The legal right to collect a debt ?

[Jerabathga]

What is the name of your state? Ohio
Hello, I am facing a problem with a collection agency who is beleve it or not going to litigate in small claims over a $166.75 debt.

I am researching Ohio Code and I found this:
Section 1319.12
(C) No collection agency shall commence litigation for the collection of an assigned account, bill, or other evidence of indebtedness unless it has taken the assignment in accordance with all of the following requirements:

(3) The assignment was manifested by a written agreement separate from and in addition to any document intended for the purpose of listing the account, bill, or other evidence of indebtedness with the collection agency. The written agreement [must] SHALL state the effective date of the assignment and the consideration paid or given, if any, for the assignment[,] and [must] SHALL expressly authorize the collection agency to refer the assigned account, bill, or other evidence of indebtedness to an attorney admitted to the practice of law in this state for the commencement of litigation. The written agreement [must] also SHALL disclose that the collection agency may CONSOLIDATE, for purposes of filing an action......
My question is does the above requirement mean that the original creditor and the collection agency have to have a contract or written agreement in order to litigate? I also read somewhere a few months ago that in order for a collection agency or other 3rd party company to collect a debt the original signed contract on that debt must have some sort of legal language written in. Any light you could shed on this would be very helpful.

 

[skwirl]

Usually collection agencies are hired and then your debt is "assigned" to them so they can legally collect or your debt is bought by them for pennies on the dollar and they legally own the debt and then have all the rights to collect that the original creditor had. Either way you can be sure that if they plan to litigate they have taken the proper steps.
As far as the written contract? I'm not sure about that. I'm sure they have to prove that you actually owe the debt before collecting on it so they probably have something with your signature or at least a history of payments, etc. to prove the debt is yours.

 

[Ladynred]

Next question - how old is this debt and when was the last time you paid the ORIGINAL creditor ?? Is the SOL up on this debt ?

The SOL in Ohio for credit cards is FOUR years, - NOT the 15 that most CA's (or even lawyers) in Ohio will tell you. Credit cards are open-ended accounts and the Ohio statutes specifically define credit cards as open-ended accounts and put the SOL at 4 years. This is in addition to the Truth in Lending Act that defines credit cards the same way.

So.. if its beyond the SOL, you can beat them. If not, you can still demand validation of the debt and they will HAVE to prove it in court if they don't produce validation before then.

Proper validation means producing an agreement with YOUR signature on it as well as supporting documents to show how the balance they are alleging you owe was determined. In other words, they have to get a full accounting of the debt - which could mean years of statements - from the original creditor. If they cannot validate, they must cease collections and remove any and all entries from your credit report.

If you get to court and they haven't validated, and you're asked if the debt is yours, you say ' I don't know, they haven't produced the proof/validation that I requested, under the FDCPA Section 809, for me to be sure'. You just need to be armed with copies of the FDCPA, the Wollman FTC opinion letter and a copy of the Spears v. Brennan case (shows what the FTC defines as proper validation).

 

[Jerabathga]

Next question - how old is this debt and when was the last time you paid the ORIGINAL creditor ?? Is the SOL up on this debt ?

The SOL in Ohio for credit cards is FOUR years, - NOT the 15 that most CA's (or even lawyers) in Ohio will tell you. Credit cards are open-ended accounts and the Ohio statutes specifically define credit cards as open-ended accounts and put the SOL at 4 years. This is in addition to the Truth in Lending Act that defines credit cards the same way.

So.. if its beyond the SOL, you can beat them. If not, you can still demand validation of the debt and they will HAVE to prove it in court if they don't produce validation before then.

Proper validation means producing an agreement with YOUR signature on it as well as supporting documents to show how the balance they are alleging you owe was determined. In other words, they have to get a full accounting of the debt - which could mean years of statements - from the original creditor. If they cannot validate, they must cease collections and remove any and all entries from your credit report.

If you get to court and they haven't validated, and you're asked if the debt is yours, you say ' I don't know, they haven't produced the proof/validation that I requested, under the FDCPA Section 809, for me to be sure'. You just need to be armed with copies of the FDCPA, the Wollman FTC opinion letter and a copy of the Spears v. Brennan case (shows what the FTC defines as proper validation).

The debt is for a dentist bill that happened last year. My insurance was never billed for the amount even though I gave them my delta dental insurance card and filled out the treatment release with that billing info. I have called the dentist office to offer a payment arangemeent if they pull the account out of collections but they told me that they wrote off the debt and the balance is now Zero. I asked for a billing summery or any documentation of itemised charges but they tell me that they can not comunicate with me and tell me I have to go thru the collection agency. I am pretty fluent on the FDCPA and the FCRA. I have sent a validation request certified and they partially validated by sending me a statement that is for x-rays taken. They have not provided anything with my signiture and to my suprise the when I called the doctors office the account manager told me they nolonger had anything with my signiture on it. I know I signed a medical release??? I filled out a fourm that asked me about my medical history. I am thinking that they lost that information and maybe that is why they didn't bill my insurance. Don't get me wrong here I want to pay it but not if the damage to my credit files remains. It kills a Fico or becon score when a collection appears. As far as the litigation is concerned do you think that the ohio code 1319.12 will require for an attorney to have this contract or written agreement in order for them to prove to the court that they are alowed to litigate the case. After all if the original creditor didnt go into a written agreement with the collection agency then how can the collection agency hire an attorney?. I can see how it would be legal for the original creditor to sue me with their attorney but for the collecton agency to sue me without the written agreement outlined is Section 1312.12 of the ohio code.

thank you,
Jerabathga