Trying to get debt validation fm atty

The only thing they managed to do when they reported the later than actual activity date is commit a FCRA violation. If they try to file suit after SOL has expired then you claim SOL as your defense. They will have to prove it is not. If they do file suit you may wish to hire a attorney, you can counter sue for attorney fees, court costs, the $1000 per violation of FCRA, and punitive damages.

It is complicated because the law firm that tried to re-age the debt is not the one collecting it now. The violation is on the former collector. The current collector has know way of knowing that it is a false entry and assumes the SOL was restarted from that date. HSBC lawyers will follow trhrough with the suit from my own personal experience. The chances are they will validate and proceed. They may not validate it until they get you in court. There is no time limit. A credit card leaves a paper trail that is easy to pick up. Having your own attorney is highly advisable. It is better to pay your legeal cost and reach an out of court settlement than to pay theier legal fees and court costs on top of what you owe. If you feel savvy enought o walk into court without an attorney and win I wish you weel but I do not like seeing people getting squashed. Remember that judges are lawyers and if it comes to a gray area they will side with there cronies every time. Sorry I can't be more positive but I believe in being honest.

hi guest--

ok, this is kinda complicated, but at the same time it really isnt. Let me explain--

If you read the FDCPA, section 809, it actually states that the debt collector, when they get your DV request, must cease collection of the debt, obtain validation from the original creditor, and then provide said validation to you. What I got from your post is that the OC hired a lawyer, who then lied about the activity on your account in 2006, and then a different lawyer was assigned this debt. That said, the lawyer you are dealing with now still should have access to any activity on the account. The previous attorney was representing the OC, so any payments or other activity would still have been passed from that lawyer back to HSBC. I hope that made sense.

If this were a case where you are dealing with debt buyers, and the original creditor had sold this debt, then this wouldnt be the case. But being that these are lawyers who dont own the debt--they are acting on behalf of their client HSBC--then the info, if it truthfully exists, would still be available.

Because of this, if it were me, I would argue that this lawyer did not prove his case. My contention would be that the SOL has expired and no proof has been brought forth to counter that.

What this lawyer provided to you is not validation, as far as the law goes. Read the FDCPA, in section 809, word for word, is this:

Quote:

That is all true and put very eloquently but the fact of the matter is likely that the attorney will file a case in small claims court without validating the debt and will show proof during discovery. At that time the defendant can argue his case where the attorney will lie and say that the information was provided. I went to court against HSBCs attorney. I had sent a letter to HSBC asking to settle. They ignored it and gave it to an attorney who sued me faster than I could say debt validation. It all sounds good on paper but in the real world it does not always work that way. The attorney in my case said their phone records showed that I never returned their calls. Their phone records were all hang ups on my voice mail. The attorney had all the paperwork from the original creditor including payment history original agreement etc. They will validate that debt one way or another. They are lawyers and do this everyday and no what they can and can't get away with. Anyone who defends himself in court has a fool for a lawyer.

frog, you have forgotten one thing though...

in this case, guest sent out a validation letter in 11/07. It is unlawful for that attorney to then file a lawsuit AFTER he got the DV request, without first providing the information to guest. The suit was not already in progress when they got his DV request. And section 809(b) of the fdcpa clearly states that they cannot take ANY collection activity until they satisfy his request. Sending out some stuff that isnt proper validation doesnt nullify that law.

Also, while this is an attorney, there is no question that they are also acting as a debt collector, in accordance with the FDCPA. Remember, they sent him a dunning letter in 11/07, to which he replied with his DV request. The act of sending that letter means that they can not hide behind the "attorney, not debt collector" defense. They took an action that is specifically a collection attempt. I recall that the FTC opinion letters agree with me on that.

So, we have a lawyer engaging in collection activity, and by law he is a debt collector for the purpose of the FDCPA. And, that lawyer received a DV request. This lawyer has not, to date, provided said validation. If he files a lawsuit now, he will be performing a new collection attempt, without satisfying the validation requirement set forth in the FDCPA. If I were served with that summons, my affirmative defense would instantly be that this case was unlawfully initiated in the first place. I would ask for immediate dismissal. The law doesnt allow a DC to ignore DV requests, then file suit, and then say "oops, I messed up back there, but here is validation so the end justifies the means".

