Author Topic: Understanding the 30 days of Initial Communication  (Read 26689 times)

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poker

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Re: Understanding the 30 days of Initial Communication
« Reply #15 on: November 01, 2007 09:44:49 PM »
It sounds like it is at least undecided enough that if I sure they will settle rather fight in federal court over a FDCPA violation.

Rottweiler

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Re: Understanding the 30 days of Initial Communication
« Reply #16 on: November 02, 2007 03:00:31 AM »
C'mon Rottie - are you going to let them off the hook because it may cost them a little to maintain records and cross-reference them?

No, I am being realistic.  Businesses do NOT keep records forever, and a CA would certainly not have motivation to keep this information once the account is out of their hands. 

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I expect them to remember that they have been told that any calls to me at any location are inconvenient at any time and the fact that they have two accounts for me instead of one doesn't change that fact. They are on notice, I told them, FDCPA does not stipulate that notice of inconvenient collection forum is debt-specific.

The FDCPA does not require that the CA keep any such information once they are no longer 'working' the account.  Since the IRS does not care whether a consumer told the CA to "stop playing on their phone" or not (and neither does state law, the SEC, etc.), the CA has no motivation to spend that money in anticipation of future collection accounts from the same individual.  Collection accounts that may never show up in their system.

Flying, you know that CA's HATE spending one more red cent than they have to.  Heck,  Ebeneezer Scrooge (before he reformed) would have been more likely to endow a charity hospital ward than the average CA would actually invest their "hard-earned" profits in a record keeping system that would actually do what you would want it to as a "just in case".

Another point:  I doubt that the Congress was thinking of multiple debt files--from different creditors-- being assigned to the same CA at different times back in 1976; that's why the FDCPA is silent on this point.  I have not seen case law that answers on point yet, either.  Have you?

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In fact, a stronger argument could be made the other way - that it is blanket.

The way the law is written?  Don't think so.  In fact, I bet this point would be a matter of first impression (precedent-setting) if it gets to litigation.
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StarNDebt

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Re: Understanding the 30 days of Initial Communication
« Reply #17 on: December 02, 2007 08:02:20 AM »
My question regarding the 30 days of initial communication is this - the letter from the JDB says give me 30 days from receipt of the letter to repsond.  What if they sent it to an address other than mine, say a family memebers PO Box, and I am just now getting the letter 4 months latter... do I still have 30 days to respond?  Or am I .  The account is already SOL and it has been disputed since before the OC repoted to CRAs.

Rottweiler

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Re: Understanding the 30 days of Initial Communication
« Reply #18 on: December 03, 2007 12:27:20 AM »
See "Mahon v. Credit Bureau of Placer County"  (http://www.debtorboards.com/smf/index.php?topic=4864.0 ) for case law on this topic.  As long as the JDB can prove they sent the thing and that they had reasonable procedures in place to avoid error, they are in the clear as far as sending out the DV is concerned.

As for whether YOU still are within the 30-day validation period?  That is a good question:  The letter DID arrive at the address it was sent to; the fact you did not reside there is irrelevant for this argument. 

If it was addressed to YOU specifically (and it should have been)?   I would send that DV and invoke 15 USC §1692g (§809) if the JDB tried to get out of their statuory responsibilities because the DV was allegedly "late".  The law says that the day YOU actually got the initial communication would then be the date certain for the start of the SOL for verification requests per the FDCPA,  NOT the date of the letter nor the postmark date.

The trick then would be for YOU to prove when YOU got the letter should it get to litigation, not all that easy to do.
“This is a court of law, young man, not a court of justice."
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Breal

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Re: Understanding the 30 days of Initial Communication
« Reply #19 on: July 17, 2008 09:34:06 PM »
OK ...so just to clarify.  There is nothing anywhere that requires a CA/JDB to verify a debt at any time.  However, if you request the VOD within 30 days of the initial communication the CA/JDB must cease any collection activity until they have provided verification but they can still report a negative TL to the CRA?  So they dont need to verifty the debt to report the negative TL, they just need to verify the debt if they wish to continue collection activity?  What constitutes validating the debt?  So what can you do to get them to verify the debt if it is past the 30 day VOD period?

How can it be legal for a company to place a negative TL on your CR and lower your credit score without any proof that the debt is valid?

