topic Re: Warrant of Debt in General Credit Topics

Warrant of Debt

Gondorf — Tue, 28 Jul 2020 02:22:48 GMT

Hi Everyone!

I was served a 'Warrant of Debt' back in March of 2020. To the best of my knowledge, the collection agency

never contacted me that they had purchased the debt. The account is not being reported on my credit report.

I went to court and explained this to the judge, that I was unaware of the account in collections and was never

given the chance to validate or dispute the debt. A trial date was set for September. The plaintiff was required

to file a written BILL OF PARTICULARS by July 7th, 2020, and the defendant (me) need to file a GROUNDS FOR

DEFENSE by August 7th, 2020.

The plaintiff, collection agency, sent me a copy of the BILL OF PARTICULARS on June 30th. Included was the

same documents they presented in the Warrant of Dept: Evidence of when the debt was purchased and a copy

of the last statement sent by the original creditor.

I sent the collection agency a copy of my GROUNDS FOR DEFENSE referring the the FAIR DEBT COLLECTIONS

PRACTICES ACT:

15 U.S.C. § 1692: 809. Validation of Debt.

(d) Legal Pleadings

A communication in the form of a formal pleading in a civil action shall not be treated as an initial communication for purposes

of subsection (a).

Subsection (a) basically say the the collection agency needs to contact the consumer that they have purchased the account

and that I have 30 days to dispute.

In response, their attorney has now sent me an amended BILL OF PARTICULARS that includes a copy of a letter, supposedly

sent to me on December 31st, 2019, stating that they have bought the debt and that I have 30 days to dispute it.

So here's my question:

If the debt collector had legitimately contacted me, and they were not reporting the account to any of the 3 credit bureaus, I would have

had to dispute the debt directly with the collection agency. Who exactly mediates over a direct dispute between myself and

the collections agency?

Hypothetically: They say the accounts mine, I say it's not. They're not reporting the account to the credit bureaus.

So, the next step is for the collection agency to file a Warrant of Debt. However, honestly, I was never contacted by this collection

agency, and as it stands that's my only defense. But, even if the judge rules in my favor, I would then have to go back and dispute

the debt with the plaintiff? That sound to me that it will end up back in court again.

I was under the impression that the credit bureaus mediated debt disputes first, and then if it couldn't be resolved, it went to

court.

Thanks in advance!

Re: Warrant of Debt

Anonymous — Tue, 28 Jul 2020 02:49:19 GMT

I was under the impression that the credit bureaus mediated debt disputes first, and then if it couldn't be resolved, it went to

court.

I don't think they do this, at all.

You don't have to first have a collections on your CR to be pursued for it.

Re: Warrant of Debt

vntrsc — Tue, 28 Jul 2020 04:30:55 GMT

"Subsection (a) basically say the the collection agency needs to contact the consumer that they have purchased the accountand that I have 30 days to dispute."

The subsection you referenced does not mandate that a debt collector contact a consumer before filing a lawsuit.

Re: Warrant of Debt

Gondorf — Tue, 28 Jul 2020 04:57:27 GMT

FAIR DEBT COLLECTION PRACTICES ACT

15 U.S.C. § 1692: 809. Validation of Debt

(a) Notice of debt; contents

Within five days after initial communication with a consumer in connection with the collection of any debt, a debt collector shall, unless the following information is contained in the initial communiction or the consumer has paid the debt, send the consumer a written notice containing:

(1) the amount of the debt;

(2) the name of the creditor to whom the debt is owed;

(3) a statement that unless the consumer, within thirty days after receipt of the notice, disputes the validity of the debt, or any portion thereof, the debt will be assumed to be valid by the debt collector;

(4) a statement that if the consumer notifies the debt collector in writing within the thirty-day period that the debt, or any portion thereof, is disputed, the debt collector will obtain verification of the debt or a copy of a judgment against the consumer and copy of such verification or judgment will be mailed to the consumer by the debt collector; and

(5) a statement that, upon the consumer’s written request within the thirty-day period, the debt collector will provide the consumer with the name and address of the original creditor, if different from the current creditor.

