FDCPA — Fair Debt Collection Practices Act
Don’t get misled by titles. The wording of the statute clearly uses “verification” not validation. Verification generally means some sworn document or affidavit. This means when you contest the debt under FDCPA (in addition to sending a QWR) the party who is supposedly collecting or enforcing the debt has a duty to “obtain verification”. And that means they can’t verify it themselves unless they are the actual lender. And the statutes says pretty clearly that they must give the lenders name and contact information — past and present. STRATEGY: IF THEY SUPPLY SUCH A DOCUMENT, PICK UP THE PHONE AND SPEAK WITH THE PERSON WHO SIGNED IT.I CAN PRACTICALLY GUARANTEE THEY WILL DISCLAIM EVERYTHING THAT WAS IN IT AND POSSIBLY EVEN THAT THEY SIGNED IT.
15 U.S.C. 1692 ———–
FDCPA
Salient provisions affecting foreclosures:
§ 1692. Congressional findings and declaration of purpose
Abusive practices
There is abundant evidence of the use of abusive, deceptive, and
unfair debt collection practices by many debt collectors. Abusive debt
collection practices contribute to the number of personal bankruptcies,
to marital instability, to the loss of jobs, and to invasions of
individual privacy.
(b) Inadequacy of laws
Existing laws and procedures for redressing these injuries are inadequate to protect consumers.
(4) The term “creditor” means any person who offers or extends
credit creating a debt or to whom a debt is owed, but such term does
not include any person to the extent that he receives an assignment or
transfer of a debt in default solely for the purpose of facilitating
collection of such debt for another.
(5) The term “debt” means any obligation or alleged obligation of a
consumer to pay money arising out of a transaction in which the money,
property, insurance, or services which are the subject of the
transaction are primarily for personal, family, or household purposes,
whether or not such obligation has been reduced to judgment.
The term “debt collector” means any person who uses any instrumentality
of interstate commerce or the mails in any business the principal
purpose of which is the collection of any debts, or who regularly
collects or attempts to collect, directly or indirectly, debts owed or
due or asserted to be owed or due another. Notwithstanding the
exclusion provided by clause (F) of the last sentence of this
paragraph, the term includes any creditor who, in the process of
collecting his own debts, uses any name other than his own which would
indicate that a third person is collecting or attempting to collect
such debts.
§ 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).
§ 1692j. Furnishing certain deceptive forms
(a) It is unlawful to design, compile, and furnish any form knowing
that such form would be used to create the false belief in a consumer
that a person other than the creditor of such consumer is participating
in the collection of or in an attempt to collect a debt such consumer
allegedly owes such creditor, when in fact such person is not so
participating.
Any person who violates this section shall be liable to the same extent
and in the same manner as a debt collector is liable under section
1692k of this title for failure to comply with a provision of this
subchapter.
§ 1692k. Civil liability
(a) Amount of damages
Except as otherwise provided by this section, any debt collector who
fails to comply with any provision of this subchapter with respect to
any person is liable to such person in an amount equal to the sum of—
(1) any actual damage sustained by such person as a result of such failure;
(2)
(A) in the case of any action by an individual, such additional damages as the court may allow, but not exceeding $1,000; or
(B) in the case of a class action, (i) such amount for each named
plaintiff as could be recovered under subparagraph (A), and (ii) such
amount as the court may allow for all other class members, without
regard to a minimum individual recovery, not to exceed the lesser of
$500,000 or 1 per centum of the net worth of the debt collector; and
(3) in the case of any successful action to enforce the foregoing
liability, the costs of the action, together with a reasonable
attorney’s fee as determined by the court. On a finding by the court
that an action under this section was brought in bad faith and for the
purpose of harassment, the court may award to the defendant attorney’s
fees reasonable in relation to the work expended and costs.
(b) Factors considered by court
In determining the amount of liability in any action under subsection
(a) of this section, the court shall consider, among other relevant
factors—
(1) in any individual action under subsection (a)(2)(A) of this
section, the frequency and persistence of noncompliance by the debt
collector, the nature of such noncompliance, and the extent to which
such noncompliance was intentional; or
(2) in any class action under subsection (a)(2)(B) of this section, the
frequency and persistence of noncompliance by the debt collector, the
nature of such noncompliance, the resources of the debt collector, the
number of persons adversely affected, and the extent to which the debt
collector’s noncompliance was intentional.
(c) Intent
A debt collector may not be held liable in any action brought under
this subchapter if the debt collector shows by a preponderance of
evidence that the violation was not intentional and resulted from a
bona fide error notwithstanding the maintenance of procedures
reasonably adapted to avoid any such error.
(d) Jurisdiction
An action to enforce any liability created by this subchapter may be
brought in any appropriate United States district court without regard
to the amount in controversy, or in any other court of competent
jurisdiction, within one year from the date on which the violation
occurs.
(e) Advisory opinions of Commission
No provision of this section imposing any liability shall apply to any
act done or omitted in good faith in conformity with any advisory
opinion of the Commission, notwithstanding that after such act or
omission has occurred, such opinion is amended, rescinded, or
determined by judicial or other authority to be invalid for any reason.
§ 1692n. Relation to State laws
This subchapter does not annul, alter, or affect, or exempt any person subject to the provisions of this subchapter from complying with the laws of any State with respect to debt collection practices, except to the extent that those laws are inconsistent with any provision of this subchapter, and then only to the extent of the inconsistency. For purposes of this section, a State law is not inconsistent with this subchapter if the protection such law affords any consumer is greater than the protection provided by this subchapter.
§ 1692o. Exemption for State regulation
The Commission shall by regulation exempt from the requirements of this subchapter any class of debt collection practices within any State if the Commission determines that under the law of that State that class of debt collection practices is subject to requirements substantially similar to those imposed by this subchapter, and that there is adequate provision for enforcement.
Filed under: CDO, CORRUPTION, Eviction, GTC | Honor, Investor, MODIFICATION, Mortgage, STATUTES, Servicer, foreclosure, securities fraud | Tagged: bankruptcy, borrower, credit, disclosure, FDCPA, foreclosure defense, foreclosure offense, fraud, Lender Liability, Mortgage, securitization, TILA audit, trustee
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