Rottweiler

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Re: Understanding the 30 days of Initial Communication
« Reply #20 on: July 19, 2008 12:05:09 AM »
How can it be legal for a company to place a negative TL on your CR and lower your credit score without any proof that the debt is valid?

The FCRA does not require proof of the business exchange.  All it requires is that the reporting client (the data furnisher) report the best and most complete set of data it has when it reports.  That set of data need only be its own.
If one has a dispute, it may well require the consumer dispute both the OC's and the CA's tradelines to get satisfaction.
“This is a court of law, young man, not a court of justice."
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CleaningUp

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Re: Understanding the 30 days of Initial Communication
« Reply #21 on: July 19, 2008 03:20:38 AM »
Breal, you need to shift your starting point a little. Things might make more sense if you do.

Civil law has absolutely nothing to do with "justice" or "right" or "wrong".  It has everything to do with negotiation. There is no emotion attached; and if there is, confusion can reign.

Civil law is nothing but a codified way of negotiating disputes. And a civil trial is nothing more or less than the ultimate negotiation with an "impartial" administrator enforcing the rules. To win you must have the evidentiary facts and the "rules" which support your contentions.

When a law says that xyz is prohibited, it doesn't mean the other side will not do it.  It only means that you may have the private right to seek redress if the so law allows and the prohibition is violated. Lots of violations go unsanctioned because of ignorance, lack of interest, or a basic business decision that pursuing is not worth the effort.

Some laws permit private rights of action, others leave that to the regulatory agencies or States Attorneys General.

All of what we are suggesting here plays to the use of the regulations and laws in bolstering the consumers negotiating position, not to the "right" or "wrong".  The nuances of how things are played can establish a sustainable cause of action, or defeat you from the outset.







Breal

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Re: Understanding the 30 days of Initial Communication
« Reply #22 on: July 19, 2008 04:43:05 AM »
So....CA/JDB can place a negative TL on someones CR and lower their score with absolutely no proof because, there is no law that says they cannot (I think that is what you guys are saying).  Also, placing a negative TL on a consumers CR even in the face of a timely VOD, is not considered communication with the consumer and it is not considered collection activity. 

So what is the point of exercising the VOD rights?  If placing a negative TL on a consumers CR is not considered collection activity then what is?  I could care less about how many times a collector calls my house or sends me a bill in the mail, I agree all that is annoying and "inconvenient" but it doesnt affect my quality of life like placing a negative TL on my CR does.  It is much more "inconvenient" to have terrible credit.  The only thing a CA/JDB can do that really matters is to place a negative TL on my CR, and if a timely VOD cant stop that...then just what does it stop.....phone calls??

Or, is the only purpose of exercising the VOD rights to hope that the CA/JDB violates so you can then sue them?

CleaningUp

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Re: Understanding the 30 days of Initial Communication
« Reply #23 on: July 19, 2008 03:03:00 PM »

You have the first part of it right. If it is not defined as illegal, an action is deemed to be legal.

The "negotiation" that you engage in is moving -- through judicious application of letters, requests and disputes-- the presumed "legal" actions over to being under the umbrellas of those rules and laws that define those actions as illegal.

The negotiation process does not necessarily always end in suit. It ends when there is a negoatiated settlement, however obtained, or one of the parties decides that it is no longer worth the expense of pursuing.

The FDCPA and the FCRA allow you the flexibility to re-categorize presumed legal actions to illegal ones through steps that you are entitled to take to protect your interests. The more "violations" that you can stack up to use against the CA/JDB, the more interested the CA/JDB may be in finding a negotiated solution that hasn't cost more than what they claimed in the first place.  (Remember the business model of most of that industry is the default judgment.)

An important element of this "negotiation" is understanding what you REALLY want out of the transaction. Then you can use the tools available to achieve your objective.





Breal

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Re: Understanding the 30 days of Initial Communication
« Reply #24 on: July 19, 2008 11:51:07 PM »
See "Mahon v. Credit Bureau of Placer County"  (http://www.debtorboards.com/smf/index.php?topic=4864.0 ) for case law on this topic.  As long as the JDB can prove they sent the thing and that they had reasonable procedures in place to avoid error, they are in the clear as far as sending out the DV is concerned.