The lawyer satisfied his own requirement for validation. You can send him a second letter but now it is a matter of opinion what is required. The law only requires the following:
"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."
Thats it. Anything else that is asked for is really at the discretion of the attorney and his legal opinion. The attorney in this case provided everything that is stated herein above. He can sue and will. Mark my word on this!

frog, I disagree. All the lawyer provided was the name of the original creditor and a dollar amount. Further, the dollar amount he provided in the "validation" was magically twice the amount that the same lawyer claimed was owed just two months prior in a written communication to the debtor.

I cannot agree that the name of the OC and a dollar amount, and nothing else, will satisfy the law--especially when two vastly different dollar amounts are being stated by the same lawyer just two months apart. I cannot see a court looking at that situation and saying "yes, that is sufficient validation of the origin of the debt, the dollar amount, and plaintiff's right to collect it". I just cannot.

your first sentence summed it up--the lawyer satisfied his own requirement, not the law's requirement. Note how the FDCPA states:

[quote]...until the debt collector obtains verification of the debt or any copy of a judgment, or the name and address of the original creditor...[/quote]

Verification of the debt cannot be just "here, you owe them $5,000 because I said so"...

Further clarification can be found in the FTC opinion letter to Jeffrey S. Wollman, dated 10 March, 1993:
cardreport.com/laws/fdcpa/ftc-opinion/wollman.html

So, if the attorney merely types out a statement that says "XYZ is the OC and $5000 is what you owe", which is what happened here, then the documentation did not actually come from the OC at all, and the law is clear that that is a requirement for validation to have taken place.

Wow lots of info to digest. First of all, the original DV ltr was sent certified so I have return receipt. Secondly, that they almost doubled my amount due when responding makes it fishy. I had probs with this account, I purchased some stuff on deferred billing which was not to be posted until April of '05...surprise it showed up in April and then I was charged over the limit fees, etc. So I was pissed and decided not to pay anymore. Not quite the right move but this company is scammy to begin with.

I am sending second request to atty tomorrow, via certified mail, asking for the additional information which I requested in my original letter. I think I have all of my original credit card statements which will clearly show that there was no further activity on this account.

I certinaly will not mention that the SOL is ready to expire, I have been lying low for these scumbags from day one, LOL.

If I have further questions I'll let you all know. Thanks for your help as always.

And by the way frog???????I don????????t know who you are and don????????t live on this site but you almost sound like an undercover attorney or collection agency on this site with the negative comments, etc. There are many intelligent individuals such as myself that know we got ourself into these messes but there are reasons for this. Stop judging and being so negative when you do not know the circumstances! If everyone was in "your" situation, these scammy credit card companies and scum crawling debt collectors would rule the world because people would not stand up for their rights!

Ok I'll get off my soapbox now, sorry for the rant but I can't stand negative people that do NOT know circumstances and think its ok to take advantage of innocent people!

Deferred billing purchase was to show up on credit card in April '05, Showed up in February '05 which caused over the limit fee, etc.

Frog is nothing like you suggested he might be. Frog was just pointing out that a lot of collection attorneys will file suit in response to validation requests. At least it seems to be the popular trend.

[quote=Guest]And by the way frog???????I don????????t know who you are and don????????t live on this site but you almost sound like an undercover attorney or collection agency on this site with the negative comments, etc. There are many intelligent individuals such as myself that know we got ourself into these messes but there are reasons for this. Stop judging and being so negative when you do not know the circumstances! If everyone was in "your" situation, these scammy credit card companies and scum crawling debt collectors would rule the world because people would not stand up for their rights![/quote]


Easy there! He may have a few warts, but Frog's one of ours. Nothing at all like you write.

sorry if I over reacted, I tend to do that sometimes.

