The answer is Yes, but... you might wanna make sure and wait for another person here to confirm it as I am not sure. Better yet, why don't you e-mail the Discover Card guys because they can assist you better...

I clicked the link and it said it is broken.....

I am also wondering... What do you guys think? Should I send another DV letter to Security Credit? I know they are NO longer licensed to collect in MN. They are listed as the "Creditor" on Leading Edge's dunning letter....

What do you think? I would like to know if they have the validation info from WaMu (that they said was on it's way back in June). This could be a way to do discovery, of sorts. Hmmm....

This post has been edited by SassyPrncess: 20 November 2008 - 11:51 PM..

Just for practice sake.....

Tell us what you believe their violations to be and cite the appropriate sections of the FDCPA, FCRA and case law?..

I really think you jumped the gun in filing for a lawsuit. But wish you luck!..

If you cited ANY federal claims, you ought to be using the down period to learn about federal procedure.....

FDCPA:.

809(5)b.

812(a).

805©.

809.

And I can throw in, if I want to try: 806, 807(2)a.

I am at work, but Leading Edge, SCS's authorized agent, did do a hard pull on my Equifax, so I can check the FCRA for that. They are also re-aged the debt.

Gosh, the tone of the replies is rather... patronizing. I would NEVER sue without consulting an attorney first. In fact, I consulted two. I got their blessing. Yes, they are friends, however, they did take that pesky thing called an oath.

I have the burden of proof. That is why I have all the documentation/evidence. Yes, I need standing to sue. I am aware of that.

I won once. I am ready to go again...

You can claim patronizing all you want, but you have chosen a venue that most will strongly recommend AGAINST utilizing. Dogbite court is NOT the place you want to be on real matters.

And, there is a difference between 'consulting' with friends who happen to be licensed versus actually being represented by counsel. And if they are willing to play shadow counsel, then you are definitely playing with fire as are they...you are either filing pro se or you aren't. There is no middle ground. Your friends should know that as well. The risks to their Bar Card are too great even if one IS unemployed at the moment....

EDITED to insert "AGAINST".

This post has been edited by centex: 21 November 2008 - 11:46 AM..

I too believe that you're "jumping the gun" I don't know how long you've been a paralegal, but - if you've done it long enough, you may want to think this through again in that you can preclude the hassel.

For instance, have yo ever taken the time to draft a complaint letter which addresses timeline; and major/minor points of your complaint? If you have...take it to state AG.

As far as consulting attorneys...that's a bonus provided they are familiar with consumer law and, that "pesky" thing you refer to (with regard to them) has more to do with "professional responsibility" and not "ethics" As far as their "blessing".... should anything go awry, will they be there for you?.

I'm not "patronizing" you...but rather curious of your proposed action. You mentioned that you've won before? Oh well...this is simply my observation and either way, wish you luck..

By the way, w/o saying exactly what I do (it's not important), I've been in the legal business for over 20 years. My point is, sometimes less information...is more...

In my profile there is a link about my trip to the courthouse and some things I learned about small claims..

You might read that...

I was looking for specific examples of their violations. For instance......

We didn't randomly pick you out of a crowd and ask you to demonstrate your case to us. You asked for opinions and now you don't like what people have to say..

Sorry, but I don't see anything in any of your posts that warrant a lawsuit..

- You got dunned by DMK, you DVd, them, they went away and left you alone since..

- You disputed the SCS account with the CRAs and it was deleted from your reports.

- You got a dunning letter from Leading Edge. You DVd that just 3 days ago. They probably haven't even received it yet..

- You didn't say you did, so I'm assuming you never directly DVd SCS..

- Practicing debt collection without a license is not an FDCPA violation..

So....what violations do you have? You alluded that Leading Edge's letter was "VERY" misleading, but in what way?.

