Author Topic: Disabled person on SS asks, "What level of dispute letter should I send?"  (Read 3453 times)

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BellEbutton

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Re: Disabled person on SS asks, "What level of dispute letter should I send?"
« Reply #15 on: February 26, 2017 09:16:13 PM »
Clearly you have a reading comprehension problem.  Seems to be a pattern among the little clique you guys have.

If someone continues to collect from the wrong person, it's a violation.  Period.

How is a debt collector supposed to know a debt is not owed unless validation shows it or he's informed by the dunned person?




Clydesmom66

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Re: Disabled person on SS asks, "What level of dispute letter should I send?"
« Reply #16 on: February 26, 2017 09:35:18 PM »
How is a debt collector supposed to know a debt is not owed unless validation shows it or he's informed by the dunned person?

Oh BellE there you go using logic and rational reasoning again.  When will you learn that doesn't play well here?   :vbrofl: :vbrofl: :vbrofl:
Be VERY careful following advice from the internet! What worked for someone with thousands of posts on a message board may not work for YOU in your state.  Consult a lawyer when ever possible.

BellEbutton

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Re: Disabled person on SS asks, "What level of dispute letter should I send?"
« Reply #17 on: February 26, 2017 09:55:50 PM »
Oh BellE there you go using logic and rational reasoning again.  When will you learn that doesn't play well here?   :vbrofl: :vbrofl: :vbrofl:

I'm just a tad bit stubborn.  :)

fisthardcheese

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Re: Disabled person on SS asks, "What level of dispute letter should I send?"
« Reply #18 on: February 27, 2017 10:43:47 AM »
How is a debt collector supposed to know a debt is not owed unless validation shows it or he's informed by the dunned person?

By using due diligence to verify the account after receiving a DV letter disputing the debt.

ROYAL FINANCIAL GROUP, LLC. v. George, Mo: Court of Appeals, Eastern Dist., 5th Div. 2010

The court finds that debt collectors may be found in violation of subsection 1692e(2)(A) for mistakenly dunning[3] the wrong individuals when they fail to exercise reasonable care in ascertaining the facts, such as by relying upon information on which a reasonable person would not have relied.

Beattie v. D.M. Collections, Inc., 754 F.Supp. 383, 392 (D. Del. 1991). See also Dutton v. Wolhar, 809 F.Supp. 1130, 1136 (D. Del. 1992) (holding that debt collectors violated section 1692e(2)(A) when they represented that plaintiff was legally obligated to pay a debt incurred by her mother).
11 Arb Settlements (9 AAA, 2 JAMS)
3 JDB Suits Dismissed With Prejudice (2 pro-se, 1 consumer atty)
3 TCPA Settlements (2 pro-se, 1 consumer atty)
2 FCRA Settlements (consumer atty)
1 FDCPA Settlement (w consumer atty)
1 Small Claims Win (pro-se; Landlord/state consumer law violations)
1 State UDAP Settlement (ITS)
1 Federal PTC Settlement (before hearing; pro-se)

Bruno the JDB Killer

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Re: Disabled person on SS asks, "What level of dispute letter should I send?"
« Reply #19 on: February 27, 2017 12:15:20 PM »
You don't even need to validate.


United States Court of Appeals,Fourth Circuit.
Diane RUSSELL, Plaintiff–Appellee, v. ABSOLUTE COLLECTION SERVICES, INC., Defendant–Appellant, Charlton Clarkson, Defendant.


No. 12–2357.
    Decided: August 15, 2014


We need not rely exclusively upon the statute's silence, however, because both the express language and the remedial nature of the FDCPA persuade us that a consumer is not required to dispute the debt before bringing suit under § 1692e. As our colleagues on the Third Circuit recently observed when rejecting the very argument Absolute Collection advances here:

The language of § 1692g indicates that disputing a debt is optional. The statute lists consequences “if the consumer” disputes a debt, 15 U.S.C. § 1692g(b) (emphasis added), and it makes clear that failure to dispute a debt cannot be construed as an admission of liability. Thus, the statute protects a prospective litigant from being penalized in a lawsuit if he or she chooses not to seek validation.

