DV no response

[Anonymous]

Fortunately,  the legal system is not a capricious as we make it out to be here and there is some sense of order in the legal system.  While I have to admit that our torts system is in dire need of overhauling, there is still justice to be had in court.  To be plain, a CA and bring suit against you at any time.  HOWEVER, they will have to answer for skirting the FDCPA before an award is made.  First off, they have to properly serve you by presenting competent evidence proving they either successfully or diligently attempted to serve you.  If they can't present that evidence--usually the return receipt that accompanies certified mail--then they stand to lose the case.  Similarly, the FDCPA assures you, in bold print, that if any or part of the debt is disputed, you may request validation of the debt....and the debt MUST be validated. 

The surreptitious litigation and nefarious debt collection practices used by unscrupulous CA lawyers is only most successful on the ill-informed.  Most CA's win their suit uncontested, meaning that the debtor does not answer the court summons or doesn't show up at all.  If you have evidence of violations of the FDCPA, that is competent defense!  I can't stress that enough:  documented violations of the FDCPA is competent defense in suits by CA's.  The point was made about surreptitious litigation; if you can prove that you were contacted by ANY assignee to the debt and issued a request for debt validation and that validation was not made, then you can use that as competent defense in future litigation brought by any future assignee.

So, then the question comes down to the preponderance of the evidence; this is the ONLY issue pertinent to civil cases.  The only thing that a CA can present is physical evidence that there was a debt and that debt was not paid.  IF it is your debt and you cannot provided competent defense, then you're in trouble.  IF it is NOT your debt, and you cannot provide competent defense....you're also in trouble. 

I say this to underscore a point:  never shy away from DV if you don't intend to pay for a purported debt.  The reality is that EVEN if they said they will accept payment/ make a payment agreement, they can simultaneously sue you in court.  This is called a consent judgement!  I say this to say that at no time are you reliably "safe" from suit regarding debt.  HOWEVER, the common consumer is very reactionary and immediately shies away from oberbearing CA's.  The courts have established protection against violations of the FDCPA and if you are diligent and determined to fight unfair practices you can win!

[Anonymous]

I don't think the following is an FDCPA violation, and is a purported common technique.

1) OC assigns CA to ACME_CA.

2) ACME_CA calls you and sends you a letter.

3) You DV the ACME_CA with a pain-in-the-butt letter.

4) You hear nothing from ACME_CA for weeks (hence they have ceased collection).

5) NASTY_LAW_FIRM sues you in court on behalf of OC a few weeks later.

I believe this is not only, totally within the FDCPA, but a very common practice.

The law states that collections must stop, but that refers to the CA that is attempting to collect on behalf of the OC.  Additionally,  that is who you have requested a DV with.  You did not contact the OC with your DV letter.  The CA that you did contact can simply be silent and not respond.

It is not a blanket waiver to stop all means recovering monies owed a OC.

An OC can revoke a CA account and refer it to a LF at anytime.  Since your DV is with the CA, not the OC, you have no standing to claim that a LF cannot sue you while you are waiting for a response from a CA who is, now out of the loop. 

Meaning the FDCPA states that the CA must cease collection activity while it obtains validation from the original creditor. 

It does not say that the original creditor cannot sue you during the time that a CA remains silent.  The OC has standing to sue you without notice, at anytime.  OC can seek remedies beyond the normal collection process, without advanced notice to you.  Your notice comes in the form of a summons.  Your DV comes in the form of discovery.

This is why JDBs use third party CA's.  If you put up too much of a stink and they know you owe the money, they will just assign it to an LF.  Since your letter of DV is to the CA, not to the JDB, they can claim this as a valid remedy.

This is why I say silence is golden during the period where SOL applies.

Sending Me-Thinks-Me-Is-A-Lawyer-DV letters during the SOL is precarious.

I would suggest that you DV the JDB directly if you want to put  a crowbar in the process, that is about the only scenario I can see for slowing potential litigation.

Again, if you don't owe the money, then use the Me-Thinks-Me-Is-A-Lawyer-DV since the seeking of a judgement against you will fail.  But let's be honest, not everyone here is a victim.

If you are Slim-shady on the issue of owing the money, you best tread lightly until SOL.

Use common sense.

If you open a CC account with Sears under the name Fred Vodafone at 52 South

Road, Trenton NJ and your phone number is 444-1212.  Your balance is $4500.

You default, but still live at 52 South Road, Trenton NJ. 

Now LVNV comes along and buys the debt from Sears.  Do you really think, as dumb as these collectors are, that they don't know you owe this money or someting around the value of this money?

