Jump to content
Member? but forgot everything, can't log in... Frozen out??? ×

THIS IS A POLITICS-FREE ZONE.

PsychDoc's Seminar Transcript #7

breeze

By breeze
in Credit Forum

 Share

The last post in this topic was posted 6321 days ago. 

 

We strongly encourage you to start a new post instead of replying to this one.

Recommended Posts

  • Admin
breeze

breeze

Posted
  • Admin
Posted

LESSON SEVEN TRANSCRIPT

CREDIT 107: FDCPA Street Fighting, 12/1/2005

PSYCHDOC'S CREDIT REPAIR SCHOOL FOR BEGINNERS

 

PsychDoc> Hello!

 

zappagal> hi

 

mamiof3> hello

 

Frontman> hello

 

gems> hello

 

BlueGhost> Hey here's doc :P

 

waxer> hi

 

angeleyeskkhr> hey doc

 

PsychDoc> :)

 

IDare> hey doc

 

ficosucks> doc is in the house

 

accessmycredit> WAZUP! Psyc?

 

Frisbee> evening Doc

 

PsychDoc> What a nice greet, LOL!

 

PsychDoc> Looks like folks are (like me) still arriving... so we'll start in just a minute more

 

Clouds> is this session 109, I'll Show You Mine If... ?

 

StephanB> lol

 

missty1029> uh ohhh

 

drew3918> LOL

 

PsychDoc> Clouds, that's the secret session...

 

StephanB> Session 109: When Harry met Sally ... now everybody turn on your audio :good:

 

PsychDoc> You need a special invite from breeze and LKH for that one.

 

PsychDoc> Ok, I guess we'll start, hi everybody, I'm Randy Padawer (PsychDoc), and it's nice to be back for Lesson 7 in our 8 part seminar.

 

StephanB> Ah Randy! .. good to know :)

 

mamiof3> hi randy

 

PsychDoc> Tonight we'll delve into dealing with some of the nastiest people on planet earth. And I understand they're pretty nasty on that other planet too... (and perhaps there are a few nice ones...)

 

IDare> lol

 

Frontman> randy has a black belt in typing

 

PsychDoc> talking about debt collectors

 

PsychDoc> :)

 

StephanB> lol

 

accessmycredit> Yeah::wacko

 

PsychDoc> But, first... we should pay homage once again to Creditboards owners and ... especially... Forum Mods, whose group includes... cotterpin, CramItCCCAs, fla-tan, HDAlex, MarvBear, rigirl, TeeSharice, and TxQuiltGirl... and a few I've apparently left out... the perennially underappreciated pryan67, psp, CargoJon, and waalien!

 

cadicae> Yay Mods!!

 

accessmycredit> YooHoo!!

 

mamiof3> yes, thank you all

 

zappagal> hear hear

 

PsychDoc> Yes! Without them, a board of this size would devolve into a cesspool of spam.

 

StephanB> honor role! :)

 

missty1029> true mag true

 

BlueGhost> <CLAP<CLAP>

 

StephanB> hehehe

 

accessmycredit> <Applause>

 

mamiof3> yes!

 

cadicae> Yay!

 

zappagal> yes

 

Clouds> hip hip huzzah

 

PsychDoc> Once again, I'd like to review how this course will proceed. There will be 8 sessions every other Thursday evening, including tonight's. Each session will begin at 9 p.m. Eastern Time (or 8 p.m. Central, 7 p.m. Mountain, 6 p.m. Pacific) and will last about an hour. We may finish early, or we may finish late. Some may want to stay longer even after the session's done to chat. We'll have a mix of lecture, group discussion, and Q&A. The 8 sessions are:

 

PsychDoc> CREDIT 101: The Ethics of Credit Repair, 9/8/2005

 

PsychDoc> CREDIT 102: A Consumer Law Overview, 9/22/2005

 

PsychDoc> CREDIT 103: Credit Reports & Credit Scores, 10/6/2005

 

PsychDoc> CREDIT 104: Triaging Your Reports, 10/20, 2005

 

PsychDoc> CREDIT 105: FCRA Street Fighting, 11/3/2005

 

PsychDoc> CREDIT 106: FCBA Street Fighting, 11/17/2005 ... which I probably should have called "CREDITOR Street Fighting"... because a variety of interventions were described

 

PsychDoc> CREDIT 107: FDCPA Street Fighting, 12/1/2005 (tonight)

 

PsychDoc> CREDIT 108: Small Claims Lawsuits, 12/15/2005

 

PsychDoc> Those 8 lessons are divided into two sections...

 

PsychDoc> the first three lessons (where credit repair is framed as an ETHICAL enterprise in opposition to the many UNETHICAL business practices which comprise the consumer credit industry)...

 

PsychDoc> and the last five sessions (where we discuss the nitty-gritty of credit repair -- interventions which leverage your RIGHTS as a citizen). Tonight's session is the third of the second group.

 

PsychDoc> Tonight's syllabus...

 

PsychDoc> -1-- Course overview and format (which we've already done)

 

BlueGhost> Credit 108 has done well for me so far LOL

 

PsychDoc> -2-- Brief review of the previous sessions

 

PsychDoc> (BlueGhost... interesting... I hope you plan to be here in two weeks to share your experience)

 

PsychDoc> -3-- FDCPA brief

 

PsychDoc> -4-- What is validation?

 

PsychDoc> -5-- The sequence

 

PsychDoc> -6-- Controversy abounds

 

PsychDoc> Any questions about the course format or the syllabus before we continue?

 

mamiof3> nope

 

accessmycredit> Nope

 

Clouds> lol, I'm looking forward to #6

 

madmaxxxx> nadda for me

 

PsychDoc> Here's a brief review of the previous sessions in just a couple of sentences each...

 

StephanB> Mm.. can I TiVO/DVR this session and pause it? :)

 

PsychDoc> Session One... Credit repair involves INTERVENTIONS which invoke one of three TRUTHFUL communication tactics: a) polite requests, B) requests for information, and c) legal demands.

 

PsychDoc> Session Two... The federal laws we leverage most often are: a) the Fair Credit Reporting Act (FCRA), which regulates the credit bureaus, B) the Fair Credit Billing Act (FCBA), which regulates original creditors, c) the Fair Debt Collection Practices Act (FDCPA), which regulates third-party debt collectors, and sometimes d) the Health Insurance Portability and Accountability Act (HIPAA), which regulates health professionals.

 

PsychDoc> Session Three... There are no "official" credit bureaus: Our federal laws serve only to LIMIT how the bureaus behave, but no law mandates that creditors must report anything to any bureau ever. Your patterns of debt borrowing and repayment can vastly impact your credit scores.

 

PsychDoc> Session Four... "How do I get started?" is a vexing question for most newcomers but needn't be. Simply "triage" your reports, marking each item with qualifying interventions. Then just dive in!

 

PsychDoc> Session Five... There are many different ways to get the bureaus to do what they're supposed to do WITHOUT lying. Sure, people can get results claiming that an account wasn't theirs even when it was, or that an account was never late even if it was, but the new FACT Act imposes serious legal consequences for misrepresentations, so a more serious and ethical engagement with the bureaus is described.

 

PsychDoc> Session Six... When a creditor sets a negative tradeline to positive, it's a "three-fer" -- they'll send their correction to all three bureaus at once. Contrast that with the relatively slower method of dealing with each of bureaus for each line item. That's why it's important not to overlook creditor-directed interventions when embarking upon a course of credit report repair.

 

PsychDoc> The first six transcripts appear in the Creditboards Credit Forum area. Tonight's will be prepared and forwarded to breeze within a day. I sure hope the transcripts have helped somebody, LOL, because I've become an expert with BBEdit (a specialized text handling program that I despise but that works so well)...

