but they must also obtain verificaton.

 

Providing verification of the debt is not a collection activity, or alternatively it would be considered activity exempt from the cease collection provision of 1692g(.

 

Now in the 7th circuit, the law is that they are allowed to cease collection completely and that is acceptable. IIRC, that was a ruling on 1692g(, and the 9th circuit distinguished their ruling from the 7th circuit since it was brought under 1692g(a)(4).

 

 

Do you mean providing verification to the consumer, or verifying with the CRAs?

To the consumer.

[captaincredit]

 

There are no opinions.

 

There is right and there is wrong.

 

The FDCPA only makes provisions for the 30 day window.

 

If you DV within the 30 day window, collectors MUST cease collection activity until they obtain and forward validation.

 

If you DV after the 30 day window, well, there's no verbiage that says collectors must cease collection activity.

 

 

Different circuits have different caselaw regarding this. As always, some state laws will create extenuating circumstances.

 

This seems pretty clear. So if you DV after the 30 days you're basically at the mercy of the laziness of the CA. I guess a better way to do it would be to dispute with the CA as "not mine" and hope that the CA sends a dunning letter?

 

You have a whole myriad of options at that point.

 

Personally, I would still go after the CA for not validating, and leave the burden of proof on them. They'd much rather stop reporting then go into a lawsuit over something they most likely cannot prove.

 

They would have to prove you received an initial communication, consumer rights notice, and validation.

[StupidCredit]

I still think someone really good at this sort of thing could argue the point that they

did not receive the initial communication via mail since they don't send cmrrr.

Or because they no longer lived at the address that it was sent to.

The rule is, the letter is presumed received if the CA can demonstrate they have reasonable procedures in place to mail letters. If their procedure is reasonable and they can prove that their letter contained the proper language and was sent, then the burden of proof shifts to you as to why it was not received.

 

Also remember that the 30 day period starts from the date it was received. If the CA cannot prove the date it was received, then you will have leeway in the date of receipt... say anywhere from 5-10 days from the time it was mailed. It's a good practice to keep the envelopes and write the date you received it on the envelope. In my DVs, I explicitly state the date that I received the letter.

 

If you no longer lived at the address, then you never received the letter, then your DV was not untimely.

 

That just seems wrong for that 30 day period to actually have that much weight

since there are so many variables to consider.

It's much better than the alternative which would be the 30 day period starts the day it was mailed. You'd have CA's backdating letters for weeks to cut down on your dispute time.

Edited March 24, 2006 by StupidCredit

[StupidCredit]

This seems pretty clear. So if you DV after the 30 days you're basically at the mercy of the laziness of the CA. I guess a better way to do it would be to dispute with the CA as "not mine" and hope that the CA sends a dunning letter?

If you DV after 30 days, you can pretty much throw 1692g out the window for potential violations. It's not like it's the end of the world or anything.

 

Many CAs are lazy about marking TLs in dispute as well as lots of other information they report to the CRAs. CRA disputes will generate FCRA and FDCPA violations.

[captaincredit]

This seems pretty clear. So if you DV after the 30 days you're basically at the mercy of the laziness of the CA. I guess a better way to do it would be to dispute with the CA as "not mine" and hope that the CA sends a dunning letter?

If you DV after 30 days, you can pretty much throw 1692g out the window for potential violations. It's not like it's the end of the world or anything.

 

Many CAs are lazy about marking TLs in dispute as well as lots of other information they report to the CRAs. CRA disputes will generate FCRA and FDCPA violations.

 

True.

 

A good number of collectors are just flat out scared of informed consumers, too.

[StupidCredit]

It still looks like fifty thousand different opinions. Is there something we can all agree on in regards to DV'ing after the 30 days. Perhaps agreeing on how a Judge may interpret(sp) the law as it pertains to the topic?

 

There are no opinions.

A lot of good caselaw starts with an opinion.

 

For instance, there is nothing in the FDCPA about overshadowing, yet someone had the opinion that confusing a consumer about his rights under 1692g was a violation of the FDCPA.

 

 

The argument is pretty well settled on this topic though IMO. DV inside of 30 days or else.

[stickyfingers]

It'd be worth looking at your state laws as well...

[Thaiphoon]

The one I'm currently fighting is that Capital Management dunned me. I sent a DV to them inside the 30 day window. They sent me a letter that they were no longer servicing the account and that Resurgent would be taking it over (I'm assuming it was sold). Never received anything from Resurgent after that.

 

Now Arrow Financial somehow has it on my credit report.

 

I sent them an "unknown CA/debt" letter and when I received my green card I fired off a dispute to the CRA's.

 

I think I already got them on 1 violation by listing it even though the previous CA never validated.

Edited March 24, 2006 by Thaiphoon

[CramItCCCAs]

Something to keep in mind as others have pointed out already but I want to make clear. You never loose your right to DV, never ever ever, what you loose is your power to compel a CA to DV after the 30 days. There are different opinions on how much leverage you have with 1692 after these 30 days but remember, the CA must have all their ducks in a row.

 

Dunning letters sent to old addresses, refusal to validate or acknowledge a validation request, not marking account in dispute all raise red flags. And as we all know not everyone here ends up in front of a judge to clean their credit. CA's do delete when they've been DV's after the 30 days, they also don't delete when they've been DV's with the 30 days.

 

I take issue when people talk in absolutes when there are none, if you are dealing with a CA for the first time, DV them as long as you understand the SOL consequences, that's my stand.

[HereKittyKitty]

For what it's worth ...

 

CAs often keep such sloppy records that it's usually pretty easy to lead them to believe you're DV'ing within the 30 day window. Start the letter with "thank you for your recent communication" or something similar.

 

Most of the CAs that used to be on my report never dunned me at all but when I wrote DVs this way, they acted as though they had and I was replying to it within the allowed timeframe. That's how I got rid of a lot of them.

 

YMMV, of course.