FAIR DEBT COLLECTION PRACTICES ACT

15 U.S.C. § 1692: 809. Validation of Debt

(d) Legal Pleadings

A communication in the form of a formal pleading in a civil action shall not be treated as an initial communication for purposes of subsection (a).

What am I misunderstanding here?

Re: Warrant of Debt

Anonymous — Tue, 28 Jul 2020 05:48:38 GMT

But who said they had to have an initial communication with you? A suit is excluded from the definition of an initial communication. they have the right to choose whether to contact you or go straight to a lawsuit.

Re: Warrant of Debt

Anonymous — Fri, 31 Jul 2020 18:08:20 GMT

What’s you’re misunderstanding is in order to activate your debt validation request rights, they have to give you an initial communication. In other words, if they want to call you and bug you and try to collect the debt they have to communicate with you and therefore they have to have initial communication and give you an opportunity to seek that validation, but if they just choose to sue you, they can do that as well.

They do not have to choose to "communicate" with you in attempt to collect the debt. They can just sue you. That’s a procedure to collect that they may seek without communication outside of the legal proceedings.

Re: Warrant of Debt

Anonymous — Tue, 28 Jul 2020 05:54:01 GMT

So that exclusion means you still can’t exercise your debt validation rights because the lawsuit is not an initial communication. Understand?

i've got to edit that. that exclusion means you don't have any debt validation rights yet because until they send something to you that qualifies as an initial communication, your debt validation rights are not triggered.

Re: Warrant of Debt

vntrsc — Tue, 28 Jul 2020 05:54:47 GMT

1692f(a) states that after an initial communication, a debt collector must send you a notice containing the information outlined in that section including your right to demand validation within 30 days of receiving the notice. If you send a validation request within 30 days of receiving the notice, the debt collector must cease collection efforts until it validates the debt.

1692g(d) states that a communication in the form of a legal pleading (such as a summons and complaint) is NOT an initial communication that triggers the notice requirement in subsection (a). Receiving a summons and compliant or warrant of debt does not provide you with the right to send a validation request.

Re: Warrant of Debt

Anonymous — Tue, 28 Jul 2020 05:58:46 GMT

Exactly so they have chosen to sue you instead of contact you to try to collect. now if at some point they attempt to contact you to collect they will have to send you a Dunning notice within five days of the initial communication

Re: Warrant of Debt

Anonymous — Tue, 28 Jul 2020 06:00:45 GMT

OP, you should read the Scoring Primer linked at the top of my signature. It’ll teach you a lot.

Re: Warrant of Debt

Gondorf — Tue, 28 Jul 2020 06:07:50 GMT

FAIR DEBT COLLECTION PRACTICES ACT

15 U.S.C. § 1692: 809. Validation of Debt

(d) Legal Pleadings

A communication in the form of a formal pleading in a civil action shall not be treated as an initial communication for purposes of subsection (a).

Somebody tell me I'm not crazy...doesn't this statement say that the initial contact CAN NOT be in the form of a lawsuit?

Re: Warrant of Debt

Gondorf — Tue, 28 Jul 2020 06:20:35 GMT

Birdman7. What is my next course of action? Do I go back into court and request the judge allow me 30 days to validate the

debt? We know the collection agency does not have any information other than a summary of the account before it was closed

and sold.

Re: Warrant of Debt

vntrsc — Tue, 28 Jul 2020 06:42:19 GMT

It says that a legal pleading "shall not be treated as an initial communication."

You are assuming that an initial communication must be made before a lawsuit is filed. That is not true. There does not have to be an initial communication at all before one is sued.

