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Validation Letter Ignored - Portfolio Recovery

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Visitor

Validation Letter Ignored - Portfolio Recovery

Long story short:

I have a $7,000 debt that is now with portfolio recovery.  In July I received a letter from an attorney telling me to pay or go to court.  Within 30 days I sent them a request for debt validation pursuant to the FDCPA.  This was sent certified and they signed for it.

 

I heard nothing else until yesterday when I received a court notice that they have filed a claim against me.  

 

My interpretation of the FDCPA section 809 is that they are supposed to stop all collection efforts once a request for validation is requested.  In this case they did not send me anything at all and just went ahead and filed a claim in court.  

 

Am I reading into this wrong?

 

Advice on how to proceed??

 

I know the SOL is about 5 months away so they might be worried that they will not get a court date in time so they just filed it hoping I would let it go.  

 

Any help is greatly appreciated. 

 

 

10 REPLIES 10
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Visitor

Re: Validation Letter Ignored - Portfolio Recovery

Just to add that this is credit card debt and I live in NH.

Message 2 of 11
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Frequent Contributor

Re: Validation Letter Ignored - Portfolio Recovery

Did the attorney’s letter contain the 30 day validation notice?

Message 3 of 11
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Visitor

Re: Validation Letter Ignored - Portfolio Recovery

Yes - the bottom of the letter spoke to debt validation and said I had 30 days to respond.

Message 4 of 11
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Frequent Contributor

Re: Validation Letter Ignored - Portfolio Recovery

If the attorney did not respond to your request, he violated the FDCPA.   PRA might be held vicariously liable for the actions of its attorney.  

 

I would contact a consumer attorney. 

Message 5 of 11
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Legendary Contributor

Re: Validation Letter Ignored - Portfolio Recovery

There are legal issues involved in determination of whether communications from an attorney are considered as actions by a debt collector to collect on a debt.  Several issues must be considered.

 

A DV must be sent within 30 days of the initial dunning notice from the debt collector to be timely.

Later communications, such as an intent to sue letter, do not set a new period for timely requests for debt validation.

When did you receive the dunning notice from Portfolio?

If the DV was not timely, it does not impose a cease collection bar.

 

Additionally, a cease collection bar is imposed on the debt collector.  The FDCPA does not define and include an attorney as a debt collector unless their primary business is the collection of debts of another.  Is the debt collector representing Portfolio as a debt collector, or are they a separate legal counsel of the debt collector or original creditor?

 

FDCPA 809(b) does not specifically state that bringing civil action is a prohibited collection activity that is barred by sending of a timely DV request.  It is subject to interpretation.  Interpretation of statutory meaning and language is established by appellate case law precedent, and varies by jurisdiction. 

You should consult an attorney for their legal opinion as to whether filing of a civil suit is considered a barred action when under a cease collection bar under FDCPA 809(b).

Message 6 of 11
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Visitor

Re: Validation Letter Ignored - Portfolio Recovery

I received their letter on June 26 (it was dated June 21) and I replied on July 16 (it was signed for by them on July 22) so I can prove that my response was within the allotted 30 days.

 

If they are not subject to validation than why would they put instructions for requesting validation in their letter to me?

 

At this point they are stating that all communication with Portfolio Recovery occurs through them so I would argue that they are now acting as a collection agent and not just filing a claim on their behalf.

Message 7 of 11
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Frequent Contributor

Re: Validation Letter Ignored - Portfolio Recovery

Oops

Message 8 of 11
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Frequent Contributor

Re: Validation Letter Ignored - Portfolio Recovery

The debt collector is perfectly free to sue within thirty days; he just must cease his efforts at collection during the interval between being asked for verification of the debt and mailing the verification to the debtor. 15 U.S.C. § 1692g(b).  Bartlett v. Heibl, 128 F.3d 497, 501 (7th Cir.1997).

 

 

If the debt collector chooses not to wait until the end of the validation period to commence debt collection litigation, an explanation of the lawsuit's impact — or more accurately, lack of impact — on the disclosures made in the validation notice must be provided. This explanation should be set forth in either the validation notice itself, or in a notice provided with the summons and complaint. The best practice is to provide an explanation in both the validation notice and the summons and complaint. Clarifying that commencement of a lawsuit does not trump the validation notice will come at little or no cost to debt collectors and will ensure that the consumer rights secured under the FDCPA are not overshadowed or contradicted.  Ellis v. Solomon and Solomon, P.C., 591 F.3d 130, 137 (2d Cir. 2010).

Message 9 of 11
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Frequent Contributor

Re: Validation Letter Ignored - Portfolio Recovery

“FDCPA 809(b) does not specifically state that bringing civil action is a prohibited collection activity that is barred by sending of a timely DV request.  It is subject to interpretation.  Interpretation of statutory meaning and language is established by appellate case law precedent, and varies by jurisdiction. 

You should consult an attorney for their legal opinion as to whether filing of a civil suit is considered a barred action when under a cease collection bar under FDCPA 809(b).”

 

What would be the purpose of requesting validation if a debt collector can ignore it and file a lawsuit?

 

In Bartlett v. Heibl, the 7th Circuit Court of Appeals ruled that “a debt collector is perfectly free to sue within thirty days; he just must cease his efforts at collection during the interval between being asked for verification of the debt and mailing the verification to the debtor.”

 

In Ellis v. Solomon and Solomon, P.C., the 2nd Circuit Court of Appeals stated “[i]f the debt collector chooses not to wait until the end of the validation period to commence debt collection litigation, an explanation of the lawsuit's impact — or more accurately, lack of impact — on the disclosures made in the validation notice must be provided. This explanation should be set forth in either the validation notice itself, or in a notice provided with the summons and complaint. The best practice is to provide an explanation in both the validation notice and the summons and complaint. Clarifying that commencement of a lawsuit does not trump the validation notice will come at little or no cost to debt collectors and will ensure that the consumer rights secured under the FDCPA are not overshadowed or contradicted.”

 

 

Message 10 of 11
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