FYI FDCPA 807(8)

[bravesfan]

you could write to the original CA, informing them that you have reason to believe that they violated FDCPA by NOT communicating the disputed nature of the alleged debt to CA2...

 

 

something like:

 

"Dear anal warts,

 

On xx/xx/xx, you received a letter from me disputing your claims regarding an alleged debt with the account number xxxxxxxxx. I have never received a response from you, however, on xx/xx/xx I received from CA2 a letter attempting to collect this alleged debt. CA2 appears to have never been informed of my timely and lawful dispute with your company. Acording to the Fair Debt Collection Practices Act 807(8), you are REQUIRED to notify anyone to which you communication information regarding this alleged debt that it is disputed. Since it appears that you are in direct violation of FDCPA, I require one of the following actions to be taken:

 

1. Provide to me evidence that you did, in fact, notify CA2 of the disputed nature of this alleged debt. Should you provide me with this evidence, I will then use that information to file suit against CA2 for their continued collection activity in direct violation of FDCPA, and you may be called to testify in my local court.

 

2. Provide me with a letter stating that you did NOT notify CA2 of the disputed nature of this alleged debt, in which case I will file suit against you in my local court for your violation of FDCPA, unless a suitable settlement can be reached prior to my filing said suit.

 

 

I require a response from you no later than August 15, 2008. Should you choose NOT to respond in that time frame, I will have no choice but to file the above mentioned suit against your organization.

 

You have until August 15, 2008. I suggest you use this time wisely.

 

 

All my love,

 

an informed consumer"

 

Should I send a 2nd letter to NEW CA informing them that the purchased debt was previously in dispute?

 

 

did you already send a first letter to the second CA?

 

Yes.

[pryan67]

then yes...I'd send a follow up DV letter to them, informing them that not only have they failed to validate, they are also in violation since they know, or should know, that the alleged debt was in dispute when they got it

[ICANHASMUNY?]

Hi, just found this thread. so im' jumping in late, sorry.

 

I've been fighting LVNV & resurgent for the past year and this is what I've found out ;

 

Sherman Financial Group buys the defaulted debt; they sell it to LVNV funding

 

LVNV funding does not perform any collection activities, they just hold the note.

 

LVNV funding assigns all collection efforts and servicing to Resurgent Captial Services

 

Resurgent Capital services reports the debt to the CRAS, but some how, the CRA's list the furnisher of information as LVNV funding

 

( I think Resurgent is acting as a reporting agency in this regard. they can be a debt collector and a reporting agency according to the FCRA)

 

Resurgent hires another collection agency to collect on the account.

 

when that agency gets a DV request, they stop collecting and return the account to resurgent

 

resurgent then hires another collection agency to hound you...

 

they repeat this tatic over and over until you get tired and settle.

 

I was orignially contacted by CCS, and when I DV'D, resurgent answered with 'Verification', which I disputed. then WWR started calling and since they weren't lic in AZ, I CMRR letters to WWR & resurgent stating that the debt was in dispute with resurgent, and that they were both in violation for continuing collection without validating .

 

Niether of them have contacted me since, but Resurgent is still mis-reporting & I've filed a complaints with the FTC about continued collection & with the AZDFI asking them to revoke or suspend Resurgents lic.

 

this is part of what I sent resurgent;

 

I have been contacted by Weltman, Weinberg & Reis concerning a collection account from LVNV Funding, and replied to them via Certified Mail, that the debt is in dispute with your firm. Since Resurgent Capital services handles all collection activities on behalf of LVNV Funding and since I have not receive a reply from you as of this date , as required by the Fair Debt Collection Act and Arizona State laws, I am surprised that you have outsourced collection of this account to Weltman, Weinberg & Reis, because in doing so, I believe you are in violation of the FDCPA and Arizona State laws; by continuing collection activities without providing validation, investigation of dispute, responding or any legal proof that you have a right to collect on the aforementioned account.

