Does the fun ever stop? FDCPA Violations

[Anonymous]

Received a letter from a lovely law firm in Texas representing a car rental company that I have gone toe to toe with now for almost three years saying that they were now going to try to collect on the account and provided all the relevant details.  Not my first rodeo, I filed an immediate (timely) response asking that the debt be validated.  I know full well it cannot because I have spoken to the car rental company at great length and the rental company cannot even find the original contract, but I digress.  

My response to their dunnings sent on Jan 14, received in their offices on Jan 17.

Jan 22, receive a phone call from them that this was an attempt to collect a debt.  But while I can prove that they are in receipt of my timely response (CMRRR with signature confirmation), I am not in receipt of their validation.  

What's the next step?  I've never been this well prepared and organized with documentation, raring to go to war.  

I have fought for too long and spent too much on certified mail by this point, how can I make 'em pay?

[vntrsc]

Did the dunning letter contain the 30-day validation notice?

[Anonymous]

My letter to them or their letter to me?  I always get confused because a dunning letter is one that is sent in order to collect on a debt, but it is easily confused with the letter that is sent in response.  

My letter to them stated clearly that any further attempt to collect on the debt without validating it to me as requested in writing would be a violation.  They don't have to respond, but they are not allowed to attempt to collect until they do.  Without validating, contacting me and using the magic phrase "this is an attempt to collect on a debt" is a violation.

[vntrsc]

In regard to debt collection, a dunning letter usually refers to the letter sent by the debt collector.  Did the debt collector’s letter contain the 30-day notice informing you of your right to request validation?

[RobertEG]

As noted by vntrsc, you must first receive a dunning notice before a DV request will impose a cease collection bar.

A so-called dunning notice must include the elements set forth under FDCPA 809(a), most notable of which is notice that you have the right to request validation within 30-days of the notice.

If their prior communication included dunning notice of your validation rights, then your DV request was timely, and imposed an automatic cease collection bar on the debt collector.  FDCPA 809(b).

Thus, any continued attempts to collect on the debt after receipt of a timely DV but prior to providing the requested validation is a violation of FDCPA 809(b).

You have the right to bring civil action seeking statutory damages of $1,000 for violation of any provision of the FDCPA.

However, they can send the requested validation at any time, and then resume active collection, including reporting of their collection to the CRAs,

You must make a choice as to whether to seek damages for their asserted violation of the cease collection bar.

Whether you wish to take that action depends.

If you wish to make a pay for not reporting offer, discharging the debt and preventing reporting of any collection, you may wish to take that action.  Since acceptance of a pay for not reporting offer is optional on their part, bringing civil action may not be prudent.

Do you wish to seek civil damages for their violation, or do you wish to negotiate on best terms for resolving the debt?

[Anonymous]

Yes, the letter from her said that I had 30 days to request validation of the debt.  So I sent a timely response CMRRR within those 30 days. 

The real bummer here is that I know for a fact that I do not owe the money to the car rental company.  I'll give you all the back story - but might be more for another board than this one.  I reached out to someone in Customer Service there on Twitter who flat out told me they have no record whatsoever of my contract with them.  I have documentation, I filed disputes with my credit card company and won both times.  Their version of the facts is so outrageous that I can't believe they actually proposed it. 

Is the debt collector the only one I can sue in this situation? 

I know it's cutting off my nose to spite my face, because the car rental tab came to about $700 (not cheap, but certainly not worth a collection account on my report that I just spent 2 years fighting for tooth and nail).

Man, I was ready for my day in court, too.. you guys are too sensible.

[RobertEG]

Since the debt collector is the only one reporting to a CRA, there is no issue of the creditor having violated any reporting provisions of the FCRA, or any basis for filing an FCRA disute involving the credtior.  Additionally,  only debt collectors are covered under the FDCPA, adn thus you only have basis to bring legal action against the debt collector for any violations of the  FDCPA.

However, if you are challenging the basic legal issue of legitimacy of the debt per se, as opposed to reporting to a CRA or violations of the debt collection practices requirements of the FDCPA, you may have basis to bring civil action against the original creditor for their continued assertion of a debt obligation per se. 

