@IOBA wrote:Thanks for your reply O6!
The attorney is representing the OC. The OC has not provided any documentation or proof of the debt. It would be like pointing a finger at you and saying, O6, you owe me $50,000 and I want it NOW! You must pay me now or set up a payment plan or I am going to throw you in jail.
There is no application for credit, promissory note, or cc. It's pretty much like my example.
Wouldn't you like to know how/why I said you owed 50k?? Wouldn't you like proof of the alleged debt??
If I were to sue you for the money, I would have to prove that I have a legitimate claim for 50k.
I know the OC can NOT provide proof of alleged debt. I thought I was safe when I disputed it with the attorney. Apparently not.
The OC has not provided any billing, any statements, any documentation, or any proof of alleged debt. Just a demand from an attorney. The OC is not a JCA.
The attorney did say they represent the OC in collecting the money. But again, where did they pull this debt from? How do they come with a boatload of money? There just is no information coming out other than the OC and the alleged debt amount. I think they hope I will dispute it, counter it, offer a settlement, something. But it leaves me with the burden to prove something that doesn't exist. How do you do that?
And no, I am not delinquent on any bills.
Since the attorney is acting as a debt collector (on behalf of the OC), he has to follow the FDCPA laws as quoted below. So far, there have been two violations - mainly the verbiage and the time line in the demand letter.
SOOO frustrating!!!
Would you suggest sending an emailing to the attorney, pointing out the two FDCPA violations and letting him know if there is a lawsuit filed today, that would constitute a third violation?
The goal is to prevent the lawsuit being filed.
The secondary goal is to clear up this "misunderstanding". I am being nice when I say it like that.
IOBA, pointing a finger at me and telling me something like that would be really bad for your health, buddy. 
Ok, seriously, we know that an OC does not generally fall under the FDCPA. The question before us now is, "Does their attorney?" According to the US Supreme Court, an attorney who does "'regularly' engage in consumer-debt-collection activity, even when that activity consists of litigation" is a debt collector. Further, taking under consideration Heintz v. Jenkins, 514 U.S. 291, 299 (1995), any document, legal or otherwise, that an attorney debt collector serves or has served upon a consumer which conveys information regarding a debt is a "communication" and must contain a mini-Miranda.
You haven't mentioned any specifics about the debt, but one could presume that if the debt is claimed owed by a financial institution then the attorney more than likely is one that regularly engages in consumer-debt-collection activity. If the alleged debt is owed to a normal business that is not a financial institution yet offers credit facilities to consumers, I'd also be inclined the attorney regularly collects debts. If a business other than a financial institution or one which normally extends credit, it becomes less likely the attorney falls under the definition of a debt collector. If the creditor is a private individual or the nature of the debt is something totally unrelated to credit, I'd start thinking you are pretty much SOL and the attorney would not be considered a debt collector and, thus, able to ignore your requests with impunity. Again, the standard used to determine whether the attorney is a debt collector for FDCPA purposes is whether he / she / it regularly engages in consumer-debt-collection activity.
Let's take this a little further and say for the sake of argument that the attorney is a debt collector. Within five days of their initial communication with the consumer, the attorney must provide a mini-Miranda, even if their initial lcommunication is to threaten to sue you. In fact, even if they just fell out of the sky and served you with a Summons & Complaint, that in and of itself can be the initial communication. They must give you the mini-Miranda, period. Since this attorney did not, strike one.
The Supreme Court made it crystal clear that litigation activity to recover a debt is a collection activity. If you submitted a timely DV, all collection activity must cease pending a response. Now, the fact that the requirements for a a proper DV response are minimal is irrelevant. They must provide you a response, albeit minimal, before they continue with legal action. Now, if the attorney were smart, all he'd have to do is send you a letter stating that you, Mr. IOBA, owe Mr. Liar Creditor the sum of $50,000 for whatever concept and then immediately sue you. Your next step would be to force them to prove the debt in court, which they are unlikely to be able to do. Meanwhile, the attorney is continuing attempts to force you to pay. Strike two.
So, assuming the attorney is a debt collector, what are some of your options currently? You could take the initiative and sue them for the FDCPA violations, but I might recommend holding back for now. It would be better to sue them as either a countersuit or after they have seen the error of their ways and dropped the matter entirely.
I might send the attorney a nice* letter stating that they have committed several violations of the FDCPA and initiating litigation without validating the debt would be an additional violation for which you intend to sue and demand a judgment which includes your attorney fees and costs while at the same time asking the court to dismiss their cause of action with prejudice as it is barred under the FDCPA. Further, you plan on filing a grievance with the State Bar Association over not only the attorney's multiple threats of filing a frivolous lawsuit, but for continued violations of federal law.
If, however, the attorney is not considered a debt collector you are SOL as far as the FDCPA goes.
* You do know that by nice I do not mean nice. 