 

this is part of what I sent wwr;

 

I have previously disputed this debt with the Debt Collector(s) who contracted your services, and assigning this account to you after I have disputed this debt with them does not releive them of their obligation to provide Debt Validation (as requested in previous letters), directly to me. Therefore, until validated by Resurgent Capital Services or LVNV Funding, you know your information concerning this debt is inaccurate. Thus, if you have already reported this debt to any credit-reporting agency (CRA) or Credit Bureau (CB) then, you must immediately inform them of my dispute with this debt, and delete any mention of your firm. Reporting information that you know to be inaccurate or failing to report information correctly violates the Fair Credit Reporting Act § 1681s-2. Should you pursue a judgment without accurate and legal validation of this debt, I will inform the judge and request the case be dismissed based on Resurgent's, LVNV Funding & your failure to comply with the FDCPA , your attempt to circumnavigate Arizona Debt Collection laws; since you are not licensed to collect debts of citizens of Arizona, and inappropriate venue; I am not a resident of Ohio.

 

 

check your state laws; does you state require a lic? does your state have any debt collecting statutes or a mini FCRA? Usually, if there are state laws, the better than the federal. and don't jsut

 

the only mistakes I've made in all of this is too strong a reply on the first go around; I should have let beleive I was stupid & had them rack up more violations.................

[jack1212]

Hi, just found this thread. so im' jumping in late, sorry.

 

I've been fighting LVNV & resurgent for the past year and this is what I've found out ;

 

Sherman Financial Group buys the defaulted debt; they sell it to LVNV funding

 

LVNV funding does not perform any collection activities, they just hold the note.

 

LVNV funding assigns all collection efforts and servicing to Resurgent Captial Services

 

Resurgent Capital services reports the debt to the CRAS, but some how, the CRA's list the furnisher of information as LVNV funding

 

( I think Resurgent is acting as a reporting agency in this regard. they can be a debt collector and a reporting agency according to the FCRA)

 

Resurgent hires another collection agency to collect on the account.

 

when that agency gets a DV request, they stop collecting and return the account to resurgent

 

resurgent then hires another collection agency to hound you...

 

they repeat this tatic over and over until you get tired and settle.

 

I was orignially contacted by CCS, and when I DV'D, resurgent answered with 'Verification', which I disputed. then WWR started calling and since they weren't lic in AZ, I CMRR letters to WWR & resurgent stating that the debt was in dispute with resurgent, and that they were both in violation for continuing collection without validating .

 

Niether of them have contacted me since, but Resurgent is still mis-reporting & I've filed a complaints with the FTC about continued collection & with the AZDFI asking them to revoke or suspend Resurgents lic.

 

this is part of what I sent resurgent;

 

I have been contacted by Weltman, Weinberg & Reis concerning a collection account from LVNV Funding, and replied to them via Certified Mail, that the debt is in dispute with your firm. Since Resurgent Capital services handles all collection activities on behalf of LVNV Funding and since I have not receive a reply from you as of this date , as required by the Fair Debt Collection Act and Arizona State laws, I am surprised that you have outsourced collection of this account to Weltman, Weinberg & Reis, because in doing so, I believe you are in violation of the FDCPA and Arizona State laws; by continuing collection activities without providing validation, investigation of dispute, responding or any legal proof that you have a right to collect on the aforementioned account.

 

this is part of what I sent wwr;

 

I have previously disputed this debt with the Debt Collector(s) who contracted your services, and assigning this account to you after I have disputed this debt with them does not releive them of their obligation to provide Debt Validation (as requested in previous letters), directly to me. Therefore, until validated by Resurgent Capital Services or LVNV Funding, you know your information concerning this debt is inaccurate. Thus, if you have already reported this debt to any credit-reporting agency (CRA) or Credit Bureau (CB) then, you must immediately inform them of my dispute with this debt, and delete any mention of your firm. Reporting information that you know to be inaccurate or failing to report information correctly violates the Fair Credit Reporting Act § 1681s-2. Should you pursue a judgment without accurate and legal validation of this debt, I will inform the judge and request the case be dismissed based on Resurgent's, LVNV Funding & your failure to comply with the FDCPA , your attempt to circumnavigate Arizona Debt Collection laws; since you are not licensed to collect debts of citizens of Arizona, and inappropriate venue; I am not a resident of Ohio.

 

 

check your state laws; does you state require a lic? does your state have any debt collecting statutes or a mini FCRA? Usually, if there are state laws, the better than the federal. and don't jsut

 

the only mistakes I've made in all of this is too strong a reply on the first go around; I should have let beleive I was stupid & had them rack up more violations.................

 

 

ICANHASMUNY?, have you read the siggy below?