Sorry for what I'm about to say next, but keep in mind that you opened yourself up when you spouted off about being a paralegal and having best friends for lawyers that "blessed" your case. I don't believe you're a bona fide paralegal. If you are, either you've had no formal education or the school you were trained at was crap and you should ask for your money back...

Actually, any CA that is attempting collection after the first CA is DV'd is in violation of FDCPA IMO.

Same with a CA that isn't licensed...they're misrepresenting themselves as being lawfully owed money and being able to collect it.....

First, I agree that these are unethical, but not spelled out as violations in the FDCPA or case law..

In fact, there was a ruling in favor of a JDB that was practicing without a license. A JDB successfully argued that because they owned the debt, they were not "debt collectors" as defined by state law and as such, not required to be licensed according to the laws of the state. Thus, no FDCPA violation for "misleading practices" (which is what I think you were alluding to)...

Well, let's say the first CA is DV'd....

They then sell/assign it to CA2....

They're REQUIRED to let CA2 know that it's in dispute....

CA2, therefore, was notified of the dispute well within the initial 30 days...therefore no collection activity.

For the second part...that was Michigan I believe....where they believe that their law trumps federal...FDCPA outlines exactly who's covered by it...and a JDB falls under that....if that case goes to appeal, I'm sure it would be overturned..

CA1 is only required to notify whoever they communicate the debt with. If they never communicate with CA2, CA2 is under no obligation to comply with the DV sent to CA1..

The case I was thinking of was Guerrero v. RJM Acquisitions on appeal and I was somewhat mistaken in my recollection of the case. The point of contention was that RJM made a statement to the consumer's attorney that they were not a debt collector and thus not governed by the FDCPA. The debtors attorney argued that this was misleading. The court basically said that RJMs claims that they were not a debt collector were in a sense true because they were not licensed by the state of Hawaii. The court ruled that the statement was made to the debtors attorney who was not in the "least sophisticated consumer" category and could know independently that RJM was in fact governed by the FDCPA, and therefore the statement was not a violation of the FDCPA.



Not exactly what I was thinking of, but in the ballpark and more or less proves my previous statement false...

After thinking about this for a bit I'm going to change my position slightly. The court affirmed that telling a consumer that it was not governed by the FDCPA would be misleading. The courts ruling doesn't take a position on JDBs practicing without a license, which means, relative to this particular ruling at least, it's still not clear if practicing without a license is misleading. Since this is what we're debating, we're no closer to having an answer...

I disagree...CA2 knows...or should know...that the debt is disputed...if CA2 was NOT told...then CA1 is in violation...and CA2 can throw them under the bus....

But CA1 would have had to have communicated with CA2...unless CA1 sent it back to the OC...in which case, CA1 would have had to have communicated to the OC that it was in dispute, and, IMO, OC would have had to include that in the package, or be in danger of violating DTPA, as well as (maybe) FDCPA (if CA1 had bought the debt, then resold it to the OC, in which case, the OC would have purchased a debt that was already in default, and therefore fall under FDCPA IMO)..

But, if the JDB practicing without a license was NOT a violation of FDCPA since a JDB wasn't bound by FDCPA (per the JDB), then how could it be misleading?.

And now I just confused myself *LOL*.

Basically, my point in this case is that if something is misleading, that implies that the statement is false...in this case, the JDB not being governed by FDCPA.....

This is sort of the direction I was going. I find it unlikely that CA1 would communicate directly with CA2 with the understanding that both CAs were assigned the debt by an OC/JDB..

If we're talking about JDBs selling debts to each other that's different, but when a debt is assigned to CA2, as far as they conceivably know, they're the only CA the debt was assigned to..

I can't give an opinion about the OC being in violation of DTPA or anything else by not providing communication between CA1 and CA2, but it's fair to say CA1 can be in compliance by notifying the OC/JDB and CA2 can claim ignorance because the OC didn't notify them..