 

Clouds> I've been touting your transcripts over in the Mortgage Forum, doc

 

StephanB> So here's a question: Would you then advise people to work on late payment notations throught he OC first, before going the CRA route?

 

missty1029> ive been touting them in my bag

 

mamiof3> i carry them with me to read instead of a book

 

Island_Girl> me too

 

Clouds> they're stacked on the toilet tan-- never mind, TMI

 

PsychDoc> that's great to hear!

 

PsychDoc> AND A ROUSING ROUND OF APPLAUSE FOR LKH NOW :)

 

IDare> :)

 

LKH> yea

 

accessmycredit> Heloooo

 

cadicae> Yay!

 

PsychDoc> excellent

 

PsychDoc> :)

 

zappagal> ::rose ::beer

 

PsychDoc> I know how to kiss up.

 

LKH> lol

 

BlueGhost> ::beer

 

PsychDoc> Well... as I hope everyone knows... collection agencies and their employees are regulated by a federal statute -- The Fair Debt Collection Practices Act. That law was enacted in order to protect all of us. And the REASON it was enacted was because debt collectors did (and still do, unfortunately) demonstrate questionable business practices.

 

PsychDoc> Until the FDCPA became law, debt collectors could call you on the telephone anytime they liked. They could threaten all kinds of legal action, some of which they weren't actually entitled to pursue. They would threaten "debtor's jail" (something that doesn't exist in the United States) (but don't travel to Uruguay!) They would telephone relatives, bosses, friends and embarrass the alleged debtor. So Congress passed the FDCPA in order to stem such practices and to give consumers some teeth.

 

accessmycredit> Oh My

 

PsychDoc> As we discussed in Lesson 2... The FDCPA in a nutshell...

 

PsychDoc> 1) Provides behavioral standards for acceptible third-party collections behavior.

 

PsychDoc> 2) Specifies that CAs must always include several legal caveats in their dealings with debtors. (Before, CAs would employ all kinds of shenanigans to mislead consumers regarding who they were.)

 

PsychDoc> 3) Allows the debtor to formally request (i.e., by letter -- hopefully certified and sent with return-receipt requested) that the CA "cease and desist" from communicating with the debtor further.

 

PsychDoc> 4) Specifically details a consumer's right to request further information regarding an alleged debt... Among other rights.

 

PsychDoc> I would specifically recommend that anyone who is being pursued by collection agencies (CAs) read the act. Has anyone actually read all or part of the FDCPA?

 

IDare> ALL of it, multiple times over

 

accessmycredit> Parts

 

madmaxxxx> yes

 

waterfield> The FCDPA is the short one!

 

BlueGhost> Read all many times and still when looking for something

 

gems> not yet

 

PsychDoc> some yes, some no... missty, you're right, it can be confusing... I hope tonight that we'll delve in and give some shape to the material so that you'll be less confused!

 

wayhigh> hi psychdoc

 

waterfield> I am just confused about the whole 30 day thing

 

PsychDoc> Since we're talking about actually READING the Act... LOL... I hate to give homework... but I heartily recommend it...

 

PsychDoc> (Waterfield, we'll definitely talk about that.)

 

waterfield> good deal!

 

gems> where can we get a copy

 

PsychDoc> Let me help those who've not read it at least join the group who've read parts of it...

 

PsychDoc> gems, here's a link... http://www.ftc.gov/os/statutes/fdcpa/fdcpact.htm

 

PsychDoc> Read it tonight or tomorrow, LOL. Note especially certain sections...

 

gems> will do

 

waterfield> I found this sumarry:� http://www.nocca.us/debtcollectionpractices.html� - easier than reading the whole FDCPA

 

PsychDoc> let me help those who haven't read it at all... annotate the Act a bit

 

PsychDoc> Collectors can't call after 9 pm or before 8 a.m.

 

PsychDoc> That's YOUR local time, by the way.

 

StephanB> which TZ?

 

StephanB> beat me to it

 

Clouds> heehee

 

PsychDoc> Look for that in this section... FDCPA � 805 (a)(1)

 

PsychDoc> Collectors can't telephone you at work if you tell them not to...

 

PsychDoc> Look for that in this section... FDCPA � 805 (a)(3)

 

PsychDoc> Collectors should NOT give information about you to third-parties (friends, family, coworkers, etc.), and that's here: FDCPA � 805 (B)

 

PsychDoc> Also, there are some FTC Opinion Letters which underscore that... These do not carry the force of law, but they have proven to be quite influential with most judges in courtrooms as evidence...

 

PsychDoc> LaScuola, Halverson, Jones, Borowski, Zbrzeznj, Fisher, Atteberry, Kwait. (Those are the names of the FTC Opinion Letters.)

 

PsychDoc> By the way, has anyone ever come across or referenced FTC Opinion Letters?

 

Clouds> seen em

 

PsychDoc> (They're found at the FTC site.)

 

IDare> yes

 

PsychDoc> Very good, Clouds.

 

gems> never heard of them

 

PsychDoc> Great, a few people.

 

LKH> many times

 

PsychDoc> Some not...

 

Clouds> haven't had an opportunity to use 'em yet tho

 

cadicae> I've seen them a lot

 

PsychDoc> Ok... I'll cite a few more for the transcript.

 

PsychDoc> Here's a good FDCPA citation... If you inform a CA that you no longer want them to contact you, they cannot. But note the following CAVEAT>>>

 

mamiof3> yea but they do ::ohmy

 

Clouds> SOL warning ahead

 

PsychDoc> Most informed folks will serve up the excellent recommendation that you only inform them not to telephone you.

 

StephanB> they will have no other way then to sue you

 

Clouds> limited C&D vs. full C&D

 

StephanB> yup

 

PsychDoc> Right, Clouds and StephanB... so that's why many of us don't recommend telling them not to WRITE you.

 

mamiof3> yep

 

PsychDoc> The FDCPA citation for that consumer right is HERE >>> FDCPA � 805 © ... You'll find an excellent Cease & Desist example on Creditboards in the letter archive. By the way, there's so much material that I hate to gloss over (but this is a beginner's course)... but let me reiterate something anyway... CEASE & DESIST can be very powerful. Many CAs will oblige. And the ones who don't... can be sued... with a $1000 statutory award for every infraction.

 

waterfield> Doc, how can we apply these opinion letters?

 

missty1029> thats when you want them to call

 

PsychDoc> There are 46 folks in the room, and we won't cover small claims this time... but... has anybody here ever successfully sued a CA?

 

LKH> yes

 

PsychDoc> (waterfield... you can cite them in letters to the CA... you can use them in court)

 

Frisbee> yes

 

cadicae> Nope

 

accessmycredit> Not yet

 

mamiof3> I wish

 

PsychDoc> Some yes, some no, some not yet.

 

Clouds> in my dreams, at least 3 nights a week :-)

 

PsychDoc> LOL.

 

StephanB> poor guy :)

 

Clouds> Midland... GUILTY!

 

cadicae> Me, too, Clouds!

 

Clouds> NCO... GUILTY!

 

mamiof3> congrats

 

cadicae> CAPITAL ONE - GUILTY!

 

missty1029> thats his dreams

 

PsychDoc> Citation... FDCPA � 806 and FDCPA � 807 give you specific rights against other abuses. Threats, etc.

 

StephanB> punitive damages in the amount of $3,000,000??

 

Clouds> her

 

StephanB> :D

 

missty1029> sawy

 

StephanB> mental distress

 

PsychDoc> Ok, moving along in the syllabus...

 

Clouds> street fight coming up

 

PsychDoc> We've reviewed the major sections of the FDCPA and provided specific citations for you to review. Next... "What is validation?"

 

missty1029> yes!

 

PsychDoc> Let me start by describing a scenario. I knock on your door. At your house.

 

StephanB> I shoot you

 

StephanB> :P

 

Clouds> stephan, you turned into an american pretty quickly there, pal

 

PsychDoc> "Hi, I'm Randy Padawer with the Randy Padawer Collection Agency."

