Debt validation after payment?

[thangcuoi102]

Hi,

I live in Texas, and was constantly harrassed and threatened by a collection agency with "bring this legal" "get a judment" "you will do time" ... and in a desperate attempt to have them stop calling, I sent them $40 - with no agreement nor contract for three consecutive month starting September 2007.

As I begin to piece my life together - I requested a validation letter similar to this one ([url]http://www.creditinfocenter.com/forms/sampleletter9.shtml[/url]), which they call back and left a msg that "validation goes out the window when you made your first payment".

Also, does a request for "communication through mail" holds any right if that was ignore?

Please advise ...

A litle background on the debt. This account went to collection in 2003 from PA, which is also where the collection agency is mailing from. Long story short, college -need money, no job after graduation, car accident & medical condition place me where I am.

Previously I request validation through the phone on the account which was denied, and ignored. I called them trying settle the account as soon as I was working, but all attempt failed due to the large lump sum, and one person agreed a $2000 settlement, of which another later called and put that at $2500 and refused to send me the settlement letter of the previous amount. At this point - I thought my options ran out and I sent them $40 as first stated.

I am only beginning to learn about my rights as a debtor in Texas. Suggestions are very much appreciated.

I own no property except a car. Wage garnishment is exempt for collection in TX, but what legal actions should I be concern of if they do "bring it legal".

Thank You So Much,

TC

[BL]

Do you have proof the collector threatened Jail ?

If so sue them for violation of the FDCPA .

[thangcuoi102]

I don't. That was before I learn to distrust anything they say and record the conversation. I do have the voice message to "bring it legal" the past 5 times I've been contacted.

[justalayman]

well, paying the money reset any possibly SoL defense (not saying there was one to start with though).


My question to you is simple:

do you believe the debt to be incorrect or invalid? If not, why request validation? If so, why did you not follow the law as to requesting validation of the debt?

Also, does a request for "communication through mail" holds any right if that was ignore?

you have two choices; 1. allow communications 2. demand no communications. That is the choice you get. There are a few site specific situations such as like at work but the basic situation in yes or no communication.

So, have you read the FDCPA?

here you go:

[url]http://www.ftc.gov/bcp/edu/pubs/consumer/credit/cre27.pdf[/url]

and here is a bit more info:

[url]http://www.ftc.gov/os/statutes/fdcpajump.shtm[/url]

[thangcuoi102]

I believe the amount listed is incorrect, that's why I am requesting a validation now. I have made request through the phone when I talk to the Collection Rep in the past, but that was ignored, and I did not know my rights under the FTC until recently. (didn't ask for validation the initial 30 day).

What I am trying to do now is have the debts verify as to how it more than double the last 3-4 years. I am also looking for the best way to deal with settling the verified amount that I do own. Trying to work out a settlement plan through the phone is extremely difficult as they are very rude, and harrassing.

Thank you for the two links.

[TiredOfAbuse]

I live in Texas, and was constantly harrassed and threatened by a collection agency with "bring this legal" "get a judment" "you will do time" ... and in a desperate attempt to have them stop calling, I sent them $40 - with no agreement nor contract for three consecutive month starting September 2007.

If you can, document all communication. You can sue them for violations down the road. I am unsure if sending them the $40 has reset your SOL (Statute of Limitations). If you do not have the agreement in writing, why are you giving them money?

As I begin to piece my life together - I requested a validation letter

Good move! In Texas, no matter when you ask, they must send you validation within 30 days. The law indicates all they have to provide to you is the name of the Original Creditor and the balance of the debt. If that is all they send you, write them another Debt Validation letter and ask them to provide documention proving the debt is yours and what they sent you is not good enough.

Also, does a request for "communication through mail" holds any right if that was ignore?

No it does not. You can screen your calls and document any messages left. You can send them correspondence through the mail and tell them you will only communicate through the mail. Only a full Cease and Desist has the weight to stop them from calling.

Please advise ...

Here is a good link to get you started: [url]http://www.texaslawhelp.org/TX/index.cfm[/url]

See if you can find out for sure if Texas law indicates if making a payment on a past due obligation resets the SOL.