I believe the JDB is obligated to pass the message on, but you know they will claim they own the debt and are not acting as a "debt collector". It would be up the court in this case to decide the role of the JDB relative to the debt to determine if they are in violation of the FDCPA...

Yes, I agree with this 100%. I was revisiting the fact that there was no ruling specifically on practicing without a license..

This post has been edited by gweedoh: 21 November 2008 - 08:21 PM..

OP....

So you're filing in dog bite court and referencing federal? I'm sure you know this, but you'll probably find yourself in federal court. Is there any particular reason why you didn't just go ahead and file with a higher court?.

Either way... good luck with what you have and please update after your court date...

Hey, guess what I found!.

GAETANO v. PAYCO OF WISCONSIN.

"Plaintiff also argues that 1692e, in general, and 1692e(10), in particular, were violated.

By defendant's deceptive attempt to engage in collection activity in direct contravention.

Of state law. The defendant has made no effort to address this claim. In the absence of.

Any such opposition other than that previously noted, the plaintiff is entitled to summary.

Judgment as a matter of law on this claim because the Court finds deceptive the.

Defendant's attempt to collect a debt when prohibited from doing so by Connecticut law.".

Now, the wording of your state law is very important to this ruling. For example, AZ law requires "collection agencies" to be licensed. The AZDFI who regulates the activities of "collection agencies" has decided that JDBs are not "collection agencies" because they own the debt and are therefore exempt from the licensing requirement. In Gaetano, the defendant was not a JDB and made no argument in their defense so the court ruled against them basically by default. In other words, if a JDB argues they are not a "collection agency" as defined by the state (i.e. law and/or regulatory agencies), they could win their argument notwithstanding this ruling..

Of course, these are federal rulings and you're probably not going to have an opportunity to cite them in small claims court..

ETA: The Gaetano decision may have been overturned on appeal, but I didn't find anything to that effect..

This post has been edited by gweedoh: 22 November 2008 - 09:56 AM..

In Minnesota a CA must be licensed and bonded. A "collection agency" is defined as:.

Subd. 3.Collection agency..

"Collection agency" means and includes any person engaged in the business of collection for others any account, bill or other indebtedness except as hereinafter provided. It includes persons who furnish collection systems carrying a name which simulates the name of a collection agency and who supply forms or form letters to be used by the creditor, even though such forms direct the debtor to make payments directly to the creditor rather than to such fictitious agency..

332.33 LICENSING AND REGISTRATION..

Subdivision 1.Requirement..

Except as otherwise provided in this chapter, no person shall conduct within this state a collection agency or engage within this state in the business of collecting claims for others as defined in sections 332.31 to 332.45, without having first applied for and obtained a collection agency license. A person acting under the authority of a collection agency, as a collector, must first register with the commissioner under this section. A registered collector may use one additional assumed name only if the assumed name is registered with and approved by the commissioner..

At the time that I first had involvement with SCS, they were licensed in my state and listed as a CA. I was MERELY commenting that they no longer were. I was surmising that that was the reason why they got Leading Edge involved..

Yes, I did DV Security Credit directly, in addition to the first CA, DMK & Assoc.

DMK did not respond.

SCS responded after 30 days with a letter (not sent by CMRRR, just an FYI) stating they had requested the media, but hadn't gotten it yet. When they got it, they would send it. I was still responsible.

I have sent DMK and SCS a cease and desist.

It is not months later and SCS has re-initiated collection activity. They hired Leading Edge to do so. The OC is no longer involved in this. SCS is a CA who is hiring another CA to collect for them, JDB or not. By sending me the letter stating they have requested the "media from the original creditor" they are admitting they are not the OC. Then who are they? The CA.

What are my perceived violations?.

1) Collecting on an unvalidated debt, after validation was requested and not provided.

2) Collection activity after a cease and desist letter was sent and received.

3) A hard inquiry on my credit report after a cease and desist.

4) Negative reporting after a debt was not validated.

