overshadowing

[Downto0]

I am looking for case support for a situation concerning a JDB sending CAs to collect where the JDB won't contact me thus does not initiate initial communication.

Now the JDB has sent another CA which has sued me before (and lost) and I am assuming they may sue me again.  I have violations against the current CA but the JDB has been avoiding the spirit of the FDCPA by shielding themselves with the CA.  The JDB has not contacted me and filing a lawsuit is also not initial communication.  The JDB, then, can sue me and I can't counterclaim continued collection activities.

My idea is that the JDB is overshadowing my validations rights by purposely avoiding contact with me which would trigger initial communication which, in turn, would allow the JDB to continuously dun me and then sue me without ever providing validation even though I continuously ask for validation.

I can't find any cases which have dealt with my particular situation yet there must be someone somewhere who has filed such a claim.  Surely I am not the only consumer who has a JDB which is avoiding contact to evade the spirt of the FDCPA.

Any ideas?

[guiness56]

Is the JDB listed on any of the other CAs dunning letters?  If not, how do you know there is a JDB?

Have they made an inquiry on your CR?

Once initial communications, by any means, is done, you send a DV.  If the DV is done within 30 days, whether they respond or not, that DV puts in place a cease collection bar until they validate.  They could not sue you once they received the DV but could within the 30 days you have to respond.

[Downto0]

The dunning letter I got from the first CA did list the JDB as "current creditor" and the OC as OC but that was almost 2 years ago.  The dunning letter from the second CA is confusing.  Here is how the letter begins:

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my address

RE:JDB

amount owed

cure amount. 

Account #******1234

Transaction:  OC #********1234

Please be advised that we have been retained to represent the above-named creditor and their interests as they relate to an account balance that this creditor claims is owed by you - the amount noted above.

I think the LSC would first look directly above and think that the CA was collecting for the OC and they would be confused as to who the character in the RE section was.  In general terms, both the JDB and OC are "creditors" but, by definition of the FDCPA, the JDB is a debt collector, not a creditor, which leaves the OC as the only "creditor". I'm not an unsophisticated consumer so I believe that it is the JDB for whom the CA is collecting.  However, since the CA's letter does not specifically state who is who, an unsophisticated consumer would be confused.

I have not seen any inquiries from either the JDB or the first CA.  I will be checking for the second CA shortly.

I have a dv for the second CA ready to go in the mail tomorrow and this will, as you say, put a cease collection activities hold on the CA suing.  However, the JDB has never contacted me and I can't initiate initial communication (there is case law).  So, if the JDB never contacts me, I can never ask for dv from them and never cause a cease collection activities to be placed on them.  This is the real problem. 

The JDB is definately, and purposely, overshadowing my validation rights.  I've been looking for case law, or FTC commentary, but have not found where someone has filed a claim similar to my situation.  This is not a bad thing because I can still file a claim on the merits and, since there is no case law, I may be able argue my claim well enough by highlighting the unconscionable tactics of the JDB avoiding the spirit of the FDCPA.

Does anyone have case law or FTC opinion or any suggestions?

[guiness56]

If the JDB name is on the letter, yes, that is initial communications and you could send them a DV.

The JDB by definition is not a creditor, they are a CA.  Anyone who obtains debt for collection purposes are CAs.

You would need to point out that case law.  If their name is on the dunning notice that is cause for a DV.

[RobertEG]

Dunning notice is triggered under FDCPA 609(b) based upon establishing an initial communication as commencement of their efforts to collect on a debt.

It is not imposed on an owner, be they the OC or a purchaser of the debt, who conducts collection via another debt colector.

You still invoke the same right to ceasing active collection until verification is provided.  Debt collector 2 would inherently be relying upon affirmance from debt collector 1 for verification, as they are the owner, so I dont see how the lack of ability to directly DV debt collector 1 substantively denies verification of the debt.

Debt verification requires the party to obtain verification, which debt collector 2 must do prior to affirming the debt.

There is case law pertainiing to a debt collector who brings legal action without makiing an initial communication with the defendant, and thus providing them the opportunity to receive verification before collection activy proceeds in the form of the law suit.

The courts have usually addressed such a situation by suspending the action, and requiring the debt collector to first provide the requested verification under the FDCPA before proceeding.

Alternately, the consumer could forgo the FDCPA DV process, and treat verification of the debt by way of a pre-trial discovery motion, which compels more than simple verification, it requires supporting documentation.  The DV process does not compel documentation.

Thus, I dont see a legal action wherein debt verification from or through  the owner would be denied prior to trial.

[Downto0]

If the JDB name is on the letter, yes, that is initial communications and you could send them a DV

I wondered about this.  The problem I see is that when CA#1 dunned me a couple of years ago, I probably should have dv'ed the JDB at that time.  I did dv the CA but I did not think about dv'ing the JDB.  Now that CA#2 has dunned me this would not be initial communication by the JDB although it would be initial communication by CA#2.

In short, there is only one initial communication by any collector.  Each contact after the initial communication would be a subsequent communication and would no longer fall under the liability of 809.

You would need to point out that case law.  If their name is on the dunning notice that is cause for a DV.

