My account with  Pentagon Federal Credit Union, was closed and they put 4 hard inquiries on my credit file. Is that legal??

The main problem that I am facing right now is that I thought the matter had been settled BUT over a month after reaching a settlement agreement over the telephone with the firm's rep and making 2 of 12 agreed upon direct debit payments (full amount owed over 12 payments), I was served by the firm and they are pressing forward in justice court.  The rep that I was negotiating with told me originally that I would be mailed settlement paperwork that I needed to sign, notarize, and return.  I have spoken with the rep two times since then about not getting the paperwork.  He has my correct address, says he'll resend and that "I'm all set." but the lawsuit presses on,

I now realize I shouldn't have paid anything until getting the agreement in writing.  I think the problem is that I "settled" with the firm's debt collection arm and not their legal arm.  Apparently they don't talk whatsoever?  Or, this is a ploy to also get a judgment so they can also tack on some legal fees and extra interest?   I can't get in touch with their legal arm at all.

My plan is to file for a change of venue ASAP.  The things I'm wondering about are:

Thank you very much for any assistance.

Hello all,

I received a motion for Summary Disposition in a lawsuit with Portfolio Recovery Associates here in Michigan and need some help with how to respond. I’ll break this down the best I can, if any additional info needed, please let me know.

-Served summons in May 2019 for a Barclay card with an amount owed of roughly $2200. Credit limit was only $2000 but $2100 for the debt + interest and late charges accrued and another 100+ for cost (I assume fees to PRA). Summons came with complaint and an affidavit from PRA.

-Filed and served my Answer later in May. At the advice of a BK Attorney to buy time while we evaluated our overall situation, I answered and claimed “Lack of Standing”. Thanks to this forum I cited no original contract, no proof of amounts, and no bill of sale. Hearing was scheduled for last week of July.

I just received a Motion for Summary Disposition from them. In it, they include the following:

-A new affidavit which is signed by and has information from a Barclay representative stating as such along with  some details on my account, sale of it etc. (it basically says it was sold in a pool of accounts and that the amount due is correct to her knowledge etc)

-A screenshot of what looks like part of my original application. It’s just a one page computer screenshot with my Name, Address, Income, Phone, SSN etc.

-Monthly account statements including transactions, payments etc up until charge off date of Sept 2017. I believe last payment date was February 2017.

They were surprisingly thorough in this response. They cited the application, statements, case law, breach of contract, stated account etc. Wondering if anyone has any advice for picking holes in it to delay or respond again. I have read a little about arbitration, is this my next move? If so, can someone explain the pros and cons, what a possible outcome looks like etc. There isn’t even a deadline to respond to this either, it just says “Please take notice that plaintiff’s motion for Summary Disposition will be brought on to be heard at the ________ court located at ____________ on 7/26/19.

BK7 is likely where we’re going and will qualify due to income changes but need to buy some time and don’t want to be garnished. Can’t file until October.

I wanted to show you guys this old blog post from 2015:

It was an Answer that contained the following “Affirmative Defense:”

Plaintiff’s claim should be dismissed due to insufficient service of process for failure to include required information on the Return of Service. The Return on Service of Summons for both Defendants fails to include the process server’s name and/or address as required by Tennessee Rule of Civil Procedure 4.01(2). See Lasher v. Robertson, No. 03A01-9402-CV-00075, 1994 WL 579972, *2-3 (Tenn. Ct. App. Oct. 24, 1994).

In that Lasher opinion, the Court of Appeals was faced with a return on a Summons that “contained only the date and the unreadable signature of the process server.” 

Two years later, the defendant filed a motion to dismiss, alleging insufficient service of process of the lawsuit. That motion was granted.

Citing Tenn. R. Civ. P. 4.01, the Court of Appeals agreed.

For starters, “The process server must be identified by name and address on the return.” See Tenn. R. Civ. P. 4.01(2).   Further, “The person serving the summons shall promptly make proof of service to the court and shall identify the person served and shall describe the manner of service.” See Tenn. R. Civ. P. 4.03(1).

Applying those rules, the Court of Appeals wrote:

The Plaintiff’s process server met none of the requirements contained in Rule 4.01(2) of the Tennessee Rules of Civil Procedure. The process server was not identified by name and address on either the return of service or on the affidavit; he did not promptly and within the time during which the person served must respond, make proof of service to the Court; he did not identify the person served nor describe the manner of service. Even considering the very untimely filed affidavit of Daniel C. Derrick, the requirements of Rule 4.03(1) of the Tennessee Rules of Civil Procedure still were not met. Indeed, the record is totally void of the location of Defendant Robertson’s residence. Neither Defendant filed an answer and there is no indication in the record before us of any documents being served upon either Defendant during the pendency of the proceedings in the lower Court.

From here.  Guy is a debt collection lawyer

https://creditorsrights101.com/2015/11/03/insufficient-service-of-process-arguments-may-be-recognized-under-tennessee-law/

Hello all.  I hope I am posting in the right forum, if not please direct me, or move my post. 

I spent most of yesterday and last night reading numerous posts about being sued by Midland Funding, LLC.  I received a summons yesterday (yes July 4th) at 7:30 am from the Justice of the Peace, PCT 2, in Coryell County, TX.  The plantiff's petition is date stamped received/filed May 14th 2019.  I don't have a way to scan the documents at this moment, but will attempt to do so Monday.

Attached with the petition, in this order, are the following documents:

1.  An affidavit of Asia DelCastillo who's address is 16 McLeland Road Suite 101, St Cloud, MN 56303.  I Googled said person and found her LinkedIn page.  Says she is employed at Encore Capital Group as a Legal Specialist and that she has a Bachelors Degree in Criminal Justice.  Also found her Facebook page which says she started with Encore Capital Group on September 24, 2018.  In the affidavit she stated  in the first line of paragraph 1 - "I am employed as a Legal Specialist and have access to pertinent account records for Midland Credit Management, Inc. ("MCM"), servicer of this account on behalf of the Plaintiff". 

2.  Really bad copies of credit card statements from March 5th 2018 - to April 05 2018 and September 6th 2017 - October 5th 2017.

3.  A Bill of Sale and Assignment of Accounts and Receivables from Sherman Originator III, LLC to Midland Funding, LLC.  The thing that stands out most about this document is it states that the purchase and sale agreement between Sherman and Midland is dated January 26, 2018.  I know the account was not charged off until April 6, 2018.  The last line before the signatures on this document says CLOSING DATE:  May 30,2018.  This is signed by SHERMAN ORIGINATOR III LLC,  Jon Mazzoli, Vice President and MIDLAND FUNDING LLC, Amy Anuk, Sup, Business Development.