Previously I request validation through the phone on the account which was denied, and ignored. I called them trying settle the account as soon as I was working, but all attempt failed due to the large lump sum, and one person agreed a $2000 settlement, of which another later called and put that at $2500 and refused to send me the settlement letter of the previous amount. At this point - I thought my options ran out and I sent them $40 as first stated.

I am only beginning to learn about my rights as a debtor in Texas. Suggestions are very much appreciated.

Keep it in writing! If you have no proof how can you protect yourself later?

When you send a Debt Validation letter in the state of Texas, they have 30 days to send you something in the mail. Texas has some really nice consumer protection laws I hear. If all they send you is the Name of the Original Creditor and the total amount of the Debt, write them again! Tell them that isn't good enough and you need proof the debt is yours. Send all correspondense CMRR (Certified Mail Return Reciept) so you can prove they have received your letters.

Their scare tactics worked, it is what they get paid to do. It is up to you if you wish to keep paying without Validation.

I am only beginning to learn about my rights as a debtor in Texas. Suggestions are very much appreciated.

I own no property except a car. Wage garnishment is exempt for collection in TX, but what legal actions should I be concern of if they do "bring it legal".

It sounds like the debt is yours. In your shoes, I would consider working out a payment plan with them that works within your budget - once they have validated the debt. They are rude yes, so keep communications in writing at least on your side.

The link provided above will have information talking about what they can do when they litigate.

I don't. That was before I learn to distrust anything they say and record the conversation. I do have the voice message to "bring it legal" the past 5 times I've been contacted.

Keep documenting things like this. If they threaten and do not take action, it is a violation. To know more about your rights, again see the link above. Look at the FCRA (Fair Credit Reporting Act) and the FDCPA (Fair Debt Collections Practices Act) as well.

If you come to realize you have a lot of documented violations, do not hesitate in calling an attorney. A free consulsation will go a long way in showing you where you stand.

I believe the amount listed is incorrect, that's why I am requesting a validation now. I have made request through the phone when I talk to the Collection Rep in the past, but that was ignored, and I did not know my rights under the FTC until recently. (didn't ask for validation the initial 30 day).

What I am trying to do now is have the debts verify as to how it more than double the last 3-4 years. I am also looking for the best way to deal with settling the verified amount that I do own. Trying to work out a settlement plan through the phone is extremely difficult as they are very rude, and harrassing.

That is why you have every right to ask for Validation. In fact, when you send your letter ask them to account for why the total is so high. Ask them to break the numbers down for you. You were ignored because your request can't be proved, and they know it. That is why you keep it in writing. Send your mail CMRR.

When you decide what you can afford - keep it in writing! Sorry for the broken record...

Good luck with your situation!

TiredOfAbuse

[thangcuoi102]

thank you SO MUCH for such detailed reply - sure wish I found this site and know my entitled rights sooner. I will definitely do more research, and learn what my options are. I'll check back for more advice and post any interesting facts that I find.

your help is very appreciated,
TC

[debtcollector`]

I'm sure.

You reset the SOL with the payment. The payment doesn't necessarily validate the debt, but you can't make them send you validation now anyway so it is a moot point.

You're just going to have to suck it up and pay your debt.

DC

[Chien]

I was writing while DC was posting but I agree.

FA is all about advice, experience and opinions that may help to solve problems. That’s fine, but I can’t see where this thread is going at the moment, except to raise potentially false hopes. There are informed and well-intentioned members, but this goose is all but cooked, and leading the OP to think otherwise may not be productive or even fair.

The OP has re-set the SOL clock (if, as justalayman pointed out, it was relevant). (If you pay to subscribe to a service like lexis.com, to search and Shepardize national case law, I’ll post citations, and you can check. Otherwise, you go on faith.) He has also exceeded the time to request validation (there seems to be general agreement on that). Judging from the CA’s response to a validation request, they are not going to give it to him. They could, notwithstanding the delay. Arguably, it would be smart and eliminate one element of dissension in this thread, but they won’t and doing it in full compliance still wouldn’t give the OP what he wants. Time to back-off that issue. Know your enemy (Sun Tzu).