 

PsychDoc> "And you owe me $500."

 

Clouds> <SLAM>

 

StephanB> SLAM indeed ;)

 

PsychDoc> "And if you don't pay, I'm going to ruin your credit."

 

mamiof3> you already did!

 

missty1029> unacceptable who are you??

 

PsychDoc> The door slam is one thing. But... RIGHT, missty... You want to know who I am. You want to know that I actually own the debt I claim I do. You want to know that you actually incurred the debt once upon a time.

 

Frisbee> prove your claim

 

Clouds> you owe ME $750

 

StephanB> mamiof3: at that point (when the CA first contacts you) there might not be an entry on your credit report yet

 

Clouds> plus damages (you have tough shoes)

 

StephanB> and AFTER all that I can shoot you?

 

StephanB> come on! ;)

 

PsychDoc> You want to know what that $500 is about... because the only Sears debt you ever owed was for a third of that. So the FDCPA accords you the right to information.

 

missty1029> they inflate debts

 

PsychDoc> Now, let me clarify a few things. Some people say flatly... "You can only request that information within 30 days."

 

Clouds> not

 

accessmycredit> Is that true?

 

missty1029> no

 

PsychDoc> Before I go into this, I want you to jot this down... 1691g© from the FDCPA:

 

PsychDoc> "The failure of a consumer to dispute the validity of a debt under this section may not be construed by any court as an admission of liability by the consumer."

 

Clouds> Ohhh sweet words

 

StephanB> nice indeed

 

PsychDoc> In other words, just because you FAIL to dispute the debt within the 30 days doesn't mean you have resigned yourself to whatever they say.

 

accessmycredit> ahhhh

 

PsychDoc> We don't quote that enough. We roll over.

 

Clouds> you may have had other stuff to do in your life

 

PsychDoc> And sometimes our experts roll over with 'em. Now, having said that, let me backtrack a bit. 1692g(B) of the FDCPA says...

 

PsychDoc> "If the consumer notifies the debt collector in writing within the thirty-day period described in subsection (a) of this section 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 a 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."

 

waterfield> but you can "validate" any time?

 

PsychDoc> That's where the 30-day clock reference originates within the act. Note that it doesn't say anything about validation. In fact, the word "validation" only appears TWICE in the Act... in the table of contents... and as a section header.

 

PsychDoc> You can request validation at any time. That's your consumer right. Now... Will a judge stand behind you? Sometimes yes, and sometimes no.

 

Clouds> opinion letters help here, yes?

 

PsychDoc> Some judges will cite the 30-day thing (in error, I think) and some won't. Some judges despise debt collectors. But no law limits your ability to request information.

 

Frisbee> some hate debtors

 

PsychDoc> AGAIN... YOU MAY NOT PREVAIL IN COURT. BUT YOU MAY. In any case, a request for validation sometimes results in a consumer-friendly response no matter when it was sent.

 

PsychDoc> Question... Has anyone here ever had a tradeline wiped off a credit report, or an alleged debt removed, in response to a request for validation (irrespective of when the letter was sent)?

 

IDare> yep!

 

gems> yes

 

StephanB> probably tons of people

 

BlueGhost> yeppers

 

Frisbee> sure

 

tomsrepair> yes

 

cadicae> Not yet

 

lorcan> Yes!!!

 

PsychDoc> I want those who read this transcript in the future to be encouraged.

 

Clouds> I have an originalcreditor chargeoff-->CA double listing that I'm hoping to tackle this way

 

wayhigh> psychdoc: yes.. and a letter of apology.. and recommendations of how to get others to do the same.. from a CA

 

Clouds> woo, way

 

PsychDoc> Like every credit repair intervention cited so far, sometimes it works, and sometimes it doesn't. But let me say this... If you are outside the 30-day initial collection period, don't let that dissuade you from pursuing the other side vigorously if that's what you need to do.

 

Clouds> was reading one recently, tho, where someone "DV"ed Providian and they sent her a big fat envelope with every bill and check back to day one... YIKES

 

wayhigh> Clouds: I just found out last week I can sue the OC for not giving me notice they were turning it over to a CA (it's a spa in cali)

 

BlueGhost> Paint the ole paper trail as the saying goes

 

PsychDoc> Because, as we've seen in this transcript tonight, sometimes it works and sometimes it doesn't... and that's irrespective of that 30-day period. Results matter. Now... if you're looking for slam-dunk court case, then, yes, if you've pursued it within the 30 days, you're in a MUCH more powerful position.

 

StephanB> shoot them! ;)

 

missty1029> im looking for a clean report

 

iH8cra> stephan that .22 is just going to make the creditors mad

 

BlueGhost> ahem..I'm never coming over for a beer stephen

 

Clouds> stephan: /nick Triggerhappy

 

PsychDoc> Regardless, if you're like missty... and looking for a clean report... you should be encouraged. It can work.

 

StephanB> iH8cra: I know ;)

 

IDare> right - i had TWO delete after DV... about 2 years past the 30 initial 30 day period

 

StephanB> lol@Clouds

 

PsychDoc> The operant word there is "can." Very good, IDare. Now... let me move onto another point of interest.

 

accessmycredit> I believe...I can do it, and they are all past 30 days

 

StephanB> I have no CR problems, but somehow my involvement with CB and my newly gained knowledge of how everything works has gotten me a volunteer job with 3 peope's CR already ..

 

StephanB> maybe I should charge $$$ and become a dept counselor service ;)

 

StephanB> and then inevitably srew up

 

missty1029> yes access you can!

 

accessmycredit> ::biggrin

 

PsychDoc> Here's another one for Gryf's notes, LOL... A validation letter is not a dispute. It is a request for information.

 

PsychDoc> You don't know whether or not you are going to dispute the debt because you don't know if you owe it yet.

 

StephanB> good point

 

PsychDoc> You're saying, simply, "excuse me, I've never had an account with ABC Collections... I don't know you... Please identify yourself better and tell me about this alleged debt. Otherwise lose it and remove it. Thank you." That is not a dispute.

 

StephanB> so generally one should not expect adverse action in the form of a suit from a CA that you ask validation from right?

 

PsychDoc> The dispute comes AFTER.

 

iH8cra> Asset updated my tradelines with the CRAS to "disputed by consumer' when I DVd them

 

mamiof3> Asset did that to me too

 

PsychDoc> iH8cra... a very interesting point

 

Clouds> yeah, and what about that "date of status" thing they do?

 

PsychDoc> I wonder if we can't develop a new credit repair intervention as a response to such nonsense

 

missty1029> me too

 

PsychDoc> Just because you have requested validation doesn't mean you have disputed anything. Yet.

 

PsychDoc> On a related note, tonight I'd like to do something exciting, LOL... I *NEVER* have said anything like that in the first six lessons... I hate hype. But this is exciting.

 

Clouds> except by mistake

 

Clouds> <all ears>

 

missty1029> so glad I made this one

 

PsychDoc> The exciting thing is this... a new court case... October 17, 2005... Southern District of Indiana

 

BlueGhost> I live here :P

 

PsychDoc> Recker v Central Collection Bureau, Inc. Here's the gist... A debt collector who simultaneously verifies and resumes collection activity violates FDCPA. Timing becomes central.

 

BlueGhost> Hmm will have to fire up pacer to look :P

 

IDare> hmmm... i like it, Doc

 

PsychDoc> In other words, a court has affirmed that validation is a separate event from the debt collection period. This is too new for me to elaborate HOW we will benefit, but we WILL. And, IDare, LOL, I hope you'll find it and read it. And post it to Creditboards.

 

BlueGhost> I'll do it Doc

 

PsychDoc> Some attorneys I work with are very happy about this.

 

IDare> :)

 

missty1029> they cant collect if they have to validate?