Re: Warrant of Debt

Anonymous — Tue, 28 Jul 2020 06:46:58 GMT

@Gondorf You don’t have validation rights until they make an initial contact. That’s what we’re trying to tell you, the lawsuit doesn’t satisfy that requirement and does not trigger your debt validation rights. They have two paths, they choose the lawsuit path, not the initial contact and then talk to you path.

Well if there are no procedural defences, you argue the merits. Is it past the statue of limitations? If so, you make a motion to dismiss based on that.

It sounds like you’re simply gonna have to argue to the judge that the debt is no good and make them prove it, and if they can’t prove it you will win. They have to prove the validity of the debt and that you owe it. If you deny those things, which you should as a procedural matter, they have to prove them, that the debt is valid and that you are the person that owes. Jmho.

This is not legal advice and we are not allowed to give legal advice that’s outside the scope of the forum, you have to consult legal counsel for the specifics in your jurisdiction.

Re: Warrant of Debt

vntrsc — Tue, 28 Jul 2020 06:45:11 GMT

@Gondorf wrote:
Birdman7. What is my next course of action? Do I go back into court and request the judge allow me 30 days to validate the
debt? We know the collection agency does not have any information other than a summary of the account before it was closed
and sold.

Now that you have been sued, you must seek information via discovery requests, if your court rules allow. Read the rules of civil procedure for your court regarding discovery.

Re: Warrant of Debt

Anonymous — Tue, 28 Jul 2020 06:50:57 GMT

That’s true you may have limited discovery depending upon the forum and motion practice and evidentiary proceedings, but again depends upon forum.

Way beyond the scope. Like he said, read your rules of court and applicable statute.

Re: Warrant of Debt

Brian_Earl_Spilner — Tue, 28 Jul 2020 11:54:12 GMT

@Gondorf wrote:
FAIR DEBT COLLECTION PRACTICES ACT

15 U.S.C. § 1692: 809. Validation of Debt
(d) Legal Pleadings

A communication in the form of a formal pleading in a civil action shall not be treated as an initial communication for purposes of subsection (a).

Somebody tell me I'm not crazy...doesn't this statement say that the initial contact CAN NOT be in the form of a lawsuit?

Your issue here is this is the first time you've heard of the debt so you're considering it initial contact. Stupid as it may seem, it is not initial contact as the law defines it. The law you're quoting is stating that you can not consider the lawsuit as initial contact to trigger your rights or to impede the Judicial process.

Re: Warrant of Debt

Anonymous — Tue, 28 Jul 2020 16:03:30 GMT

Yeah basically there has to be an initial communication to trigger the provisions of paragraph a regarding the validation and a lawsuit is specifically exempted from being the initial communication.

so as of yet they have not sent you an initial communication and you don’t yet have validation rights.

Re: Warrant of Debt

Gondorf — Tue, 28 Jul 2020 18:00:11 GMT

Thanks to all of you for clarifying all of this for me. I have had collections in the past, but this is the first

time a collector has hit me with a summons right out of the gate.

Here's the skinny:

(1) This is an account left behind by my ex-wife.

(2) Outstanding balance was $225, but they tacked on $275 in penalties and interest.

(3) I moved and changed addresses when the account went into collections, so first attempts from the collector went

to my previous address and I never received them. They now have my new address, but the fact that they amended

the BILL OF PARTICULARS by sending me a copy of letter with my current address that was never received by me really

infuriates me.

(4) Ultimately, I would like to dispute and ask the CA to provide signed documents that I authorized the account.

I'm still not clear as to whether I can still dispute. But, even if I dispute the validity and ask for evidence that I authorized

the account in the first place, the CA will simply send a summary sheet from the original creditor with my name on it

and claim they have satified my request. Any advice here? I promise to quit beating a dead horse after this last question.

Re: Warrant of Debt

vntrsc — Tue, 28 Jul 2020 18:05:42 GMT

Since you have been sued, it is no longer a matter of sending a dispute letter to the opposing party's attorney. Again, you must read and follow your court rules regarding discovery.