As for whether YOU still are within the 30-day validation period?  That is a good question:  The letter DID arrive at the address it was sent to; the fact you did not reside there is irrelevant for this argument. 

If it was addressed to YOU specifically (and it should have been)?   I would send that DV and invoke 15 USC §1692g (§809) if the JDB tried to get out of their statuory responsibilities because the DV was allegedly "late".  The law says that the day YOU actually got the initial communication would then be the date certain for the start of the SOL for verification requests per the FDCPA,  NOT the date of the letter nor the postmark date.

The trick then would be for YOU to prove when YOU got the letter should it get to litigation, not all that easy to do.


How can a CA/JDB prove that I ever received the Initial Communication?  Can I call them up and say that I just checked my CR and noticed the negative TL, but I never received anything from thier company, do they have to send it again since the SoL for the VOD starts on the date I actually received it?  Or, should I not do that because if I contact them about the debt it could restart the SOLR and/or the SOLC?

TeeVeeDude

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Re: Understanding the 30 days of Initial Communication
« Reply #25 on: July 20, 2008 12:17:22 AM »
How can a CA/JDB prove that I ever received the Initial Communication?  Can I call them up and say that I just checked my CR and noticed the negative TL, but I never received anything from thier company, do they have to send it again since the SoL for the VOD starts on the date I actually received it?  Or, should I not do that because if I contact them about the debt it could restart the SOLR and/or the SOLC?


They can't prove you received it, but if they testify under oath that they mailed it on a certain date, the courts MAY consider that to be adequate evidence that you received it.

You contacting them doesn't reset anything. It might wake them up, though. If they know you are concerned about your credit, they might decide they have a better chance of collecting now, and get more aggressive.

I would go ahead and send them a VOD letter, stating that you just became aware of the collection when you reviewed your report. If it comes down to a court case, a judge can decide if the initial contact date was a letter you never got, or the date you saw your credit report.

gfg

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Re: Understanding the 30 days of Initial Communication
« Reply #26 on: August 14, 2008 03:33:44 AM »

The law says that the day YOU actually got the initial communication would then be the date certain for the start of the SOL for verification requests per the FDCPA,  NOT the date of the letter nor the postmark date.


Rottie,
Sorry to jump in late on this topic, but would you please point out the statute you refer to above?

Thanks!
g
gfg © ®

Rottweiler

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Re: Understanding the 30 days of Initial Communication
« Reply #27 on: August 14, 2008 03:27:47 PM »
Rottie,
Sorry to jump in late on this topic, but would you please point out the statute you refer to above?

Thanks!
g

The law?  Right here (FDCPA Sec. 809(a)(3)).

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§ 809. Validation of debts [15 USC 1692g]...

(3) a statement that unless the consumer, within thirty days after receipt of the notice,
disputes the validity of the debt, or any portion thereof, the debt will be assumed to be
valid by the debt collector;

See what I have emphasized.  If it were based on the date of the letter, the consumer would then be automatically "cheated" by not getting the full time allowed to respond since mail does not arrive the same day it's sent.  The courts allow for five days maximum for transit, so this allowance does have its limits.

Now...if e-mail were to become acceptable as a "initial communication" method?  That might well change since e-mail DOES get there about as fast as it's sent.  However, since the FDCPA's official definition (expressed or implied)  of "written communication" still is "snail mail"...the collector has to make this allowance in determining whether a DV is timely or not.
“This is a court of law, young man, not a court of justice."
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Imaputz-85a

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Re: Understanding the 30 days of Initial Communication
« Reply #28 on: August 14, 2008 05:58:37 PM »
gfg, this issue was bludgeoned to death here: http://www.debtorboards.com/index.php/topic,6219.0.html

Note the utter brilliance of a single putz fighting back the hordes...

CleaningUp

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Re: Understanding the 30 days of Initial Communication
« Reply #29 on: August 14, 2008 07:31:27 PM »

gfg, this issue was bludgeoned to death here: http://www.debtorboards.com/index.php/topic,6219.0.html

Note the utter brilliance of a single putz fighting back the hordes...


Geez, and I thought you were married with children.

Hordes won in a cake walk, but then again, that is what actually reading the statute can do.




 

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