Debt Collectors; And what you can do to Get Them Out of your Life

FTC opinion letter on validation Section 809(a) of the FDCPA, 15 U.S.C. § 1692g(a)

This will be a pretty long lesson and will cover an integral part of validation which is the receipt of the initial or first contact with the debtor by a collector which usually gets thrown in the trash can if the debtor has not the funds to pay. That is a very serious mistake. One should never throw those collection letters away. They may very well be a vital part of your defensive strategy later down the road.

This lesson is taken from a part of an FTC opinion letter on validation and tells us what that first letter must contain at the very least, and what it must do and must not do so this is an important lesson indeed..

This course was originally designed for attorneys and was designed to teach them avoidance of problems. Naturally, we use their lessons against them and do all we can to get them to screw up so they can be sued. You will find a lot of ingenious tricks and traps can be devised to make them goof it up and lose their collection efforts and their cases against you.

---------------------------------------------------------------

SECOND ISSUE:

Where an attorney debt collector institutes legal proceedings against a debtor but has no prior communications with the debtor, are the requirements for the validation of debts set forth in Section 809 of the FDCPA supreme to state law or state court rules that otherwise prohibit the inclusion of the validation notice on court documents? In responding to this issue, the Commission notes first that Section 809(a) of the FDCPA, 15 U.S.C. § 1692g(a), provides:

(a) 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.

Section 803 (2) of the FDCPA, 15 U.S.C. § 1692a(2), defines the term "communication" as "the conveying of information regarding a debt directly or indirectly to any person through any medium." In its Staff Commentary, Commission staff stated that the term "communication" "does not include formal legal action (e.g., filing of a lawsuit or other petition/pleadings with a court; service of a complaint or other legal papers in connection with a lawsuit, or activities directly related to such service)

" 53 Fed. Reg. at 50101, comment 803 (2)-2. Similarly, in the introductory portion of the Staff Commentary, Commission staff opined that "Attorneys or law firms that engage in traditional debt collection activities (sending dunning letters, making collection calls to consumers) are covered by the FDCPA, but those whose practice is limited to legal activities are not covered."

(3) Id. at 50,100. Seven years after the Staff Commentary was issued, the United States Supreme Court held that the FDCPA's definition of "debt collector," Section 803(6), 15 U.S.C. § 1692a(6), "applies to attorneys who 'regularly' engage in consumer-debt-collection activity, even when that activity consists of litigation." Heintz v. Jenkins, 514 U.S. 291, 299 (1995).

In arriving at this conclusion, the Court explicitly considered and rejected Commission staff's introductory remark regarding the coverage of litigation attorneys. Id. at 298.

In light of Heintz, the Commission concludes that, if an attorney debt collector serves on a consumer a court document "conveying information regarding a debt," that court document is a "communication" for purposes of the FDCPA.

(4) If an attorney debt collector has had no prior communications with a consumer before serving a summons or other court document on the consumer, that document would constitute the "initial communication" with the consumer if it conveys information regarding a debt.

The attorney would therefore have to include the written notice mandated by Section 809(a) (often referred to as the "validation notice") in the court document itself or send it to the consumer "within five days after the initial communication." According to the ACA's Request, some "state laws or state court rules prohibit the inclusion of additional language such as the validation notice on documents filed with courts." The association asks whether the requirements of Section 809(a) are "supreme to," and thus preempt, these state laws or state court rules. Id. Preemption cases generally proceed from "the starting presumption that Congress does not intend to supplant state laws." New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 654 (1995).

(5) According to the Court in English v. General Electric Co., 496 U.S. 72 (1990): State law is pre-empted under the Supremacy Clause, U.S. Constitution Article VI, cl. 2, in three circumstances.

First, Congress can define explicitly the extent to which its enactments pre-empt state law. Pre-emption fundamentally is a question of congressional intent, and when Congress has made its intent known through explicit statutory language, the courts' task is an easy one.

Second, in the absence of explicit statutory language, state law is pre-empted where it regulates conduct in a field that Congress intended the Federal Government to occupy exclusively. Such an intent may be inferred from a "scheme of federal regulation . . . so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it," or where an Act of Congress "touches a field in which the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject." . . . .

Finally, state law is pre-empted to the extent that it actually conflicts with federal law. Thus, the Court has found pre-emption where it is impossible for a private party to comply with both state and federal requirements, or where state law "stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." Id. at 78-79 (omission in internal quotation in original) (citations omitted).