4.  EXHIBIT A ACCOUNT SCHEDULE which states The Purchased Accounts pursuant to Bill of Sale and Assignments between above names LLCs are specifically identified in the electronic file name XXXXXXX. 

5.  It is followed by what the above mentioned affidavit states, in part, is "a seller data sheet reflecting the individual account data extracted and printed from the electronic records provided by the seller".  The account number and AcctID and well and a line at the bottom that says COL1 are blacked out except the last 4 digits.  Birthdate is totally blacked out too.

6.  A Bill of Sale and Assignment of Receivables from Credit One Bank, N.A. to MHC Receivables, LLC.  It's dated as of April 30, 2018.  It states in part "(i) the receivables associated with each and every account referenced in the data file named XXXXX (the "Computer File"), a copy of which is attached hereto and incorporated herein by reference as "Exhibit A"".  This is signed by CREDIT ONE BANK, N.A., GARY HARWOOD, Vice President 

7.  EXHIBIT A ACCOUNT SCHEDULE which states, "The receivables pursuant to the BILL OF SALE AND ASSIGNMENT OF RECEIVABLES FROM CREDIT ONE BANK, N.A. TO MHC RECEIVABLES, LLC that are specifically identified in the electronic filed named (same as above) with such electronic file incorporated herein by reference". 

8.  A Bill of Sale and Assignment of Accounts From Credit One Bank, N.A. to MHC Receivables, LLC.  It's dated as of April 30, 2018.  It states in part "(i) the charged-off credit card accounts identified on an account level basis in the date file named XXXXX (the "Computer File"), a copy of which is attached hereto and incorporated herein by reference as "Exhibit A"". This one is also signed by CREDIT ONE BANK, N.A., Gary Hardwood, Vice President.

9.  EXHIBIT A ACCOUNT SCHEDULE which states "BILL OF SALE AND ASSIGNMENT OF ACCOUNTS FROM CREDIT ONE BANK, N.A. TO MHC RECEIVABLES, LLC that are specifically identified in the electronic file named (same as above) with such electronic file incorporated herein by reference".

10.  A Bill of Sale and Assignment of Receivables from MHC Receivables, LLC to FNBM, LLC as of May 18, 2018.  It states in part "(i) the receivables identified and specifically referenced for each of the accounts on an account level basis on the date file titled XXXXX attached hereto and incorporated b reference as "Exhibit A"".  This is signed by MHC Receivables, LLC, Mark Rufail, Authorized Representative.

11. EXHIBIT A ACCOUNT SCHEDULE which states "The receivables to the BILL OF SALE AND ASSIGNMENT OF RECEIVABLES  from MHC REIVABLES, LLC to FNBM, LLC that are specifically identified in the electronic file named (same as above), with such electronic file incorporated herein by reference".

12.  A Bill of Sale and Assignment of Receivables from FNBM, LLC to Sherman Originator III, LLC on May 18, 2018.  It states in part "(i) the receivables identified and specifically referenced for each of the accounts on an account level basis on the date file titled XXXXX attached hereto and incorporated b reference as "Exhibit A"".  This is signed by FNBM, LLC Jon Mazzoli, Authorized Representative.

13.  EXHIBIT A ACCOUNT SCHEDULE which states "The receivables pursuant to the BILL OF SALE AND ASSIGNMENT OF RECEIVABLES FROM FNBM, LLC to SHERMAN ORIGINATOR III, LLC, that are specifically identified in the electronic file named (same as above) with such electronic file incorporated herein by reference".

14.  A Bill of Sale and Assignment of Accounts from MHC Receivables, LLC to SHERMAN ORIGINATOR III, LLC on May 18, 2018.  In part it states (i) the charged-off identified and specifically reference for each of the accounts on an account level basis on the date file titled XXXXX attached hereto and incorporated b reference as "Exhibit A".   This is also signed by MHC Receivables, LLC, Mark Rufail, Authorized Representative

15.  EXHIBIT A ACCOUNT SCHEDULE which states "The accounts pursuant to the BILL OF SALE AND ASSIGNMENT OF ACCOUNTS FROM MHC Receivables, LLC to SHERMAN ORIGINATOR, LLC, that a specifically identified in the electronic file named (same as above) with such electronic file incorporated herein by reference.

16.  Exhibit G AFFIDAVIT OF CREDIT ONE BANK, N.A., FNBM, LLC, AND MHC RECEIVABLES, LLC, STATE OF NEVADA, COUNTY OF CLARK.  In this affidavit he talks about everything I have listed above.  It is signed on the 7th of January by Gary Harwood, Credit One Bank, N.A. Authorized Representative and Vice President of Collections, FNBM, LLC - Authorized Representative, MHC Receivables, LLC - Authorized Representative.  It is also initialed by a Notary Public names Patricia Noyes.  It gives her Notary Public number on her stamp.  I Googled it several different ways, and I cannot find her anywhere in the state of Nevada.  I also found another document online which she initialed for another affidavit by Gary Harwood, they look nothing alike.  Mine looks like DF and the online looks like AS.

17.  The next document to above affidavit is a Certificate of Conformity signed by Narine Yenovkian who is a lawyer for Credit One Bank.

 18.  Exhibit F AFFIDAVIT OF SALE OF ACCOUNTS BY SHERMAN ORIGINATOR III LLC.  State of South Carolina.  County of Charleston.  It starts off by saying,  "I, Jon Mazzoli (yes, the same person who signed the Bill of Sale from FNBM, LLC to SHERMAN ORIGINATOR III LLC above), hereby affirm as follows:  1.  I am over 18 and not a party to this action.  I am a Vice President of Sherman Originator III LLC ("Sherman Originator III LLC").  In that capacity, I have access to certain book and records of Sherman Originator LLC and certain of its subsidiaries and affiliates (as defined by common control) (collectively, "Sherman"), and am aware of the process of the sale and assignment of electronically store business records".  It goes on to talk about records maintenance and talks about the sale date of the accounts and receivables to Midland Funding, LLC.  It is signed by Jon Mazzoli and notarized by Katie Alkinburgh on the 27th day of June. 

19. This affidavit is also followed by a Certificate of Conformity signed by Meghan Emmerich, a Attorney at Law in the State of South Carolina.

The interesting thing, to me about 18 and 19 is this.  If you Google Jon Mazzoli, Katie Alkinburgh, and Megan Emmerich's name, you will find they all work for Resurgent Capital in Greenville, South Carolina. In fact, Jon Mazzoli is listed as the company's director.  Jon Mazzoli is also listed as Chief Development Officer for Sherman Financial Group LLC, located in New York City.  His LinkedIn page says he is the Director of Sherman Capital Markets LLC in Charleston, South Carolina.  Also to note, a search of Sherman Originator III LLC also brings up something interesting.  They are filed as Foreign Limited-Liability Company in the State of Nevada.  However, their known address is 200 Meeting Street, Charleston, South Carolina.

