Creditor (Portfolio R) failed to provide me proof of collection. Can I now have it removed from CR?

[ccgal16]

Hello everyone -

I have a collection on my cr from Portfolio Recovery via capital one. I have no idea what it is and I have tried to remove it for years, with no success. Recently I disputed it again and asked for proof of the debt. Portfolio Recovery merely sent me a letter, dated last year, to an address I have never lived at and/or used, saying they acquired the account. 
That's it? I figured I would receive a copy of the contract with my signature, a copy of charges. But nothing, but very shoddy evidence. 
I'm actually stunned that Experian, TU, and Equifax have denied to remove this collection from my credit, especially since they clearly are unable to provide proof that this debt is mine (which it isn't by the way). 

Is there anything I can do? I'm thinking of placing a call to TransUnion, etc and simply telling them this situation and how Portfolio Recovery is failing to provide proof of debt and asking for the collection to be removed. 
Or is there something else I should be doing? 

[mycreditscoreisfair]

Just a couple things to get the ball rolling...

First, you have thirty days from the time the collection agency first contacts you to request debt verification and the collection agency has to respond. But the debt collector is only obligated to provide very basic information. Beyond that period, they aren't obligated to provide anything. Being that the debt is years old, I'm pretty sure it's outside of that window.

Second... Whose debt is it? Have you ever had a Capital One account? Or a charge off? It could be debt Capital One bought and resold at some point. It's unlikely (although not impossible) that somehow you were linked to an account that you never had, assuming your identity hasn't been stolen at some point.

[RobertEG]

The debt validation process does not establish any periof for, or even any requirement to, provide anything.

The purpose of the DV process, as set forth in FDCPA 809 and its legislative history, was to provide a reprieve to consumers from continued collection activities (e.g., calls and letters) after a debt collector initiates collection activities by providing the consumer the ability, within a 30-day window after initial contact, to contest the debt and ask for verification, and thus imposing a cease collection bar on the debt collector that remains in force until such time as the debt collector chooses to send the requested verification.

If your DV is untimely (i.e., not sent within the 30-day window), it does not even impose a cease collection bar, and can be ignored.

If the DV is timely, it does not establish any period for or requirement to respond.

If/when the debt collector responds to a timely DV, FDCPA 809 does not mandate that they provide proof to support their statement of verification, and binding case law in most jurisdictions holds that documentary evidence is not a required part of adequate debt validation.

However, if you take the position that a given response is inadequate based on lackof proof, that means you are asserting tht they remain under the cease collection bar, the same as if no response had been provided.

Violation occurs not because they responded in what you consider to be an inadequate verification, but only if/when they then renew collection activities without having first met the verification mandate of section  809(b).

[OmarGB9]

You've never had a Capital One account? Or perhaps an HSBC account back in the day? Cap One bought some HSBC accounts a while back which could've then be sent off to collections.

As for your request for validation, validation doesn't really do anything, and being that it's an old debt, they aren't required to respond anyway.

[tnhomestead]

So @RobertEG there is no proof required when we are sent a dunning notice? Like the OP I assumed(we know where that gets me!) that some form of actual proof would be required. Ie scanned contract copy or something. Does this apply if someone is sued as well? Thanks and sorry for the hijack just wanted a bit more clarity. 

[ccgal16]

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@mycreditscoreisfair wrote:

Just a couple things to get the ball rolling...

First, you have thirty days from the time the collection agency first contacts you to request debt verification and the collection agency has to respond. But the debt collector is only obligated to provide very basic information. Beyond that period, they aren't obligated to provide anything. Being that the debt is years old, I'm pretty sure it's outside of that window.

Second... Whose debt is it? Have you ever had a Capital One account? Or a charge off? It could be debt Capital One bought and resold at some point. It's unlikely (although not impossible) that somehow you were linked to an account that you never had, assuming your identity hasn't been stolen at some point.

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@mycreditscoreisfair I currently have a capital one card that I've had for years now and it's never been in collections. I honestly have no idea which card this is and the fact that the proof they sent to me was mailed to an address I have never lived at and/or received mail at, definitely gives me pause. I've read stories of people having identity theft, but I've always thought in those cases it's thousands of dollars in various accounts. That's not the case with me, but this certainly isn't my card. 

And good to know how debt validation works. I guess that's why they aren't sending me any type of proof. 

thanks for responding! 