The preemption provision of the FDCPA, Section 816, 15 U.S.C. § 1692n, provides: This title does not annul, alter, or affect, or exempt any person subject to the provisions of this title from complying with the laws of any State with respect to debt collection practices, except to the extent that those laws are inconsistent with any provision of this title, and then only to the extent of the inconsistency. For purposes of this section, a State law is not inconsistent with this title if the protection such law affords any consumer is greater than the protection provided by this title.

The Commission does not believe that this section expressly preempts state laws and court rules that prohibit attorney debt collectors from including validation notices in court documents. The quoted provision makes express that Congress did not intend to preempt the field, but allowed only for conflict preemption. However, there is no conflict preemption here. First, there is no conflict preemption based on impossibility of compliance because it is possible for attorney debt collectors to comply with both the federal provision and the state provisions.

(6) Instead of including such notices in court documents, attorney debt collectors in jurisdictions that prohibit validation notices in court documents may deliver the notices to consumers via some other medium -- either before serving the court document on the consumer or, if the court document is truly the first communication with the consumer, within five days of serving the court document.

(7) Second, there is no conflict preemption based on state law standing as an obstacle to the full accomplishment and execution of Congressional purposes and objectives. As Congress declared in Section 802(e) of the FDCPA, 15 U.S.C. § 1692(e), the purpose of the panoply of protections under the federal debt collection statute is: to eliminate abusive debt collection practices by debt collectors, to insure that those debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged, and to promote consistent State action to protect consumers against debt collection abuses.

The state provisions about which you inquire do not prevent consumers from receiving the full panoply of protections from abusive debt collection practices afforded by the FDCPA. The only FDCPA provision that could be affected by these state laws and court rules is Section 809(a). As noted above, an attorney debt collector who is prohibited from including the validation notice in court documents may deliver the notice to consumers before serving the consumer with the court document or, if the court document is the first communication with the consumer, within five days after serving the court document.

Thus, even in a jurisdiction that prohibits validation notices in court documents, a consumer will receive the validation notice and learn, for example, that the debt collector must provide the consumer with written verification of the debt if the consumer disputes the debt within thirty days.

State legislation that prohibits validation notices in court documents also does not stand as an obstacle to the promotion of "consistent State action to protect consumers against debt collection abuses." Consumers will receive their validation notices in jurisdictions that prohibit validation notices in court documents as well as in jurisdictions that permit the practice.

After reviewing state laws and court rules that prohibit validation notices in court documents under a preemption analysis, the Commission concludes that such state legislation is not preempted by the FDCPA. By direction of the Commission. Donald S. Clark Secretary Endnotes

1. Section 809(b), 15 U.S.C. § 1692g(b), provides: 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 any 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.

2. In the Staff Commentary on the Fair Debt Collection Practices Act, 53 Fed. Reg. 50097 (1988) ("Staff Commentary"), and staff opinion letters, Commission staff have consistently read Section 809(b) to permit a debt collector to continue to make demands for payment or take legal action within the thirty-day period. See 53 Fed. Reg. at 50,109, comment 809(b)-1 ("A debt collector need not cease normal collection activities within the consumer's 30-day period to give notice of a dispute until he receives a notice from the consumer."); letter from John F. LeFevre, FDCPA Program Advisor, to S. Joshua Berger (May 29, 1997): We interpret the "thirty-day period" as a period within which consumers must dispute their debts in writing in order to avail themselves of their Section 809(b) rights, but not as a "grace" period.

Thus, we believe that there is nothing in the Act that prevents you from filing suit during this period, so long as you do not make any representations that contradict Section 809(b).

Kenneth M. DeLashmutt "Predatory Lending Defense Specialist"

email: educationcenter2000@cox.net

website: http://www.educationcenter2000.com

Mr. Kenneth M. DeLashmutt is a recognized Predatory Lending Defense Specialist and an authority on the subject of predatory lending practices, foreclosure defense, consumer protection and debtor's rights.

He has more than 10 years experience in the area of consumer protection related to predatory mortgage lending practices and debt resolution. He has provided regulatory consulting services nationwide to financial institutions, consumers and regulatory agencies as well as real-estate and financial services organizations.