 

 

 

LOVE the screenname! Get it from the lolcats??

 

 

jack1212

[kpb]

Has anybody has success (deletes, for good) using this method?

[Jen23514]

ttt

[renewalinv]

Although I haven't been in this situation and am not a lawyer, I think I would reply even stronger to the both CAs.

 

To the second CA, tell them that they are continuing collection on a disputed account and thus are in violation. You don't care if they were notified it was disputed or not. If they were not notified it was disputed, then they have a cause for action against the first CA (who they obviously have some contract with), but that is their problem, not yours. If they provide you with evidence that they were NOT notified and they will kill the account, then you can consider not pursuing legal action. Otherwise, bearing in mind the baiting the tiger issue on a big account, go for it.

 

To the first CA, tell them that you received a letter from the second CA that did not mention the dispute (or did, if it did) and that by selling the account they were continuing collection efforts (why else did they sell the account?) and are thus in violation.

 

If the second reports to a CRA, then you should be telling both the CA and the CRA to remove as reporting is a collection effort which is a another violation.

[NeverQuietHere]

bump

[TimeToShine]

Jumping in late... how about this one.

 

• INQ by CA #1

• Letter sent to CA #1 asking "why was this INQ placed" - No response from CA #1.

• 15 days after my letter arrived at CA#1, I sent another stating "since you did not respond, if the INQ is for a CA account, please validate in full. I mentioned breach of the 5 day notice they failed to send"

• 5 days after CA #1 gets my 2nd letter, a letter from CA#2 is postmarked. CA #2 is trying to collect.

• Sent CA #1 & #2 DV's, with C&D and mentioned their noncompliance.

• 40+ days, no response from either.

 

Since the trail started with my contacting them about the INQ, not their dunning letter, would this apply? I never got dunned from CA #1, but I did make initial contact. CA #2's contact was not timely per my initial letter to CA #2. CA #1 has yet to ever send me anything I requested but CA #2 was calling my phone.

[pryan67]

yes...it would apply IMO

 

are they reporting to the CRAs?

[TimeToShine]

yes...it would apply IMO

 

are they reporting to the CRAs?

 

Not reporting yet. If the do, I think it's time to make a case. I am going to send 1 more DV to each CA telling them I have not heard from them and I am assuming, if not contacted within 30 days, this debt is invalid. My worry is them squatting on this debt for a period of time in which my FDCPA rights are expired. Then the violations arent worth a dime.

[pryan67]

they can squat all they want...but if they report or start collecting, THAT'S when the SOL starts ticking on their FDCPA violations...

[OCTAINE]

which one of the sherman companies is reporting the TL and which bureau is it on?

I can tell you from my experience with LVNV reporting, and Resurgent Capital dunning, I DV resurgent and Dispute LVNV with the CRAs stating Factoring Company, and EQ & TU delete almost imediately, EX likes to take their sweet time...

 

I got lucky on my sis account;

 

OC - sears / CO @ 8500 dollars

LVNV reporting with remarks of factoring company

resurgent dunning

 

 

disputed CRAs

sent out GW variation to OC

DV'd resurgent

 

 

30 days approx later....

 

sears deletes TL from EQ , Deletes lates and status change of PAID AS AGREED/CLOSED

LVNV - DELETED

Havent heard back from resurgent ( due to fact of OC account is officialy out SOL by 1 mo, LOL )

[DragonFlyer]

Quick bump, but only to say that a well known NACA attorney said the following about this matter:

 

Putting a debt collector on notice does not impute knowledge to the creditor OR the next debt collector. Each one must be noticed. Sorry. I was all excited the first case I had with such an occurrence, but no-go.

 

I am engaging in discussion to see if there were elements to this situation that would mitigate the outcome differently.

[pryan67]

Quick bump, but only to say that a well known NACA attorney said the following about this matter:

 

Putting a debt collector on notice does not impute knowledge to the creditor OR the next debt collector. Each one must be noticed. Sorry. I was all excited the first case I had with such an occurrence, but no-go.

 

I am engaging in discussion to see if there were elements to this situation that would mitigate the outcome differently.

 

 

 

I would disagree with that attorney...

 

 

it would be reasonable for the consumer to believe that the second CA was notified, since the first CA is required by law to do so...

