Member-StupidCredit got your ears on?

[foolsmission]

Thought you might like this cite from the US District Court in Hawaii.

 

In any case, Plaintiff formally disputed the debt in writing in a letter dated April 27, 2001. Accordingly, pursuant to § 1692g(a)(4), Defendant was required to obtain verification of the debt or a copy of a judgment against the consumer and a copy of such verification or judgment should have been mailed to Plaintiff. Defendant argues that there is a defense to the failure to send verification because it ceased collection of the debt, and that is all that is required under § 1692g(. Defendant cites Smith v. Transworld Systems, Inc., 953 F.2d 1025, 1031-32 (6th Cir. 1992) for this proposition. However, Defendant overlooks the fact that Plaintiff's claim here is not brought under § 1692g( as it was in Smith, but rather is brought under § 1692g(a)(4) as was the case in Bailey v. TRW Receivables Management Services, Inc., a case decided by this court in 1990. In that case, this court held that the clear wording of the FDCPA requires debt collectors to provide verification if requested within 30 [*22] days pursuant to § 1692g(a)(4) and there is nothing in the statute which indicates that the debt collector is not required to provide verification where a consumers requests it even after paying the debt. The court found a violation of the FDCPA by not providing verification of the debt after requested to do so, even though the debt had been paid.

 

Plaintiff correctly states that § 1692g( is additional protection for the consumer, and not a safe harbor for the debt-collector. § 1692g( is designed so that until the obligations of § 1692g(a)(4) are met, the debt cannot be collected. It was not-meant to, and does not excuse the debt collector from fulfilling its statutory obligation to verify, as established in § 1692g (a) (4).

 

Finally, there is no authority for Defendant's proposition that a verification request is mooted by filing an action. Defendant was required to obtain verification of the debt upon obtaining Plaintiff's April 27, 2001 letter. Plaintiff's request for verification was timely and in writing. Therefore, Defendant was under an obligation to verify and the failure to do so is a violation of § 1692g(a)(4).

Edited March 6, 2006 by foolsmission

[captaincredit]

Thought you might like this cite from the US District Court in Hawaii.

 

In any case, Plaintiff formally disputed the debt in writing in a letter dated April 27, 2001. Accordingly, pursuant to § 1692g(a)(4), Defendant was required to obtain verification of the debt or a copy of a judgment against the consumer and a copy of such verification or judgment should have been mailed to Plaintiff. Defendant argues that there is a defense to the failure to send verification because it ceased collection of the debt, and that is all that is required under § 1692g(. Defendant cites Smith v. Transworld Systems, Inc., 953 F.2d 1025, 1031-32 (6th Cir. 1992) for this proposition. However, Defendant overlooks the fact that Plaintiff's claim here is not brought under § 1692g( as it was in Smith, but rather is brought under § 1692g(a)(4) as was the case in Bailey v. TRW Receivables Management Services, Inc., a case decided by this court in 1990. In that case, this court held that the clear wording of the FDCPA requires debt collectors to provide verification if requested within 30 [*22] days pursuant to § 1692g(a)(4) and there is nothing in the statute which indicates that the debt collector is not required to provide verification where a consumers requests it even after paying the debt. The court found a violation of the FDCPA by not providing verification of the debt after requested to do so, even though the debt had been paid.

 

Plaintiff correctly states that § 1692g( is additional protection for the consumer, and not a safe harbor for the debt-collector. § 1692g( is designed so that until the obligations of § 1692g(a)(4) are met, the debt cannot be collected. It was not-meant to, and does not excuse the debt collector from fulfilling its statutory obligation to verify, as established in § 1692g (a) (4).

 

Finally, there is no authority for Defendant's proposition that a verification request is mooted by filing an action. Defendant was required to obtain verification of the debt upon obtaining Plaintiff's April 27, 2001 letter. Plaintiff's request for verification was timely and in writing. Therefore, Defendant was under an obligation to verify and the failure to do so is a violation of § 1692g(a)(4).

 

Wow.

 

This is pretty monumental.

 

Can you give us the full name and case number of that case?

