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  1. #1
    Join Date
    Nov 2012
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    6

    Question Junk Debt Buyer Sued Without Providing Debt Validation

    My question involves collection proceedings in the State of: California.

    Hello Experts,

    - First, I am new here and if I post to the wrong place, please let me know.
    - Second, I did the search through Internet but don't see (or miss) a satisfactory answers
    - Third, these are my two questions that I hope I could get answer:

    a. I defaulted Bank of America (and some others) credit card debt on 09/2009 (last payment to BoA) due to the housing crisis. BoA sold to a JDB and JDB hires lawyer to sue me on October 2012 (served). My question is since BoA is corporated in North Carolina with status of limitation is 3 years for written contract. Can I use this to defense against the JDB lawsuit?

    b. The lawyer for JDB file a lawsuit without providing me the debt validation that I requested through certified mail with 30 days. Can I also use this to ask for the dismiss of this lawsuit since the violate FTC rule?

    Thank you for your answer.
    Debtor in California.

  2. #2
    Join Date
    Sep 2010
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    19,144

    Default Re: Statute of Limitations and Jdb Sues Without Providing Debt Validation

    The statute of limitations is that of the state you are SUED in. If the contract was executed in California, and you are sued there, then its four year limitations apply. Note, they're probably still within the 3 year SOL anyway. The default occurs on the first payment you FAIL to make, not the last one you do make.

    There's no obligation for them to do any debt validation. Debt validation only applies to them reporting the debt to credit bureaus. They don't need to do anything prior to going to court.

  3. #3
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    Default Re: Statute of Limitations and Jdb Sues Without Providing Debt Validation

    You can raise a statute of limitations defense, and prove to the court that there's an applicable statute from the jurisdiction in which the cause of action accrued, and that it should be applied under the state's borrowing statute. However, the mere fact that the bank is incorporated in another state does not change the applicable statute if the cause of action accrued in California. Where were you domiciled when you defaulted?
    Quote Quoting California Code of Civil Procedure, Sec. 361.
    When a cause of action has arisen in another State, or in a foreign country, and by the laws thereof an action thereon cannot there be maintained against a person by reason of the lapse of time, an action thereon shall not be maintained against him in this State, except in favor of one who has been a citizen of this State, and who has held the cause of action from the time it accrued.
    In terms of the thirty days, under the FDCPA you may request validation within thirty days of his first being contacted by the debt buyer. They can respond immediately, in a century, or never - they are not on a time line. They do not have to jump through extra hoops you attempt to unilaterally impose. What they're not supposed to do if your request for validation is timely, is take further action to collect the debt until they have provided the required verification. So... they first contacted you about the debt on what date, and you sent your request for verification how many days later?

    Also, the FDCPA creates a possible cause of action against a creditor, but it's not a defense to a creditor's claim.
    Quote Quoting 15 USC 1692g - Validation of debts
    (a) Notice of debt; contents. 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 contained in the initial communication or the consumer has paid the debt, send the consumer a written notice containing —

    (1) the amount of the debt;

    (2) the name of the creditor to whom the debt is owed;

    (3) a statement that unless the consumer, within thirty days after receipt of the notice, disputes the validity of the debt, or any portion thereof, the debt will be assumed to be valid by the debt collector;

    (4) a statement that if the consumer notifies the debt collector in writing within the thirty-day period that the debt, or any portion thereof, is disputed, the debt collector will obtain verification of the debt or a copy of a judgment against the consumer and a copy of such verification or judgment will be mailed to the consumer by the debt collector; and

    (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.

    (b) Disputed debts. If the consumer notifies the debt collector in writing within the thirty-day period described in subsection (a) of this section 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 or a copy of a judgment, or the name and address of the original creditor, and a copy of such verification or judgment, or name and address of the original creditor, is mailed to the consumer by the debt collector. Collection activities and communications that do not otherwise violate this subchapter may continue during the 30-day period referred to in subsection (a) unless the consumer has notified the debt collector in writing that the debt, or any portion of the debt, is disputed or that the consumer requests the name and address of the original creditor. Any collection activities and communication during the 30-day period may not overshadow or be inconsistent with the disclosure of the consumer’s right to dispute the debt or request the name and address of the original creditor.

