Certified Business Records (statements) are nothing more than the DC's attempt at validation. But validation stands on three legs. The contract to establish that there was an agreement; the terms of the agreement to know how they calculated what they claim you owe; and with the identifying information to show that you are the right person.
Quote:
|
Originally Posted by Spears v. Brennan an Indiana case 2001
The contract in no way provides sufficient verification of the debt. A review of the document reveals that it identifies only the terms of Spears loan, including a 17.99% annual interest rate and the original loan amount of $2,561.59. The loan agreement contains no accounting of any payments made by Spears, the dates on which those payments were made, the interest which had accrued, or any late fees which had been assessed once Spears stopped making the required payments. Indeed, the existing unpaid contract balance at the time Brennan sent the debt collection notice was at least $350.00 more than the original loan amount. Therefore, Brennan violated 15 U.S.C. � 1692g( when he failed to cease collection of the debt by obtaining a default judgment against Spears after Spears had notified Brennan in writing that he was disputing the debt but before Brennan had mailed verification of the debt to Spears. See footnote We reverse the trial court�s entry of summary judgment in favor of Brennan on this issue.
|
Additionally in this FTC opinion letter;
Quote:
FTC Staff Opinion letter, Wollman: http://www.ftc.gov/os/statutes/fdcpa...rs/wollman.htm
March 10, 1993
Jeffrey S. Wollman
Vice President and Controller
Retrieval Masters Creditors Bureau, Inc.
1261 Broadway
New York, New York 10001
Dear Mr. Wollman:
This is in response to your letter of February 9, 1993 to David Medine regarding the type of verification required by Section 809( of the Fair Debt Collection Practices Act. You ask whether a collection agency for a medical provider will fulfill the requirements of that Section if it produces "an itemized statement of services rendered to a patient on its own computer from information provided by the medical institution . . .� in response to a request for verification of the debt. You also ask who is responsible for mailing the verification to the consumer.
The statute requires that the debt collector obtain verification of the debt and mail it to the consumer (emphasis mine). Because one of the principal purposes of this Section is to help consumers who have been misidentified by the debt collector or who dispute the amount of the debt, it is important that the verification of the identity of the consumer and the amount of the debt be obtained directly from the creditor. Mere itemization of what the debt collector already has does not accomplish this purpose. As stated above, the statute requires the debt collector, not the creditor, to mail the verification to the consumer.
Your interest in writing is appreciated. Please be aware that since this is only the opinion of Commission staff, the Commission itself is not bound by it.
Sincerely,
John F. LeFevre
Attorney
Division of Credit Practices
|
So, while leg 2 may be present (the statements), legs 1 and 3 are conspicuously absent, not to mention that it is the contract which verifies the statements.
Beyond the matter of verification, who actually has the standing to bring the suit? In the recent Deutche Bank v. ? (help me on this one) case, regarding a mortgage pooled into an MBS, where the owner of the debt could not be determined, the signed contract was the cornerstone. It is the same with CC debt only better.
Have you ever noticed why you get a little pamphlet each month with your statement describing changes to your cardmember agreement? Your account is pooled with thousands of others into a trust so that the trust can issue a bond. A new trust is created every month to facilitate the new changes in your cardmember agreement.
Every month there is a new owner to that portion of your alleged debt. Can you see the accounting nightmare that this envisions if your account could be personally acruable to you? And if such a nightmare could be sorted out they would be required to issue you a 1099 C, which they never do.
Your remedy lies with a SMJ challenge.
1. Only the real party in interest can sue; the trust, the OC is now relegated to the position of DC.
2. DC's are bound by the FDCPA, they can call you, write you, investigate you, in an attempt to persuade you to pay, but they cannot sue you; their rights are limited to collection only.
Quote:
|
Originally Posted by US 15 Chapter 41 Subchapter V Sec. 1692i
(b) Authorization of actions
Nothing in this subchapter shall be construed to authorize the bringing of legal actions by debt collectors.
|
DC's are not authorized to bring suit but they are also not denied. Any suit must specifically relate to their collection actions. But the suit they always bring relate to the foundational elements of the alleged debt. Once the judgment is obtained they may go after it, but they have no authority to obtain the judgment.
Even the OC has no authority to obtain a judgment unless he reacquires your account and issues you a 1099 C.
Demand that the true owner be identified so that the standing of the plaintiff can be determined. Inform the judge that the DC is usurping the rights of the real party in interest, which is also a violation of the FDCPA. Request sanctions as well.
gldskr