[captaincredit]

Nevermind, found it.

 

For those with PACER:

 

U.S. District Court

District of Hawaii - CM/ECF V2.5 (11/05) (Hawaii)

CIVIL DOCKET FOR CASE #: 1:01-cv-00379-BMK-BMK

[stickyfingers]

This opinion is SO going into my next round of letters.

 

AWESOME, AWESOME stuff.

 

Thanks OP.

[foolsmission]

Here is the cite for the underlying case suporting the Judges ruling

DARRYL BAILEY, Plaintiff, vs. TRW RECEIVABLES MANAGEMENT SERVICES, INC. fka CBM OF THE PACIFIC, LTD., dba CHILTON ACCOUNTS RECEIVABLE MANAGEMENT, Defendant.

 

CIV. NO. 90-00192 DAE

 

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII

 

1990 U.S. Dist. LEXIS 19638

 

 

August 16, 1990, Decided

August 16, 1990, FILED

[RealtorKen]

Very Nice looking so far... When I get a chance I will have to pull up the entire case.

[Linx04]

subscribing

[stickyfingers]

I've not looked at the whole case (too cheap to sub to Pacer), but is there any indication, that for validation outside the 30 day initial contact, they still have to respond in any particular timely manner?

[Cloak&Dagger]

I've not looked at the whole case (too cheap to sub to Pacer), but is there any indication, that for validation outside the 30 day initial contact, they still have to respond in any particular timely manner?

 

I've never seen it for outside initial contact...but most judges are going to be able to use "timely" to put a hurtin' on any creditor that doesn't respond upon consumer request in writing.

 

Another reason to stay off the phone.

[foolsmission]

From

 

KENNETH JON GUERRERO, Plaintiff, vs. RJM ACQUISITIONS, LLC, Defendant.

 

CIV. NO. 03-00038 HG-LEK

 

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII

 

2004 U.S. Dist. LEXIS 15416

 

The Court notes that even if Defendant had ceased with its efforts to collect the alleged debt, Defendant still would have been obligated to verify the debt. Under 15 U.S.C. § 1692g(a)(4), a debt collector must inform a consumer that if the consumer timely notifies the debt collector in writing that the debt is disputed, the debt collector will obtain verification [*28] of the debt and that such verification will be mailed to the consumer by the debt collector. The statute could not have required such a statement without intending that a debt collector be required to follow through with the promise to obtain and send verification. Chief Judge Ezra of this District Court has so held on multiple occasions. See, e.g., Powell v. J. J. Mac Intyre Co., Inc., 2003 U.S. Dist. LEXIS 24699, Civ. No. 03-00402 DAE-BMK (D. Haw. Oct. 16, 2003); De Coito v. Unifund Corp., Civ. No. 01-00379 DAE-BMK (D. Haw. June 4, 2002). District Judge Mollway's holding in Sambor v. Omnia Credit Servs., Inc., 183 F. Supp. 2d 1234 (D. Haw. 2002), is not applicable to the facts of this case. In Sambor, the Court held that verification was not required where it was undisputed that the defendant had ceased collection of the alleged debt and returned the account to the prior creditor. Id. at 1242. Even if Defendant had ceased collection of the alleged debt in this case, a hypothetical unsupported by the facts, no evidence has been presented to this Court that Defendant returned the account to Citibank.

[stickyfingers]

I can't even state how fired up I am on this one...

 

I've recently sent validation letters to at least (I'll have to check my records) two OCs for out of SOL debts. I waited for the greenies and disputed. Generic 1-2s.

 

Of course they verified with the CRAs, but I didn't have the nail in my toolbelt to hammer them to the wall with - now I do.

 

Dear Dirty OC,

 

I'm sure you're aware, as outlined in the recent Federal ruling in the case ROSE M. DE COITO, Plaintiff v. UNIFUND CORPORATION, you are required to respond to my written request for validation. To date, you have not. Additionally you have verified the disputed information with the CRAs subsequent to receiving my request for validation.