Why small claims? After checking the dockets for the last 3 years, most cases of this nature start in small claims. Some go up. Most don't. I haven't found one case that went to trial. All of them settled or were dismissed. Many states do not permit CA's or debtors to bring cases in conciliation court.

MN does. The cases are heard. Why do CA's do this? On the off chance the debtor doesn't show. On the off chance they will settle before the case is heard that day. Messerli & Kramer alone currently has 15+ cases scheduled in the next 90 days in conciliation court vs.

Yes, it IS different, I get that. Honest, I do. My paltry skoolin' did tell me that. Of those cases, however, many debtors have counter-sued with violations of the FDCPA. Shocking, I know.

SCS will hire Allan Zlimen. In fact, Mr. Zlimen wrote the MN Handbook in Westlaw about Creditor representation in debt collection. I've read it in it's entirety. He will argue that it's not $1000 per violation. It's $1000 per proceeding.

Fein, Such, Kahn & Shepard, P.C. and Phillip A. Kahn (2002 WL 449653 (SDNY)) - which he has before and won. It's not like I am not prepared in that sense.

I asked for opinions and tips on the situation. Not on my education level, my character or my need for further training. Or, whether or not I am a liar. I think that is just plain rude and uncalled for, frankly. I cannot imagine a situation in which I would ever act like that towards anyone else, stranger or not. Internet courage or not.

This has NOTHING to do with me liking the answers about my scenario/situation. Is there anything in my posts which indicate I dislike or like those answers? What I dislike is the personal attacks. That much IS true.

To get back to the real matter at hand.....

I can certainly understand why folks would wonder why I chose small claims. It definitely is a gamble. I agree.

In NO way do I mean this to be sassy or challenging. I am totally serious and honest... at what point would or should I have sued, rather than now? Should I have waited for something more egregious? And if so, what? I guess I could have waited for them to put the entries back on my CR's. That is true. I am NOT being sarcastic at all...

I just simply stated I felt you jumped the gun. I never attacked you. I feel you jumped the gun because I do not feel you have a strong enough case you. I do not feel you have a big enough paper trail to win. So why waste your time? In hopes they settle?.

You are very contradicting with your info....you request validation but you send a full C&D??? How are they going to validate. I just wish you luck...although I do not see this going well...

No, my mentioning my relationships was in no way meant to impress. LOL Not at all. It was meant to head off any, "Consult an atty" statements.

I apologize because I wasn't very clear. My error. (Hazard of trying to sneak this in during work hours and while distracted with a mad cold.).

I sent the DV's. I waited the 30 days. After ~45 days and after the entries were not removed off the the CR's (I then disputed w/the CB's directly) I sent the C&D letters.

This is after they had updated my CR's with info (balance owing updated/increased) during the dispute period and after the 30 days.

Once the CB dispute made it's way to SCS, they sent me the letter saying they were waiting on the 'media' but hadn't gotten it yet.... blah blah blah (see other posts).

No, it's not that I am sitting back waiting for violations. I just know THEY know how they are supposed to do business. Had they sent proper validation, I would be either settling or working out a payment plan. All I wanted was something that showed that this was my debt. They couldn't send me anything at all, let alone stop collection activity when they realized they had no proof of this alleged debt. They know what they are doing is not "right" or in accordance with laws.

You're still responsible." Ack..

I agree that my biggest problem is going to be the 'CA vs. Not a CA' issue. I am going to have to come up with some case law etc to argue that one. Absolutely. It's not going to be easy, that is for sure. I have time to work on that.

When the other JDB took ME to small claims the judge there was VERY schooled on the FDCPA and FCRA. It is my only hope and prayer that the judge I get for my case is educated, as well. *crossing fingers and toes*...

You keep addressing "30 days". Do you understand that they don't have to provide validation within 30 days? They don't have to provide it ever. The only limitation is if you respond to their dunning letter within 30 days of receiving it, they have to stop trying to collect the debt until they can validate. They can take 2 years to send you validation. As long as they don't try to collect any time before sending validation, they're in compliance..

