FDCPA Violation

[Anonymous]

I received a call from a collection agency after I had moved out of CA and into NV. I recorded that call and believe I had consent to record the call.

I told them I disputed the debt and not to contact me again unless they could validate it pursuant to 1692(g). I never heard from them again. Instead, I heard from a new collection agency by way of them hurting my credit. I disputed thr debt to them and they did not validate. nI sued them in Federal Court in Nevada over the matter. It is going to deposition on Tuesday morning. My stupid lawyer told me this Friday. Mondayis a holiday. Anyways, she is resigning from this case right after the deposition and says I should quit the case or face sanctions.

Since when did it become legal to ignore a validation request and turn over the case to a secondary collection agency that sent initial correspondence to the wrong address and now claims my despite was not within THEIR 30 day notice window so they have chosen to ignore it?!? Do I really not have a case? TY

[JVille]

Maybe I’m mistaken but doesn’t the request need to be in writing? However I am no expert in the matter.

[RobertEG]

From what has been posted, you are not, in my opinion, likely to prevail is establishing a violation of the FDCPA.

There are two ways to impose a cease communication bar on a debt collector, both of which must be in writing.

1. You can send a written request for debt validation within 30 days of their dunning notice. See FDCPA 809(b).
2. You can send a written notice that they are to cease communications with you regarding the debt. See FDCPA 805(c).

While a debt collector’s dunning notice to a consumer can be oral, a consumer’s request for debt validation or to cease communication must be in writing.

Additionally, if a DV request is not sent within 30-days of dunning notice (or prior to any dunning notice), it does not impose a cease collection bar.   Thus, even if an oral DV request were proper, no cease collection bar would be imposed unless the request were timely.

Your oral request to cease communication does not impose any requirement under the FDCPA, and thus a civil action asserting a violation of section 805(c) based on continued communications after your oral request has no basis in the statute.

As for suing for lack of receipt of validation, there is no requirement under the FDCPA that a debt collector send any validation, and there is no period within which they must send any response.

FDCPA 809(b) imposes a cease collection bar if the request is timely.  The debt collector can choose not to send validation, and remain indefinately under any timely cease collection bar.

As for a new debt collector, the case law clearly establishes that a DV request sent to a first debt collector does not carry over to a new debt collector.  The new debt collector is still required to send dunning notice within 5 days after they commence collection activities, and is not bound by a cease collection bar imposed on any prior debt collector.  You must, in order to impose a cease collection bar on a second or subsequent debt collector, send a DV request to them.

The same applies to a cease communication bar under section 805(c).  It does not carry over to subsequent debt collectors.

[Anonymous]

Perhaps I did not include enough detail. I wrote the defendants, submitted in writing via their own website (twice for good measure) that I had requested that they prove I owe the debt. I also stated that I did not owe them anything. Yet they continued to call and attempt to collect regardless and they never provided the requested proof. They also failed to report on their negative entry(s) on my credit reports that I had disputed their debt. Only after receiving a complaint via cfpb's website did they cease collection efforts and finally remove he negative from my credit report. NOW does it sound like violation(s)? If not, I suppose my atty screwed up by taking the case in the 1st place and maybe I should let it all flush down a drain akin to water under a bridge....

[RobertEG]

Was your DV request timely, meaning sent within 30 days of their dunning notice?

A DV must be timely in order to impose a cease collection bar.

If it is not timely, then there is no issue of any violation of a non-existent cease collection bar.

As for "proving" that you owe the debt, case law has generally held that adequate validation occurs if the debt collector has investigated the debt and made the determination that it is valid.  Proofs are not usually considered part of an administrative DV or dispute process, and are normally reserved to the courts, which have rules of civil procedure controlling how and when proofs are provided, and a judge to rule on what any evidence does or does not "prove."

I am not opining as to whether they have violated any terms of the FDCPA, but rather am only offering views on statutory language.  If you feel that there is a violation, then by all means file a civil action and get the only opinion that matters....which is that of the judge.

[Anonymous]

...or Jury.

Thanks.

[Anonymous]

NM. Something I gave the attorney since has 180 changed her mind on this and we are going to a jury if nec. No further comment, pending litigation. TY