 

The Federal Court ruled, in ROSE M. DE COITO, Plaintiff v. UNIFUND CORPORATION, that the court holds "that the clear wording of the FDCPA requires debt collectors to provide verification if requested within 30 [*22] days pursuant to § 1692g(a)(4) and there is nothing in the statute which indicates that the debt collector is not required to provide verification where a consumers requests it [regardless of the status of the debt in dispute]. The court found a violation of the FDCPA by not providing verification of the debt after requested to do so, [regardless of the status of the debt in dispute]."

 

As outlined under the FDCPA, and reinforced by the recent Federal ruling, you are in clear, well-documented violation of one or more Federal statutes. If you agree to permanent and timely deletion all references to the debt in question within ten days of the tracked receipt of this communication, I will consider the matter resolved.

 

If not, I will pursue legal remedies in Federal District Court and rely on recent legal precedent to support my claims.

 

Love,

 

Me

[gabealpha]

Score 1 for the good guys!

 

Yet another tool in the toolbox.

[foolsmission]

From

 

JASON *POWELL,* Plaintiff, vs. J.J. *MAC* INTYRE CO., INC., Defendant.

 

 

CV NO. 03-00402 DAE BMK

 

 

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII

 

 

2004 U.S. Dist. LEXIS 2811

 

 

 

*January* 23, 2004, Decided

*January* 23, 2004, Filed

 

Contrary to Defendant's argument, the fact scenario in the instant case is not analogous to Sambor v. Omnia Credit Services, Inc. 183 F. Supp. 2d 1234 (D. Haw. 2002). In Sambor, the debt collection agency was not in a position to verify the debt because it had returned the files to the original creditor. n4 This is not the situation in the instant case, however, since Defendant could have verified the debt for approximately three and one-half months before it returned the account. Furthermore, in its Order, the court found as a matter of law that debt verification is required regardless of whether an agency ceases debt collection. The court arrived at this conclusion after careful analysis and consideration of 15 U.S.C. §§ 1692g(a), 1692g(, and recent case law. [*11] n5

 

In the instant motion, the court affirms its earlier decision and holds as a matter of law that Defendant violated 15 U.S.C. § 1692g(a)(4) by failing to send Plaintiff verification of the amount of his debt. n6 Defendant has not presented a valid [*12] reason in its motion for its failure to either verify the debt or return the account to the original creditor in a prompt manner. Consequently, the court finds that there has been no manifest error in law or fact, and the court thereby DENIES Defendant's motion for reconsideration.

 

The structure of 15 U.S.C. § 1692g(a)(4) allows for courts to use some discretion to arrive at an equitable decision that is dependent on the facts of a particular case, and the court properly applied this statute to the facts in the instant case. Defendant also fails to meet the second element. While Defendant correctly points out that Ninth Circuit cases have yielded different opinions as to whether cessation of debt collection shields a debt collector from liability under [*16] 15 U.S.C. § 1692g (a)(4), this does not amount to a substantial ground for difference of opinion with respect to the fact scenario in the instant case

[marlin40]

Whoa....Thanks for the ammunition OP!!

 

subscribing

[captaincredit]

The greatest thing about this is that Hawaii is in my district.

[foolsmission]

Get that Judge Cloned!

[Frisbee]

bump for the evening crowd

[pksdpt]

bump for the evening crowd

subscribing

[HereKittyKitty]

I can't even state how fired up I am on this one...

 

I've recently sent validation letters to at least (I'll have to check my records) two OCs for out of SOL debts. I waited for the greenies and disputed. Generic 1-2s.

 

Of course they verified with the CRAs, but I didn't have the nail in my toolbelt to hammer them to the wall with - now I do.

 

Dear Dirty OC,

 

I'm sure you're aware, as outlined in the recent Federal ruling in the case ROSE M. DE COITO, Plaintiff v. UNIFUND CORPORATION, you are required to respond to my written request for validation.

 

Not to rain on any parades but unless there's something in that case that challenges this, OCs aren't required to validate. The case you referenced was about a CA.

[captaincredit]

I can't even state how fired up I am on this one...

 

I've recently sent validation letters to at least (I'll have to check my records) two OCs for out of SOL debts. I waited for the greenies and disputed. Generic 1-2s.