McLaughlin v. Phelan Hallinan & Schmieg, LLP, ––– F.3d ––––, 2014 WL 2883891, at *4 (3d Cir. June 26, 2014) (brackets omitted) (footnote omitted) (citation omitted). Given the explicit protection conferred upon debtors who choose not to dispute their debts, it would be anomalous to conclude that a debtor forfeits his or her ability to bring a lawsuit under the FDCPA simply because the debtor failed to invoke § 1692g's discretionary validation procedures.


Under Absolute Collection's construction of the statute, a debt collector would have free rein to make false or deceptive representations about the status of a debt if the debtor failed to dispute its validity within thirty days of receiving the initial collection letter. Shielding debt collectors from liability for their falsehoods would thwart the statute's objective of curtailing abusive and deceptive collection practices and would contravene the FDCPA's express command that debt collectors be liable for violations of “any provision” of the statute. Id. § 1692k (“[A]ny debt collector who fails to comply with any provision of th[e] [FDCPA] with respect to any person is liable to such person․”). Congress obviously did not intend to immunize debt collectors from liability for violations of the FDCPA while concomitantly depriving debtors of a remedy under the statute. Indeed, the FDCPA's legislative history suggests that the purpose of the validation notice requirement was to “eliminate the recurring problem of debt collectors dunning the wrong person or attempting to collect debts which the consumer has already paid.” S.Rep. No. 382, 95th Cong. at 4 (1977) (emphasis added).
I am not an attorney. Any information I post is strictly my opinion and should be treated as such.

BellEbutton

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Re: Disabled person on SS asks, "What level of dispute letter should I send?"
« Reply #20 on: February 27, 2017 08:23:22 PM »
By using due diligence to verify the account after receiving a DV letter disputing the debt.

ROYAL FINANCIAL GROUP, LLC. v. George, Mo: Court of Appeals, Eastern Dist., 5th Div. 2010

The court finds that debt collectors may be found in violation of subsection 1692e(2)(A) for mistakenly dunning[3] the wrong individuals when they fail to exercise reasonable care in ascertaining the facts, such as by relying upon information on which a reasonable person would not have relied.

Beattie v. D.M. Collections, Inc., 754 F.Supp. 383, 392 (D. Del. 1991). See also Dutton v. Wolhar, 809 F.Supp. 1130, 1136 (D. Del. 1992) (holding that debt collectors violated section 1692e(2)(A) when they represented that plaintiff was legally obligated to pay a debt incurred by her mother).


First, the Missouri Court of Appeals is not precedent on any court except Missouri state courts.  Second, did you read the circumstances surrounding the rulings you cited?

In Royal Financial Group, LLC v. George, it was never alleged that Royal dunned her.  They simply filed suit on a debt that was not hers and was time-barred. 

In Beattie, a ruling that is only precedent in that court, the consumer's/plaintiff's father informed the debt collector that the debt belonged to his son, Frank R. Beattie.   That is when the consumer/plaintiff was contacted.  The court only ruled that there was an issue of material fact as to whether DM exercised "reasonable care" by relying on the statement of the plaintiff's father.  It did NOT rule that the debt collector violated the applicable provision.

Note that in Beattie, information was provided to the debt collector.

I cite Chaudhry again.

"Verification of a debt involves nothing more than the debt collector confirming in writing that the amount being demanded is what the creditor is claiming is owed; the debt collector is not required to keep detailed files of the alleged debt.Chaudhry v. Gallerizzo, 174 F.3d 394 (4th Cir.1999).

That ruling has been agreed upon by numerous circuit courts of appeals including the 8th Circuit in Dunham v. Portfolio Recovery (2011) which encompasses Missouri.
« Last Edit: February 27, 2017 08:37:30 PM by BellEbutton »

BellEbutton

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Re: Disabled person on SS asks, "What level of dispute letter should I send?"
« Reply #21 on: February 27, 2017 08:36:46 PM »
You don't even need to validate.


United States Court of Appeals,Fourth Circuit.
Diane RUSSELL, Plaintiff–Appellee, v. ABSOLUTE COLLECTION SERVICES, INC., Defendant–Appellant, Charlton Clarkson, Defendant.


