Warrant of Debt

[Gondorf]

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?

[Gondorf]

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.  

[vntrsc]

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.  

[Anonymous]

@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.

[vntrsc]

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@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.  

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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. 

[Anonymous]

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.

[Brian_Earl_Spilner]

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@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?

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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.

[Anonymous]

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.

[Gondorf]

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.

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[vntrsc]

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.