Seeing as it is end of January, atty has about 5 days to file suit and go to court before the SOL kicks in. So I'll do follow up ltr and again request proper validation.

Will probably be back for more answers if the a tty files suit.

Thanks again and Frog, sorry for the rant.

YES GUEST FROG IS ONE OF THE GOOD ONES.HE GAVE YOU SOME REAL GOOD ADVICE,JUST BRING EVREYTHING TO COURT WITH YOU.THE DV LETTER,ALONG WITH THE PROOF OF RECEIPT.GOOD LUCK KEEP US POSTED. :D

Hi everyone, I need help again please. After re-reading the correspondence I received from the atty, he stated that he "verified" the debt. So...I wrote back and again requested validation per the fdcpa and also for explanation as to why the amount owed doubled between November and January. No response yet, however I got a notice from a debt consolidation company that I am being sued. I recognize this company, received a letter from them when I was sued by another creditor a while back, so I know its legit however I have not been served with any papers yet.

So...my question is, what are my next steps? I know when I'm served that I need to respond to summons, I need some info on how to word my response because I want to make it clear that I dispute this debt and also requested validation which didn't happen and also the fact that the SOL has expired (last payment was 2/8/05).

Any help is appreciated, thank you!

Then the SOL is your defense, you can file a counterclaim for $1,000 plus attorney fees and court costs for them violating the fdcpa for continued collection activity after validation was requested.

Thanks. Is there somewhere on this site that I can fine the specific wording used to respond to the summons? I remember someone posted this info a few months ago yet I cannot find it.

Thanks again for your help, I appreciate it.

Not really sure off the top of my head, however most complaints are answered (for the most part) like a true false test. Ex:
Defendant resides at 123 main street...
You would answer (if true) "defendant does reside at 123 main street.

I don't have a lot of experience with civil complaints however, someone with more expertise in the matter will be along to assist you further.

Thanks again. Anyone else that can help with this, I would really appreciate it. I know I've reads lots of really good info, responses, etc. but cannot find what I'm looking for.

guest, you have two defenses....

the SOL would be one....the unanswered DV request would be the second. Personally, I could care less what an attorney says--yes, they are supposed to know the law, but if you look around the debt collection world there are literally TONS of lawyers that make a daily practice out of ignoring the law. And, when you sent a DV request, by law no lawsuit can be filed until after that request is properly answered. The law doesnt give an attorney the choice on whether or not they will actually follow the whole statute or just a portion of it. And this is federal law we are talking about.

If you need it, I can look up the exact FTC opinion letters which have been accepted in courts as valid explanations or clarifications of the law. What he sent you was a piece of paper with the name of the original creditor written or typed on it, and a number...nothing else, right? The law has been fully explained by the FTC, and the law is not satisfied with a validation attempt unless the documentation itself actually comes from the original creditor. He didnt provide that, and since you still have all the letters you have all the proof you need.

Let us know if a summons shows up, and what the points in their complaint say and we can help you answer it. Also, after your answer, you will want to put in an affirmative defense, and we can help with that too.

Hi and thanks again. Any info you can provide to me on the FTC opinion letters would be really great.

The attorney wrote me back after I requeseted DV, his exact wording gave the name of the original credit and the amount supposedly owed which somehow doubled from his original letter to me back in November. He than stated that the debt had been verified. He said nothing about validation.

Thanks again, this site is really great!

Hi everyone, I'm back. I got served today, the papers clearly state that the last activity on my account were February 2005, statute of limitations in MD is 3 years. So...now what? I need to respond and need advice on how to do so. Additionally, the scheduled court date is a date when I will be out of town for a business meeting.

Please help on how to proceed.

Thank you very much!

I would suggest seeking legal council. You may be able to claim SOL as your defense but that depends on if the complaint was filed within the SOL. If you need to go to court request a continuance.

ok, here we go....

you have two points to make that will both help you. First, let me ask you something just to make sure here---the summons you received should have had a complaint sent with it, or possibly a date the complaint was filed by the plaintiff with the court. What was that date?

