First Contact Was a Summons

My question involves collection proceedings in the State of: Indiana

My son got a summons from a law firm that he had never heard which is suing him for a C.C. account that was charged off some time ago. It is still in the SOL. It just does not seem right to me that the first contact was a summons. It seems like there should have been contact to see if all was legit before going to court. Is this the normal method of operations for these bad debt purchasers?

Thanks in advance

what you think should be done in what order is irrelevant. The fact is, there is nothing illegal or improper in the action taken by the creditor. There is no requirement to attempt to collect the debt before suing.


The fact the debt was charged off makes no difference. That is merely an accounting action for the creditor.

Since this is within the SoL and apparently there is no denial on your sons part as to the validity of the debt, he can either attempt to make some sort of payment arrangement with the creditor (don;t expect this to actually happen without your son accepting a courts default judgment against him), answer the summons and go to court (doesn't seem like any chance of winning although he could gamble the plaintiff doesn't show), or simply ignore it all with the knowledge a default judgment will be ordered against your son and there will be further collections efforts, with often greater abilites for the plaintiff to take the money from your son.

JK

I have done more research and you are wrong the first thing that needed done was validation of the debt. Do not send your opinions if you are not sure what you are talking about.

Quote:

---

Quoting agin

---

JK

I have done more research and you are wrong the first thing that needed done was validation of the debt. Do not send your opinions if you are not sure what you are talking about.

---

No, you are wrong. They do not have to validate the debt. The FDCPA (where I am sure you got the info) is a legal guideline for 3rd party collections and what the collectors can and cannot and must do under certain circumstances.

There is nothing to restrict a creditor from suing anytime they want with a small exception of a short time period IF they contact the debtor prior to suit AND the debtor requests validation of the debt. Here is an excerpt from the FDCPA that addresses why they do not have to allow validation in your sons case:

Quote:

---

(d) A communication in the form of a formal pleading in a civil action shall not be treated as an initial communication for purposes of subsection (a).

---

the "a" they are referring to would be section 809 (a) of the FDCPA.

here is a link if you want to check yourself:

http://www.ftc.gov/bcp/edu/pubs/cons...edit/cre27.pdf



You see, I am sure about what I told you.

since your son is being sued and you claim the creditor must validate the debt first, what has been your sons response to the summons?

and since I am so wrong, why don;t you toss up your support for your position. I showed you mine. Can you show me yours?

Not always. If the law firm is considered a collector, they are still subject to the FDCPA and must provide validation if requested. If this law firm is merely representing the cc company, then they are NOT covered by the FDCPA, but if a substantial portion of the attorney's business is debt collection, they are.

All the quote you gave means is that they are not required to send the notice of validation rights within 5 days. That does not mean that the debt collector does not have to follow the FDCPA. If the OP sends a dispute letter, AND the law firm is a debt collector as defined in the FDCPA, AND the dispute is sent within 30 days of the intial communication (which the pleading is not) then it would be a violation of the law for the debt collector to continue collection activities (the lawsuit) without providing it. This does not mean that the OP would have a defense to the suit, but means that the debtor would have grounds for a differenst suit that would allow damages of up to $1,000.

Requesting validation will not help much, once a lawsuit has been filed. Even if they ARE a covered entity, you asked for timely validation, and even if they refused to provide it, that is still not a defense in court. The OP needs to worry about defending the suit, and not worry about trying to get validation.

Let's just circle back a bit.

If the debt has been charged off, this is hardly the first collection effort your son has been a part of.

CC companies do not charge off debts without collection efforts.

Quote:

---

divemedic;288623]Not always. If the law firm is considered a collector, they are still subject to the FDCPA and must provide validation if requested.

---

did you miss the part of the FDCPA that states a summons is not considered to be a first contact under the FDCPA and therefor does not invoke the requirements under section 809?

Quote:

---

If this law firm is merely representing the cc company, then they are NOT covered by the FDCPA, but if a substantial portion of the attorney's business is debt collection, they are.

---

again, this section of the FDCPA:

Quote:

---

(d) A communication in the form of a formal pleading in a civil action shall not be treated as an initial communication for purposes of subsection (a).

---

Makes it clear that section a is not invoked by contact via a summons.

THe debt will get validated in court.

Quote:

---

All the quote you gave means is that they are not required to send the notice of validation rights within 5 days. That does not mean that the debt collector does not have to follow the FDCPA. If the OP sends a dispute letter, AND the law firm is a debt collector as defined in the FDCPA, AND the dispute is sent within 30 days of the intial communication (which the pleading is not) then it would be a violation of the law for the debt collector to continue collection activities (the lawsuit) without providing it. This does not mean that the OP would have a defense to the suit, but means that the debtor would have grounds for a differenst suit that would allow damages of up to $1,000.