 

iH8cra> Asset does that as a matter of course.

 

PsychDoc> That means... If the collector sends what they consider is verification (and THAT's the word used within the paragraph under the Validation heading, by the way... PLEASE never get caught up with people who want to argue those two words with you... it's a time-waster)... anyway, if the collector validates or verifies or sends adequate smokes signals, etc., and at the same time says, "NOW YOU MUST PAY" in the same letter or if they do ANYTHING during that period that smacks of collection, you have a case law citation to present in another court... or... you have a nifty citation to reference in your next letter to them

 

PsychDoc> Please consult with your attorney if needed, since I am not one, and this is not one-on-one legal advice.

 

accessmycredit> Sweeeeet

 

PsychDoc> Also, please do your due diligence regarding research... ask your friends on the board before citing any case law (or statute for that matter).

 

lorcan> A CA did that to me and when I sent another letter they deleted.

 

mamiof3> Asset sent their "validation" and in the same letter stated to please contact them to "resovle the issue"

 

PsychDoc> Excellent, lorcan. Now, let me reference TWO MORE laws that many of you know well. The first one is one we like, and the second one is one we don't, LOL. First... Spears v. Brennan 49A02-0003-CV-169

 

Clouds> chowdhury? (or however you spell that)

 

PsychDoc> Spears was a mixed case, although it was settled MOSTLY in favor of the consumer. We like it because... The signed contract is not enough. It merely shows the presence of an original agreement. It doesn't prove that the customer still owed money.

 

PsychDoc> The second citation seems to refute that, but I'd like to delve in a bit there too, and that one is indeed Chaudhry v Gallerizo.

 

Clouds> quoted out of context by CAs everywhere

 

IDare> ::dry

 

PsychDoc> Exactly, Clouds! By the way, when you search the board for Chaudhry... also search it for the misspelling Chaudry... people always leave off the second "h" but you may overlook some very good information, so search both ways.

 

lorcan> That CA also threw in Chaudrey but still, when pressed, deleted and disappeared!

 

PsychDoc> lorcan, that's super...

 

Clouds> superior BS wins! lol

 

PsychDoc> As you see, they LOVE to cite Chaudhry because they CLAIM that this case TRUMPS federal law. In other words, they say that since a section of Chaudhry says that a simple note that the consumer owes "this much" is enough information in response to a validation request... that must mean that the FDCPA (a FEDERAL statutes) has been overturned. Now isn't that crap? LOL. Plus...

 

IDare> pffft

 

Clouds> tip to toe

 

lorcan> I think they use it just to scare you away. I'm sure it works for them with the uninformed.

 

wayhigh> psychdoc: I love the chaudhry letters from CAs because it truly shows their attorneys are grasping for straws

 

missty1029> it's legal mind tricks

 

PsychDoc> By the way, that's Chaudhry v. Gallerizzo, 174 F.3d 394 (4th Cir. 1999). Anyway... Plus, when you read Chaudhry, you'll see that the CA had already sent some information. They actually sent what some of you hope you never see.... which is... a lot of substantiation. The consumer pressed it.

 

PsychDoc> And the CA responded with just a note the next time. And the consumer pressed it again, took 'em to court and lost. The citation about the single line being enough is... TAKEN OUT OF CONTEXT.

 

Clouds> whychat (I think) did a great analysis on why chaudhry is actually good for us

 

PsychDoc> (Ditto re: WhyChat's analysis.) So YOU have the right to snap right back at 'em with that. Plus...

 

missty1029> in that case but case just sets precident for future cases it doesnt change the law

 

PsychDoc> Well, missty... let me be clear... The CA in that case provided a bunch of validating information. It was the SECOND PASS where they provided a "look, we're fed up and want our money" note.

 

BlueGhost> Doc got a case number for Recker v Central Collection Bureau, Inc?

 

PsychDoc> BlueGhost, sorry I don't, not yet.

 

BlueGhost> I queryed recker on pacer and got a attorney with a LOT of cases..but didnt see that one

 

PsychDoc> I'll get it this week and append it to the transcript. It's very new and not well indexed.

 

wayhigh> psychdoc: don't forget to mention that he lost because the case wasn't really about the verification.. but rather he was trying to get verification on attorney fees and they're attorney-client privileged.. at least that's what I read and understand. I'm in the 4th district so it's important to know here..

 

PsychDoc> Back to Chaudhry... Wayhigh, that's right. The case itself was about something specific.... plus, as you just mentioned...

 

BlueGhost> Found it: 1:04-cv-02037-WTL-DFH -- RECKER, II v. CENTRAL COLLECTION BUREAU, INC. -- filed 12/15/04 -- closed 11/02/05.

 

Clouds> don't try citing 4th district cases to no TEXAS judge lol

 

PsychDoc> Excellent, BlueGhost. Right, Clouds, if you don't happen to live in the 4th District, it's not the law of the land EVEN IF your situation was EXACTLY as Mr. Chaudhry's. So don't let them cow you with Chaudhry.

 

Clouds> go blue!

 

BlueGhost> Disposition: Dismissed - Settled... they settled?

 

PsychDoc> So don't let the validation-debaters cow you with the 30-day warning. You just go, go, go. You do not give up any right when you request information. Again, you may not win in court. But, then again, most of you won't go to court. Most are interested in clean credit reports. And of those who do go to court, you MAY win!

 

accessmycredit> True

 

PsychDoc> Ok... Moving on... I want to list some FTC Opinion Letter names for your reference that discuss CAs who refuse to validate... Mezines, Cass, Berger, Bergstrom, Castle, Miller, Wollman, Krisor... You've got some homework now, LOL! There's obviously not time to discuss every one... :) And...

 

BlueGhost> (Saving those recker document. Doc you want a link when I am done to review them? Will be in PDF form.)

 

PsychDoc> Great. :)

 

PsychDoc> Now... About collectors who threaten to sue you outside of where you now live or where you lived when you incurred the ORIGINAL debt (which is a no-no, by the way): Reference FDCPA � 811 (a) (2). Also reference this excellent case citation... Yu v. Signet Bank, California Court of Appeal, First Appellate District, Division Four, 69 Cal. App. 4th 1377, decided 02-16-1999

 

iH8cra> doc you mean as in a new state?

 

PsychDoc> iH8cra, yes

 

PsychDoc> And this FTC Opinion Letter... Krisor. In other words, if you incurred the debt when you lived in Kentucky... and now you live in Minnesota... and the CA is in Kansas... that CA better not try to sue you in Kansas. They'll need to file in either Kentucky or Minnesota. Otherwise they are SCREWING with your civil rights. :)

 

PsychDoc> I hope this is helpful so far...

 

missty1029> yes

 

mamiof3> yes

 

JOLLYPOO> very!!

 

Cleanerup> very, thanks doc

 

Clouds> have an OC/CA question, doc, when you're ready to take Qs

 

BlueGhost> OK I got the opinion for free..it is nine pages long

 

BusTex> great

 

PsychDoc> Great... Ok...

 

Clouds> I have on all three reports, a chargeoff from the OC (credit card), plus a collection from the CA they sent it to. (settled with the CA a year ago, pre-CB of course) How to tackle? Who first? I'd rather get the CO gone than the CA, but both would be nice :-)

 

Clouds> "dv" the OC? or try the CA first?

 

Clouds> yes yes, pls, blue

 

PsychDoc> Ok... So...

 

IDare> want the link to the FTC's FDCPA Staff Opinion Letters posted for the transcript?

 

PsychDoc> During tonight's seminar, you've been provided serious annotations from the FDCPA... Also references to some very relevant FTC Opinion Letters... Also, some good cases (and of course there are lots lots lots more for those who want to delve in) to cite... Also, some encouragement regarding pursuing CAs... irrespective of the calendar. Also, some testimonials within this transcript from those who confirm that opinion vis-a-vis credit report results. And finally, you've been reminded that a request for validation is not the same as a debt dispute. So...