 

 

although, hauling them both into court would be the best bet...let them throw each other under the bus

[jack1212]

although, hauling them both into court would be the best bet...let them throw each other under the bus

 

 

My fav Pryan Quote!!

 

[DragonFlyer]

Please show me case law that says a debt collector MUST pass "do not communicate" (ie C&D) or "dispute" notices to the new debt collector.

 

It hasn't been court tested and proven to my knowledge.

 

He adds:

 

"Your reading of 807(8) will have to be court tested. Its primary target is information reported to cra's. "Credit information" has not yet be construed to mean the debt per se."

[pryan67]

it doesn't HAVE to be court tested...

 

 

FDCPA is VERY clear on the subject...

 

it says

 

"8) Communicating or threatening to communicate to any person credit information which is known or which should be known to be false, including the failure to communicate that a disputed debt is disputed."

 

 

 

it does NOT say

 

"8) Communicating or threatening to communicate to any person credit information which is known or which should be known to be false, including the failure to communicate that a disputed debt is disputed to a CRA"

 

 

 

 

That attorney's comment is on the order of him saying "Well, it doesn't specifically say that they can't report that you are owe them 59,345.34 when you really only owe 53.43...that has to be court tested to see if they REALLY mean what the plain language statue says"

 

 

 

or is he saying that information regarding the account is not "credit information"? If so, then what WOULD he consider to be "credit information" if not information regarding the credit of a consumer?

[DragonFlyer]

So you are saying this NACA attorney doesn't know what the heck he's talking about? When he's argued this already with no luck? Interesting...

 

I'd be cautious about recommending people appear in front of a judge with an argument that has yet to be proven in court. It may have had some luck in a fraction of dispute letters by quoting this interpretation of the law... but I'd almost bet the only reason it was deleted was because the creditor figured they'd let it be the next JDB's problem and washed their hands of it. They don't have time to argue with it any more than the next guy...let alone if a debtor argues this claim in court...they may be surprised it's not going to help them win if that's the foundation of their claim.

[ICANHASMUNY?]

is the CA really selling the full account to another CA or just assigning it for collection?

 

 

I would think this falls under different sections try 808, 807 and 809.

 

Section 808 prohibits a debt collector from using "unfair or unconscionable means" in his debt collection activity

 

Section 807(10) prohibits the "use of any false representation or deceptive means to collect or attempt to collect any debt or to obtain information concerning a consumer

 

Effect of including proof with first notice. A debt collector must verify a disputed debt even if he has included proof of the debt with the first communication, because the section is intended to assist the consumer when a debt collector inadvertently contacts the [53 Fed. Reg. 50109] wrong consumer at the start of his collection efforts

 

Section 809( requires that, if the consumer disputes the debt or requests identification of the original creditor in writing, the collector must cease collection efforts until he verifies the debt and mails a response.

 

Say this is a JDB , Say Resurgent captial Services;

 

they manage reporting and collection for all LVNV accounts.

 

they hire CA 1; CA 1 sends the dunning letter, you DV,

 

but resurgent answers with a Verification and a dunning letter all in one.

 

( BTW. verfication supplied with an intial dunning letter is not Verfication under the FDCPA. that's been "litigated". )

 

you dispute, and resurgent sends it off to another CA without answering your first.

 

bingo.

 

Continuous, repeated, unending harassment is the reason Congress wrote the FDCPA in the first place.

 

This amounts to a willful and intentional circumvention.

 

Continued collection activities while the debt is in dispute is a violation of the FDCPA,

 

when the CA # 1 hires CA # 2 after you have disputed the debt.

 

Now if this an OC hiring different collectors, the FDCPA is not violated.

[Guest Auntie Mame]

When the CA's are all the same company (like Resurgent, Sherman and LVNV being one and the same) then they should know that the item is in dispute. Even so, I'd love to see court proven case law that says the Sherman group/LVNV/Resurgent ever violated 807 (8) when operating under the same umbrella for not disclosing an item in dispute between their offices. Even if it did exist, it doesn't carry any weight to other CA's who are NOT related in the first place.

 

Regardless, they don't HAVE to disclose "do not communicate" notices to any other CA after it leaves their hands.

 

Anyone that can provide case law on 807 (8) showing a disputed debt must be disclosed to the new CA and after shifting from one CA to another wins the "informed consumer" award of the year.