No. 12–2357.
    Decided: August 15, 2014


We need not rely exclusively upon the statute's silence, however, because both the express language and the remedial nature of the FDCPA persuade us that a consumer is not required to dispute the debt before bringing suit under § 1692e. As our colleagues on the Third Circuit recently observed when rejecting the very argument Absolute Collection advances here:

The language of § 1692g indicates that disputing a debt is optional. The statute lists consequences “if the consumer” disputes a debt, 15 U.S.C. § 1692g(b) (emphasis added), and it makes clear that failure to dispute a debt cannot be construed as an admission of liability. Thus, the statute protects a prospective litigant from being penalized in a lawsuit if he or she chooses not to seek validation.

McLaughlin v. Phelan Hallinan & Schmieg, LLP, ––– F.3d ––––, 2014 WL 2883891, at *4 (3d Cir. June 26, 2014) (brackets omitted) (footnote omitted) (citation omitted). Given the explicit protection conferred upon debtors who choose not to dispute their debts, it would be anomalous to conclude that a debtor forfeits his or her ability to bring a lawsuit under the FDCPA simply because the debtor failed to invoke § 1692g's discretionary validation procedures.


Under Absolute Collection's construction of the statute, a debt collector would have free rein to make false or deceptive representations about the status of a debt if the debtor failed to dispute its validity within thirty days of receiving the initial collection letter. Shielding debt collectors from liability for their falsehoods would thwart the statute's objective of curtailing abusive and deceptive collection practices and would contravene the FDCPA's express command that debt collectors be liable for violations of “any provision” of the statute. Id. § 1692k (“[A]ny debt collector who fails to comply with any provision of th[e] [FDCPA] with respect to any person is liable to such person․”). Congress obviously did not intend to immunize debt collectors from liability for violations of the FDCPA while concomitantly depriving debtors of a remedy under the statute. Indeed, the FDCPA's legislative history suggests that the purpose of the validation notice requirement was to “eliminate the recurring problem of debt collectors dunning the wrong person or attempting to collect debts which the consumer has already paid.” S.Rep. No. 382, 95th Cong. at 4 (1977) (emphasis added).

I'll ask you the same question I asked fisthardcheese.  Did you read the circumstances surrounding the ruling???   Of course, one does not have to dispute a debt before filing suit under 1692e.  The following is in the first paragraph of the ruling.

"Although the collection letter instructed Russell to send payment for the debt to Absolute Collection, she instead paid the creditor directly and notified Absolute Collection of her payment during two telephone conversations with collection agents."

This was also stated:

"A collection agent from Absolute Collection telephoned Russell on February 6, 2009, seeking to collect on the Sandhills bill.  Russell informed the agent that she paid the entire $501 debt directly to Sandhills and that the check had cleared her bank account."

AGAIN, the debt collector was INFORMED.

"On March 31, 2009, Absolute Collection sent Russell another collection letter, stating, 'As you are aware, your account with Sandhills Emergency Physicians has not been satisfied.'"

Note the dates in above 2 references.  After being informed in February that the debt had been paid, the debt collector sent a letter in March stating the debt had not been paid.  The debt collector should have contacted the OC before sending another letter.




Bruno the JDB Killer

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Re: Disabled person on SS asks, "What level of dispute letter should I send?"
« Reply #22 on: February 27, 2017 09:05:21 PM »
This is the pertinent part of the ruling:

"the purpose of the validation notice requirement was to “eliminate the recurring problem of debt collectors dunning the wrong person or attempting to collect debts which the consumer has already paid.” S.Rep. No. 382, 95th Cong. at 4 (1977) (emphasis added).

OP claims not to know about the debt, which makes her (allegedly) the wrong person. Other posters suggested DV, which as we both agree, is not necessary.

I am not an attorney. Any information I post is strictly my opinion and should be treated as such.

BellEbutton

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Re: Disabled person on SS asks, "What level of dispute letter should I send?"
« Reply #23 on: February 27, 2017 09:26:35 PM »
This is the pertinent part of the ruling:

"the purpose of the validation notice requirement was to “eliminate the recurring problem of debt collectors dunning the wrong person or attempting to collect debts which the consumer has already paid.” S.Rep. No. 382, 95th Cong. at 4 (1977) (emphasis added).

OP claims not to know about the debt, which makes her (allegedly) the wrong person. Other posters suggested DV, which as we both agree, is not necessary.

You're correct that a timely DV request is not necessary in order to dispute a debt.   But read the responses.   Here's one response:

"Validating and continuing to collect will be FDCPA violations earning OP a $1k check."