Also with Gary Harwood above, he in on the Board of Directors for Big Brothers Big Sisters of Southern Nevada.  I just checked their website to see what it said about him.  It says, as his LinkedIn page does, that his title is Vice President of Portfolio Services at Capitol One.  The Big Brothers Big Sisters website was last updated in 2018.  So what's his position really? 

So many questions, but I know the first thing I need to do is submit my answers.  That is what I am seeking assistance on.  Any information/guidance that is offered would be greatly appreciated.

Thank you all for your time.

I see an account that is marked in trade lines in collection and would like to know if this is a charge off or collection. Also is the balance $486 the high credit? in the HighCred field it just shows N/A.

So yesterday I received a summons and complaint from CACH, LLC  they say I owe a debt from Capital One of $600.00 from September, 2012. In 2 months this account will be 6yrs old.The attorney's that CACH is using have never contacted me for this debt, so I could not even ask for debt verification. I don't know how to answer the complaint, or if I should file a motion. This is crazy all they sent me was this complaint and nothing before this not one letter or phone call. Could some one please give me some suggestions on what to do?

Hi, I need some help here. I just received a summons from absolute resolutions investments llc  they are suing me for 3800 and court costs. I moved to Michigan a little over a year ago and have been struggling to keep up with my bills ever since. I cannot afford to pay them and keep going to work as I have to make vehicle payments and maintain them along with feeding my family. Now I need a lawyer?!? I cannot afford one of those either. How do I go about fixing this without going bankrupt? 

I’ve read a lot of these forums and the information is amazing and a bit overwhelming. I’m looking for advice before filing my Answer with the court on Friday and to see if the documents included in the Complaint are anything to worry about.

STEPS TO TAKE

1. Submit Answer with court, addressing all stated Complaints. Be sure to list under Affirmative Defense “Lack of subject Matter Jurisdiction due to a private arbitration clause”.  

2. File an MCT with my answer or within 14 days.  Get a  notarize copy of affidavit of Synchrony Bank term agreement.   

I'm having a hard time finding out how to file an MTC in Kentucky.

Hi everybody and thanks in advance for any and all input. I am a 16 year breast cancer survivor and mastectomy patient. In 2011 I had my old breast implants from my reconstructive surgery removed by a plastic surgeon in Virginia. I currently live in Maryland. Today I received a SUMMONS TO ANSWER INTERROGATORIES from an attorney for the plastic surgeon, 7 1/2 years later! I was fully insured by CareFirst Blue Cross at the time, all of the claims were paid I and have never received a follow up bill or any other communication from this doctor's office since. They say I owe $510.98, and there is a reference of a Judgment date of April 4, 2017. I just pulled my reports from the three main credit bureaus and there is no such judgment, nor has there ever been. How in the hell is this even possible and what should I do about it?

This is the call I got today and left on my message.

Hello P......I was contacting you again today in reference to the claim that is being filed in your name I'm notifying you that you were given the opportunity to contact the office but it is your responsibility for handling your claim. I've yet to receive any documents ordering need to stop the previous order location. My call today is to confirm your scheduled delivery location. I'm responsible for obtaining your signature by the end of business tomorrow. I do have two addresses listed one looks to be a possible place of employment which we would like to avoid if possible. For the last time the phone number to contact is ==== If the party is not contacted I have no choice but to continue moving forward with your order of location needing you to be available to provide your signature. thank you. Goodbye.

There is no identification of who it is, who the debt is, etc. Of course I'm gone for two weeks on vacation and my office is closed for the month. But thinking its a scam? Thoughts?

 Thanks!

any info is appreciated.

I got this this afternoon at 5:00. Mind you it says the settlement is only good for today, but I think I see some violations of the FDCPA, like saying they will contact my employer. Thoughts? And should I respond? Thanks!

am the attorney of the National Credit Collections (Hereinafter Plaintiff), I have received your case file today from Jason Ocker. The accounts department of National Credit Collections  has decided to mark this case as a flat refusal and press legal charges against you.

This Legal Proceedings Will be issued on Following Details:

MORE DEBT COLLECTION CONFUSION AND MISCONCEPTIONS 

1.  THE CONSENT ORDERS BETWEEN THE CONSUMER FINANCIAL PROTECTION BUREAU (CFPB) and MIDLAND FUNDING and the CFPB AND PORTFOLIO RECOVERY ASSOCIATES ARE “LAW”.

FALSE

The CFPB is not a legislative body that can enact laws.  Check out the following two links to the CFPB website 

https://www.consumerfinance.gov/policy-compliance/guidance/supervision-examinations/institutions/

https://www.consumerfinance.gov/about-us/the-bureau/

None of the information in either link implies the CFPB has the authority to enact law.   

Now to the Consent Orders. There is no statement in either Order that declares the provisions within those Orders to be “law”.

The requirements listed in the Orders are imposed upon the “Respondents”.   All one must do is read the Orders and the “Respondents” are identified.  The Respondents are the defendants.  The requirements are not placed upon any other debt buyers.  If they were “law”, ALL debt buyers would be required to adhere to them. 

As to enforceability, the following is from the United States Supreme Court.

The Supreme Court has held that "a consent decree is not enforceable directly or in collateral proceedings by those who are not parties to it even though they were intended to be benefited by it."   Blue Chips Stamps v. Manor Drug Stores, 421  U.S. 723, 750, 95 S.Ct. 1917, 44 L.Ed.2d 539 (1975).

While instructive, the Consent Order is not binding on this Court. Madinya v. Portfolio Recover Assocs., LLC, No. 18-CV-61138, 2018 WL 6590829, (S.D. Fla. Dec. 14, 2018) (See Christensen v. Harris Cty.,529 U.S. 576, 587 (2000)).

The Consent Orders are between the CFPB and Midland Funding (Encore) and the CFPB and Portfolio Recovery.   They include specific consumers who were affected by specific acts during specific timelines.  Therefore, only those parties are affected by and can enforce the provisions contained within.   

Here is a quote from the Consent Order between Midland Funding (Encore) and the CFPB.

Page 62 

193. The provisions of this Consent Order will be enforceable by the Bureau.

It DOES NOT state that courts can enforce the provisions.

Just an added note, in the event the CFPB does not have to initiate another action against the two debt buyers, the requirements placed upon Midland and Portfolio expire years from the date of each Order.

Page 62 of the Midland Order

190. This Consent Order will terminate 5 years from the Effective Date or 5 years from the most recent date that the Bureau initiates an action alleging any violation of the Consent Order by Encore. 

That same statement is located on page 58 of the Portfolio Order.

