FDCPA regulations

[SINCITY89103]

What is the name of your state?NC

I want to take a collection agency to small claims court and sue them for violations under the FDCPA. I have a dispute with the apartment complex the CA is "allegedly" representing. How hard would it be for the CA to get a judgement against me if I take them to court? All they can provide is a copy of the lease I signed and a hand written paper showing how the apartment complex came to the total charges against me.

They have not been able (in my understanding of the laws under the FDCPA) to properly validate the debt. I wrote them a second time to state this, even gave examples of where they fell short . One being: They never showed me they have purchased or have been assigned the debt. How do I know they can legally collect for the apartment complex? They have not responded to this second letter, probably for obvious reasons.

They have also reported the debt as validated to the credit bureaus after I had written both dispute letters. Isn't it illegal to report a debt as validated when it is in dispute?

I never agreed to pay the CA nor does it state in the original lease I would be held liable to pay any third party "assigned" the debt. How can the CA legally come after this debt when they do not own the debt and I never agreed to pay them? I also want to dispute these charges with the original creditor, but first win in court against the CA. I heard it was hard for a CA to win when there's no direct contract between them and the original creditor, is this true?
Do I have a case?

 

[Debt Guy]

Q. I want to take a collection agency to small claims court and sue them for violations under the FDCPA. I have a dispute with the apartment complex the CA is "allegedly" representing.

A. OK. It would probably be better to sue both the OC and the CA.

Q. How hard would it be for the CA to get a judgement against me if I take them to court?

A. I am a little confused. The creditor/CA can sue you and they can get a judgment if they win their case. The same works for you if you sue and win. The two really don't offset each other except in an abstract sense. It is possible to use your suit/countersuit as leverage. It all depends on what you got on them. Theoretically, it is possible for you both to sue and you both to win a judgment against the other.

Q. All they can provide is a copy of the lease I signed and a hand written paper showing how the apartment complex came to the total charges against me.

A. That may well be all they need to convince a judge in a simple case like this.

Q. They have not been able (in my understanding of the laws under the FDCPA) to properly validate the debt. I wrote them a second time to state this, even gave examples of where they fell short . One being: They never showed me they have purchased or have been assigned the debt. How do I know they can legally collect for the apartment complex? They have not responded to this second letter, probably for obvious reasons.

A. Ahhh - you've been listening to the jailhouse FDCPA lawyers. I suggest you go to www.ftc.gov and download a copy of the FDCPA and read some of the staff opinions about FDCPA. The intent of the FDCPA is to make sure the collector is going after the right person -- that is what validation is really all about. The act does not define validation except to give some minimum standards. The FTC has consistently refused to define validation because there are too many different situations. The collection agency does not have to prove to you that they purchased or were assigned the debt -- the FDCPA just does not require it. If you have some concern that they can't legally collect for the apartment complex, call the apartment owner and ask. Otherwise, the judge will make that determination when you are sued.

Q. They have also reported the debt as validated to the credit bureaus after I had written both dispute letters. Isn't it illegal to report a debt as validated when it is in dispute?

A. This is a little confused because there are FDCPA issues here as well as FCRA issues. Creditors "verify" disputed information to the CRAs. Creditors "validate" disputed information to the consumer. That is about the simplest way to explain but it is more complicated than that. It is possible that they are violating either FDCPA or FCRA in the way they are reporting. Much of the answer depends on whether or not you disputed the debt to the CRA.

Q. I never agreed to pay the CA nor does it state in the original lease I would be held liable to pay any third party "assigned" the debt.

A. No such requirement that I am aware of. I see CAs in court all the time representing landlords.

Q. How can the CA legally come after this debt when they do not own the debt and I never agreed to pay them?

A. Two ways. First, if they bought the debt then they literally step into the shoes of the OC. Second, if they are acting as agent for the OC, then they are just collecting as agent. Either way is perfectly legal. In neither case is your consent required.

Q. I also want to dispute these charges with the original creditor, but first win in court against the CA.

A. OK. Are you really going to sue the CA? What did they do that was illegal? As plaintiff, it will be your responsibility to prove they did something wrong. Do you have evidence that will stand up in court? Remember, justice is blind. Unsubstantiated allegations won't fly with the judge.

Q. I heard it was hard for a CA to win when there's no direct contract between them and the original creditor, is this true?

A. True, if that set of facts is correct. Are you sure there is no contract between the OC and the CA? Just because they did not give it to you does not mean it does not exist. It could even be a verbal contract and be legal.

Q. Do I have a case?

A. Depends on lots of things. First, was there a violation of the law? Second, can you prove the violation? Third, can you make that argument cogently to the judge and file the proper motions?

Just curious -- sounds like there is more to this story that what you have told here. What is your goal?

 

[SINCITY89103]

My Goal

I feel the charges against me, which is basically a cleaning fee of 825.00, was way over the top. Especially since they kept my 900.00 dollar deposit. I want this debt off my credit report (the CA reported it).

I thought there has to be at least a contract between the CA and the original creditor , otherwise how do I know the CA is the right guy to pay? Why would they not show me the contract, IF they had one? Is that not apart of validating the debt? Showing ownership or assignment of it?

Also, I do not feel I owe the apartment complex anything (long story), and I do want to go through all the bull---- I''m going thorugh with some third party.

The reason I asked if they could get a judgement: If I take them to court to sue them (for reporting a debt that was not validated), and do not have a case. Then I suppose they could countersue right then and there to get a judgement against me. Correct?

If you think I do not have a case I will go to plan B. Waiting for the statute of limitations to run out (4 or 5 years in FL I think for a written) and then persue further. This happened almost 3 years ago already, just finding out about it recently when being denied to move in to an upscale apartment complex.

