Thank you all! I will add the cease and desist as well! I checked my full credit report this morning to make sure there is nothing on my credit report. There isn't. The only two accounts with anything currently negative are lending club and prosper. Prosper was sold and I am in contact with the company that purchased it and will begin payments. Lending club is still owned by them and I am still working with them to get it paid. Thank you all for your info. I will send this certified mail this week.
Short and simple is all that is required.
The statute sets forth what is required, so there is no need to lecture them on its provisions.
"This is a request for validation under FDCPA 809(b) of the asserted debt idenfied above as being under your collection."
The DV process under the FDCPA is a debt collection practices matter that gives a consumer a reprieve from active collection activities until the debt collector has first provided the requested validation. It does not set any period for response or any requirement to send validation. the debt collector must cease future active collection activites until they choose to send validation, but are under no requirement respond, and under no requirment to delete any prior credit reporting.
Additionally, the cease collection bar only applies if the DV request is sent either prior to dunning notice, or within 30 days after dunning notice. If sent later than 30-days after dunning notice, it imposes no restrictions on the debt collector, and can be ignored.
Texas has enacted its own enhanced debt collection practices statute (Texas Finance Code, Chapter 5, Section 392) that includes additonal provisions for residents of Texas, including a requirment to respond within 30 days after receipt of the request. However, the response from the debt collector is not required to include validation. They can state that they are not yet prepared to provide validation, but if they dont provide validation,they must delete any reported collection until such time as they do send the requested validation.
The consumer requesting validation under the TX Finance Code must specifically identify the reqeust as being under the TX Code. Residents of TX do not obtain benefits of the TX Finance Code if the DV is sent and identifes only the federal FDCPA as the basis.
IN cases where the consumer is willing to put the assertion that the debt is not based on any account or obligation authorized by the consumer into a sworn statement before a law enforcement agency, the process is to file a police report with the CRA and invoke the identity theft process under FCRA 605B. DV requests can still be sent, but use of the FCRA identty theft process will provide block of any information related to the asserted debt from the consumer's credit report without any involvement of the reporting party.
That is the proper process when the debt is not authorized by the consumer.
“Additionally, the cease collection bar only applies if the DV request is sent either prior to dunning notice, or within 30 days after dunning notice.”
I don’t understand the above. By “dunning notice”, are you referring to the initial communication?
Yes, a "dunning notice" is the commonly used term that refers to their collection notice.
Specifically, it is the notice that is detailed under FDCPA 809(a), and must include identification of the current owner of the debt, the amount of the asserted debt, and must include the advisory statement that you can request debt validation within 30 days after receipt of that notice.
It is not always the initial communication from the debt collector, but is usually included in their initial communication.
If their initial communication did not include notice of the items required under section 809(a), they must send such notice no later than 5 days after their initial communication with the consumer.
You said a DV request can be sent prior to receiving a dunning notice. Do you mean that it can be sent before an initial communication is made by the debt collector?
Or are you referring to, for instance, an initial communication made via a phone call when a dunning letter has not yet been sent?
There are situations where the consumer becomes aware that a debt collector has obtained collection authority before the debt collector sends, or is required to have sent, dunning notice. A very common example is the reporting of their collection to a CRA without having first initiated any communication with the consumer. It also applies when the debt collector has initiated an oral or written communicaiton that does not include advisement of the required information stipulated under FDCPA 809(a), and is thus not a dunning notice.
The point is simply that if you are aware that a debt collector has collection authority, you can send a DV request without waitiing for them to send dunning notice. That, of course, also requires that you know their correspondence address, as a DV must be in writing.
I have a number of court rulings in which courts have ruled that reporting to credit reporting agencies is not an initial communication that triggers a consumer’s validation rights under the FDCPA because it’s not “with the consumer” as required by 1692g(a).
Robinson v. TSYS Total Debt Management, Inc. Dist. Court, D. Maryland, 2006
Pretlow v. AFNI, Inc. WD Virginia, 2008
Toth v. Cavalry Portfolio Services, LLC. Dist. Court, D. Nevada, 2013
Berberyan v. Asset Acceptance, LLC, Dist. Court, CD California, 2013
Gonzalez v. Midland Funding, LLC, Dist. Court, ND Texas, 2013
Williams v. LVNV Funding, LLC, Dist. Court, D. Colorado, 2014
Perry v. Trident Asset Management, LLC, Dist. Court, ED Missouri, 2015
Danehy v. Jaggee & Asher, LLP, Dist. Court, North Carolina, 2015
Friend v. Financial Recoveries Limited, Dist. Court, MD Pennsylvania, 2017
Leato v. Alliant Capital Management, LLC, Dist. Court, ND Illinois, 2015
I haven’t located any rulings that state credit reporting is an initial communication.