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|Subject: Re: Anyone ever fought a debt lawsuit?||Date: 2/22/2012 7:27 PM|
|Author: joelcorley||Number: 304544 of 308232|
You wrote, Actually Joel, you have hit many of the items we are hoping will stop this case. After the "initial communication" they never supplied the §1692g notice. About 30 days later we sent a dispute letter anyway, and got a response. In my opinion, their "validation" is lacking, but the FDCPA is not clear as the exact requirements. It didn't slow the process.
Woah. That's hard to believe. A 3rd party CA that didn't supply the §1692g notice? I thought CAs have been beaten up repeatedly for this over the past few years and that they all supply this notice now.
You're probably right about what qualifies as a validation though. I don't think most appellate courts have placed a high standard on validation. However, here's a link to an FTC opinion about the standard that must be met by the CA. http://www.cardreport.com/laws/fdcpa/ftc-opinion/wollman.htm... Additional FTC letters can be found here: http://www.cardreport.com/laws/fdcpa/ftc-opinion/fdcpa-opini...
Still, the standard to meet the validation provision in the FDCPA is not the same thing as the standard required to prevail in court. In normal courts, I think you would eventually obtain the CA's evidence through the normal discovery process. Evidence requested, but not produced in discovery is routinely thrown out. But in small claims court (even in Colorado apparently) there is no discovery process. That would mean the CA wouldn't have to "marshal all of his evidence" against your step daughter until the trial date and you won't know exactly what they have until then. (One of the dangers and challenges associated with going the small-claims route.)
BTW, that first item would appear to be an FDCPA violation and might be the basis for a counter-claim against the CA. I believe §1692k allows you to use such a violation as a basis for a $1,000 statutory claim against the CA. Anyway, it might be worth amending your Response to include it. The worst that could happen is the court dismisses it.
Finally, I want to wait after the pre-trial hearing. Depending on how things go, we might get a lawyer to finish this case and/or sue the debt collector for its failings to adhere to FDCPA requirements. Colorado also has its own version - CFDCPS, almost verbatim to FDCPA - that would help supplement that suit.
I assume you are aware that §1692k allows you to recover reasonable attorney's fees if you prevail? In most states and for most contract disputes, recovery of attorney's fees is not an option. However, the framers of the FDCPA apparently felt recovery of fees was a good way to ensure a pool of attorney's would be available to work these cases if people choose to not go it alone. However, I might point out that in some states (like Texas), you can't recover attorneys fees in small claims court for any reason. Obviously I would recommend you actually discuss this topic with an attorney, if you go that route...
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