If I do wait for the statute of limitations, I think they can still report this on my credit for a full 7yrs, is this correct?

And yes I did dispute with the credit bureau AFTER I disputed with the CA. So the debt was in dispute when they reported it as validated. Does that make a difference?

It is obvious you put a great deal of time and effort into my post, for that I am very thankful.

One last thing. You asked what illegal thing the CA did that would be grounds to sue them. How about defamination of character. They reported a debt to the credit bureaus I say I do not owe. That is illegal. As for proof, that's the easy part. I have a copy of my credit report; with them right on it.

IF I take them to court isn't the burden of proof on them? They have to show how I owe this money. Besides a handwritten receipt and a copy of my lease, how is that enough? They have no one with ACTUAL KNOWLEDGE of the debt. In other words, how do they know the apartment complex did not make it up? What would their defense be? CA: "Well judge, he owes us this money because the apartment complex told us he does." Judge: "Can you show me your entitled to legally collect for this apartment complex?" CA: "No, but they said we could." Is that enough to fly in court? If so, wouldn't there be alot of fraud going on? Thanks again for your input.

-THE SIN MAN

 

[Debt Guy]

Q. I feel the charges against me, which is basically a cleaning fee of 825.00, was way over the top. Especially since they kept my 900.00 dollar deposit. I want this debt off my credit report (the CA reported it).

A. The only recourse I can think of would be to sue the OC for keeping your deposit. Conversely, fight it when they sue you.

Q. I thought there has to be at least a contract between the CA and the original creditor , otherwise how do I know the CA is the right guy to pay? Why would they not show me the contract, IF they had one? Is that not apart of validating the debt? Showing ownership or assignment of it?

A. There probably is a contract but it is none of your business. Again, they are not required to show it to you. It is not part of validating the debt.

Q. The reason I asked if they could get a judgement: If I take them to court to sue them (for reporting a debt that was not validated), and do not have a case. Then I suppose they could countersue right then and there to get a judgement against me. Correct?

A. Correct.

Q. If you think I do not have a case I will go to plan B. Waiting for the statute of limitations to run out (4 or 5 years in FL I think for a written) and then persue further. This happened almost 3 years ago already, just finding out about it recently when being denied to move in to an upscale apartment complex.

A. You are the only person who can judge if you have a good case. Or, hire an attorney who is familiar with landlord/tenant law and let the attorney advise you.

Q. If I do wait for the statute of limitations, I think they can still report this on my credit for a full 7yrs, is this correct?

A. Actually it is 7 1/2 years from the date of initial default.

Q. And yes I did dispute with the credit bureau AFTER I disputed with the CA. So the debt was in dispute when they reported it as validated. Does that make a difference?

A. Think about this for a minute. You dispute to the CA and they validated the debt. As I recall your original post, you did not like what they sent "All they can provide is a copy of the lease I signed and a hand written paper showing how the apartment complex came to the total charges against me." That is validation. You dispute to the CRA who goes to the CA and asks if the info is correct. The CA says yes. I don't see a violation.

Q. It is obvious you put a great deal of time and effort into my post, for that I am very thankful.

A. Thanks. I realize you think this situation is unfair and did not get the answer you were looking for.

Q. One last thing. You asked what illegal thing the CA did that would be grounds to sue them. How about defamination of character. They reported a debt to the credit bureaus I say I do not owe. That is illegal. As for proof, that's the easy part. I have a copy of my credit report; with them right on it.

A. I don't think you have a very good argument there. The CA only reported what the OC told them. The CRA only reported what the CA verified. If you have a beef, it is with the OC and that is where you got to start. I don't think defamation is going to be a winner.

Q. IF I take them to court isn't the burden of proof on them?

A. No. The burden of proof is on the plantiff. Now, you can conduct discovery of their records to support your proof of wrongdoing on their part.

Q. They have to show how I owe this money. Besides a handwritten receipt and a copy of my lease, how is that enough?

A. They don't have to show anything until they sue you. And then only if you conduct discovery. Again, that level of documentation may be more than sufficient for this matter.

Q. They have no one with ACTUAL KNOWLEDGE of the debt. In other words, how do they know the apartment complex did not make it up? What would their defense be? CA: "Well judge, he owes us this money because the apartment complex told us he does." Judge: "Can you show me your entitled to legally collect for this apartment complex?" CA: "No, but they said we could." Is that enough to fly in court? If so, wouldn't there be alot of fraud going on? Thanks again for your input.

A. By "they", I assume you are referring to the CA not having actual knowledge. You are correct insofar as that statement goes. At trial, any testimony from the CA would be "heresay" and not admissable. As a result, the actual testimony and documentation would come from the OC, not the CA. The OC satifies the actual knowledge issue. The CA is only acting as agent, not the principal.

From everything you have said I cannot see where the CA or the CRA has violated any law. Granted, you think they are scum. Being scum is not illegal.

Finally, based on the facts you have outlined, and if I were a betting person, I would not put my money on you winning. I think your argument is weak and you have nothing but your words and your opinion to support your position. The OC does have a signed contract and a statement of charges. When push comes to shove, who is the judge going to believe? I think at best your chances are 50/50 -- unless you got photos and such to document the condition in which you left the property, thus the landlord is not entitled to blah, blah, etc.

Remember, justice is blind. The role of the judge is to consider the evidence placed before him/her and decide who he/she believes (within a structured framework, of course).

Please, I am not against you on this. You asked my opinion and I gave it to you. I am not a lawyer and I know almost nothing about landlord/tenant law (but I did rent an apartment once) and I'm just giving you my view on the collections aspects you have posed and my common sense on the other issues. If you want advice you can take to the bank, hire an attorney.

 

[SINCITY89103]

Re:

Thanks for all your time.


Maybe I can get a free consultation and go from there.