doctrine of estoppel by silence
Date: Wed, 12/17/2008 - 06:32
Opinions.
I have heard of Estoppel, but have not looked into it too closel
I have heard of Estoppel, but have not looked into it too closely to give you an answer, so hopefully someone else can. However, you can counter sue for the violation of continued collection activity since filing a lawsuit when the account wasn't validated is considered continued collection activity.
I have looked into it, it basically says for instance, I f I res
I have looked into it, it basically says for instance, I f I respond to a debt collector within 30 days and they do not validate the debt, I can request validation again. If they fail to respond or respond incorrectly I can place an estoppel by silence on them.
They had 2 chances to prove their case to me, so now if they go ahead and sue, they have no standing.
First, if you request DV within the 30 days, they cannot proceed
First, if you request DV within the 30 days, they cannot proceed until they validate the debt.
The law does not say what time frame they have to complete the validation in. So if they take 2 years to adequately validate then sue you they are within the law.
The philosophy behind estoppel is they said one thing and now are trying to claim another.
By not validating is not claiming they can't it means they haven't.
OK cellular I think I follow you on this. But what if I request
OK cellular I think I follow you on this. But what if I request validation and they don't then they sue me and send me admissions telling me to admit to the debt and such, then I send them production of documents and they fail to produce. I can then motion to compel. If they fail again, that is basically a doctrine of estoppel where I can motion to dismiss, right?
No that is failure to comply with a court order. Since they did
No that is failure to comply with a court order. Since they did not provide the documents the case would be tossed by the judge because they are unable to prove their claim.
Estoppel would apply if they say that they have the original signed contract and then going to court saying that they don't have them or they don't exist. It is saying one thing then latter claim something else.
I understand what you are trying to do but you don't want to be too smart by half. Basicly request that they produce the necessary documents to prove the debt, original contract, proof that they have the right to collect, how they obtain the amount owed. This is done through discovery.
Go to court with:
1. your proof that you requested Validation, (copy of the letter sent with proof of delivery),
2. copy of your discovery motion and proof that it was served,
3. proof of your defense (receipt of payment, proof that SOL expired, etc).
4. copies of anything you provided to the CA
Then object to everything they try to present as evidence as:
1. irrelevant
2. hearsay (especially any affidavid is introduced)
Then let the judge decide. Quoting laws are risky unless they are rock solid and deal exactly with the issue, which most laws are written to give all kinds of wiggle room.
Such as murder is the taking of a human life, unless in this case or under this circumstance, or it was tuesday and you were standing on your right foot only while sing london bridges (think OJ).