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 Posted: Thu Jul 17, 2008 7:51 am Subject: Debt Validation and pending Lawsuit |
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I have an account in collections and I sent the collection agency a CMRR letter for debt validation. Well, the collection agency never answered back and yesterday I received summons from my local court house. I checked online and it’s a valid case pending. I contacted a NACA lawyer and I asked about them not validation my debt. The lawyer says they (collection agency) can always answer the complaint in the discovery process. I thought it was illegal for a collection agency to continue with the case without debt validation? I asked if we can go after them for continuing to collect without validation. The lawyer said no. Should I be looking for another lawyer? I'm a resident of the state Ohio if that matters any.
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Ryan_N
Joined: 02 Apr 2007
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| Posted: Thu Jul 17, 2008 8:15 am Subject: |
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That's a new one on me, I had always thought filing a complaint during the validation period was an attempt to collect, providing you sent the validation request within the 30 day window the CA gives you. If you did, then I would file a motion to dismiss the case with prejudice due to the fact they [the CA] violated the FDCPA by filing a compaint against you during the validation process.
| Quote: | FDCPA Section 809. Validation of debts [15 USC 1692g]
(b) If the consumer notifies the debt collector in writing within the thirty-day period described in subsection (a) that the debt, or any portion thereof, is disputed, or that the consumer requests the name and address of the original creditor, the debt collector shall cease collection of the debt, or any disputed portion thereof, until the debt collector obtains verification of the debt or any copy of a judgment, or the name and address of the original creditor, and a copy of such verification or judgment, or name and address of the original creditor, is mailed to the consumer by the debt collector |
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Online complaints: Federal Trade Commission.
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Shazzers
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| Posted: Thu Jul 17, 2008 8:16 am Subject: |
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| Quote: | If a creditor can't verify a debt:
They are not allowed to collect the debt,
They are not allowed to contact you about the debt, and
They are also not allowed to report it under the Fair Credit Reporting Act (FCRA). Doing so is a violation of the FCRA, and the FCRA states that you can sue for $1,000 in damages for any violation of the Act. |
Also, case law:
Spears vs. Brennan
| Quote: | The appeals court determined:
"Brennan (plaintiff collection agency attorney) violated 15 U.S.C. § 1692g(b) when he obtained a default judgment against Spears (defendant) after Spears had notified Brennan in writing that the debt was being disputed and before Brennan had mailed verification of the debt to Spears."
This means that you have an absolute defense in court to deny them judgment if they still have not validated the debt. Once you get your FDCPA dispute letter in, the collector cannot even get a judgment until they satisfy the FDCPA law. The appeals court overturned the default summary judgment in part because the collection agency lawyer did not meet the rules of the FDCPA.
This could be grounds for getting a default judgment vacated. It's also another violation of the FDCPA and you can collect $1,000 from them. |
Information obtained from:
creditinfocenter.com
_________________
Online Complaints Ohio Attorney General
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Ohio Payday Loan Laws
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Shazzers
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Shazzers
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nascardevil
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| Posted: Thu Jul 17, 2008 8:34 am Subject: |
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I will look in the yellow pages now and find a lawyer who would be interested in the FDCA violiations they have done. I responded to the collection agency within the 30 days when they sent it.
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Ryan_N
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nascardevil
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Shazzers
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| Posted: Thu Jul 17, 2008 8:57 am Subject: |
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Only thing that was included with the court papers is the contract I had with the rental place. The lawyer for the CA has included 14 statments in it. I was looking for a lawyer because I have no idea what to do with this and don't want a default judgement for answering a question wrong or something. This stuff is way over my head. I may have to figure out on how to do this myself. The NACA lawyer said it would cost me $500 answer and file my answer.
I'm in a debt consolidation company and figured I wouldn't pay until I get my other debts taken care of since they never answered my DV. But, looks like more money is going out the window.
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Ryan_N
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nascardevil
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| Posted: Thu Jul 17, 2008 9:00 am Subject: |
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Its the OC thats suing me.
Shazzers- Answer every line as can't not affirm as Plaintiff has not provided any documentation supporting this claim? Should I include a photo copy of my DV with the CMRR in my answer?
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Ryan_N
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nascardevil
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| Posted: Thu Jul 17, 2008 9:10 am Subject: |
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| Quote: | Its the OC thats suing me.
Shazzers- Answer every line as can't not affirm as Plaintiff has not provided any documentation supporting this claim? Should I include a photo copy of my DV with the CMRR in my answer? |
Ryan, on those papers sent to you with the summons, does that contract have your signature on it, or is it just a copy of a contract they give to everyone? Do these statements you received have your name on them? If they do, it sounds like you may have been validated, in which case you can't claim no documentation has been provided to support the claim. If I were you, I would try to work something out with the OC since they're the ones suing you, as Nascar said. 
_________________
Online Complaints Ohio Attorney General
Online complaints: Federal Trade Commission.
Ohio Payday Loan Laws
Ohio Consumer Protection Law
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Shazzers
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Shazzers
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| Posted: Thu Jul 17, 2008 9:15 am Subject: |
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But I do not have a payment history included in the paperwork or how the charges were calculated. I have a move out bill from the apartment complex of $1716 but in the summons they are stating $3,134 plus additional cost, interest, and attorney fees that the court deems just and proper. How did the cost almost double without attorney fees?
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Ryan_N
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