Any TX Finance Code experts? 1 CA w/2 atty's; 1st didn't validate, 2nd is suing
Date: Thu, 09/01/2011 - 17:33
I have an old BOA credit card, still within SOL. CACH has owned this debt since 9/2010. In January of this year the office of Ed Overcash attempted to collect. I sent DV letter CMRRR, and never heard from them. CACH sent another atty after me in May, who did "validate" with copies of statements only, and now is suing.
Question is, once Overcash failed to validate, wasn't CACH supposed to request a deletion from the credit reports? The credit report I'm looking at is dated 4/11; Overcash's 30 days were up in February. So first of all, it seems to me that CACH failed to remove the negative listing on my report when they couldn't validate. Second, it seems to me that they are continuing to collect despite failing to vaildate (which is an admission of inaccuracy), and which I believe is in violation of TFC:
Not later than the 30th day after the date a notice of inaccuracy is received, a third-party debt collector who initiates an investigation shall send a written statement to the individual:
(1) denying the inaccuracy;
(2) admitting the inaccuracy; or
(3) stating that the third-party debt collector has not had sufficient time to complete an investigation of the inaccuracy.
[c] If the third-party debt collector admits that the item is inaccurate under Subsection , the third-party debt collector shall:
(1) not later than the fifth business day after the date of the admission, correct the item in the relevant file; and
(2) immediately cease collection efforts related to the portion of the debt that was found to be inaccurate and on correction of the item send, to each person who has previously received a report from the third-party debt collector containing the inaccurate information, notice of the inaccuracy and a copy of an accurate report.
On my credit report the date assigned is 9/2010, and on my summons CACH is listed as the Plaintiff, not BOA (the OC). BOA's record shows debt was sold.
So, CACH has had this debt since 9/10. Two attorneys have attempted to collect for them since then. The first one failed to respond, CACH didn't delete, and attorney #2 is now suing me. Do I have some ammunition here, I wonder? Or is each attorney considered a different "3rd party debt collector", and therefore CACH is in the clear?
I'm working on my answer to their complaint (and having oh so much fun with interrogatories and discovery), and need to know if I should approach it differently considering the history of the account.
Thanks in advance!!
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Send Them all a Notice of Intent to Sue
First off, we need some more information. How much is the debt, where are you being sued (JP, District, etc) have they sent anything besides statements, and do the statements actually show any charges or payments? I have not dealt with them, but they are not much different than the rest of the JDB.
I had a similar situation, so I sent a "Notice of Intent to Sue" to the JDB and the CA that did not validate. What I actually got was a letter back from the CA stating they had forwarded the DV to the JDB. From there, I had some leverage against the JDB. They just sent me a notice to dismiss with Prejudice within 3 days. Even though I really want to sue them over the violations, I will probably take it. No sense in getting greedy. Some of the JP judges don't have a clue about the FDCPA, and it might not work out in the end.
If you need help with your answer, PM me and I will let you look at what I did.So far it is a proven dismissal machine. I also have some good interrogs and production request stuff, thanks to some of the other heavy hitters here.
If Cach LLC was unable to validate the debt, they won't be able
If Cach LLC was unable to validate the debt, they won't be able to collect the debt from you. In such a situation, it would have been better if you could have sent them a cease and desist letter and asked them to stop contacting you any further. However, if Cach LLC has given you some proof of the fact that they own your debt, then you're liable for paying it. You might contact an attorney in order to find out how you may deal with the situation.
Please disregard the reply from anna, as it is incorrect. You d
Please disregard the reply from anna, as it is incorrect. You did not ever ask CACH for validation, so they are under no legal obligation to provide it, nor are they required to stop any collection activity. You DV'ed the third party debt collector attorney, and that DV only applies to that attorney debt collector and no one else. For the new attorney, you would have had to DV them as well when they first contacted you. But the root of the whole issue is that CACH apparently owns this debt now from the looks of things. So you really should have DV'ed them in the first place. That way, any time they send the debt to ANY other party to try to collect it, they have violated the law and you can pursue them directly.
I could always argue that what the second attorney provided is not validation....because it actually isnt complete validation. Sending you some statements does not in any way show the true and correct nature of the account today, unless they sent you a monthly statement saying "the account is being closed as of now and this is how much you still owe". Even then, you still can go into court and force them to prove that they have the legal right to collect the debt--make them prove that they actually purchased this specific account from the original creditor. In court, even if they prove that you owe a debt, if they have not shown that they are legally entitled to collect on that specific debt, then they shouldnt win their case.
I dont have an answer... a very interesting convolution of state
I dont have an answer... a very interesting convolution of state and federal debt collection and accuracy of information provisions. In my review, I dont think this statute is directed to debt validation itself, but rather to the dispute of accuracy of information, and with the additional wrinkle that it is not limited only to information reported toa CRA. It appears to be a disputue process that also applies to internal records of the debt collector. It is for correction of their or the CRAs files, and not specifically to validation of a debt.
The cited portion of the TX financial code appears to be from Title 5, Chapter 392, section 392.202, and is preceded by the following introductory provisions:
Sec. 392.202. CORRECTION OF THIRD-PARTY DEBT COLLECTOR'S OR CREDIT BUREAU'S FILES. (a) An individual who disputes the accuracy of an item that is in a third-party debt collector's or credit bureau's file on the individual and that relates to a debt being collected by the third-party debt collector may notify in writing the third-party debt collector of the inaccuracy. The third-party debt collector shall make a written record of the dispute. If the third-party debt collector does not report information related to the dispute to a credit bureau, the third-party debt collector shall cease collection efforts until an investigation of the dispute described by Subsections (b)-(e) determines the accurate amount of the debt, if any. If the third-party debt collector reports information related to the dispute to a credit bureau, the reporting third-party debt collector shall initiate an investigation of the dispute described by Subsections (b)-(e) and shall cease collection efforts until the investigation determines the accurate amount of the debt, if any.
This appears to actually be a hybrid of what is disputable under the FCRA, and subject to debt validation under the FDCPA.
As I read this section, it is not directed specifically to debt validation in the sense prescribed in FDCAP 809(a), but rather is a dispute process that applies, not only to information reported to a CRA, but additionally to information of record in their internal business files. It seems to fold in the "cease collections" provisions of their statute as a condition to investigation and verification of the disputed information.
I dont read this as a pure debt validation issue in the classic sense of the FDCPA process, but rather as a dispute process that applies specifically to debt collectors. So I would be careful in interpreting its provisions by reliance on debt validation case law. That is not what it appears to be.