Areas of Expertise include: Banking Operations and Administration; Lending Policies and Laws to Protect Consumers, Mortgage Brokers and Mortgage Lender Predatory Lending Custom & Practice; Credit Administration; Bankruptcy and Foreclosures; Trust & Fiduciary Issues / Operations; Real Estate Transactions; Consumer Protection Litigation and Foreclosure Defense.email: educationcenter2000@cox.netwebsite: http://www.educationcenter2000.com

More Resources

Unable to open RSS Feed $XMLfilename with error HTTP ERROR: 404, exiting

More Debt Relief Information:

Related Articles


How to Deal with Bill Collectors
So you've screwed up. You're drowning in debt.
Debt Problems? You Can Negotiate With Your Creditors
It is always possible to negotiate with creditors - even if they have already taken you to court to get a judgment or to garnish your wages.Getting a creditor to reduce your monthly payment helps and does provide short-term relief.
Hide That Car! Fighting the Repo Man
Vehicle repossession may appear justified in circumstances where a person is generally being irresponsible and otherwise able to meet this financial obligation. However, what about that hardworking guy or gal who paid their automobile note dutifully for three years, and missed one payment? Why should their car be repossessed?Basically, the lender owns your car until it is paid in full.
Debt Negotiation and Debt Settlement
Debt negotiation and settlement can give you a drastic reduction in the amount of debt you owe and allow you to repay your debts in a much shorter time. Resolving your debts is important to your well-being and financial stability.
How Do You Spell Debt Relief?
Of all the problems possible in a marriage, finances cause the most marital discord. Many singles consider finances to be their most worrisome issue.
Drowning in Debt? Tips and Tricks for Getting Out of Hot Water with Creditors
Do you, like millions of other Americans, feel like you're sinking in an ocean of credit card debt? Well, fear not--there are many options for reducing your debt way before you have to be concerned about receiving notices or daunting telephone calls from debt collectors. The important thing to remember is to be proactive in handling your credit card debt.
Is Filing for Bankruptcy an Option for You?
Bankruptcy laws give debtors a way to resolve debt by dividing their assets among their various creditors and in some cases will allow debtors to be freed of outstanding debts that cannot be paid, even after the division of assets. For individuals who find themselves unable to pay their debts, bankruptcy can be a viable option.
How To Get Out Of Debt
If you have found yourself in a position where you are in serious debt and cannot think of a way out of the situation, then take a few minutes to read these few tips. Some may seem obvious but do put them into practise as they will help.
Debt Relief -- Why Most Programs Have A 75% Failure Rate
Debt consolidation, equity loans, credit counseling, debt management plans, even Chapter 13 bankruptcy - it doesn't matter which of these debt programs you're talking about. They all suffer from one fatal flaw, the number one problem that causes most people to fail at eliminating their debts through these techniques.
Bouncing Back from a CCJ
Should you be unfortunate enough to face a CCJ - but subsequently succeed in having it either set aside or reversed - the court will automatically remove the entry from the Register of County Court Judgments.The court must send notification of cancellation to the Registry Trust within three days of the date of the order.
Free Quick and Easy Money Saving Tips - Part 2
Although many consumers would argue differently saving money doesn't have to be difficult. In fact by making just a few changes in your normal lifestyle you can find ways to free up extra cash that can be put to better use in a savings account or an investment account.
Credit And Debt Relief--A One Stop Solution
Amy Wright, 34, was extatic when her realtor showed her the three bedroom townhome overlooking the lushious golf course. It was exactly the home she was looking for.
Debt Settlement : What You Need To Know
Debt Settlement companies work with your creditors to help you reduce your unsecured debts though arbitration and negations. The important thing to realize about Debt Settlement is that it is a different type of program than Consumer Credit Counseling or Debt Reduction.
Taking The Plunge Into Bankruptcy
Bankruptcy is one of the most difficult things a person has to do. The decision to file bankruptcy is a hard one.
How to Reduce Your Debt in 5 Easy Steps
If you have incurred substantial personal debt, consider these options: budgeting, debt consolidation, credit counselling from a reputable organization and working with your creditors. You will need to choose a debt reduction method that will work best for you? The method you use will depend on your level of debt, how much spare money you have, your level of discipline, and how quickly you want to get out of debt.
Questions to Ask a Credit Counseling Service about Debt Relief
Debt relief is a topic on a lot of consumers' minds these days, and with good reason. American credit card debt in 2001 was $692 billion, triple the amount from 1989.
Bankruptcy - Is It The Right Choice For You?
Bankruptcy is one of the tougher choices we as adults face in today's society where it is the norm to be in debt, albeit some more so than others. Credit card offers materialize whether you are looking for credit or not.
How to Protect Yourself: Debt Collections
So you are getting collection calls? You're desk is full of unpaid bills. You dread answering the phone.
Repair Bad Credit Yourself
In March 2005, the U.S.
Student Loans Can't Be Swept Away Through Bankruptcy
Bankruptcy is in the news these days, as Congress has finally overhauled the Federal bankruptcy law after years of talking about it. The credit card companies, rightly or wrongly, have been pressuring members of Congress to tighten the bankruptcy statutes, saying that too many people were willfully spending money they couldn't repay with the intention of avoiding paying the money back by filing for bankruptcy.