Just my two cents.

Message Edited by JimmyMagno on 03-16-2008 05:49 PM

[Anonymous]

JM,

There seems to be some confusion here.  Of course FDCPA only applies to CA's, JDB's etc and not OC's; however, OC's must still sue in small claims court depending on amount of the claim.  Small claims court, being civil court, rules based on preponderance of the evidence.  The question was raised on what to do when a CA--being the only entity that can be DV'd--contacts you regarding a debt.  The answer:  Get validation of the debt.  For sure.  Your position is that you don't want to do that because to do so is to "play lawyer".  I have to disagree with you.  I will say, however, that anyone handling these situations MUST consult with an attorney / consumer advocate.  This forum is useful for determining what experiences people have had, but NOT replacing the advice of competent counsel.

To the point, the FDCPA exists as a consumer RIGHT.  Exercising that right is prudent when dealing with CA's, who are known to employ unscrupulous tactics, including collecting on debt they have no legal leverage to collect on--lack of proper license, debt beyond SOL, etc. 

Now, there are a couple of scenarios that could exist when dealing with debt:  Either you're dealing with the OC, who assigns debt to a CA; or you're dealing with JDB who owns debt and will collect as a CA or assign a third party, who is still a CA.  Of each of these scenarios, the ONLY instance where FDCPA does not apply is when dealing with the OC.  You cannot validate OC; however, OC does NOT have carte blanche to collect on fraudlent debt--debt that arises from identity theft, etc, and would be handled in civil court where a ruling would be based on preponderance of facts.  Nonetheless, the falsely accused consumer would still have competent defense in court, EVEN if they cannot invoke FDCPA.

YES, you can be sued by an OC or CA or any other entity that thinks the sky is blue.  But I disagree with the position that you should shy aware from or in any other way submit to debt that is not yours or is incorrectly levied against you.  The answer is not to pretend that you are a lawyer, but to KNOW your rights and exercise them in concert with appropriate legal counsel.  It is misleading to state that DVing a CA will make them "go silent".  The fact is they could "go silent" at any point in time; matter of fact, the OC can just sue outright.  Any entity can just sue outright.  If they are a CA, the FDCPA requires an initial letter.  Once you DV them, yes, they can "go silent" but if they respond with a summons, you have competent defense and if they don't summons, you have competent defense.  They have to attempt to contact the debtor.  There are cases where summary judgement is granted via a three-way phone call.  By the way, this is a clear sign that you may invoke rights under FDCPA:  If you receive a letter from ANY ENTITY that includes the phrase "this is an attempt to collect a debt", you may request DV from that entity.  The reason is that they only include that phrase because FDCPA requires them to--thus, if they are working within FDCPA, they must abide by FDCPA.

My point in responding to the post is not to debate whether or not "silent law suits" exist, or to justify the practices employed; rather, a debtor has rights and protections within the legal system, whether or not they include FDCPA.  One should seek competent counsel when dealing with debt collection, but the notion that exercising one's right should be avoided is not tenable.  The worse case scenario is to let a letter of debt collection (OC, CA, or laywer) go unanswered; the second worse case is to answer over the telephone!  Thus, if you must answer and you must answer by mail, that means sending a letter.

Message Edited by ChemGuy on 03-16-2008 08:55 PM

[Anonymous]

I personally would not and do not have any intentions of dealing with a CA who's WITHIN SOL period.  I WILL, however, cut that middleman out and deal directly with the OC. 

What I've also learned here is that for the most part it really doesn't help to PFD or even PIF for a lesser amount when the CAs can still come after you for all the other crap (difference in balance owed, fees, interest, etc.).

I haven't made it to the PIF/PFD point yet, but when I do I will be VERY METICULOUS with the verbiage in those letters.  I don't want to give CAs ANY wiggle room in the future.

[Anonymous]

CG,

My point is that when a CA contacts you during SOL, ignoring them is a better stategy than writing letters with lots of legal language in it.

Sure you have a right to do that, but the result will not be anything more than getting the OC to come after you in court.  Once the OC percieves you are putting up resistance, they aren't going to waste much time with you.

If you don't have the means to pay your creditors at the time then it is best to lay low until you can.

You do have rights, but don't over use them.

[Anonymous]

If the debt is 5K and you can't pay then waiting out SOL maybe the answer - however for that amount someone (either OC or CA) is gonna come after you before SOL expires more than likely.