Second issue: “threat” to “bring it legal”. Advice to CA: the most certain way to protect yourself against that being an issue is to sue him. (Maybe not what the OP wants but, hey, someone will give it that advice and, for the amount in contention, it’s almost a certainty that it will happen.)

“They” agreed to a settlement of $2K and then $2.5K. If they’re settling for that, who knows where it started in 2003 and that it couldn’t get to a considerably higher amount? Personally, I don’t doubt it could, but the OP does.

Fine, that’s his prerogative. Me – I think justalayman got it. Work with them, talk to them, try to develop a way to settle for an amount and on terms that are realistic and within your means or encourage/challenge them to sue you. I think that they will (really, I think that they must), and you can get all the information that you want and more than you’re asking for by way of discovery.

[TiredOfAbuse]

There are informed and well-intentioned members, but this goose is all but cooked, and leading the OP to think otherwise may not be productive or even fair.

How is letting the OP know their rights not productive or fair? I did state in my post that I think the OP should communicate and make payment arrangements once the debt is validated.

He has also exceeded the time to request validation (there seems to be general agreement on that). Judging from the CA’s response to a validation request, they are not going to give it to him. They could, notwithstanding the delay. Arguably, it would be smart and eliminate one element of dissension in this thread, but they won’t and doing it in full compliance still wouldn’t give the OP what he wants. Time to back-off that issue.

I disagree. Texas does afford better consumer protections for their citizens. The FDCPA gives a 30 day limit as to when a Consumer can requst validation. Texas law says they can request it anytime and the CA must comply.

[url]http://www.oag.state.tx.us/AG_Publications/txts/debt.shtml[/url]

"If you dispute an item in the file a debt collector has on you, you should give the debt collector written notice. The debt collector must provide you with the necessary forms for the written notice, and must help you fill out the forms if you request it. The debt collector has 30 days after receiving your written request to determine whether or not the disputed item is correct. If it is incorrect, it must be corrected. The debt collector must notify anyone who has already received a report containing the incorrect item. If, at the end of 30 days, the debt collector has not been able to determine whether the item is correct or not, he or she must make the change you requested and notify anyone who received a report containing the incorrect item. If it is later determined that the item was correct after all, you must be notified and collection efforts may be continued."

Am I incorrect to say that Texas consumer protection laws supercede Federal because they afford the Consumer more protection?

The OP has the right to make sure the CA is entitled to collect and that the debt is fair and correct. How about this scenario, I call you...TOA and tell you that you owe me $5,000 and that I'll sue if you don't give it to me. Wouldn't you want to know if the debt is legit? You do not know me from Adam.

In this case I am not advocating dodging the bullet, I am saying make sure that when you pay it's fair and correct. I gave advice based on that.

The OP has re-set the SOL clock (if, as justalayman pointed out, it was relevant). (If you pay to subscribe to a service like lexis.com, to search and Shepardize national case law, I’ll post citations, and you can check. Otherwise, you go on faith.)

Please by all means, I would like to see the case law. Not the whole thing mind you, I'll trust a cut and paste job.

I would like to add that the OP may not have reset the SOL clock just by making a payment. I believe the OP would have to bring the account current OR agree to a new contract agreement to pay in order to reset the SOL in Texas.

The admin on CIC (Credit Infocenter) has posted:

"Actually, there are 18 states in which payment does not restart the clock (review or extend SOL). The statute of limitations is only extended by new written promise to pay in these 18 states:

Arizona, California, Florida, Iowa, Kansas, Maine, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Nevada, New York, Texas, Virginia, West Virgina, Wisconsin."

I am still working on finding solid proof (like a Texas statute), but until I do I trust this person. This also seems to be correct according to a majority of forum posters across the net. I'll post more when I know more.

~

To thangcuoi102:

It looks like you have not reset the Statute of Limitations. In Texas it is 4 years - if the date of last activity on a debt is longer then that in Texas, they could sue you yes - but you have an affermative defense that it is Time Barred.

You do not have a written agreement to pay, and at this time I would not enter into one without the Validation that Texas law gives you the right to.

Make sure the debt is yours and make sure the totals are correct. Then by all means take care of it and pay it off in a way that is good for your budget.