One cannot claim continued collection unless a DV request is sent within the 30-day requirement.







fisthardcheese

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Re: Disabled person on SS asks, "What level of dispute letter should I send?"
« Reply #24 on: February 27, 2017 09:59:17 PM »
You're correct that a timely DV request is not necessary in order to dispute a debt.   But read the responses.   Here's one response:

"Validating and continuing to collect will be FDCPA violations earning OP a $1k check."


One cannot claim continued collection unless a DV request is sent within the 30-day requirement.

That is my response, and it is accurate, because when a debt is not yours, and you dispute it within the 30 days, then the CA responds by verifying the debt to the wrong person and then proceeds to continue collection efforts, they have violated the FDCPA, which can then earn you a $1k check.

You do not HAVE to send the DV to file suit, however, the DV acts as the notification that the debt is incorrect meeting the burden of Chaudhry.  I don't believe the 2 page debate was needed on a blatant violation.
11 Arb Settlements (9 AAA, 2 JAMS)
3 JDB Suits Dismissed With Prejudice (2 pro-se, 1 consumer atty)
3 TCPA Settlements (2 pro-se, 1 consumer atty)
2 FCRA Settlements (consumer atty)
1 FDCPA Settlement (w consumer atty)
1 Small Claims Win (pro-se; Landlord/state consumer law violations)
1 State UDAP Settlement (ITS)
1 Federal PTC Settlement (before hearing; pro-se)

BellEbutton

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Re: Disabled person on SS asks, "What level of dispute letter should I send?"
« Reply #25 on: February 27, 2017 10:06:55 PM »
That is my response, and it is accurate, because when a debt is not yours, and you dispute it within the 30 days, then the CA responds by verifying the debt to the wrong person and then proceeds to continue collection efforts, they have violated the FDCPA, which can then earn you a $1k check.

You do not HAVE to send the DV to file suit, however, the DV acts as the notification that the debt is incorrect meeting the burden of Chaudhry.  I don't believe the 2 page debate was needed on a blatant violation.

The case law you cited does not support your claim.

Show me the courts that have ruled that a debt collector who validates a debt with the wrong person has violated the FDCPA if the debt collector has no reason to believe it has dunned the wrong person.
« Last Edit: February 27, 2017 10:38:21 PM by BellEbutton »

Bruno the JDB Killer

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Re: Disabled person on SS asks, "What level of dispute letter should I send?"
« Reply #26 on: February 28, 2017 01:52:29 PM »
I would argue that the creditor's "beliefs" are worth diddly when fooling around with a strict liability statute. That's like telling the trooper you "believed" the speed limit was 90.


“The Defendant has been cornered between a rock and a hard place, not because of any contradictory provisions of the FDCPA, but because the method they have selected to collect debts has put them there."  See, Leyse v. Corporate Collection Services, Inc. 545 F.Supp.2d 334 (S.D. New York 2008). 

“It does not seem unfair to require that one who deliberately goes perilously close to an area of proscribed conduct shall take the risk that he may cross the line.”  See, FTC v. Colgate-Palmolive Co., 380 U.S. 374, 393, 85 S. Ct. 1035, 13 L.Ed. 2D 904 (1965). 
I am not an attorney. Any information I post is strictly my opinion and should be treated as such.

Clydesmom66

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Re: Disabled person on SS asks, "What level of dispute letter should I send?"
« Reply #27 on: February 28, 2017 02:11:31 PM »
“It does not seem unfair to require that one who deliberately goes perilously close to an area of proscribed conduct shall take the risk that he may cross the line.”  See, FTC v. Colgate-Palmolive Co., 380 U.S. 374, 393, 85 S. Ct. 1035, 13 L.Ed. 2D 904 (1965).

First that isn't even a debt collection case.  When has Colgate toothpaste EVER been in that business?  Second:  the case law is from 1965. That is over 40 years ago.  Did you research to see if that was overturned by other rulings in all that time?

I would argue that the creditor's "beliefs" are worth diddly when fooling around with a strict liability statute. That's like telling the trooper you "believed" the speed limit was 90.