With a DV - all collection activity must cease (iincluding legal action) until the debt is validated.  A very good argument can be made for dismissal of a case by an OC if their 'agent' the CA has failed to validate (or they pulled it back when CA was asked for validation) and responded with a lawsuit. At the very least you hit them with a discovery motion for everything that is required in a request for investigation.  OCs are subject to FACTA and FCRA  if they have verified a debt disputed with the CRAs.  You can ask for an investigation on an OC TL.

CAs and OCs count on the ignorance of the consumer - both in and out of court.  Standing up for your LEGAL rights and not rolling over and play dead will many times get them to back down.  Most of the judgments they get are 'default' judgements - the consumer never shows.  You still pay all the attorney fees and court costs - so at least make the attorneys earn their fees by putting up a fight.

Message Edited by Lady_Scarlet on 03-17-2008 11:55 AM

[Anonymous]

I just think that if you owe the money and can't pay, sending a DV with lots of legal language is just going to get the hornets nest after you.

I think being silent is more valualble until you can pay back the creditor.

I could be very wrong and certainly defer to other folks like you as 'experts'.

[Anonymous]

I posted in another thread that Professional Collections replied to my DV. However they "only" included documentation of the debt, which in this case was a phone bill, and just my last bill. I guess that validates debt/DOFD but they did not include the other requested documentation, i.e. their right to collect in NYS, the transfer of the debt to them, etc. Does that mean the DV is incomplete?

STILL trying to find out about SOL, as this was a debt from when I lived in CA in 2002 and the SOL there is 4 years. I made 4 payments to PC in 2007 and trying to find out ifg that re-set SOL. I know some people say yes, some say no if CA, some say depends on State, whether CA or OC, courts, payment agreement, etc.

I'm going to refer this to a Credit Attorney tomorrow, as I'd have to guess they will step up collections now. If I am in jeopardy based on SOL I'll resume payments with them or PFD, if I am NOT I'll probably see if the lawyer will write them and say 'this debt is time-barred HOWEVER my client is willing to make a small settlement in exchange for removing this from the CRAs'.

I still have DV out to Midland, and an 'OC' out to Ballys (one past SOL) and to Cap1 (way past SOL and falling off in July). I also have kind of a hard language one out to Experian, as they 'verified' twice a Paid Collection, however that verification includes erroneous information that, even though listed as 'Paid' as of 8/07, that as late as 12/07 the item was 90+ Days late and 'In Collection' and also that this Paid Debt has an unreported Balance (try $0!) and unreported Past Due (try $0!). So this gives me a recent 90+Day late on my report, which is patently impossible, BUT was verified by Experian. I did quote some law as i found it on here.

[Anonymous]

I am also confused how an OC can re-assign a collection to another CA. If they Charge-Off and then sell to a CA and zero-out, they no longer have a right to collect, is that correct?

[Anonymous]

IHMO- You need to assume you reset SOL until an lawyer tells you otherwise and can back that up-

EX turns you "harsh language" into a 2 digit code and sends it into their computer system- 

An ITS letter is the only thing that does much else-

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nyccc2 wrote:
I posted in another thread that Professional Collections replied to my DV. However they "only" included documentation of the debt, which in this case was a phone bill, and just my last bill. I guess that validates debt/DOFD but they did not include the other requested documentation, i.e. their right to collect in NYS, the transfer of the debt to them, etc. Does that mean the DV is incomplete?

STILL trying to find out about SOL, as this was a debt from when I lived in CA in 2002 and the SOL there is 4 years. I made 4 payments to PC in 2007 and trying to find out ifg that re-set SOL. I know some people say yes, some say no if CA, some say depends on State, whether CA or OC, courts, payment agreement, etc.

I'm going to refer this to a Credit Attorney tomorrow, as I'd have to guess they will step up collections now. If I am in jeopardy based on SOL I'll resume payments with them or PFD, if I am NOT I'll probably see if the lawyer will write them and say 'this debt is time-barred HOWEVER my client is willing to make a small settlement in exchange for removing this from the CRAs'.

I still have DV out to Midland, and an 'OC' out to Ballys (one past SOL) and to Cap1 (way past SOL and falling off in July). I also have kind of a hard language one out to Experian, as they 'verified' twice a Paid Collection, however that verification includes erroneous information that, even though listed as 'Paid' as of 8/07, that as late as 12/07 the item was 90+ Days late and 'In Collection' and also that this Paid Debt has an unreported Balance (try $0!) and unreported Past Due (try $0!). So this gives me a recent 90+Day late on my report, which is patently impossible, BUT was verified by Experian. I did quote some law as i found it on here.

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