[ccgal16]

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@RobertEG wrote:

The debt validation process does not establish any periof for, or even any requirement to, provide anything.

The purpose of the DV process, as set forth in FDCPA 809 and its legislative history, was to provide a reprieve to consumers from continued collection activities (e.g., calls and letters) after a debt collector initiates collection activities by providing the consumer the ability, within a 30-day window after initial contact, to contest the debt and ask for verification, and thus imposing a cease collection bar on the debt collector that remains in force until such time as the debt collector chooses to send the requested verification.

If your DV is untimely (i.e., not sent within the 30-day window), it does not even impose a cease collection bar, and can be ignored.

If the DV is timely, it does not establish any period for or requirement to respond.

If/when the debt collector responds to a timely DV, FDCPA 809 does not mandate that they provide proof to support their statement of verification, and binding case law in most jurisdictions holds that documentary evidence is not a required part of adequate debt validation.

However, if you take the position that a given response is inadequate based on lackof proof, that means you are asserting tht they remain under the cease collection bar, the same as if no response had been provided.

Violation occurs not because they responded in what you consider to be an inadequate verification, but only if/when they then renew collection activities without having first met the verification mandate of section  809(b).

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So you're saying if they call me, for example, at this point, they are then in violation? I just want to make sure I understand. After requesting proof, and then receiving their letter, I received a call a few days ago. I didnt answer, but I googled the phone number and the collection agency came up. It's been on my credit for awhile and is not due to drop off until 2023. @RobertEG 

If I completely misunderstood, my apologies. I'm running off of three hours of sleep and no coffee.

[ccgal16]

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@OmarGB9 wrote:

You've never had a Capital One account? Or perhaps an HSBC account back in the day? Cap One bought some HSBC accounts a while back which could've then be sent off to collections.

As for your request for validation, validation doesn't really do anything, and being that it's an old debt, they aren't required to respond anyway.

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I currently have a capital one; it's never been in collections. I've been trying to figure out what account this is for the longest. I've never had an HSBC card. 

Thanks for responding, I honestly had no clue so this is good to know. I thought They had an obligation to provide proof, but I guess not.

[ccgal16]

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@tnhomestead wrote:

So @RobertEG there is no proof required when we are sent a dunning notice? Like the OP I assumed(we know where that gets me!) that some form of actual proof would be required. Ie scanned contract copy or something. Does this apply if someone is sued as well? Thanks and sorry for the hijack just wanted a bit more clarity. 

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No apology necessary, I'm actually surprised as well. And it sucks because based on the info provided, if I only had 30 days to request proof of debt, they were obviously sending notices out to an address I've never heard of. I had no knowledge of the debt until recently ( when I started my journey to fix my credit and started requesting my CR's). 

but this is good to know and I now understand why I have to be more diligent and just keep an eye on my credit at all times. 

[RobertEG]

Providing proofs in support of their finding of verification is not an explicit requirement under FDCPA 809(b).

The statute only specifies that validation is the communication to the consumer of  finding of verification.

The courts have generally held that no proofs are required to support validation.  That, however, is not unanimous amongst all federal circuits, as some judges have held that some form of documentation is required to establish adequate validation.

In the end, adequate validation is what the judge finds acceptable in interpretation of "verification."

If, however, the validity of debt is challenged in court, that is a judicial rather than administrative procedure, and evidence is definately relevant to proofs by either party.  A lack of proofs is only an issue in an admin DV process under the FDCPA, and does not extend to the rules of evidence that apply in a civil suit.

Additionally, the issue of adequate validation and evidentiary support based on the federal FDCPA may not be the total picture.

Some states have enacted their own, and enhanced, debt collection practices statutes that do include specific requirements for certain types of documentation, such as a copy of the contract that created the debt.  Thus, one should also consult an attorney dealing with debt collection practices law in your state for legal opinion as to the relevant state statutory and case law that applies within your specific jurisdiction.

AS for communications from a debt collector after receipt of a timely DV request but prior to sending validation, the statute mandates that they must discontinue communications and activities that are directed at "collection of the debt."

Any communication of activity must thus be individually assessed to determine if it is an attempt to collect the debt, or is for some other admin manner.  Until the purpose and intent of the activity can be shown, it may not necessarily be a violation.  It would be subject to evidence and finding by the judge on an individual case basis.