2.  WHEN AN ORIGINAL CREDITOR TAKES A TAX DEDUCTION, IT IS KNOWN AS “ACCORD AND SATISFACTION”.   THIS RENDERS THE DEBT SATISFIED AND LEGALLY, NO ONE CAN MAKE ANY FURTHER ATTEMPTS TO COLLECT ON THE DEBT.

FALSE

The following is from the U.S. Code of Federal Regulations.

26 CFR 1.166-1 - Bad debts

(f) Recovery of bad debts. Any amount attributable to the recovery during the taxable year of a bad debt, or of a part of a bad debt, which was allowed as a deduction from gross income in a prior taxable year shall be included in gross income for the taxable year of recovery

Notice the above cited federal regulation states "[a]ny amount attributable to the RECOVERY". Then it states "which was allowed as a deduction from gross income in a prior taxable year".

Those phrases show that a business which claims a tax deduction for a bad debt is allowed to RECOVER some of that debt at a later time. Once it recovers some of that bad debt, it must claim the amount of the recovery as part of its income.  This means that the original creditor can sue a consumer, or it can sell the account to a debt buyer in order to recover some of its loss.

In the following ruling, the Michigan federal court noted that Chase and WFNB sold accounts AND were allowed to receive a bad debt tax deduction.

Instead of amassing interest on a worthless account, Chase and WFNB sought to sell the accounts and shift the risk of nonpayment to a third party for a nominal fee. This practice also permitted Chase and WFNB to remove the account from the financial records and receive a bad debt tax deduction. See I.R.C. § 166(a)(2). McDonald v. Asset Acceptance LLC, 296 F.R.D. 513 (E.D.Mich.2013).

As to “accord and satisfaction”, that defense is available only if the consumer is a party to the agreement.  An agreement between the original creditor and the Internal Revenue Service regarding a tax deduction does not include the consumer.

Allen v. R.G. Indus. Supply (Ohio Supreme Court, 1993)

"An accord is a contract between a debtor and a creditor in which the creditor's claim is settled in exchange for a sum of money other than that which is allegedly due. Satisfaction is the performance of that contract."

Lazzarotti v. Juliano (Pennsylvania Supreme Court, 1983)

"An accord and satisfaction is the result of an h which may be and usually does result from an implied agreement arising from the circumstances. If an agreement stems from a disputed claim, the acceptance of an amount less than the creditor claims to be due, when tendered by the debtor in full satisfaction of the creditor's claim, becomes a completed accord and satisfaction."

Horizon Well Service, L.L.C. v. Pemco of New Mexico, L.L.C. (New Mexico Court of Appeals, 2015)

"When considering the existence of an accord and satisfaction, we should examine the following elements: (1) [d]id the debtor make an offer in full satisfaction of the debt; [(2) w]as there an unliquidated or disputed claim which formed the basis of this offer; [(3) w]as this offer accompanied by acts and declarations which amounted to a condition; [(4) w]ere those acts and declarations such that the offeree was bound to understand them; and [(5) w]as the offer accepted in full satisfaction of the debt."

MECO, Inc. v. Township of Freehold, NJ (Superior Court of New Jersey, Appellate Division, 2011)

"The traditional elements of an accord and satisfaction are the following: (1) a dispute as to the amount of money owed; (2) a clear manifestation of intent by the debtor to the creditor that payment is in satisfaction of the disputed amount; (3) acceptance of satisfaction by the creditor."

3.  DEBT BUYERS CANNOT REPORT TO CREDIT REPORTING AGENCIES.

FALSE 

The Fair Credit Reporting Act does not differentiate between an original creditor, collection agency, or debt buyer.  It refers to a “person”.

Fair Credit Reporting Act, 15 U.S.C. 1681a(b)

(b)The term “person” means any individual, partnership, corporation, trust, estate, cooperative, associati

no one can attempt any further to collect this debt. 

Regarding collection accounts:

Fair Credit Reporting Act (FCRA) - 15 U.S. Code § 1681c(a)(4)

Requirements relating to information contained in consumer reports

(4) Accounts placed for collection or charged to profit and loss which antedate the report by more than seven years.

A debt buyer is a “person” as defined by the FCRA.  As a “person”, it can report a collection acco

From the Consumer Financial Protection Bureau -page 8

“Once the account is in collections, the creditor, debt collector, or debt buyer can report the account to one or more of the three largest nationwide consumer reporting agencies (NCRAs).”

https://files.consumerfinance.gov/f/201412_cfpb_reports_consumer-credit-medical-and-non-medical-collections.pdf

From Experian:

“Once an account is sold to a collection agency, the collection account can then be reported as a separate account on your credit report.”

https://www.experian.com/blogs/ask-experian/credit-education/report-basics/how-and-when-collections-are-removed-from-a-credit-report/

1692e(8) of the Fair Debt Collection Practices Act (FCRA)

(8)Communicating or threatening to communicate to any person information which is known or which should be known to be false, including the failure to communicate that a disputed debt is disputed.

The FDCPA only applies to debt collectors. This shows that a disputed debt applies to a debt reported on one’s credit report.

From the Consumer Financial Protection Bureau -page 8

“Once the account is in collections, the creditor, debt collector, or debt buyer can report the account to one or more of the three largest nationwide consumer reporting agencies (NCRAs).”

https://files.consumerfinance.gov/f/201412_cfpb_reports_consumer-credit-medical-and-non-medical-collections.pdf

From Experian:

“Once an account is sold to a collection agency, the collection account can then be reported as a separate account on your credit report.”

https://www.experian.com/blogs/ask-experian/credit-education/report-basics/how-and-when-collections-are-removed-from-a-credit-report/

Midland Funding is a debt buyer. The following is from a consent decree issued by the Consumer Protection Financial Bureau with Encore Capital and Midland Funding.

“i. for those Consumer accounts where the Debt is Time-Barred and generally cannot be included in a Consumer report under the provisions ofthe FCRA, 15 U.S.C. § 1681c(a), but can be collected through other means pursuant to applicable state law, Encore will include the following statement: ‘The law limits how long you can be sued on a debt and how long a debt can appear on your credit report.’”

The above shows that due to a time limit, Midland cannot report a debt to the credit reporting agencies.

Page 38 at https://files.consumerfinance.gov/f/201509_cfpb_consent-order-encore-capital-group.pdf

BUT, if the debt is not beyond the 7-year reporting period, Midland can report it to the credit reporting agencies.

ii.  for those Consumer accounts where the Debt is Time-Barred but can be collected through other means pursuant to applicable state law, and may be included in a Consumer report under the provisions of the FCRA, 5 U.S.C. § 1681c(a), Encore will include the following statement: "The law limits how log you can be sued on a debt. Because of the age of your debt, we will not sue you for it."

