Suppose someone is resolving issues with his creditors that reflect negatively on their credit and is seeking a judgement throught a "offer of performance upon validation of debt letter." the person understands due process and that all persons should have reasonable notice and time to respond. the person knows that they have to obtain a certificate of process because the person cannot send it theirselves. the person is also aware that the Universal postal union treaty that is in effect and deems certificate of service throught the usps is sufficient evidence. the person wants to know after all these things have transpired can the person petition the court for a default judgement upon a non validation of debt?
private administrative process
- Thread Starter hclay1983
- Start date
army judge
Super Moderator
Of course a person can petition a court and seek redress.
However, several requirements are missing in order to require the court to grant the person a default judgment.
First and foremost, one must have a current cause of action, as in an active lawsuit; before the court one submits the petition for redress.
The court can't rule on matters not already set before it, with rare exceptions, which don't apply to your hypothetical.
What you appear to have described is a voluntary agreement to correct (or improve) one's current credit situation.
Nothing in such a private matter rises to the level that would require a court to take notice of any disputes.
As far as debt validation, let's define it for those NOT in the know.
FDCPA Section 809. Validation of debts [15 USC 1692g]
(b) 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.
The requirements for meeting debt validation are not tough. However, it's not enough to send you a computer-generated printout of the debt.
If a creditor can't validate a debt:
They are not allowed to collect the debt,
They are not allowed to contact you about the debt, and
They are also not allowed to report it under the Fair Credit Reporting Act (FCRA).
Doing so is a violation of the FCRA, and the FCRA states that you can sue for $1,000 in damages for any violation of the Act.
Failure to provide you with the debt validation doesn't affect the creditor's right to bring a lawsuit, it simply limits the creditor's collection efforts.
Collecting a debt by contacting you, hounding you, annoying you, has NOTHING to due with bringing a lawsuit against you to seek a judgment against you.
Why?
Well, a judgment isn't collecting, because one must collect on the judgment after receiving it, not the contract.
That is assuming the creditor wishes to behave lawfully.
You appear to be mixing "debt collection activities" with a lawsuit.
I always suggest to my clients not to allow the creditor to snooker them into the debt collection process.
It serves the collector, not the debtor.
Justice for a creditor, assuming the debt is defensible, is found in a courtroom, not on a telephone.
Why?
In the courtroom, the judge is in charge, not the collector.
army judge
Super Moderator
What to do if a collection agency responds to your request for validation with a summons to appear.
Many people have told me that some collection agencies respond to validation requests with summons to appear in court.
The law doesn't permit a collector to file a lawsuit if the debt wasn't validated PROPERLY within the 30 day time period mandated by the Federal fair Credit Act.
If this is your situation (or fear), you go to court and cite the case: Spears vs. Brennan
http://caselaw.findlaw.com/in-court-of-appeals/1189212.html
The appeals court decided:
"Brennan (plaintiff collection agency attorney) violated 15 U.S.C. § 1692g(b) when he obtained a default judgment against Spears (defendant) after Spears had notified Brennan in writing that the debt was being disputed and before Brennan had mailed verification of the debt to Spears."
This means that you have an absolute defense in court to deny them judgment if they still have not validated the debt. Once you get your FDCPA dispute letter in, the collector cannot even get a judgment until they satisfy the FDCPA law. The appeals court overturned the default summary judgment in part because the collection agency lawyer did not meet the rules of the FDCPA.
This could be grounds for getting a default judgment vacated. It's also another violation of the FDCPA and you MIGHT be able collect $1,000 from the collector.
It might be helpful to examine the process before you get started.
Dispute the collection with the credit bureaus.
Look up the Statute of Limitations (SOL) on the debt.
If the debt is beyond the SOL, send a letter informing the collector they are trying to collect zombie, as in DEAD debt.
The debt is too old to have any legal liability for a consumer.
If the collection agency does not remove the listing after you point out the SOL, sometimes your only remedy is to sue them.
If the debt is not past the SOL, you might send a letter requesting validation to the collection agency.
I suspect that is what you are trying to do, OP.
The debt validation letter should contain the following information:
Proof that the collection company owns the debt/or has been assigned the debt.
Copies of statements from the original creditor.
Copy of the original signed loan agreement or credit card application.
Copy of a cancelled check from you to the original creditor.
If you don't receive satisfactory proof, and are still being reported negatively on your credit report, send a copy of your receipt for your certified or registered mail, a copy of the first letter you sent, and a statement that they have not complied with the FDCPA and are now in violation of the law. You must make sure the collector is directed to immediately remove the collection listing from your credit report or you are going to file a lawsuit because they are in violation of the FDCPA, section 809 (b).