I'll post more when I know more.



TiredOfAbuse

EDIT: Unless they have proof of your verbal agreement to pay (which I doubt), then I wouldn't stay awake at night about the issue. When you start your written communication with the CA, do not admit to the debt or agree to make payments until you are comfortable doing so.

[TiredOfAbuse]

Found this on the net. Opinions?

Texas Case Law regarding partial payments

Payments made by one obligor on note after it was overdue but before limitation period had run did not operate to toll statute or start running of a new period of limitation. Weber v. Prinz (Civ. App. 1964) 379 S.W.2d 419

Mere fact that part payments had been made on alleged debt was not sufficient to toll statute of limitations. Mandola v. Oggero (Civ. App. 1974) 508 S.W.2d 861

Mere payment of debt neither interrupts running of statute of limitations on debt nor acknowledges justness of debt with implicit promise to pay it. Siegel v. McGavock Drilling Co. (Civ. App. 1975) 530 S.W.2d 894, ref. n.r.e..

And . . .

A check issued in part payment of a promissory note neither interrupts, running of limitation on the debt nor acknowledges justness of the debt with an implicit promise to pay it. Gabriel v. Alhabbal (Civ.App. 1981) 618 S.W.2d 894, ref. n.r.e..

TiredOfAbuse

NOTE: Still looking up info.

[TiredOfAbuse]

And here we go:

Sec. 16.065. ACKNOWLEDGMENT OF CLAIM. An acknowledgment of the justness of a claim that appears to be barred by limitations is not admissible in evidence to defeat the law of limitations if made after the time that the claim is due unless the acknowledgment is in writing and is signed by the party to be charged.
Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.

Now please, show me how I am wrong. Thank you for taking the time to consider my arguement/opinion.

To thangcuoi102:

You have not reset the SOL. If the date of last activity on this debt is over 4 years old, you have an absolute defense if you are taken to court. It is up to you if you would like to repay this or not, as the Original Creditor or Junk Debt Buyer may have (how old is the debt?) not been interested enough in being payed back in a timely manner. All morals aside, IMHO: you snooze, you lose.

As a Texas resident, you also have the right to request validation at any time - the CA must comply.

TiredOfAbuse

EDIT: On a side note I would also like to add this: When put into this kind of situation, make sure you know your rights! Research, use the net or local library. Most state Attorney Generals' have web sites with consumer info, browse them! Do not hesitate to contact an attorney - a free consultation can go a long way! Depending on your situation, a second opinion from a different attorney wouldn't hurt.

Sorry for all of the Edits. I had a ton of typos and wanted to make sure all of my statements made sense when reread.

[thangcuoi102]

Case Update

I haven't heard anything from the Collection Agency that deny my validation after the payment. I'll write to them again today with the same request.

On a lighter note, the validation request to a different account return with a request for immediate payment in full balance, and the documents enclosed for validation reference is some stranger's Verizon Phone Bill in 2004. I am amazed.

TiredofAbuse, the links you provided are a great resource - thanks again.

TC

[TiredOfAbuse]

I haven't heard anything from the Collection Agency that deny my validation after the payment. I'll write to them again today with the same request.

Do not be surprised that you have not heard anything from this CA. They are required by law to stop all collection attempts UNTIL they place your validation into the mail. Not hearing from there means they have no proof (yet?) and are following the law.

On a lighter note, the validation request to a different account return with a request for immediate payment in full balance, and the documents enclosed for validation reference is some stranger's Verizon Phone Bill in 2004. I am amazed.

On this one, I would write to them again and tell them they have the wrong person. If you can, show them they have the wrong person. Did the Validation have information that does not match your own, such as Name or SS #?

As an example, when writing don't list out your full SS#, but as proof you could tell them the last 4 numbers of your own when telling them they have the wrong person.

I am glad to be able to help! If you have further questions, let us know!

TiredOfAbuse

[debtcollector`]

TOA -- I was re-read the thread and noticed that we had both made errors:

Texas is an answer required state. However, validation still consists of only the name and address of the OC.

Also, the request may be made verbally in Texas.

DC