Now, compare it to the date you originally sent debt validation request....do you have any proof of these requests you sent? Hopefully you sent them certified mail and you have the signature cards from them. Do you? If so, you have everything you need already--here is exactly how I would proceed....

on each paragraph of the complaint or summons, you will need to submit an answer. For example, first paragraph might say:

1) Defendant currently resides in XYZ County, and therefore this complaint is filed in proper jurisdiction.

Your answer, if you in fact live there, would be:

1) Defendant affirms ths statement made in paragraph 1.

Next, there will be assertions made about this debt in the following paragraphs. For this particular situation, I would do the following....first, example:

2) Defendant opened a credit card account with plaintiff and has since accrued an outstanding balance of $XXXX.XX

Answer--
2) Defendant denies all statements made in paragraph 2.

I would deny everything related to this debt in this manner. Then, once you have responded to each paragraph, you will need to do the following:

AFFIRMATIVE DEFENSE
Defendant now comes and motions for the court to immediately dismiss plaintiff's complaint with prejudice, on the grounds that filing this lawsuit constitutes a direct violation of the Fair Debt Collection Practices Act on the part of the plaintiff, and also on the grounds of expired statute of limitations.

Defendant received a letter from plaintiff's attorney, dated November __, 2007, in which defendant was notified that this debt had an outstanding balance of (enter the exact "almost 2500 amount" here). This letter is attached and hereto known as Defendant's Exhibit A. In response, defendant sent a debt validation request, pursuant to the Fair Debt Collection Practices Act. A copy of this request and the receipt signature card are attached and hereto known as Defendant's Exhibit B and C, respectively. Plaintiff's attorney responded on (date of response) with a letter simply stating the name of the original creditor, and now claimed that the amount owed had jumped from the previous amount to (insert the higher amount here). This letter is attached and hereto known as Defendant's Exhibit D. The Fair Debt Collection Practices Act is clear that in order for a validation request to be legally satisfied, the documentation must come from the original creditor, and not just be a number written on a piece of paper, which is all that plaintiff's attorney had done. Defendant replied with a second validation request, which also asked for an explanation as to the drastic increase in the claimed amount due in just two months. The second validation request and receipt signature card are attached and hereto known as Defendant's Exhibit E and F, respectively.

Thus far, Plaintiff's attorney has failed to meet the fdcpa requirement for debt validation. Section 809 of the FDCPA also strictly prohibits any further collection activity until the validation request is properly answered. In this case, plaintiff never properly responded to this request, yet still filed this suit. That makes this lawsuit unlawful according to federal law.

Plaintiff filed this complaint with the court on (date). The date of last payment showing on this debt is February 8, 2005. The statute of limitations on credit card debts in this state is 3 years, which places this debt outside that statute of limitations at the time the complaint was filed with the court. Thus, statute of limitations being expired, this debt cannot legally be taken to court by plaintiff.

--now, I know, a bit wordy, but I like to get in all the details. Also, the SOL part is only useable if the date they filed the complaint falls after 2/8/08....if you want to streamline that or use it as it is, either way feel free. Or, I could help you chp it down a bit if you prefer...but I am off to sleep now.

Thanks for all of this info. The date filed was 1/29/08, the date issued is 2/20/08. The original DV letter was sent on 12/4/07 via Fed Ex next day. The attorney's response letter is dated on January 24, 2008. So his response clearly is after 30 days which he had to validate, correct?

And you are saying that I can't use the SOL defense since the papers were filed before the 2/8/08 deadline for SOL?

In order to use SOL as your defense it would have had to expire on or before the date the complaint was filed.

I'm not sure what to do now, I know I need to file response but was hoping I didn't have to get an attorney. Although I might be able to find one since atty filed suit without providing DV.

Thoughts anyone?