 

It's one thing to interpret the law...and another thing to assert something as truth when it's not even proven to begin with.

[pryan67]

So you are saying this NACA attorney doesn't know what the heck he's talking about? When he's argued this already with no luck? Interesting...

Yep...just like Dan Edelman was wrong about certain aspects of a case he handled for me (and that I won a settlement on due to my knowledge)

 

 

I'd be cautious about recommending people appear in front of a judge with an argument that has yet to be proven in court. It may have had some luck in a fraction of dispute letters by quoting this interpretation of the law... but I'd almost bet the only reason it was deleted was because the creditor figured they'd let it be the next JDB's problem and washed their hands of it. They don't have time to argue with it any more than the next guy...let alone if a debtor argues this claim in court...they may be surprised it's not going to help them win if that's the foundation of their claim.

 

 

 

ask this attorney how he'd define "credit information" and "third party"

[pryan67]

When the CA's are all the same company (like Resurgent, Sherman and LVNV being one and the same) then they should know that the item is in dispute. Even so, I'd love to see court proven case law that says the Sherman group/LVNV/Resurgent ever violated 807 (8) when operating under the same umbrella for not disclosing an item in dispute between their offices. Even if it did exist, it doesn't carry any weight to other CA's who are NOT related in the first place.

 

Regardless, they don't HAVE to disclose "do not communicate" notices to any other CA after it leaves their hands.

but they DO have to notify the other CA that the alleged debt is in dispute...and that CA is prohibited from attempting to collect until the alleged debt is validated properly

 

in addition, the second CA knows, or SHOULD KNOW that phone calls are inconvenient if the first CA was notified...since it would be a reasonable procedure for CA 1 to send all information on the alleged consumer to CA 2

 

 

Anyone that can provide case law on 807 (8) showing a disputed debt must be disclosed to the new CA and after shifting from one CA to another wins the "informed consumer" award of the year.

 

It's one thing to interpret the law...and another thing to assert something as truth when it's not even proven to begin with.

 

 

 

can you prove with case law that a CA can't threaten to kill your pet hamster if you don't pay?

 

 

 

does that mean that it doesn't have any standing?

 

 

remember, FDCPA is a "plain language" statute....and if someone thinks that "third party" means ONLY the CRAs...then I'd suggest a remedial English class

[yada yada]

When the CA's are all the same company (like Resurgent, Sherman and LVNV being one and the same) then they should know that the item is in dispute. Even so, I'd love to see court proven case law that says the Sherman group/LVNV/Resurgent ever violated 807 (8) when operating under the same umbrella for not disclosing an item in dispute between their offices. Even if it did exist, it doesn't carry any weight to other CA's who are NOT related in the first place.

 

Regardless, they don't HAVE to disclose "do not communicate" notices to any other CA after it leaves their hands.

 

Anyone that can provide case law on 807 (8) showing a disputed debt must be disclosed to the new CA and after shifting from one CA to another wins the "informed consumer" award of the year.

 

It's one thing to interpret the law...and another thing to assert something as truth when it's not even proven to begin with.

 

 

Magrin v Unifund CCR Partners, Inc.

 

In Magrin, the consumer had sued both the selling collector and the purchasing collector. The consumer’s FDCPA claim against the selling collector was based on its failure to mark the debt as disputed. The trial court dismissed the consumer’s claim against the selling collector on the basis that the act did not provide a cause of action for a misrepresentation made by one collector to another. The Magrin court reversed, holding:

 

Under 15 U.S.C. § 1692e, a debt collector violates the Act if it uses “any false, deceptive, or misleading representation or means in connection with the collection of any debt.†This prohibition includes false representations as to “the character, amount, or legal status of any debt.†15 U.S.C. § 1692e(1)(A). Thus, a consumer states a valid claim for relief under the Act when he alleges that a debt collector has made false representations as to the legal status of a debt in connection with the sale, transfer or assignment of a debt to another debt collector, with the knowledge that the purchaser, transferee or assignee intends to initiate or continue attempts to collect the debt. 52 Fed Appx 938 (CA 9, 2002)

 

 

 

 

Loislaw Federal District Court Opinions

KINEL v. SHERMAN ACQUISITION II, LP (S.D.N.Y. 7-13-2007)