Page 39 at https://files.consumerfinance.gov/f/201509_cfpb_consent-order-encore-capital-group.pdf

Notice that the two requirements in the Consent Order state when Midland can and cannot report debts to credit reporting agencies. If a debt buyer were not allowed to report to credit reporting agencies, the CFPB would not include those requirements.

Do collection agencies, specifically FCR Collections, still have the power to report you to credit bureaus if you don't pay your debt?

Hey everyone, I recently started using credit again after not for the past 11 years. I got a loan in January and another one last week and decided to pull my free annual credit reports just to take a look and I noticed something odd at the bottom of my TU report under soft pulls.

It is listed just as Rausch Sturm With an address but it says phone number not available and there is no permissable purpose line like under the other soft pulls. They have pulled twice in the past  two years each a year apart. 

So my questions are....is Rausch a debt buyer or attorney? Google still leaves me confused.....why are they snooping around my credit report as I haven't had any debt since two credit cards back from 2003-2004 that were charged off after falling on hard times. 

Now I'm worried since I haven't applied for any credit up until this January and now my credit report has updated my new cell phone number and new employer and I think I may have a skeleton coming out of the closet

Any advice do I sit and wait and see or do I go looking for trouble and call them....I plan to pull my credit report again middle of August to see if they do another soft pull as they have the past two Augusts. I want to be prepared if there is something about to happen

Also if it is one of these cards last payment would have been in 2003ish

So I have recently discovered some soft pulls on my TU credit report and I began digging around to see who may be coming out of the closet and best I can come up with is an account with direct merchants bank from back in 2003. I'm pretty sure last payment was in 2004 but I want to be prepared for when Rausch comes calling and I am in need of a card agreement for direct merchants bank. Wish I had been smarter back then and got copies of my CR each year to keep track of things but i didn't. 

DEBT VALIDATION MYTHS

The following are based upon misconceptions regarding the Fair Debt Collection Practices Act (FDCPA) U.S.C. § 1692

*NOTE*

An initial communication is the first communication received by a consumer in regard to a debt.   If that communication does not contain the name of the current creditor, amount of the debt, and the 30-day notice (1692g), the debt collector must send that information within 5 days.

The following "myths" refer to initial communications that DO contain the information in 1692g(a).

FAIR DEBT COLLECTION PRACTICES ACT

1692g - Validation of debts

(a) Notice of debt; contents Within five days after the initial communication with a consumer in connection with the collection of any debt, a debt collector shall, unless the following information is contained in the initial communication or the consumer has paid the debt, send the consumer a written notice containing—

(1) the amount of the debt;

(2) the name of the creditor to whom the debt is owed;

(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;

(4) a statement that if the consumer notifies the debt collector in writing within the thirty-day period that the debt, or any portion thereof, is disputed, the debt collector will obtain verification of the debt or a copy of a judgment against the consumer and a copy of such verification or judgment will be mailed to the consumer by the debt collector; and

(5) a statement that, upon the consumer’s written request within the thirty-day period, the debt collector will provide the consumer with the name and address of the original creditor, if different from the current creditor.

(b) Disputed debts

If the consumer notifies the debt collector in writing within the thirty-day period described in subsection (a) that the debt, or any portion thereof, is disputed, or that the consumer requests the name and address of the original creditor, the debt collector shall cease collection of the debt, or any disputed portion thereof, until the debt collector obtains verification of the debt or a 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. Collection activities and communications that do not otherwise violate this subchapter may continue during the 30-day period referred to in subsection (a) unless the consumer has notified the debt collector in writing that the debt, or any portion of the debt, is disputed or that the consumer requests the name and address of the original creditor. Any collection activities and communication during the 30-day period may not overshadow or be inconsistent with the disclosure of the consumer’s right to dispute the debt or request the name and address of the original creditor.

(c) Admission of liability

The failure of a consumer to dispute the validity of a debt under this section may not be construed by any court as an admission of liability by the consumer.

(d) Legal pleadings

A communication in the form of a formal pleading in a civil action shall not be treated as an initial communication for purposes of subsection (a).

(e) Notice provisions

The sending or delivery of any form or notice which does not relate to the collection of a debt and is expressly required by title 26, title V of Gramm-Leach-Bliley Act [15 U.S.C. 6801 et seq.], or any provision of Federal or State law relating to notice of data security breach or privacy, or any regulation prescribed under any such provision of law, shall not be treated as an initial communication in connection with debt collection for purposes of this section.

MYTH #1

A consumer can send a debt validation letter to a debt collector at any time, and the collector must respond.

That is not true.  According to the FDCPA, a letter requesting validation must be sent within 30 days of a debt collector's initial communication.  An initial communication is usually the first debt collection letter which contains the 30-day notice found in § 1692g(a) of the FDCPA. 

Once a debt collector receives a timely validation request, it must cease collection efforts until it validates the debt.   It cannot send more letters or make phone calls requesting or demanding payment.  In the event that it is reporting the debt to the credit reporting agencies, it cannot update the collection entry EXCEPT to report that the debt is disputed.   Reporting the fact that the debt is disputed is a requirement in § 1692e(8) of the Act.

MYTH #2

A debt collector is required to respond to a timely validation request within 30 days of the receipt of the request.

False.   The 30-day requirement is placed on consumers.   While a consumer must send a validation request within 30 days of the first collection letter that contains the 30-day notice, a debt collector can take as long as he chooses to respond.  However, he cannot attempt to collect again until he provides validation.

Note that after receiving a timely validation request, debt collector does not have to validate if he chooses to cease collection efforts.  He may never respond at all, or he may send a letter informing the consumer that the file on the account is closed. 

If debt collectors were required to respond to validation requests in 30 days, they could not cease collection efforts.

They may provide the requested validations and continue their debt collecting activities, or they may cease all collection activities. See Smith v. Transworld Systems, Inc., 953 F.2d 1025, 1031 (6th Cir.1992).

Under the FDCPA, a debt collector who receives a written dispute of a debt from a consumer need not verify the debt at all, but can instead cease efforts to collect the disputed debt. See Jang v. A.M. Miller & Assocs., 122 F.3d 480, 483 (7th Cir.1997).

Once a consumer disputes a debt, the debt collector has a choice whether to verify the debt or cease collection efforts. 15 U.S.C. § 1692g(b); see Guerrero v. RJM Acquisitions, LLC, 499 F.3d 926, 940 (9th Cir. 2007).

MYTH #3

In the event that a consumer has never received a collection letter from a collection agency, a collection entry (also known as "tradeline" or "TL") on a consumer's credit report can be considered an "initial communication" triggering a consumer's right to request validation under 1692g(b).

 While some courts have ruled that reporting to credit reporting agencies is a "communication" as defined by 1692a(2), ("the conveying of information regarding a debt directly or indirectly to any person through any medium"), to date, no court has ruled that reporting to credit reporting agencies is an "initial communication".