The creditor's reasonable beliefs are very much relevant to a bona fide error defense.  Like it or not if they followed a clear reasonable policy designed to prevent the error in the first place the courts are not going to simply lower the hammer because NO practice works 100% of the time.  Look at Colt's case.  It is a "strict liability" statute and the Federal court ruled that "technically" they had violated but there was no monetary award.  That happens more than you want to admit to.

Your analogy of the speeding doesn't even work.  There are CLEAR signs posted stating what the speed limit is.  What the driver "believes" isn't relevant.  The only time I have seen a speeding ticket tossed on something like that is when trees/bushes or something else is clearly blocking the sign thus impeding the driver from reasonably knowing that the speed limit in an specific area had changed.  Beyond that if the signs are visible then what you believe won't hold up against clearly posted speed limit signs.  The signs don't prevent speeding they warn you of the potential for consequences if you violate.  After all how many drivers get off with a warning vs an expensive ticket?

I am guessing that many collection agencies don't get slapped with numerous fines when they clearly are not trying to break the law with impunity either.  Due to all the frivolous cases that sites like this encourage you are going to see far fewer awards on like that.  All you have done is create better tuned collection agencies who are prepared to fight this nonsense.
Be VERY careful following advice from the internet! What worked for someone with thousands of posts on a message board may not work for YOU in your state.  Consult a lawyer when ever possible.

Bruno the JDB Killer

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Re: Disabled person on SS asks, "What level of dispute letter should I send?"
« Reply #28 on: February 28, 2017 04:59:58 PM »
First that isn't even a debt collection case.  When has Colgate toothpaste EVER been in that business?  Second:  the case law is from 1965. That is over 40 years ago.  Did you research to see if that was overturned by other rulings in all that time?


The concept in Colgate  is valid in any type of case. I doubt it was overturned, it was a SCOTUS decision. The other case I cited was a debt collection case.


The creditor's reasonable beliefs are very much relevant to a bona fide error defense.


"The U.S. Supreme Court in April 2010 reversed the Sixth Circuit. In a 7-2 decision, the Court held that mistakes of law cannot qualify for the bona fide error defense, relying in part on the old maxim that “ignorance of the law will not excuse any person, either civilly or criminally.”


Look at Colt's case.  It is a "strict liability" statute and the Federal court ruled that "technically" they had violated but there was no monetary award.  That happens more than you want to admit to.


I tell people that all the time. Judges are tired of "technical" violations.


Your analogy of the speeding doesn't even work.  There are CLEAR signs posted stating what the speed limit is.


There is clear evidence when a debt has been paid, too,  if they bothered to look for it. If they don't, too bad for them.
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BellEbutton

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I would argue that the creditor's "beliefs" are worth diddly when fooling around with a strict liability statute. That's like telling the trooper you "believed" the speed limit was 90.


“The Defendant has been cornered between a rock and a hard place, not because of any contradictory provisions of the FDCPA, but because the method they have selected to collect debts has put them there."  See, Leyse v. Corporate Collection Services, Inc. 545 F.Supp.2d 334 (S.D. New York 2008). 

“It does not seem unfair to require that one who deliberately goes perilously close to an area of proscribed conduct shall take the risk that he may cross the line.”  See, FTC v. Colgate-Palmolive Co., 380 U.S. 374, 393, 85 S. Ct. 1035, 13 L.Ed. 2D 904 (1965).

I said "if the debt collector has NO REASON to believe it has dunned the wrong person."  If you don't deny owing the debt or claim that you're the wrong person, how is the debt collector supposed to know your dispute is based upon the fact that it's not your debt ESPECIALLY if the documentation shows your name and address?

Importantly too, the errors here were not errors requiring ICS to further investigate the validity of AAA's listed charges. Rather, the errors were discernible on the face of AAA's documents forwarded to ICS and therefore readily discoverable by ICSOwen v. I.C. Sys., Inc., 629 F.3d 1263, 1275 (11th Cir.2011).

"Within reasonable limits, [Defendants] were entitled to rely on their client's statements to verify the debt." Clark v. Capital Credit & Collection Services, Inc., 460 F.3d 1162 (9th Cir.2006).

Debt collectors do not have to "vouch for the validity of the underlying debt."  Chaudhry v. Gallerizzo, 174 F.3d 394, 406 (4th Cir.1999).

Why don't we wait to see if and how the debt collector verifies before jumping to conclusions.