 

Of course they verified with the CRAs, but I didn't have the nail in my toolbelt to hammer them to the wall with - now I do.

 

Dear Dirty OC,

 

I'm sure you're aware, as outlined in the recent Federal ruling in the case ROSE M. DE COITO, Plaintiff v. UNIFUND CORPORATION, you are required to respond to my written request for validation.

 

Not to rain on any parades but unless there's something in that case that challenges this, OCs aren't required to validate. The case you referenced was about a CA.

 

Not neccesarily.

 

Hawaii = 9th circuit

 

California = 9th circuit

 

Rosenthal Act classifies OC's as "debt collectors."

 

You can see where this is going, obviously.

[HereKittyKitty]

I can't even state how fired up I am on this one...

 

I've recently sent validation letters to at least (I'll have to check my records) two OCs for out of SOL debts. I waited for the greenies and disputed. Generic 1-2s.

 

Of course they verified with the CRAs, but I didn't have the nail in my toolbelt to hammer them to the wall with - now I do.

 

Dear Dirty OC,

 

I'm sure you're aware, as outlined in the recent Federal ruling in the case ROSE M. DE COITO, Plaintiff v. UNIFUND CORPORATION, you are required to respond to my written request for validation.

 

Not to rain on any parades but unless there's something in that case that challenges this, OCs aren't required to validate. The case you referenced was about a CA.

 

Not neccesarily.

 

Hawaii = 9th circuit

 

California = 9th circuit

 

Rosenthal Act classifies OC's as "debt collectors."

 

You can see where this is going, obviously.

 

Of course, but that's not what that case states. Rosenthal applies to Cali, not to HI. It's a state law, not one that applies to the entire 9th district (that I know of, anyway).

 

So using a HI case about a CA and trying to apply it for a Cali resident addressing an OC is a stretch -- the two ends of that string would have to be connected in another case before I'd try to use it as precedence and expect results.

[captaincredit]

I can't even state how fired up I am on this one...

 

I've recently sent validation letters to at least (I'll have to check my records) two OCs for out of SOL debts. I waited for the greenies and disputed. Generic 1-2s.

 

Of course they verified with the CRAs, but I didn't have the nail in my toolbelt to hammer them to the wall with - now I do.

 

Dear Dirty OC,

 

I'm sure you're aware, as outlined in the recent Federal ruling in the case ROSE M. DE COITO, Plaintiff v. UNIFUND CORPORATION, you are required to respond to my written request for validation.

 

Not to rain on any parades but unless there's something in that case that challenges this, OCs aren't required to validate. The case you referenced was about a CA.

 

Not neccesarily.

 

Hawaii = 9th circuit

 

California = 9th circuit

 

Rosenthal Act classifies OC's as "debt collectors."

 

You can see where this is going, obviously.

 

Of course, but that's not what that case states. Rosenthal applies to Cali, not to HI. It's a state law, not one that applies to the entire 9th district (that I know of, anyway).

 

So using a HI case about a CA and trying to apply it for a Cali resident addressing an OC is a stretch -- the two ends of that string would have to be connected in another case before I'd try to use it as precedence and expect results.

 

 

I see what you're saying, but you can always use the "mirror" aspect of the statute for fed. violations. This would help in proving those violations.

 

But aside from that, in federal court, you're right.

[StupidCredit]

Any reason this thread is addressed to me?

 

FWIW, I've read that holding before.

[foolsmission]

Oh yeah, I just like your thread on Build a Better DV

http://creditboards.com/forums/index.php?s...52&hl=better+DV

And thought it would complement it.

No worries.

[StupidCredit]

Oh yeah, I just like your thread on Build a Better DV

http://creditboards.com/forums/index.php?s...52&hl=better+DV

And thought it would complement it.

No worries.

Okay I was curious.

Just be aware that this only applies to the 9th circuit. The 7th circuit? I believe takes the complete opposite view. You are allowed to cease collection of the debt in lieu of obtaining verification.

 

Maybe someone will take it to the Supreme Court.

Edited March 10, 2006 by StupidCredit