 

BlueGhost> http://www.blueghost.ws/credit/RECKEROPINION.pdf ... It's up and available

 

PsychDoc> BlueGhost, you are super... Thank you!

 

PsychDoc> Now I'd like to turn to the SEQUENCE, which is the next item on our syllabus...

 

accessmycredit> Timing is everything ::smile

 

PsychDoc> Basically, beginners will hear a bunch of stuff... terms... like... validation, verification (and people killing each other over those words, lol)... estoppel, etc. Let me just provide an oversimplified sequence for newcomers...

 

PsychDoc> 1) You request validation of a debt.

 

PsychDoc> 2) They either send you something or not.

 

Clouds> from..?

 

missty1029> CA

 

PsychDoc> from a debt collector

 

Clouds> k

 

PsychDoc> Courts have not yet defined exactly what constitutes good validation. This works in your favor. You are not obligated to be satisfied with what they send, LOL. Of course, you can be satisfied if you want to be! Basically, you want a lot of information.

 

Clouds> I can't get no...

 

gems> does that include the OC

 

gems> or just the CA

 

PsychDoc> Now... sometimes you have to be realistic about how far you want to pursue this... whether you will go to court or not... when to hold 'em... when to fold 'em (anybody care to sing?)

 

wayhigh> psych: if they send you validation and you say it's not really validation.. can they still continue their collection activities?

 

PsychDoc> Well, good question, wayhigh... If you contend that they haven't provided proof of the debt... you can contend that they have violated the law by continuing to collect... If the debt is small, most CAs would rather just move along to the next person who will wither and cry on the phone rather than deal with a troublemaking citizen who knows their rights.

 

Clouds> ouch

 

PsychDoc> Now, if it's a $32,000 alleged debt to Citibank, you can bet that they're going to pursue you if you owe the debt! We've known one or two charlatans in our community who've made a job out of cheating creditors, suing them, sometimes winning, and bragging about it. Let's not name names. Please. But... That is certainly not the way I would recommend you live your life. I guess that's enough to say about that.

 

Clouds> bad apples

 

sgtalaska> what about a debt that is SOL, just a C&D?

 

wayhigh> sgt: NO

 

PsychDoc> sgtalaska brought up an excellent question... Each state establishes their own guidelines with respect to when a debt is no longer collectable (i.e., the statute of limitations).

 

wayhigh> simple C&D allows them to sewer serve you.. just because it's time-barred doesn't mean they wont attempt to get a default judgement.

 

Clouds> I'd say limited C&D, plus DV

 

Clouds> "sewer serve"??

 

PsychDoc> A SOL doesn't prevent someone from attempting to collect. The SOL simply provides you with what's called an "AFFIRMATIVE DEFENSE". That means...

 

Clouds> just means that you have a perfect defense

 

wayhigh> clouds: serve you at an address that doesn't exist, that you lived at 7 years ago, etc.

 

Clouds> o I see

 

PsychDoc> They can continue to collect. You go to court. They say, "Judge, he or she owes me this money."

 

iH8cra> Whychat has stated that collection post SOL is a violation, if i understood the post correctly.

 

missty1029> you say the time to collect that debt has expired

 

PsychDoc> And you say, "Judge, before this matter proceeds further, please know that I have an affirmative defense regarding the statute of limitations of this debt, in accordance with the law of this state." That is an affirmative defense. They can collect. They can sue.

 

Clouds> you say, Judge the SOL in TX is 4 years and this ALLEGED debt is six years old

 

PsychDoc> And if YOU don't assert your affirmative defense... the judge may not do it for you (he may, or may not)... ALLEGED is right, Clouds.

 

wayhigh> if you tell them about the SOL before they sue.. in many states the suit is then frivolous and the attorneys would be subject to sanctions from what I understand..

 

BlueGhost> WHOA! :P Does attaching verification to a small claims notice constitute a sufficient method of providing verification under the FDCPA?

 

PsychDoc> BlueGhost... that's where the new case Recker may assist.

 

BlueGhost> The statute requires that: "the debt collector shall cease collection of the debt . . . until the debt collector obtains verification . . . [and the verification] is mailed to the consumer . . . ." � 1692g(B) (emphasis added). The word until signifies that sending verification is a prerequisite to resuming collection activities.

 

Clouds> <sqinting into left field> whaa...?

 

PsychDoc> The validation process is separate from their collection activity.

 

sgtalaska> i just have a CA bugging me about an almost 8 yo debt. already off reports. hes just shooting int he dark i am guessing

 

BlueGhost> Furthermore, the statute requires that the verification be mailed to the consumer; the statute does not allow the verification to instead be attached to a lawsuit.

 

PsychDoc> Much more for everyone to discuss on the board. Ok... back to sequence...

 

PsychDoc> 1) You request validation... 2) They respond... 3) You send an "estoppel" letter... 4) They respond... 5) You send an "intent to sue" letter.

 

Clouds> Is estoppel the same as ITS?

 

PsychDoc> No, Clouds, estoppel is not the same as ITS.

 

Clouds> k

 

wayhigh> sgt: they try to get you to affirm the debt.. if you say that you know about the debt and it's yours.. that's affirming it and in a lot of states it starts the SOL over

 

PsychDoc> Now, keep in mind, this sequence isn't the "only way" or the "right way"... It's just a way that has benefitted many I know... but...

 

Clouds> all together now, YMMV!

 

tomsrepair> ymmv??

 

missty1029> your mileage may vary

 

PsychDoc> RIGHT, y.m.m.v. You may see other sequences that may be better for certain (or many) situations. Now, on to the difference between estoppel and intent-to-sue... Estoppel references an old English common law practice. The word is actually used in several contexts, I understand... (and again, let me reiterate my non-lawyer status)... but in our context we talk about "estoppel by silence"... In other words, the CA failed to provide validation, which is "silence" even if it was a frivolous response.

 

Clouds> silence implies consent, the laywers say

 

PsychDoc> By their "silence," they are essentially admitting an inability to fulfill the lawful request. So, you're saying, "Hey, I asked for proof of this debt. I'm willing to pay any debt I owe, but you haven't shown that I owe this... and we know how debt collectors are... which is why consumers are protected... So... you must stop." That's estoppel in a nutshell. It's just the next letter in a sequence that can be effective with a CA who is sick of fooling with you.

 

tmimages> Silence as in absence of information, I assume

 

TxQuiltGirl> doc, what about those CA's/JDB's who respond with an Affidavit of Indebtedness?

 

Clouds> now doc, aren't you mainly talking about getting CAs to quit harassing, as opposed to getting them off your reports, tho?

 

PsychDoc> (And who may worry that you are a litigious crazyperson who'll drag 'em into court, which they may not want to do even if they think they'd win.)

 

PsychDoc> Clouds, I'm talking about the reports.

 

PsychDoc> First, validation, then estoppel, then the intent-to-sue letter. You can find all of these letters I believe on Creditboards -- and certainly lots of references to them.

 

Clouds> "so you must stop" <-- looked like "stop calling etc"

 

iH8cra> Do you have to actually sue if they fail to respond to the ITS letter?

 

PsychDoc> You never "have to sue" anybody. :)

 

missty1029> its the process of the attempting to collect on a debt?

 

JOLLYPOO> Is 15 days a pretty standard time allowence for estoppel, Doc?

 

Clouds> but if you don't, they'll be bolder ignoring the next ITS letter...

 

PsychDoc> Keep in mind that they don't mind being a nuisance. You don't have to be more polite than them. You be a nuisance too.

 

wayhigh> psych: I've actually got one marking things as 'in dispute' now because of the nutcase.. couldn't believe my eyes..

 

PsychDoc> Jollypoo, there is no set time for that. These are credit repair tactics. Ok...