Some courts have ruled that an entry found on a credit report does NOT constitute an "initial communication".

Robinson v. TSYS Total Debt Management, Inc. Dist. Court, D. Maryland, 2006

"The above allegations identify two candidates for the 'initial communication' that is required to trigger 15 U.S.C. § 1692g.[6] The first candidate—'when Defendant communicated the debt to Plaintiffs credit report'—cannot support a claim under the FDCPA because it is not a communication with a consumer. See 15 U.S.C. § 1692g(a) (identifying 'initial communication" as "with a consumer in connection with the collection of any debt')."

Pretlow v. AFNI, Inc.  WD Virginia, 2008

"Plaintiffs have not alleged that they received any communications from Defendant which would form the basis of a debt validation claim.  Their claim is based, rather, on communications between Defendant and certain credit reporting agencies.  Section 1692g is therefore inapplicable on the facts pled."

Toth v. Cavalry Portfolio Services, LLC. Dist. Court, D. Nevada, 2013

"As it is undisputed that no notice was provided, the only question remaining is whether Defendant had an "initial communication" with Plaintiff, the consumer[1]. Plaintiff argues that Defendant communicated with Plaintiff 'using the credit reporting bureaus as a vehicle' (#9; 4:8-9). In other words, Plaintiff argues that by reporting Plaintiff's past-due account to the credit reporting agencies, Defendant communicated with Plaintiff via those agencies."

"Because Defendant never had an 'initial communication' with Plaintiff, Plaintiff has failed to state a claim upon which relief can be granted."

Berberyan v. Asset Acceptance, LLC, Dist. Court, CD California, 2013

"In opposition, plaintiff argues that defendant 'communicated' with her through its alleged reporting of a debt that appeared on her credit report, but plaintiff offers no authority that supports such an expansive reading of the term 'communicated.'  Opp'n at 6. Defendant must do something more than allegedly place notice of a disputed debt on plaintiff's credit report to trigger its disclosure duties."

Gonzalez v. Midland Funding, LLC, Dist. Court, ND Texas, 2013

"Plaintiff fails to allege any facts that can show there was ever an initial communication by defendants to plaintiff, and does not allege that he responded to any such communication within a thirty-day period. It appears that plaintiff may believe that his unsolicited letter demanding validation from defendants qualifies as an initial communication under § 1692g; however, the initial communication is an attempt by the debt collector to collect a debt, not an attempt by a consumer to challenge a debt. "

Williams v. LVNV Funding, LLC, Dist. Court, D. Colorado, 2014

"Plaintiff attempts to argue that 'the reporting [to the credit agencies] of the account the first time would be an initial communication'; however, the Court is not persuaded by self-serving statements lacking any supporting authority."

Perry v. Trident Asset Management, LLC, Dist. Court, ED Missouri, 2015

"However, the crux of the dispute here is not whether reporting debt is a 'communication' or 'debt collection activity,'but rather whether it is a 'ommunication with a consumer'that triggers § 1692g(a)'s validation notice requirements. Plaintiff cites no cases finding that reporting to a credit agency is a communication with a consumer, and the Court has found none."

Danehy v. Jaggee & Asher, LLP, Dist. Court, North Carolina, 2015

"Accessing a consumer report does not constitute an initial communication with a consumer as contemplated by § 1692g(a). Without knowledge as to when, or if, plaintiff would request his consumer report, defendant J&A could not have intended to communicate with plaintiff indirectly through TransUnion."

Friend v. Financial Recoveries Limited, Dist. Court, MD Pennsylvania, 2017

“Here, as noted above, Plaintiff's 1692g(a) claim appears to hinge upon Financial Recoveries' alleged reporting of information concerning Plaintiff to Credit Reporting Agencies. (Doc. 5, pp. 4, 6-7). However, a plain reading of sections 1692a and 1692g reveal a number of deficiencies with Plaintiff's section 1692g(a) claim. For example, a Credit Reporting Agency is not a ‘consumer’ under the FDCPA because, in part, it is not a ‘natural person.’ 15 U.S.C. §§ 1692a, g. Thus, an alleged communication with a Credit Reporting Agency fails to activate the notice requirements found in section 1692g(a) which serve as the basis for Plaintiff's section 1692g claim.”

Leato v. Alliant Capital Management, LLC, Dist. Court, ND Illinois, 2015

“But it is frankly absurd to link Section 1692g (a) and its required within-five-day notices with a ‘soft pull’ communication that a debt collector has sent only to a credit reporting agency (and not to the debtors themselves) for the sole purpose of obtaining a consumer report as a purely informational matter.”

Williams v. LVNV Funding, LLC, Dist. Court, D. Colorado 2014

“Plaintiff attempts to argue that "the reporting [to the credit agencies] of the account the first time would be an initial communication" (Response, ¶ 26); however, the Court is not persuaded by self-serving statements lacking any supporting authority.l

Bagramian v. Legal Recovery Law Offices, Inc, Dist. Court, CD California 2013

“Defendant must do something more than allegedly make an inquiry into plaintiff's credit report to trigger its disclosure duties.”

MYTH #4

A debt collector must provide a copy of a signed contract to validate/verify a debt .

Debt collectors are not required to provide a copy of a signed contract or credit card application.  The Fourth and Ninth Circuit Courts of Appeals have ruled that "debt collectors do not have to vouch for the validity of the underlying debt."  The requirement to provide a "contract" would require proving that the debt is valid.

Chaudhry v. Gallerizzo, 4th Circuit Court of Appeals

Contrary to Appellants' contention, 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.  There is no concomitant obligation to forward copies of bills or other detailed evidence of the debt.  Chaudhry v. Gallerizzo, 174 F.3d 394, 406 (4th Cir.1999).  

We agree with the district court that  "[v]erification only requires a debt collector to confirm with his client that a particular amount is actually being claimed, not to vouch for the validity of the underlying debt."  Chaudhry at 406.

Clark v. Capital Credit & Collection Services, Inc., 9th Circuit Court of Appeals

We adopt as a baseline the more reasonable standard articulated by the Fourth Circuit in Chaudhry. At the minimum, "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." Clark v. Capital Credit & Collection Services Inc., 460 F.3d 1162 (9th Cir.2006)(citing Chaudhry v. Gallerizzo, 174 F.3d 394, 406 (4th Cir.1999)).

Myers v. Midland Credit Management, Inc., M.D.Pennsylvania (2014)

"Plaintiff's dispute letter to Midland requests 'a copy of the contract which proves the amount of the alleged high balance which you are claiming. If you do not have a contract, then please provide specific and detailed alternate proof of the alleged high balance.' Again, the FDCPA does not require that Midland comply with this request. Instead, the statute simply requires a debt collector to confirm the amount of the debt and the identity of the creditor, and relay that information to the debtor."