---

read all of section 809. Is specifically states when a validation is required to be provided. It also specifically states that a summons is not considered to be a triggering event for the right for validation to be invoked.


since it is not considered to be a communication under section "a", it cannot invoke the requirements of section "a". Section "b" does allow a demand for validation BUT since the communication does not fall under section "a", there are no requirements nor timelines applied by section "a", which section "b" refers to.

The pleading does not constitute the initial communication for the purposes of 809(a), which specifies that the debt collector must send the debtor a notice specifying certain facts about the debt, and a statement of the right to dispute within 30 days.


However that does not mean that a debtor cannot dispute the debt and demand validation under section 809(b), which states that:

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


Even so, the debtor themselves can take action to trigger the 1692g(a) requirements. The initial communication would take place when the debt collector received the dispute letter from the debtor, so the collector would need to send the 1692g(a) notice within 5 days of the receipt of this letter. Alternatively, the debtor can telephone the debt collector upon receipt of the summons, and thus trigger the requirement.

Quote:

---

=divemedic;289438]The pleading does not constitute the initial communication for the purposes of 809(a), which specifies that the debt collector must send the debtor a notice specifying certain facts about the debt, and a statement of the right to dispute within 30 days.

---

You're right, it is not an "initial communication". I think I said that before. Since it does not constitute an "initial communication" the FDCPA is not invoked due to an "initial communication" and the debtor has no rights to demand validation or anything else required under the FDCPA. You see, the contact is not an attempt to collect the debt. It is a notice of a pending lawsuit. If the debtor wants validation or proof, they can file for discovery under the rules of the court involved.

Quote:

---

However that does not mean that a debtor cannot dispute the debt and demand validation under section 809(b), which states that:

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

---

well they could but since the contact was not an effort to collect a debt per the FDCPA, the FDCPA is not applicable and as such, the requirements and limitations of a creditor attempting to collect the debt are not in force.

Quote:

---

Even so, the debtor themselves can take action to trigger the 1692g(a) requirements. The initial communication would take place when the debt collector received the dispute letter from the debtor, so the collector would need to send the 1692g(a) notice within 5 days of the receipt of this letter

---

BS. Read the FDCPA again, and again, and again if you must but the 5 day requirement is ONLY when the creditor makes an initial communication concerning a debt collection.

Quote:

---

(a) Within five days after the initial communication with a consumer in connection with the collection of any debt, a debt collector shall, unless the following information is

---

You see, a debtor cannot make an initial communication concerning a debt collection. They may initiate a communication concerning paying a debt but they cannot initiate an initial communication concerning the collection of a debt. There is no attempt at collection until the creditor attempts to collect the debt. Once they do that, they have made the intitial communication.

Quote:

---

. Alternatively, the debtor can telephone the debt collector upon receipt of the summons, and thus trigger the requirement.

---

Here is where you are really wrong. No action has to be taken in response to a telephone call, EVER.

Quote:

---

(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 credi15

---

Quote:

---

(5) a statement that, upon the consumer’s written request within the thirty-day period, the debt collector will provide the consumer with the name and address of the original creditor, if different from the current creditor

---

You claim whatever you want there divemedic. There is nothing that requires a creditor to supply any info at the debtors request unless;

1. it is in writing

and

2. the creditor made an "initial communication" as defined by the FDCPA

I am not going to argue this with you anymore. Until the creditor makes contact with the debtor, there is no collections effort and as such the FDCPA is not applicable.

In your scenario, if I have a debt with some creditor and they have made absolutely no contact with me for any reason, I can simply call them up and demand validation of the debt, dispute the debt, and demand they cease contact with me. If they should ever contact me for any reason other than a summons, I get to sue them.

Makes a lot of sense there divemedic. (obviously sarcastic)

Why be insulting? I am trying to have a real discussion here.

The FDCPA defines communication as the conveying of information regarding a debt directly or indirectly to any person through any medium. The FDCPA further requires that once a debt collector has five days after the initial communication with a consumer in connection with the collection of any debt, to send the consumer a written notice.

Show me one case or one statute where the collector must be the entity who initiates the communication. Show me a case that rules that a telephone call is not communication. Show me a case where discussing a lawsuit that is an attempt to collect a debt is not collection activity. A collector discussing payment IS communicating.

If I telephone a collector, and that is the first contact that I have had with that collector, we just had our initial communication. In that event, the written notice would have to be sent (or the collector would be in violation) and this would trigger my ability to dispute the validity of the debt.

Is it your contention that a consumer loses the right to dispute a debt if the collector chooses to avoid communicating with him?