 

lorcan> Is the estoppel the same as the DV #2

 

PsychDoc> lorcan, some call it that, yes.

 

PsychDoc> Now to the last topic on our syllabus... -6-- Controversy abounds

 

PsychDoc> Probably NOTHING inspires more debate in our wonderful consumer advocacy community than the things I have dared to discuss tonight, LOL. People will argue, as I said, about whether CAs validate or verify, or if OCs validate or verify, etc. Some of the people arguing I respect VERY much. I just prefer not to get into that.

 

wayhigh> psych: while you're grabbing that.. in the 30 day period.. they can't update remarks from "Collections as of Feb 2005" to "Collections as of Feb 2005, Nov 2005", right?

 

wayhigh> because even that is continuing, right?

 

PsychDoc> wayhigh, I would recommend that you search the board for "reaging" and "re-aging"

 

iH8cra> If Asset owns 4 debts on me, should I send 4 seperate DV letters or just send one? Does it matter

 

PsychDoc> As we've seen, the FDCPA references "verification" within the Act. There are clear rules about it. Now, another controversy... I have seen posts on various discussion boards on the net where the person gives a play-by-play about what constitutes a validation letter... and they instruct everyone that a validation letter must include a debt dispute. ARGH. Of course, you *could* do that.

 

Clouds> wt....?

 

PsychDoc> But you're doing too things at once.

 

wayhigh> psychdoc: they aren't changing the DOLA.. only remarks.. that's still re-aging?

 

PsychDoc> You're saying, "please prove this to me" and "this is definitely not mine" at the same time! If you know for a fact that something is definitely not yours, then there's no need to ask for proof.

 

BlueGhost> Kinda contrdictory

 

iH8cra> Why does it matter?

 

PsychDoc> It matters, iH8cra, because of that 30-day reference. The FDCPA says you must "dispute" the debt within 30 days of first collection. Now, again, it gives quite a lot back when it says that if a consumer doesn't do that, then they're not necessarily giving up their right to assert that the debt isn't theirs.

 

PsychDoc> So that seeming contradiction keeps the courtrooms busy... and keeps the debaters on the board debating... but... if you understand that a validation request is not a dispute, then, in the words of some lawyers I respect, you skirt the issue altogether. They come back and say, "Nah, nah, you didn't dispute this within 30 days..." and you ...

 

PsychDoc> 1) cite the FDCPA reference that says that you don't have to roll over

 

PsychDoc> and

 

PsychDoc> 2) you say, plus, I haven't disputed anything... I'm issuing a lawful request for information... proof... competent validation...

 

PsychDoc> You just keep hammering them.

 

PsychDoc> (If that's what you want to do.)

 

gems> Doc does this apply to the consumer when you are a personal guarantee on biz credit

 

PsychDoc> gems, that's one for the board...

 

PsychDoc> Ok... I am going to do something I regret... It's soooooo late.... We've gone over by almost an hour, and amazingly almost everyone has remained! So I thank you for that. I hope tonight was helpful.

 

accessmycredit> Thank You

 

crazyfor8s> immensly

 

PsychDoc> We've covered the syallbus.

 

breeze> Thanks Doc!

 

drew3918> this was a all time great

 

cadicae> Thank you

 

PsychDoc> After the 8 lessons are done... I would like to ask breeze for us to schedule a few interactive chats sometime in January and February... more casual, less formal, more silliness, LOL, more free-for-all.

 

missty1029> yes

 

cadicae> Awesome!

 

Conan> THANK YOU!!!::cool

 

iH8cra> BYOB?

 

PsychDoc> BYOB, yes

 

Island_Girl> thank you so much for your effort and time Doc

 

PsychDoc> LOL

 

missty1029> thank you so much

 

breeze> we'll set something up

 

mamiof3> thanks bunches doc!

 

tmimages> cool doc

 

gems> thank you doc

 

BlueGhost> I wll keep that recker file on my sever for others to grab with no prob

 

PsychDoc> Thank YOU, BlueGhost!!! :) Ok, so tonight, we'll end now.

 

PsychDoc> I hope we've cleared up some methods, tactics, and dispelled some myths, and MOST IMPORTANTLY I hope we've encouraged those who want to pursue the matter but who are afraid to move forward.

 

LKH> what is validation?

 

mamiof3> how to beat asset?

 

-GB-> Doc, about me and me, will we be ok?

 

PsychDoc> LKH, LOL.

 

breeze> hush GB

 

PsychDoc> :D

 

angeleyeskkhr> wow, still goin on??:)

 

missty1029> never be afraid you have rights!!

 

LKH> sorry. lol

 

PsychDoc> That is right, missty!!!

 

Clouds> get up stand up

 

Clouds> stand up for ya rights

 

PsychDoc> ok, goodnight everybody :)

 

breeze> nite Doc

 

iH8cra> Goodnight.

 

missty1029> goodnight!

 

LKH> thanks Doc

 

nutty> THANK YOU DOC.

 

nutty> U2 WAYHIGH

 

BlueGhost> OK NIght folks.. got a early day tomorrow.

 

mamiof3> night

 

wayhigh> thanks doc1

 

crazyfor8s> Thanks so much.

 

Frisbee> thanks doc

 

wayhigh> nutty: good to see ya

 

Island_Girl> night!

 

lorcan> Goodnight Doc, thanks

 

Clouds> thx 10^6 doc

 

tmimages


  • 1 month later...
  • 1 month later...
  • 2 weeks later...
bearhug

bearhug

Posted
Posted

Are the Cliff notes coming, not that I haven't read it but I don't have a computer at home and if I cut and paste that will be a lot more pages than I can handle.

  • 3 weeks later...
  • 1 month later...
credit_newb

credit_newb

Posted
Posted

Here is my version of the Cliff Notes, I hope it helps somebody...

------------------------------------------------------------------------------------------------------------------------

 

 

CREDIT 107: FDCPA STREET FIGHTING

 

 

Tonight we'll delve into dealing with some of the nastiest people on planet earth. We’re talking about debt collectors

 

Collection agencies and their employees are regulated by a federal statute -- The Fair Debt Collection Practices Act. That law was enacted in order to protect all of us. And the REASON it was enacted was because debt collectors did (and still do, unfortunately) demonstrate questionable business practices.

 

Until the FDCPA became law, debt collectors could call you on the telephone anytime they liked. They could threaten all kinds of legal action, some of which they weren't actually entitled to pursue. They would threaten "debtor's jail" (something that doesn't exist in the United States). They would telephone relatives, bosses, friends and embarrass the alleged debtor. So Congress passed the FDCPA in order to stem such practices and to give consumers some teeth.

 

The FDCPA in a nutshell...

1) Provides behavioral standards for acceptable third-party collections behavior.

2) Specifies that CAs must always include several legal caveats in their dealings with debtors. (Before, CAs would employ all kinds of shenanigans to mislead consumers regarding who they were.)

3) Allows the debtor to formally request (i.e., by letter -- hopefully certified and sent with return-receipt requested) that the
CA
"cease and desist" from communicating with the debtor further.

4) Specifically details a consumer's right to request further information regarding an alleged debt, among other rights.

I would specifically recommend that anyone who is being pursued by collection agencies (CAs) read the act -- http://www.ftc.gov/os/statutes/fdcpa/fdcpact.htm

 

Let me help those who haven't read it at all:

• Collectors can't call after 9 pm or before 8 a.m. (That's YOUR local time, by the way.) FDCPA � 805 (a)(1)

• Collectors can't telephone you at work if you tell them not to. FDCPA � 805 (a)(3)

• Collectors should NOT give information about you to third-parties (friends, family, coworkers, etc.) FDCPA � 805 (:P

 

Also, there are some FTC Opinion Letters which underscore that. These do not carry the force of law, but they have proven to be quite influential with most judges in courtrooms as evidence. The names of the FTC Opinion Letters are:

LaScuola

Halverson

Jones

Borowski

Zbrzeznj

Fisher

Atteberry

Kwait

(They're found at the FTC site.)

