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  1. #1
    Join Date
    Aug 2011
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    2

    Default Can a Creditor Sue You After Failing to Validate a Debt

    My question involves collection proceedings in the State of: Texas

    I have an old BOA credit card, still within SOL. CACH has owned this debt since 9/2010. In January of this year the office of Ed Overcash attempted to collect. I sent DV letter CMRRR, and never heard from them. Now CACH sent another atty after me, who did "validate" with copies of statements only, and now is suing.

    Question is, once Overcash failed to validate, wasn't CACH supposed to request a deletion from the credit reports? The credit report I'm looking at is dated 4/11; Overcash's 30 days were up in February. So first of all, it seems to me that CACH failed to remove the negative listing on my report when they couldn't validate. Second, it seems to me that they are continuing to collect despite failing to vaildate (which is an admission of inaccuracy), and which I believe is in violation of TFC:

    [c] If the third-party debt collector admits that the item is inaccurate under Subsection [b], the third-party debt collector shall:

    (1) not later than the fifth business day after the date of the admission, correct the item in the relevant file; and

    (2) immediately cease collection efforts related to the portion of the debt that was found to be inaccurate and on correction of the item send, to each person who has previously received a report from the third-party debt collector containing the inaccurate information, notice of the inaccuracy and a copy of an accurate report.

    On my credit report the date assigned is 9/2010, and on my summons CACH is listed as the Plaintiff, not BOA (the OC). BOA's record shows debt was sold.

    So, CACH has had this debt since 9/10. Two attorneys have attempted to collect for them since then. The first one failed to respond, CACH didn't delete, and attorney #2 is now suing me. Do I have some ammunition here, I wonder? Or is each attorney considered a different "3rd party debt collector", and therefore CACH is in the clear?

    I'm working on my answer to their suit, and need to know if I should approach it differently considering the history of the account.

    Thanks in advance!!

  2. #2
    Join Date
    Sep 2005
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    Behind a Desk
    Posts
    98,846

    Default Re: Can a Creditor Sue You After Failing to Validate a Debt

    You just told us that when the first debt collector failed to validate, they ceased collection activity. You also told us that the new collector validated the debt.

    If you are asking if you never, ever have to pay a debt and cannot be sued on a debt if, at some point in the history of a debt, a collector fails to validate, the answer is... sorry, you still owe the money.

  3. #3
    Join Date
    Aug 2011
    Posts
    2

    Default Re: Can a Creditor Sue You After Failing to Validate a Debt

    I guess my question would be, the owner of the debt is the same...wouldn't that mean the collector is the same? It is as per my CR. I would understand if CACH had sold the debt, but they didn't. CACH would be the ones resposible for deleting that tradeline as the owner of the debt, due to their attorney not validating the first time, and they didn't. I'm just wondering if they have some accountability in this as well.

    Yes, I still owe the money. And if it was still with the OC I would be doing my best to work out a payment arrangement, which in fact was what we had in place. I was paying to the OC until a hard stretch, communicated with them, they worked with us and stopped payments for 3 months and the payments didn't resume as we were told they would. They immediately sold the account, and frankly I hate to pay a debt buyer, considering they bought that thing for pennies on the dollar.

    Another person has suggested that I should ask for arbitration as per the clause in my agreement, vs. filing a formal answer...any thoughts on that? They seem to think that I will get a SJ against me based on my answers and responses to the interrogatories (haven't sent them yet; due Tuesday; I'll hand deliver them myself).

    I'm wondering if I should state some affirmative defenses in that the owner of the debt did not delete the tradeline as required by TFC, and that the first attorney never associated themselves with CACH. There was ZERO written communication from Overcash. I had no idea they were collecting on behalf of CACH until I saw my CR, after the fact. Otherwise I would have sent CACH a letter. But at that point I was led to believe that BoA had sold to this collection firm (Overcash), since my calls to BoA resulted in being referred there.

  4. #4

    Default Re: Can a Creditor Sue You After Failing to Validate a Debt

    If there is an arbitration clause in your agreement, and you request arbitration, there is not supposed to be further legal action without arbitration. However, what is scary is that so many times, the arbitration companies favor the credit card companies and seldom find on behalf of the individual.

    In my opinion, you are lucky in that BOA is not the company suing you and that because this has gone to two outside agencies that you are the prime candidate to defend this in court requesting validation of ownership of this debt. Most likely the current holder of this debt will not have anything to prove that they own the debt, the amount owed, the original cardmember agreement - all that good stuff needed to prevail in court. I would deny all the complaints on the original summons completely or say that you are without knowledge of that information. I would state affirmative defenses as such and I would counterclaim that the Plaintiff has violated the FDCPA section 809 B laws because they have not removed the derogatory collection remarks from your credit report even after you've requested in 9/2010 for them to verify this debt which they did not. Also, request immediately from the credit bureaus if this collection debt is verified. If it comes back verified then you can use that as further evidence that the collection agency has violated the laws as they clearly have not verified a debt and have not removed it from your file. The biggest thing is to do whatever you can to get them to have to support their claim that they have legal right to collect this against you and proof that you owe it.

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