Roseborough v. Firstsource Advantage, LLC, M.D. North Carolina (2015)

"Here, Plaintiff contends that Defendant violated its duty to verify by providing nothing other than copies of a couple of alleged statements with no signed verification or accounting of the alleged account or copy of any signed contract or agreement.  Plaintiff requests too much. The caselaw clearly repudiates Plaintiff's additional verification demands." See  Chaudhry v. Gallerizzo, 174 F.3d 394, 406 (4th Cir. 1999)("[V]erification 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.").

Smith v. Encore Capital Grp. Inc., E.D. Wisconsin (2013)

"However, his allegations include that the April 2, 2012, collection letter failed to include a signed verification or accounting of the alleged account and failed to include a signed contract or agreement.  Smith's allegations regarding this claim are not plausible. He points to no statute or caselaw indicating that verification of a debt must be signed or accompanied by signed contracts."                           

Ritter v. Cohen & Slamowitz, LLC, E.D. New York (2015)

"Accepting the Plaintiff's allegations as true, in response to her disputing the Debt, the Defendants provided credit card statements covering a period of two years. Those statements, while not providing an itemization of charges, clearly contained the Plaintiff's name and home address, and included a charge-off in the amount of $918.78 — the amount the Defendants claim is owed. District courts within this Circuit have repeatedly recognized such evidence as sufficient to satisfy the verification requirement under the FDCPA, so that the Plaintiff's allegations, even if true, do not allege a violation of the statute."

Breen v. Howard Lee Schiff, D. Connecticut

"Here, Schiff's September 13, 2010 letter which enclosed a copy of the Plaintiff's Discover Card Statement unequivocally satisfied its obligation under the FDCPA to verify the debt. Indeed, the Statement indicated that the amount being demanded is what the creditor claimed was owed. Moreover, the Statement served the purpose of the verification requirement by ensuring that Schiff was not dunning the wrong person or attempting to collect debts which the consumer had already paid. It appears that Plaintiff is under the misimpression that the Statement included in Schiff's September 13, 2010 letter did not fulfill the verification requirement and that Schiff was obligated to do more. However, the FDCPA does not require the debt collector to keep detailed files of the alleged debt and the information contained in the Statement more than satisfied the verification requirement of Section 1692g(b)."

Coats v. Mandarich Law Group, LLP  E.D. California (2014)

"The documents included with the letter identify the original creditor as Bank of America, N.A., and the current owner of the debt as defendant Cach.  It also identifies the original and current account numbers and provides the account balance on the placement date ($4,857.71). Id. Also included with the letter is a Bill of Sale and Assignment of Loan, reflecting that the loan was purchased by Cach. Also appended to the letter are credit card statements from the original creditor, reflect the amount plaintiff allegedly owes. Furthermore, defendants included a certificate of assignment signed by an authorized agent for Cach which certified that the information provided was accurate."

"Contrary to plaintiff's contention, this response was MORE than adequate to satisfy the verification requirements."

Jacques v. Solomon & Solomon, PC - Dist. Court of Delaware  (2012)

"Plaintiff also claims that Northland violated the FDCPA by failing to prove that it had a contract with Capital One to collect the debt. Plaintiff does not cite any provision in the FDCPA that requires a collection agency to prove that it had a contract with the creditor, and the Court is likewise unable to identify one."

Fassett v. Shermeta, Adams & Von Allmen, PC , W.D. Michigan (2013)

"One main issue before the court is whether defendants violated § 1692g(b) by failing to verify the disputed debt. Plaintiff contends that he is entitled to, among other things, ledger statements, contracts, and proof that defendants are licensed to collect debts in Michigan. Defendants contend that they are not required to keep and send "detailed files" of the alleged debt for verification or validation purposes. Contrary to plaintiff's contention, § 1692g(b) does not require defendants to produce exhaustive documentation in support of the creditor's claim."

"Here, defendants' October 3, 2011 letter in response to plaintiff's request for verification identified the creditor as Capital One, identified the credit card account, identified the current balance due as $12,522.89, stated that defendants represented Capital One, and referenced the enclosed documents which validated the debt pursuant to § 1692g."

"In summary, defendants October 3, 2011 letter confirmed in writing the identity of the creditor and the amount which plaintiff owed as of the date of the letter. Nothing more is required under § 1692g."

Tilmon v. LVNV Funding, LLC - District Court of Illinois (2014)

"The record reveals that the letter provided: the reference number for the account; the account number; name of the current creditor; name of the debtor; name of the original creditor; last date of payment; balance due; date account was opened; and, date account was charged off."

"Upon review of the record, the Court FINDS it is evident that BHLM provided sufficient verification and did not violate Section 1692g(b)."

Himes v. Client Services, Inc. - District Court of New Hampshire (2014)

"Furthermore, Himes's belief that validation requires disclosure of the signed loan agreement, a sworn accounting ledger, and affidavits attesting to the current status and validity of the debt grossly overstates a debt collector's obligations under the FDCPA. To sufficiently validate a debt, the debt collector need only demonstrate that the creditor has provided some evidence that the debtor owes the specific amount demanded; a credit card statement indicating the delinquent balance serves that purpose."

Daniel v. Midland Funding, LLC - E.D. Michigan (2016)

"Moreover, as the Magistrate Judge concluded, Midland's verification of the debt in the form of those 18 itemized credit card statements permitted Plaintiff to 'sufficiently dispute the payment obligation.'"  See  Haddad v. Alexander, Zelmanski, Danner & Fioritto, PLLC, 758 F.3d 777, 785 (6th Cir. 2014).

Goodwyn v. Capital One, NA - M.D. Georgia, (2015)

"When United Recovery received Goodwyn's dispute letter, it contacted Capital One regarding the dispute. In response, Capital One sent documentation of the debt to United Recovery. That documentation stated the account number and contained a calculation of the deficiency balance, which matched the amount United Recovery sought to collect. Based on the documentation, United Recovery confirmed the amount of the debt, to whom it was owed, and by whom, and sent that information to Goodwyn with supporting documentation. United Recovery thus satisfied its obligations under Chaudhry." See Chaudhry v. Gallerizzo, 174 F.3d 394, 406 (4th Cir.1999).

Glowacki v. Law Offices of Howard Lee Schiff, PC, District of MA (2014)

"Therefore, to sufficiently validate a debt, the debt collector need only demonstrate that the creditor has provided some evidence that the debtor owes the specific amount demanded. Here, the credit card statements provided by Schiff indicating the delinquent balance serve that purpose."

MYTH #5

A debt collector must provide a detailed accounting of a debt in order to show how the balance was calculated, i.e. "explain and show me how you calculated what you say I owe."