 

Here's a good FDCPA citation... If you inform a CA that you no longer want them to contact you, they cannot. But note the following CAVEAT.

 

Most informed folks will serve up the excellent recommendation that you only inform them not to telephone you. This is a Limited Cease & Desist (as opposed to a Full Cease & Desist). A Full C&D gives them no way to collect other than to sue you, so that's why many of us don't recommend telling them not to WRITE you.

 

The FDCPA citation for that consumer right is FDCPA � 805 © ... You'll find an excellent Cease & Desist example on Creditboards in the letter archive. By the way, there's so much material that I hate to gloss over (but this is a beginner's course)... but let me reiterate something anyway. CEASE & DESIST can be very powerful. Many CAs will oblige. And the ones who don't can be sued, with a $1000 statutory award for every infraction.

 

Next... "What is validation?"

 

Let me start by describing a scenario. I knock on your door. At your house.

 

"Hi, I'm Randy Padawer with the Randy Padawer Collection Agency, and you owe me $500. And if you don't pay, I'm going to ruin your credit."

 

You want to know who I am. You want to know that I actually own the debt I claim I do. You want to know that you actually incurred the debt once upon a time. You want to know what that $500 is about, because the only Sears debt you ever owed was for a third that much. So the FDCPA accords you the right to information.

 

Now, let me clarify a few things. Some people say flatly, "You can only request that information within 30 days." Before I go into this, I want you to jot this down 1691g© from the FDCPA:

 

"The failure of a consumer to dispute the validity of a debt under this section may not be construed by any court as an admission of liability by the consumer."

 

In other words, just because you FAIL to dispute the debt within the 30 days doesn't mean you have resigned yourself to whatever they say.

 

We don't quote that enough. We roll over. And sometimes our experts roll over with 'em. Now, having said that, let me backtrack a bit. 1692g of the FDCPA says...

 

"If the consumer notifies the debt collector in writing within the thirty-day period described in subsection (a) of this section 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 a 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."

 

That's where the 30-day clock reference originates within the act. Note that it doesn't say anything about validation. In fact, the word "validation" only appears TWICE in the Act -- in the table of contents, and as a section header.

 

You can request validation at any time. That's your consumer right. Now, will a judge stand behind you? Sometimes yes, and sometimes no. Some judges will cite the 30-day thing (in error, I think) and some won't. Some judges despise debt collectors. But no law limits your ability to request information.

 

AGAIN, YOU MAY NOT PREVAIL IN COURT. BUT YOU MAY. In any case, a request for validation sometimes results in a consumer-friendly response no matter when it was sent.

 

Many people have had a tradeline wiped off a credit report, or an alleged debt removed, in response to a request for validation (irrespective of when the letter was sent). So I want those who read this transcript in the future to be encouraged.

 

Like every credit repair intervention cited so far, sometimes validation works, and sometimes it doesn't. But let me say this: If you are outside the 30-day initial collection period, don't let that dissuade you from pursuing the other side vigorously if that's what you need to do.

 

Because sometimes it works and sometimes it doesn't, and that's irrespective of that 30-day period. Results matter. Now, if you're looking for slam-dunk court case, then yes, if you've pursued it within the 30 days, you're in a MUCH more powerful position.

 

Regardless, if you're looking for a clean report, you should be encouraged. It can work.

 

The operant word there is "can."

 

Now, let me move onto another point of interest:

 

A validation letter is not a dispute. It is a request for information.

 

You don't know whether or not you are going to dispute the debt because you don't know if you owe it yet. You're saying, simply, "Excuse me, I've never had an account with ABC Collections. I don't know you. Please identify yourself better and tell me about this alleged debt. Otherwise lose it and remove it. Thank you." That is not a dispute.

 

The dispute comes AFTER.

 

Q: Asset updated my tradelines with the CRAs to "disputed by consumer' when I DVd them

A: I wonder if we can't develop a new credit repair intervention as a response to such nonsense.

 

Just because you have requested validation doesn't mean you have disputed anything. Yet.

 

On a related note, this is an exciting new court case... October 17, 2005... Southern District of Indiana… Recker v. Central Collection Bureau, Inc. Here's the gist: A debt collector who simultaneously verifies and resumes collection activity violates FDCPA. Timing becomes central. In other words, a court has affirmed that validation is a separate event from the debt collection period. This is too new for me to elaborate HOW we will benefit, but we WILL.

 

Link: http://www.blueghost.ws/credit/RECKEROPINION.pdf

 

Some attorneys I work with are very happy about this. It means if the collector sends what they consider to be verification (and THAT's the word used within the paragraph under the Validation heading, by the way -- PLEASE never get caught up with people who want to argue those two words with you, it's a time-waster)... Anyway, if the collector validates or verifies or sends adequate smokes signals, etc., and at the same time says, "NOW YOU MUST PAY" in the same letter or if they do ANYTHING during that period that smacks of collection, you have a case law citation to present in another court, or, you have a nifty citation to reference in your next letter to them.

 

Please consult with your attorney if needed, since I am not one, and this is not one-on-one legal advice. Also, please do your due diligence regarding research... ask your friends on the board before citing any case law (or statute for that matter).

 

Now, let me reference TWO MORE laws that many of you know well. The first one is one we like, and the second one is one we don't.

 

First... Spears v. Brennan 49A02-0003-CV-169 Spears was a mixed case, although it was settled MOSTLY in favor of the consumer. We like it because it says the signed contract is not enough. The contract merely shows the presence of an original agreement. It doesn't prove that the customer still owed money.

 

The second citation seems to refute that, but I'd like to delve in a bit there too, and that one is indeed Chaudhry v. Gallerizo. (Quoted out of context by CAs everywhere.)

 

(By the way, when you search the board for Chaudhry, also search it for the misspelling Chaudry. People always leave off the second "h" but you may overlook some very good information, so search both ways.)

 

CA’s LOVE to cite Chaudhry because they CLAIM that this case TRUMPS federal law. In other words, they say that since a section of Chaudhry says that a simple note that the consumer owes "this much" is enough information in response to a validation request, that must mean that the FDCPA (a FEDERAL statutes) has been overturned. Now isn't that crap?

 

By the way, that's Chaudhry v. Gallerizzo, 174 F.3d 394 (4th Cir. 1999). Also, when you read Chaudhry, you'll see that the CA had already sent some information. They actually sent what some of you hope you never see, which is... a lot of substantiation.

 

The consumer pressed it. And the CA responded with just a note the next time. And the consumer pressed it again, took 'em to court and lost. The citation about the single line being enough is TAKEN OUT OF CONTEXT.

 

Let me be clear: The CA in that case provided a bunch of validating information. It was the SECOND PASS where they provided a "look, we're fed up and want our money" note.

 

So YOU have the right to snap right back at 'em with that. Whychat (I think) did a great analysis on why Chaudhry is actually good for us…

 

It’s important to mention that he lost because the case wasn't really about the verification, but rather he was trying to get verification on attorney fees and they're attorney-client privileged. At least that's what I read and understand. I'm in the 4th district so it's important to know here. If you don't happen to live in the 4th District, it's not the law of the land EVEN IF your situation was EXACTLY as Mr. Chaudhry's. So don't let them cow you with Chaudhry.

 

1:04-cv-02037-WTL-DFH -- RECKER, II v. CENTRAL COLLECTION BUREAU, INC. -- filed 12/15/04 -- closed 11/02/05.

 

So don't let the validation-debaters cow you with the 30-day warning. You just go, go, go. You do not give up any right when you request information. Again, you may not win in court. But then, most of you won't go to court. Most are interested in clean credit reports. And of those who do go to court, you MAY win!