Blair v Bank of America:

The phrase "initial communication with a consumer," followed by the requirements imposed on the debt collector for such an initial communication, suggests that the statute properly understood refers to and requires a communication that is initiated by the debt collector, not a communication initiated by the consumer.

http://scholar.google.com/scholar_case?case=14261298191664405545&q=Blair+v+Bank+of+America&hl=en&as_...

Campbell v Credit Bureau Systems:

The clear language of § 1692g(a), however, is that an initial communication is sent by the debt collector, not by the debtor.

http://scholar.google.com/scholar_case?case=18317105657677679584&q=Campbell+v+Credit+Bureau+Systems&...

There are more cases which have been passed onto me that I have not read yet but none are in my district, the 8th.  I will still send dv to the JDB as well as to the current CA in the hope that my district will see that the FDCPA does not state that it is the collector who must initiate initial communication.  I don't agree with the rulings of the cases I posted because they are conclusory.  The FDCPA does not "suggest" nor does it "clearly" state that it is the collector who must initiate inital communication.

However, we, as consumers, are sometimes stuck with rulings we don't agree with but are binding...in my case persuasive.

Debt collector 2 would inherently be relying upon affirmance from debt collector 1 for verification, as they are the owner, so I dont see how the lack of ability to directly DV debt collector 1 substantively denies verification of the debt.

By definition, both the CA collecting for the JDB and the JDB itself are debt collectors.  The FDCPA is silent as to where the collector should send for dv however, there is a FTC opinion letter and case law which states that it must be to the "creditor".  Since the CA or the JDB are not "creditors", as defined by the FDCPA, dv cannot come from either of them. 

The CA would, then, be required to send to the OC, or someone in the chain of assignments who is a "creditor", for dv.  I don't doubt that the CA will try, as you say, to get an affidavit from the JDB and pass it off as dv but many courts have ruled these affidavits as not having personal knowledge of the debt. 

There is case law pertainiing to a debt collector who brings legal action without makiing an initial communication with the defendant, and thus providing them the opportunity to receive verification before collection activy proceeds in the form of the law suit.

The courts have usually addressed such a situation by suspending the action, and requiring the debt collector to first provide the requested verification under the FDCPA before proceeding.

The cases I have read pertaining to this issue have been where the collector sent the maxi-miranda rights and sued before the 30 days expired.  If the collector has not ever contacted the debtor then the debtor has never asked for dv and there is no cease communications on collection activities.  The collector can sue.  This is where I am at.

What I see happening in my case is that the CA will get an affidavit from the JDB (not legal) and send that as dv and then sue when I tell the CA that what they sent me is not dv.  I've been down this road before.  The CA eventually loses but they drag me into the the court and the judge and the CA team up on me and try to get me to capitulate.  It's a scare tactic.

There is a strong possibility that the CA will come to their senses and realized that I am an informed consumer and go away.  However, greed causes some people to do things they normally would not do.

In preparation for this event, I'd like to figure out some what to dv the JDB so that I will have some counterclaims for continued collection.  I'd like to find some case law or FTC opinion which states that initial communication can come from the debtor. 

I'm also open to any other suggestions.

Alternately, the consumer could forgo the FDCPA DV process, and treat verification of the debt by way of a pre-trial discovery motion, which compels more than simple verification, it requires supporting documentation.  The DV process does not compel documentation.

There is no Discovery in small claims.  If I can figure out enough violations from different statutes, state included, I may be able to claim that my counterclaims exceed the limits of small claims.

[Shogun]

......  Too much legal speak.  

Essentially you have a CA that is assigning other CAs.  They will all fall under the same guidlines.  Sometimems CAs will claim to be "Factoring Companies" and try to list themselves in the manner of an OC.  Then they will assign the debt to one of their sibling companies.  

You will need to do your homework on this.  Who was the OC?  Who did they sell too?  What is the DOFD and what is the SOL of your state?

[Downto0]

I don't like the legal speak myself but it's a necessary evil.

The JDB may be a factoring company but they still bought the debt in default.  This makes them a debt collector by definition of the FDCPA. 

The debt is within sol, barely.  I suspect their intention is to sue as the current CA has sued me twice and lost.  I have a faint hope that the CA will remember who I am once they receive my dv and will go away.  The JDB may tell them to sue anyway. 

This being said, I am formulating counter claims for the JDB.  I can sue the CA also as they have violated the FDCPA but I'm not sure how to bring them into the fray.  I think I would need to file some sort of cross petition, or something like that.  The easiest and surest thing to do woud be to file a separate action against the CA for their FDCPA violations.  However, filing some sort of cross petition may bring the damages of all of the my claims over the small claims threshold and I can move the action to the higher court and thus have Discovery.

I'll cross that bridge when I get there.  For now, I am looking at a way to snag the JDB.  I am looking at 2 avenues.  One is to send a dv letter directly to the JDB and invoke a cease communications.  The dv letter will also invoke a cease collections for the CA.  I don't know if my letter to the JDB would be viewed as initial communication and would invoke a cease collections against the JDB until they returned dv...as it would with their CA.

Even then, I suspect that the CA will send bogus dv and sue.  It'll all get thrown out of court, except for my counter claims, but I must endure the harassment of going through the court procedures. 

I could use some more counter claim ideas for the JDB.  I will try the cease collections and the overshadowing claims and probably the collecting without a contract.  Any other suggestions?