Now you wait at least 21 days to receive a written response after your second letter to the collection agency. They will either remove it or not respond.
If you aren't provided a contract with a signature from the original creditor showing that you owe the debt, there is one more thing you can attempt. Ask if they are
legally licensed to collect the debt in your state, if your state requires licensing.
If you believe that they are not licensed, and licensing is required in your state, write them another letter and tell them they are in violation of your state's collection
laws and are subject to prosecution and fines. Cite your state's fines and procedures in the letter. This has worked in some cases.
Typically, your work will stop here, as most collection agencies will slow down, and leave you alone. You aren't a willing victim. These scammers like the low hanging
fruit. This is when you send a copy of the letter to the scammer's co-conspirators, the crooked bureaus, err, credit bureaus. LOL.
Many people have told me that some collection agencies respond to validation requests with summons to appear in court.
The law doesn't permit a collector to file a lawsuit if the debt wasn't validated PROPERLY within the 30 day time period mandated by the Federal fair Credit Act.
If this is your situation (or fear), you go to court and cite the case: Spears vs. Brennan
http://caselaw.findlaw.com/in-court-of-appeals/1189212.html
The appeals court decided:
"Brennan (plaintiff collection agency attorney) violated 15 U.S.C. § 1692g(b) when he obtained a default judgment against Spears (defendant) after Spears had notified Brennan in writing that the debt was being disputed and before Brennan had mailed verification of the debt to Spears."
This means that you have an absolute defense in court to deny them judgment if they still have not validated the debt. Once you get your FDCPA dispute letter in, the collector cannot even get a judgment until they satisfy the FDCPA law. The appeals court overturned the default summary judgment in part because the collection agency lawyer did not meet the rules of the FDCPA.
This could be grounds for getting a default judgment vacated. It's also another violation of the FDCPA and you MIGHT be able collect $1,000 from the collector.
It might be helpful to examine the process before you get started.
Dispute the collection with the credit bureaus.
Look up the Statute of Limitations (SOL) on the debt.
If the debt is beyond the SOL, send a letter informing the collector they are trying to collect zombie, as in DEAD debt.
The debt is too old to have any legal liability for a consumer.
If the collection agency does not remove the listing after you point out the SOL, sometimes your only remedy is to sue them.
If the debt is not past the SOL, you might send a letter requesting validation to the collection agency.
I suspect that is what you are trying to do, OP.
The debt validation letter should contain the following information:
Proof that the collection company owns the debt/or has been assigned the debt.
Copies of statements from the original creditor.
Copy of the original signed loan agreement or credit card application.
Copy of a cancelled check from you to the original creditor.
If you don't receive satisfactory proof, and are still being reported negatively on your credit report, send a copy of your receipt for your certified or registered mail, a copy of the first letter you sent, and a statement that they have not complied with the FDCPA and are now in violation of the law. You must make sure the collector is directed to immediately remove the collection listing from your credit report or you are going to file a lawsuit because they are in violation of the FDCPA, section 809 (b).
Now you wait at least 21 days to receive a written response after your second letter to the collection agency. They will either remove it or not respond.
If you aren't provided a contract with a signature from the original creditor showing that you owe the debt, there is one more thing you can attempt. Ask if they are
legally licensed to collect the debt in your state, if your state requires licensing.
If you believe that they are not licensed, and licensing is required in your state, write them another letter and tell them they are in violation of your state's collection
laws and are subject to prosecution and fines. Cite your state's fines and procedures in the letter. This has worked in some cases.
Typically, your work will stop here, as most collection agencies will slow down, and leave you alone. You aren't a willing victim. These scammers like the low hanging
fruit. This is when you send a copy of the letter to the scammer's co-conspirators, the crooked bureaus, err, credit bureaus. LOL.
Would another way to address anyone is with an affidavit?
Another question is suppose someone wanted to use the equity in their home to purchase another property or put it in an investment portfolio? Instead of having a second mortgage would this be a good way to not incur another loan? Is that possible?
I also like to say that I am very appreciative to have a cooperation with your information. Thanks a million and GREAT THINGS will happen for you!
Another question is suppose someone wanted to use the equity in their home to purchase another property or put it in an investment portfolio? Instead of having a second mortgage would this be a good way to not incur another loan? Is that possible?
I also like to say that I am very appreciative to have a cooperation with your information. Thanks a million and GREAT THINGS will happen for you!
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