 

FTC Opinion Letter names for your reference that discuss CAs who refuse to validate: Mezines, Cass, Berger, Bergstrom, Castle, Miller, Wollman, Krisor.

 

About collectors who threaten to sue you outside of where you now live or where you lived when you incurred the ORIGINAL debt (which is a no-no, by the way): Reference FDCPA � 811 (a) (2). Also reference this excellent case citation... Yu v. Signet Bank, California Court of Appeal, First Appellate District, Division Four, 69 Cal. App. 4th 1377, decided 02-16-1999

 

And this FTC Opinion Letter... Krisor. In other words, if you incurred the debt when you lived in Kentucky, and now you live in Minnesota, and the CA is in Kansas... that CA better not try to sue you in Kansas. They'll need to file in either Kentucky or Minnesota. Otherwise they are SCREWING with your civil rights.

 

During tonight's seminar, you've been provided serious annotations from the FDCPA... Also references to some very relevant FTC Opinion Letters... Also, some good cases (and of course there are lots lots lots more for those who want to delve in) to cite... Also, some encouragement regarding pursuing CAs... irrespective of the calendar. Also, some testimonials within this transcript from those who confirm that opinion vis-a-vis credit report results. And finally, you've been reminded that a request for validation is not the same as a debt dispute. So...

 

THE SEQUENCE

 

Beginners will hear a bunch of terms like validation, verification (and people killing each other over those words), estoppel, etc. Let me just provide an oversimplified sequence for newcomers...

1) You request validation of a debt from a debt collector

2) They either send you something or not…

Courts have not yet defined exactly what constitutes good validation. This works in your favor. You are not obligated to be satisfied with what they send. Of course, you can be satisfied if you want to be! Basically, you want a LOT of information.

 

Now sometimes you have to be realistic about how far you want to pursue this, whether you will go to court or not... when to hold 'em., and when to fold 'em.

 

Q: If they send you validation and you say it's not really validation, can they still continue their collection activities?

A: If you contend that they haven't provided proof of the debt, you can contend that they have violated the law by continuing to collect. If the debt is small, most CAs would rather just move along to the next person who will wither and cry on the phone rather than deal with a troublemaking citizen who knows their rights. Now, if it's a $32,000 alleged debt to Citibank, you can bet that they're going to pursue you if you owe the debt! (We've known one or two charlatans in our community who've made a job out of cheating creditors, suing them, sometimes winning, and bragging about it. That is certainly not the way I would recommend you live your life. I guess that's enough to say about that.)

 

Q: What about a debt that is SOL?

A: Each state establishes their own guidelines with respect to when a debt is no longer collectable (i.e., the Statute of Limitations). A SOL doesn't prevent someone from attempting to collect. The SOL simply provides you with what's called an "AFFIRMATIVE DEFENSE". That means... They can continue to collect. You go to court. They say, "Judge, he or she owes me this money." And you say, "Judge, before this matter proceeds further, please know that I have an affirmative defense regarding the statute of limitations of this debt, in accordance with the law of this state." That is an affirmative defense. They can collect. They can sue. And if YOU don't assert your affirmative defense, the judge may not do it for you (he may, or may not).

 

The validation process is separate from their collection activity.

 

Back to the sequence…

1) You request validation

2) They respond

3) You send an "estoppel" letter

4) They respond

5) You send an "intent to sue" letter.

Now, keep in mind, this sequence isn't the "only way" or the "right way.†It's just a way that has benefited many I know, but your mileage may vary. You may see other sequences that may be better for certain (or many) situations.

 

Now, on to the difference between estoppel and intent-to-sue. Estoppel references an old English common law practice. The word is actually used in several contexts, but in our context we talk about "estoppel by silence.†In other words, the CA failed to provide validation, which is "silence" even if it was a frivolous response.

 

By their "silence," they are essentially admitting an inability to fulfill the lawful request. So, you're saying, "Hey, I asked for proof of this debt. I'm willing to pay any debt I owe, but you haven't shown that I owe this... and we know how debt collectors are... which is why consumers are protected... So, you must stop." That's estoppel in a nutshell. It's just the next letter in a sequence that can be effective with a CA who is sick of fooling with you.

 

Q: Aren't you mainly talking about getting CAs to quit harassing, as opposed to getting them off your reports, though? (And who may worry that you are a litigious crazy person who'll drag 'em into court, which they may not want to do even if they think they'd win.)

A: I'm talking about the reports.

 

First, validation, then estoppel, then the intent-to-sue letter. You can find all of these letters I believe on Creditboards -- and certainly lots of references to them.

 

Q: Do you have to actually sue if they fail to respond to the ITS letter?

A: You never "have to sue" anybody.

 

Keep in mind that they don't mind being a nuisance. You don't have to be more polite than them. You be a nuisance too.

 

Q: Is the estoppel the same as the DV #2

A: Some call it that, yes.

 

 

Controversy Abounds

 

Probably NOTHING inspires more debate in our wonderful consumer advocacy community than the things I have dared to discuss tonight. People will argue about whether CAs validate or verify, or if OCs validate or verify, etc. Some of the people arguing I respect VERY much. I just prefer not to get into that.

 

As we've seen, the FDCPA references "verification" within the Act. There are clear rules about it. Now, another controversy... I have seen posts on various discussion boards on the net where the person gives a play-by-play about what constitutes a validation letter, and they instruct everyone that a validation letter must include a debt dispute. ARGH. Of course, you *could* do that. But you're doing two things at once.

 

You're saying, "please prove this to me" and "this is definitely not mine" at the same time! If you know for a fact that something is definitely not yours, then there's no need to ask for proof.

 

Why does it matter? Because of that 30-day reference. The FDCPA says you must "dispute" the debt within 30 days of first collection. Now, again, it gives quite a lot back when it says that if a consumer doesn't do that, then they're not necessarily giving up their right to assert that the debt isn't theirs. So that seeming contradiction keeps the courtrooms busy, and keeps the debaters on the board debating. But if you understand that a validation request is not a dispute, then, in the words of some lawyers I respect, you skirt the issue altogether. They come back and say, "Nah, nah, you didn't dispute this within 30 days," and then you.

1) Cite the
FDCPA
reference that says that you don't have to roll over, and

2) You say, plus, I haven't disputed anything. I'm issuing a lawful request for information... proof... competent validation...

You just keep hammering them (if that's what you want to do).

  • 2 years later...
MannyLNJ

MannyLNJ

Posted
Posted
Is there a new link for http://www.blueghost.ws/credit/RECKEROPINION.pdf It seems dead. I need to know if there is a set amount of time that must pass after validation before a suit can be filed.

 

you need to clarify what you're looking for.

 

you asked the CA for validation?

 

or they sent you validation?

 

 

I asked for validation. They sent me what they claim are statements from the OC and less than 20 days leter they filed suit

The last post in this topic was posted 6321 days ago. 

 

We strongly encourage you to start a new post instead of replying to this one.

Join the conversation

You can post now and register later. If you have an account, sign in now to post with your account.
Note: Your post will require moderator approval before it will be visible.

Guest
Reply to this topic...

×   Pasted as rich text.   Paste as plain text instead

  Only 75 emoji are allowed.

×   Your link has been automatically embedded.   Display as a link instead

×   Your previous content has been restored.   Clear editor

×   You cannot paste images directly. Upload or insert images from URL.

×
 Share
Go to topic listing



  • Member Statistics

    • Total Members
      190435
    • Most Online
      9039
    mhudson323
    Newest Member
    mhudson323
    Joined

About Us

Since 2003, creditboards.com has helped thousands of people repair their credit, force abusive collection agents to follow the law, ensure proper reporting by credit reporting agencies, and provided financial education to help avoid the pitfalls that can lead to negative tradelines.

Pages

×
×
  • Create New...

Important Information

Guidelines

  I accept