Did you request validation before the suit was filed?

yes I requested validation on 12/4/07 and atty's response (with verification, NOT validation) was dated 1/24/08

You may be able to file a counterclaim for $1,000 for fdcpa violation of continued collection activity after validation has been requested. Be sure to request the validation in discovery, if they can't validate it. Motion for the case to be dismissed. I would strongly suggest that you go into this with legal council however.

Thanks again for your input. I have appt w/attorney tomorrow (will cost me $50 for consult). If I do in fact have a case and retain legal assistance, what is standard procedure - are attorney's fees due up front or does this vary from case to case?

Thanks again for listening and answering all of my questions.

No problem guest, that is what I'm here for.
As to your question, that differs from attorney to attorney, you would need to consult them on their fee schedule.

One final question (For now, LOL). When I meet w/atty tomorrow, is there anything specific that I need to address with them? If anyone has suggestions let me know.

Thank you

Nothing that I can think of off the top of my head, if I can think of anything I'll post it.

I had appt w/attorney today and found out in State of MD, the fdcpa rules do not apply and it is legal for an attorney to just provide a piece of paper or anything with name of original creditor and amount due. So that means no lawsuit for FDCPA violation, bummer. I didn't know about this law in MD and wanted to let everyone know about this exception to the law.

I dont think thats right--seriously....an individual state cannot simply throw out a FEDERAL law and say "eh, we dont like that one so we're gonna make it null and void within our borders"....

That doesnt seem right at all to me. For example, you have federal courts in MD, right?? There cannot be anything to prevent you from bringing suit on a federal law violation in a federal court! This doesnt sound right at all to me....

I know that MD has its own debt colleciton law, and it is quite small....but that in no way makes the federal law disappear. In fact, I will do you one better--you just got lied to. Here is a link to a page on the Maryland Bar Association website, be sure to ad the www dot:

msba.org/departments/commpubl/publications/bar_bult/2006/apr/fdcpa.htm

Read that one....it talks all about how MD lawyers need to be aware of the fdcpa. If it didnt apply there, then why would they need to know it?

I honestly think you got lied to, man....I would check that one again.

thanks, I will check it out. But from what the attorney told me (and it is reputable attorney), the jurisdication I am in passed some sort of law (don't know the case) that an atty can provide the piece of paper with just the debt collector name and amount owed, and nothing else. I think she said I'm in jurisdiction 4 in Montgomery County MD but cannot be sure yet. Will keep you posted. She did say whetever they passed, it is not good and it would probably be overridden sometime soon but for now, no go.

If anyone else has further info on this, I'd be interested to see it.

Thanks again

What is this mystery law? One thing I have learned is that Federal law seems to leave openings for state law to fill the blanks to suit their state. Federal law doesn't over ride state because it is designed so that it does not conflict, just as state law is not to conflict with federal law.

I strongly feel that this may have been a gross misinterpretation by this attorney.

I wish I had more info, but I don't. The atty was listed via the NACA website. I am confused :(

I wouldn't take this lawyer's word without at least confirming it with others...Check this out:
??????
Then it goes on to list the meat of the federal laws...where did I get this? On the MD attorney general website: http://www.oag.state.md.us/consumer/edge117.htm they have a whole 'how to deal with debt collectors'.
Sounds to me like they follow federal law.

I would contact the MD AG's office, personally, and ask them if the fdcpa applies in your state. I think the attorney confused the situation because MD has its own debt collection law, and their state law does not have any requirement about what constitutes debt validation. But yes, the FDCPA DOES apply in your state. Confirm this with the AG.

Hi again everyone. I have the case name and number which I mention above, it is Chaudhry vs. Gallerizzo, Citation 174f.3d394 (4th Cir. 1999). Apparently this is used in both the 4th and 9th circuits of MD courts.

Can anyone offer any insight on this?

It's true that the court had taken the low road for a easy end on that case, but what of Spears v. Brennan?

Hi again and I'll look at that case too. Also have call into AG office but we will see if I get a return phone call. For some reason they had a hard time trying to figure out who to route my call to and the personal who's voice mailbox I finally landed in might or might not be able to help.

Will keep you posted