That is not required.  

[V]erification 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, 406 (4th Cir. 1999).

This provision is not intended to give a debtor a detailed accounting of debt to be collected. Maynard v. Cannon, 401 F. App’x 389, 396 (10th Cir. 2010).

The Eighth Circuit Court of Appeals confirms that the verification requirement is satisfied where the debtor "could sufficiently dispute the payment obligation." See Dunham v. Portfolio Recovery Assocs., LLC, 663 F.3d 997, 1004 (8th Cir.2011).

Proof could consist of:

1.  A credit card statement (such as a charge-off statement) that matches the balance claimed.by the debt collector.

2.  A list of charges that total the amount claimed in the intial communication.

MYTH #6

A debt collector must provide proof that it is licensed to collect in one's state in order to validate a debt.

That is false.   Due to the fact that not all states require that a debt collector be licensed to collect a debt, such a requirement could not be part of the validation requirement.   Even if a debt collector is required to be licensed in a particular state, it has nothing to do with validating a debt.   Read the provided court rulings.  

In the event a state requires a debt collector to be licensed, an unlicensed collection agency might be in violation of another provision of the FDCPA, (perhaps 1692e) but it would not be in violation of the validation section of that Act.  (1692g).

MYTH #7 

An initial communication can validate a debt.

That is such a ridiculous claim.  1692g(a) requires that an initial communication or a letter within 5 days of that initial communication include the name of the creditor to whom the debt is owed and the amount of the debt.   If an initial communication could serve to validated a debt, it would render 1692g(b) to be meaningless.  Why would a debt collector be required to "cease collection of the debt, or any disputed portion thereof, until the debt collector obtains verification of the debt" if the initial communication served to satisfy the validation requirement in 1692g(b)?

This takes us to the next myth.

MYTH #8

A validation response from a collection agency can merely repeat the information provided in the initial communcation without providing documentary evidence of the debt.

While courts are divided as to what constitutes proper validation , they certainly have not ruled that validation may be accomplished by merely repeating the information required by 1692g(a).

In Chaudhry  (see Myth #3), the Fourth Circuit Court of Appeals ruled that verifying 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".   However, documentation had been provided by the debt collector in that case.

Allowing a debt collector to validate a debt by merely repeating the information in its intial communication would be the same as allowing the collector to say "because I say so".  It would be contrary to the language in 1692g(b) and would render that subsection meaningless.  

MYTH #9

A consumer should reference sections of the FDCPA and FCRA (Fair Credit Reporting Act) in a debt validation request in order to put a debt collector on notice that he is aware of his rights.

It is not necessary to include any references to the FDCPA and FCRA in a dispute and validation request letter.  Simply disputing and requesting validation is enough to show that a consumer is aware that he has certain rights.  In addition, it's not the consumer's responsibility to inform a debt collector of the debt collector's responsibilities that are outlined in either Act.   If the debt collector is unaware of his responsibilities, it's his problem.

MYTH #10

Upon receiving a summons and complaint, a consumer can request validation, thereby preventing any further action by the plaintiff until the debt has been validated.

As has been stated, a validation request is valid only when sent within 30 days of an initial communication.   A summons and complaint is not an initial communication that would trigger the 30-day validation period.

1692g(d):

(d) Legal pleadings

A communication in the form of a formal pleading in a civil action shall not be treated as an initial communication for purposes of subsection (a).

MYTH #11

A consumer can include both a request to validate a debt and a demand to cease and desist communications in a timely debt validation letter which would serve to prevent a lawsuit due to the fact that the "cease and desist" would prevent the debt collector from responding to the validation request.

That is incorrect because a consumer can waive his rights.   Requesting validation could be considered consent to allow the debt collector to contact the consumer strictly for the purpose of validating the debt.

 Clark v. Capital Credit & Collection Services, Inc. - 9th Circuit Court of Appeals, 2006

Focusing on that level of sophistication, we will enforce a waiver of the cease communication directive only where the least sophisticated debtor would understand that he or she was waiving his or her rights under § 1692c(c)."

"Applying our newly articulated waiver standard to the facts before us, it is obvious that even the least sophisticated debtor would recognize that Mrs. Clark's request for information constituted consent for Hasson, Capital's attorney, to return Mrs. Clark's telephone call in order to provide the specific information she requested." 

MYTH #13

A validation letter requesting specific documentation and citing the FDCPA and FCRA will put a debt collector "on notice" that a consumer is serious and knows his rights.

That could depend upon the debt collector.   A recently formed collection agency that has little experience might be intimidated by such a letter.   However, seasoned debt collectors will most certainly NOT be intimidated.   In that instance, it would merely depend upon how serious a particular agency is about collecting a debt.

Requesting documentation and stating demands that are not required to validate and setting time limits not provided for in the FDCPA shows a debt collector that you do not know your rights.  

There are a number of websites that provide validation letters that request documentation and state demands that are not necessary to validate a debt.    As previously provided, signed contracts, detailed files, and collection agency licenses are not required.

The suggested letters may demand that a debt collector respond in 30 days.  As has been shown in Myth #2, a debt collector is not required to respond in 30 days. 

Those letters may also demand that the a debt collector cease collection activities for 30 days after sending validation because the consumer requires 30 days to investigate information validating the debt.     Nothing in the FDCPA or rulings by courts supports that demand.

Debt collectors have seen those internet letters.  They know what is NOT required  to validate a debt (such as a signed contract and license to collect).  All such a letter shows is that you can copy and paste a letter you found on the internet.

As previously stated in Myth #9, it's not necessary to reference various federal laws nor is it necessary to describe documentation that should be provided. 

It's not the consumer's responsibility to inform the debt collector of laws and what is required to abide by those laws.  That is the responsibility of the debt collector.   I cannot emphasize that statement enough. 

The best validation letter is a simple one.  In your own words, simply state that you dispute the referenced debt and request validation.  Nothing else is required of the consumer under the FDCPA.  (See 1692g(a) and 1692g(b)).  As I previously stated, it's the collection agency's problem if it doesn't know the laws. 

Hello,

Being sued by portfolio recovery in Texas.

Just looking for some help, received the citation Saturday. They left it with another person at my house.

They own 5 accounts on my credit report.

What is the best course of action? Should I pay a lawyer, file bankruptcy?

They are 3 years old, I did dispute them all maybe a year ago on one of the credit websites because I didnt recognize the dates or know what they were for.

Only being sued for $1500. But worried if I dont handle this one right the other 4 will follow.

I have been trying to rebuild my credit, have a car loan and some other credit cards I always pay on time.

Just dont want to pay a lawyer, then end up having to pay them too...

I can post the citation if needed or any more information.

Thank you