    (c) Admission of liability. The failure of a consumer to dispute the validity of a debt under this section may not be construed by any court as an admission of liability by the consumer.

    (d) Legal pleadings. 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).

    (e) Notice provisions. The sending or delivery of any form or notice which does not relate to the collection of a debt and is expressly required by title 26, title V of Gramm-Leach-Bliley Act [15 U.S.C. 6801 et seq.], or any provision of Federal or State law relating to notice of data security breach or privacy, or any regulation prescribed under any such provision of law, shall not be treated as an initial communication in connection with debt collection for purposes of this section.

  4. #4
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    Nov 2012
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    6

    Default Re: Statute of Limitations and Jdb Sues Without Providing Debt Validation

    Thank you flyingron. I pulled Expedian credit report and it said the first month that BoA reported 30 late was November 2009. If so, you are right, the debt is still within 3 years of SOL.

    For the debt validation, I still confuse since I thought before suing someone, JDB and their attorneys must prove that they owned the debt right? or I have to ask them through the bill of particular?

  5. #5
    Join Date
    Jan 2006
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    38,714

    Default Re: Statute of Limitations and Jdb Sues Without Providing Debt Validation

    Quote Quoting whoknow2k4
    View Post

    For the debt validation, I still confuse since I thought before suing someone, JDB and their attorneys must prove that they owned the debt right? or I have to ask them through the bill of particular?
    Not at all. That is what they have to do in court, if you demand it (properly) of them.

    All the verification affects is the continued attempt to collect on the debt. As long as they did not attempt to collect on the debt, which suing you is not considered to be within, they have done nothing wrong.

  6. #6
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    Nov 2012
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    Default Re: Statute of Limitations and Jdb Sues Without Providing Debt Validation

    Hi Mr. Knowitall,

    Thank you and flyingron for your quick respond. I have been in California all the time, never move to different states before, during, and after the default. I guess that Cali law is applied then. I was contacted by JDB's lawyers on August 28 and after couple weeks of panic and some research, I sent the DV letter to them on September 20 with USPS certified to prove that the lawyer office received letter on 24th of September.

    They did not answer my DV letter, instead they sent the Intent-to-Sue letter that I received on Oct 4, I sent the second certified letter to them to remind them that they have not provide any debt validation to me on Oct 18. But they did not reply either and they served summon on Oct 24. I have couple more days to file the answer to the JDB lawsuit.

    According to the "(b) Disputed debts" section of the FDCPA, does it mean that the JDB has to stop the lawsuit and providing me the validation before continuing? Also, the FDCA is the law or just a guideline for the collectors to follow?

    Thank you Experts,
    Debtor in Cali (and now confusing person too :-)

  7. #7
    Join Date
    Nov 2012
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    6

    Default Re: Statute of Limitations and Jdb Sues Without Providing Debt Validation

    Hi Jk,

    Thank you for your explaination. I guest now I have to find different defences for my answer to the court and during the process either I could try to settle (if they provides all the documents that prove they legally own the debt) or fight in the court.

  8. #8
    Join Date
    Nov 2012
    Posts
    6

    Cool Sworn Denial in California Superior Court, Santa Clara County

    My question involves collection proceedings in the State of: California

    Hi,

    I read one of the post here talk about the sworn denial in Mississippi (http://www.expertlaw.com/forums/showthread.php?t=48155). I don't know if I could file the sworn denial in California Court of County Santa Clara after I filed the answer for the summons.

    I search and read the local court rule (http://www.scscourt.org/general_info...les_home.shtml), but could not find any information about this.

    Could some experts here let me know if I could do it or point me to the right direction for it?

    Thank you for your help,
    Try to Get Clean in California

  9. #9
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    Default Re: Sworn Denial in California Superior Court, Santa Clara County

    You have to follow the laws and court procedures of the state and court in which you're litigating.

  10. #10
    Join Date
    Nov 2012
    Posts
    6

    Default Re: Junk Debt Buyer Sued Without Providing Debt Validation

    I will go through the local court rules.

    Thank you, All.

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