They sent you a letter and said "we're working on getting the info you asked for" and then you turned around and sent them a C&D. So....now they can't resume collecting the debt because you DV'd 'em and they can't send you validation without being in violation of the C&D. How do you suppose that's going to be perceived?.

And maybe they did send it and you never got it. Did you ever write to them and say, "hey, where's my validation?".

Keep in mind, opposing counsel is going to be looking at these kinds of things under much more scrutiny than anyone here. I'm no lawyer and even I can see there are some big red flags that you're going to have to account for if your case goes before a judge. Maybe you have the answers already, but you don't seem to have provided them here. So...think of this as preparation for your big day..

By the way, I didn't see it if you said, but did you send your first letter to them (6 months ago or whenever you first contacted them) within 30 days of receipt of their initial communication with you? If not, your entire case is cooked...

I just wanted to update everyone this situation. The hearing was rescheduled for March. The JDB hired an attorney. They do *not* have a registered agent in my state, btw. This would mean they would have to hire local counsel to show in court, if they got permission first. Anyway, I can say with exuberance and GLEE that this matter has been amicably resolved via settlement.

I cannot speak of my own terms of settlement, of course. I can tell you what I have heard from some attorney friends that others have asked for and often received in situations like this. For example, inquiries removed, having the original debt go away, and statutory damages, PLUS. Stuff like that is not uncommon, my friends tell me.

I've also learned that if one is going to go the small claims court route it is best to do it calculatingly. Know the risks, have a game plan. For example:.

* There isn't discovery, so what can you do? Well, sometimes filing a BBB complaint will force the hand of the JDB/CA and make them produce anything they have to dispute your complaint. This worked well for me.

* If the defendant does not have local offices, they will have to hire local counsel. This is expensive. '.

* Be reasonable. I sued for my state's max of $7500, but then was quite reasonable, I think, when settlement time came.

* HAVE EVIDENCE. The defendant's counsel is going to go on and on about how "emotional distress" etc is not going to be compensated. Yes, we know that. But what can be is something like being turned down for credit, or applying and getting a higher interest rate than you may have since there was an inquiry on your credit report that shouldn't have been there, or was not coded correctly. THAT is something that one *could* recover damages on.

* Be prepared to explain how you arrived at your monetary amount. IE: X number of months of credit monitoring service, filing fees, copying fees, etc, FICO score checks at $x apiece... blah blah.

Anyway, that was my experience. It was a positive one. My CB is already updated and hopefully we can count this as a victory for the lil' guy.

Thanks for all of your help and feedback. It has been appreciated!.

Sassy.

This post has been edited by SassyPrncess: 20 February 2009 - 11:11 AM..

I don't get some of the reactions here either. If they've violated the law, then sue away..

But I am definitely scratching my head over your choice to file in small claims court. Smalls claims is pretty much "judge judy" court, it rarely makes much sense, and your "trial" (at which pretty much every rule of evidence ever written will be ignored) will take 5 minutes, with the outcome of the decision having as much to do with whether the judge enjoyed his breakfast that day as it does with with your facts and argument..

The federal district courts have original jurisdiction over these FCRA/FDCPA actions, regardless of the amount of the claim. State courts have jurisdiction as well, due to the "or any other court of competent jurisdiction..." language in the acts, but most of them don't want to deal with it, and/or don't know how. So I'm not sure why you didn't file in federal, it actually would been much better for you. You've created something of an uphill battle by choosing county small claims court to file an FCRA action in. You're likely going to have to educate the court on something it doesn't care to learn, which is not the easiest position to be in if you can avoid it..

When the defendant responds, if they want to have it removed to federal court, honestly I wouldn't oppose them. Just let it happen. You'll be better off..

This post has been edited by chriswufgator: 28 January 2010 - 03:57 PM..