No validation of debt & now a judgement without notice

[luvumfl]

What is the name of your state? Rhode Island

Chase Manhattan sold this debt to David Taylor who is suing me for payment. David Taylor hired an attorney here in Rhode Island to fight it. In 2003, I sent David Taylor in writing - certified return receipt to validate the date - this was after he sent his first letter of contact where it says I have 30 days. He did not respond. I sent him another letter that he did not validate the date and I demanded it to be removed from my credit immediately. I said I would sue him in the letter if he didn't. David Taylor wrote a handwritten note on the a return bill that I didn't have to threaten and that these things take time. David Taylor never validated nor removed it from my credit. I got notice around November 2004 that they were suing me. I asked them again to validate the date. Never did. Apparently, this past May they won a judgement against me. I never received any notice to appear in court. So I guess I lost my default, right, because I didn't appear? Now I got a notice to appear in court for garnishment of wages. I got it postponed by David Taylor's attorney. I tried to hire a lawyer but that lawyer refused to meet with me because I have children (a whole other story on another forum). Anyway, isn't David Taylor and this lawyer in violation of the FDCPA because they never validated the debt to me and I requested it several times? Is it also another violation of the FDCPA for getting a judgement without validating the date? The only thing they sent to me for validation was copy of statements. Obviously, not a validation. I asked for proof of signature on the original document. Need advice because now I just want to fight it without a lawyer. The debt is only $2500 and a lawyer will probably cost me that much. I've researched a lot about debt and have a pretty good handle on the FDCPA laws over the years. Any advice I would really appreciate it. Thank you so much!
Suzie in RI
p.s. My last date of activity was April 2002.

[Ladynred]

Anyway, isn't David Taylor and this lawyer in violation of the FDCPA because they never validated the debt to me and I requested it several times?

No. What IS a violation is continued collection activity once you've asked for validation within the initial 30 day period. They never have to validate, but they MUST cease all collection activity and the debt must be marked as 'in dispute' on your credit reports.

Is it also another violation of the FDCPA for getting a judgement without validating the date?

It would be a violation to sue you, yes, as that is considered continued collection activity. If they can't prove it before court, then you'll have to make sure they prove it IN Court.

You can file a cross-complaint for FDCPA violations.

If you were never served with a summons then you need to get a copy of the judgment case file from the courthouse and find out exactly when, where, how and to whom the summans WAS served. You may be able to challenge the whole thing if service was improper.

[luvumfl]

Thank you, Ladynred...I was hoping you were going to respond to me. You seem to be very knowledgable in these matters. I have done so much research in the past 4 years about these things. It's the court system I don't understand.

Yes, that is what I meant - they are in violation because they didn't validate the debt to me and they continued with the judgement and now the notice to attach wages.

Question? This notice to attach wages was postponed to October 5th. Can I go to court on this day to try to get the judgement vacated or do I need a separate motion for that? Should I postpone the notice to attach wages for now?

What I can't understand is - they served me with papers that they were going to file for a judgement and I responded back that continued collection is in violation of the FDCPA.....so I was waiting for them to validate or get an appearance in court on the judgement but never got served. The next thing I know the order was sent to me regular mail.

If the judgement does get vacated, and since the date of last activity was April 2002, does the SOL still apply to this date?

Thanks for all your help. I really appreciate it.
Suzie in RI

[debtcollector`]

Originally Posted by Ladynred

It would be a violation to sue you, yes, as that is considered continued collection activity. If they can't prove it before court, then you'll have to make sure they prove it IN Court.

Unfortunately Ladynred is wrong on this point. It is not a violation to file suit without validation. I cite the FTC commentary on this point:

[url]http://www.ftc.gov/os/statutes/fdcpa/commentary.htm#809[/url]
6. Legal action. A debt collector's institution of formal legal action against a consumer (including the filing of a complaint or service of legal papers by an attorney in connection with a lawsuit to collect a debt) or transmission of a notice to a consumer that is required by law as a prerequisite to enforcing a contractual obligation is not a "communication in connection with collection of any debt," and thus does not confer section 809 notice-and-validation rights on the consumer.

DC

[Ladynred]

Ahh DC.. it would seem that the FTC's Staff Commentary was trumped by the Courts:

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)

From FTC Staff Opinion letter: [url]http://www.ftc.gov/os/2000/04/fdcpaadvisoryopinion.htm[/url]

Want me to get you a copy of Heintz v. Jenkins ??

[luvumfl]

Ladynred - I'm with you. I have researched this enough to know that they are in violation because they continued with the collection of debt and never validated.

Question? This notice to attach wages was postponed to October 5th. Can I go to court on this day to try to get the judgement vacated or do I need a separate motion for that? Should I postpone the notice to attach wages for now?

Thanks again.
Suzie in RI

[Ladynred]

To get the judgment vacated you'll need a separate motion to vacate, not piggy-back it onto an appeal of the garnishment.

[NYMinute]

Originally Posted by Ladynred

Ahh DC.. it would seem that the FTC's Staff Commentary was trumped by the Courts:



From FTC Staff Opinion letter: [url]http://www.ftc.gov/os/2000/04/fdcpaadvisoryopinion.htm[/url]

Want me to get you a copy of Heintz v. Jenkins ??

SO does this mean you are correct LadynRed?