Your action, however, would be under state law, and not a credit reporting or collection practices issue under either the FCRA or FDCPA.

You should consult an attorney for legal advise as to any civil complaint challenging the debt per se.

[Anonymous]

Just an update.

To this community and in particular Robert who graciously has fielded all these questions, a big thank you.

Debt collector's in-house counsel called today and they want to "settle". They might be able to "throw some money my way" -- as if he's doing me some huge favor.  He asked how much it would take to make this all just sort of go away, and I stood my ground.  I know they must cut people breaks all the time, right?  I wonder what they would have said if someone owed them the money and offered to "throw some money their way"... ugh.

Sticking to my demands, $1000.00 plus costs and apparently I can also get interest -- anyone know if I can compound that, oh let's try hourly?    

And he threw for added bonus fun that there was still this outstanding debt I owed (which I don't, I have gone rounds with the original creditor who admitted to me, in writing, they have no records of me owing them the money so they're not sure why its in their system).  He is under the impression that we can just wipe the slate clean and both just forget it happened.  It makes me feel like he's pulling a fast one.

Thanks again, and Robert if you're ever in town, first round is on me. 

[Anonymous]

Well the debt collector has gone MIA. He emailed last week asking for an extension including that it was a courtesy lawyers extended to each other all the time and that if I wanted this to come to an amicable conclusion I should give him another ten days. I politely declined saying that he had been given all the time he was entitled to and reminding him that I have been dealing with this now for almost three years.

I went to the courthouse to make a motion for default judgment but the paperwork asks me to prove damages. As these are punitive, can I just put that? What damages does one incur when suing for FDCPA violations?

[RobertEG]

I will let the statute speak for itself.........

"FDCPA 813.  Civil liability 

(a) Amount of damages
Except as otherwise provided by this section, any debt collector who fails to comply with any provision of this subchapter with respect to any person is liable to such person in an amount equal to the sum of --

(1) any actual damage sustained by such person as a result of such failure;

(2) (A) in the case of any action by an individual, such additional damages as the court may allow, but not exceeding $1,000; or

(B) in the case of a class action, (i) such amount for each named plaintiff as could be recovered under subparagraph (A), and (ii) such amount as the court may allow for all other class members, without regard to a minimum individual recovery, not to exceed the lesser of $500,000 or 1 per centum of the net worth of the debt collector; and

(3) in the case of any successful action to enforce the foregoing liability, the costs of the action, together with a reasonable attorney's fee as determined by the court. On a finding by the court that an action under this section was brought in bad faith and for the purpose of harassment, the court may award to the defendant attorney's fees reasonable in relation to the work expended and costs.

(b) Factors considered by court
In determining the amount of liability in any action under subsection (a) of this section, the court shall consider, among other relevant factors --

(1) in any individual action under subsection (a)(2)(A) of this section, the frequency and persistence of noncompliance by the debt collector, the nature of such noncompliance, and the extent to which such noncompliance was intentional; or

(2) in any class action under subsection (a)(2)(B) of this section, the frequency and persistence of noncompliance by the debt collector, the nature of such noncompliance, the resources of the debt collector, the number of persons adversely affected, and the extent to which the debt collector's noncompliance was intentional.

(c) Intent
A debt collector may not be held liable in any action brought under this subchapter if the debt collector shows by a preponderance of evidence that the violation was not intentional and resulted from a bona fide error notwithstanding the maintenance of procedures reasonably adapted to avoid any such error.

(d) Jurisdiction
An action to enforce any liability created by this subchapter may be brought in any appropriate United States district court without regard to the amount in controversy, or in any other court of competent jurisdiction, within one year from the date on which the violation occurs.

(e) Advisory opinions of Bureau
No provision of this section imposing any liability shall apply to any act done or omitted in good faith in conformity with any advisory opinion of the Bureau, notwithstanding that after such act or omission has occurred, such opinion is amended, rescinded, or determined by judicial or other authority to be invalid for any reason."