05 Civ. 3456 (KMW).July 13, 2007

 

Plaintiff Norman N. Kinel brought this action claiming that Defendants had engaged in abusive debt collection practices following his alleged purchase of a chair and matching ottoman. Defendant Wolpoff & Abramson, L.L.P. ("W & A") moved to dismiss Count Nine of the Amended Complaint (the sole count in which it is named), which claims that W & A failed to communicate the disputed status of Kinel's alleged debt, in violation of 15 U.S.C. § 1692e. By amended report and recommendation dated February 28, 2006 (the "Report"), Magistrate Judge Theodore H. Katz recommended that W & A's motion be denied. W & A objected to this recommendation. Because the Court agrees with the Report, the motion is denied.

 

 

Burdick v Palisades Collection LLC

 

The debt collector, LVNV, received notice of the consumer’s dispute and then sold the account to another collector without disclosing the disputed nature of the account. The court denied LVNV’s motion to dismiss the FDCPA claim, holding that the consumer stated a claim against LVNV because the debt collector “failed to disclose that the debt was disputed when it assigned the account to other debt collectors and sold the debt.†2008 WL 80943 (CD Cal, 2008)

[pressman0523]

When the CA's are all the same company (like Resurgent, Sherman and LVNV being one and the same) then they should know that the item is in dispute. Even so, I'd love to see court proven case law that says the Sherman group/LVNV/Resurgent ever violated 807 (8) when operating under the same umbrella for not disclosing an item in dispute between their offices. Even if it did exist, it doesn't carry any weight to other CA's who are NOT related in the first place.

 

Regardless, they don't HAVE to disclose "do not communicate" notices to any other CA after it leaves their hands.

 

Anyone that can provide case law on 807 (8) showing a disputed debt must be disclosed to the new CA and after shifting from one CA to another wins the "informed consumer" award of the year.

 

It's one thing to interpret the law...and another thing to assert something as truth when it's not even proven to begin with.

 

 

Magrin v Unifund CCR Partners, Inc.

 

In Magrin, the consumer had sued both the selling collector and the purchasing collector. The consumer’s FDCPA claim against the selling collector was based on its failure to mark the debt as disputed. The trial court dismissed the consumer’s claim against the selling collector on the basis that the act did not provide a cause of action for a misrepresentation made by one collector to another. The Magrin court reversed, holding:

 

Under 15 U.S.C. § 1692e, a debt collector violates the Act if it uses “any false, deceptive, or misleading representation or means in connection with the collection of any debt.†This prohibition includes false representations as to “the character, amount, or legal status of any debt.†15 U.S.C. § 1692e(1)(A). Thus, a consumer states a valid claim for relief under the Act when he alleges that a debt collector has made false representations as to the legal status of a debt in connection with the sale, transfer or assignment of a debt to another debt collector, with the knowledge that the purchaser, transferee or assignee intends to initiate or continue attempts to collect the debt. 52 Fed Appx 938 (CA 9, 2002)

 

 

 

 

Loislaw Federal District Court Opinions

KINEL v. SHERMAN ACQUISITION II, LP (S.D.N.Y. 7-13-2007)

05 Civ. 3456 (KMW).July 13, 2007

 

Plaintiff Norman N. Kinel brought this action claiming that Defendants had engaged in abusive debt collection practices following his alleged purchase of a chair and matching ottoman. Defendant Wolpoff & Abramson, L.L.P. ("W & A") moved to dismiss Count Nine of the Amended Complaint (the sole count in which it is named), which claims that W & A failed to communicate the disputed status of Kinel's alleged debt, in violation of 15 U.S.C. § 1692e. By amended report and recommendation dated February 28, 2006 (the "Report"), Magistrate Judge Theodore H. Katz recommended that W & A's motion be denied. W & A objected to this recommendation. Because the Court agrees with the Report, the motion is denied.

 

 

Burdick v Palisades Collection LLC

 

The debt collector, LVNV, received notice of the consumer’s dispute and then sold the account to another collector without disclosing the disputed nature of the account. The court denied LVNV’s motion to dismiss the FDCPA claim, holding that the consumer stated a claim against LVNV because the debt collector “failed to disclose that the debt was disputed when it assigned the account to other debt collectors and sold the debt.†2008 WL 80943 (CD Cal, 2008)