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[Plubbo]

OK, I thought I would bring this up in order to hear what comrades-in-arms think of this.

I received an automated call on my landline.  It had a warning on it to hang up it it was not me.  Then it said it was from a CA (name withheld for now because this has been submitted to a firm for possible class action treatment), and told me to call or to visit a web site.  it provided a case number.  The voice was a robot and included the standard "this is from a debt collector" notice.

The web site was an odyssey.  The name of the site was designed to inspire fear, but it rerouted to the CA website.  It asked my phone number and the case number.  no FDCPA notices on that page.  Next page verified my name. No FDCPA notices.  Next page tried to get me to give my email address by aying that it would avoid more phone calls to me. 

The next page give details of the debt.  Page first said it was in compliance with all federal and state laws (  ) and it was from a debt collector and information obtained would be used for that purpose.  It then had four links to pay the "debt," but no validation notice.  The links after the four to pay the debt were: (i) a link for information -- that page had no validation notice; (ii) a link for service -- that page just told me to call them on the phone; (iii) a link to get a "paid in full receipt" and (iv) a link to "check your credit report" at www. annualcreditreport.com.

It has been 7 days and I have not received a validation notice from the CA.

The CA is obviously trying to terrify people into paying the debt within five days of the first call so that it does not even need to send a 1692g validation notice, treating the conditions as a "get out of jail free" card.  I am wondering if the notice in 1692g is required non the web site because it is the first written communication.  I am in the ND of Illinois, and Judge Bucklo (one of the good ones) has held that all written communications must include the validation notice in a 1997 case that this board actually carries. 

I am asking one of the Big Chicago consume firms to file a class action with me as the named plaintiff.  They seem interested; I'll know today.  If they refuse, I will disclose everything to the board.But, I don't want the CA changing its web site before a case is on file. 


I am wondering if you think that 1692g is a "get out of jail free" card to try to collect without a validation notice for 5 days, and if they get your money, they get away without even mailing the notice.  The statute seems to read that way, but I cannot imagine that was Congress' intent.

Thoughts?

Thanks
Plubbo

[Mischievous Smurfy]

but it remains to be seen whether they will ever send the 1692g notice.

keep this quiet for at least another 10 - 15 days... you don't want to raise the alarm and have them send the notice because they know they are screwed.

lots of other violations in this little scheme of theirs ... ..  and i can tell you that the purpose of all of this is that they hope to use text messages in the future ... so they are setting up test cases.  This would allow them to simply text you the web address.

[Plubbo]

but it remains to be seen whether they will ever send the 1692g notice.

keep this quiet for at least another 10 - 15 days... you don't want to raise the alarm and have them send the notice because they know they are screwed.

lots of other violations in this little scheme of theirs ... ..  and i can tell you that the purpose of all of this is that they hope to use text messages in the future ... so they are setting up test cases.  This would allow them to simply text you the web address.

The DV notice was mailed on the 5th day and was in this afternoon's mail (today is the 7th day).  Still raises the ? of what happens if Joe Consumer receives the robot voice mail, hits the site and then pays immediately from terror.  Let's sauce the goose with the premise that the debt is invalid or has illegal fees added to it.  The bare text of 1692g would seem to hold that debtor has paid, so the CA does not even need to send the DV notice.

I sent this on to the law offices for a response but they are swamped with responses to some massive class action against a collector.  If the law offices don't respond by Friday noonish, then I have to flip the coin as to whether to file on my own or find another law firm to take it to the class action stage.

If I file I have no intention of settling until there is a published opinion on the matter.  I think that you are dead right about this being a test case.

Thanks
Plubbo

[Mischievous Smurfy]

I agree that the disclosures should be made on the web pages and they should otherwise comply.  For the reasons you state.  I'm just glad I'm not the one arguing the case.

PS:  I do not agree that you cannot dispute after paid, assuming the consumer is wise enough to do so.  (Not sure if that is what you really meant) But the FDCPA is reviewed on the US/LSC standard and we cannot expect the US/LSC to know to dispute.  Otherwise congress wouldn't have found it necessary to require that disclosure.

[TX Debt Atty]

If you print out the web pages, it won't matter whether they change them or not.

Also, the code for the pages should be available through discovery if you get that far, assuming that the code files are not destroyed ASAP.

[Plubbo]

{snip}
PS:  I do not agree that you cannot dispute after paid, assuming the consumer is wise enough to do so.  (Not sure if that is what you really meant) But the FDCPA is reviewed on the US/LSC standard and we cannot expect the US/LSC to know to dispute.  Otherwise congress wouldn't have found it necessary to require that disclosure.

If one reads 1692g "cold," one gets the impression that a CA can terrify the debtor into paying within the putative "five day window" and then not send any validation notice -- ever.  It certainly appears that the CA in my case is proceeding on that assumption.

I agree with your PS that the consumer has the right to dispute.  However, if the statute is read literally, the CA never has to inform the consumer to do so if it can terrify the consumer into paying right away. 

Now can we get a court to find that the CA "sent" something that purported to be a 1692g notice within 5 days when its server transmitted the web page to me?  If so then its notice was illegal and deficient.  My argument would be that to hold that the statute permitted the CA to direct written communications at the consumer for five days without disclosing the consumer's validation rights him or her would render 1692g illusory.

Thanks
Plubbo

[Plubbo]

If you print out the web pages, it won't matter whether they change them or not.

Also, the code for the pages should be available through discovery if you get that far, assuming that the code files are not destroyed ASAP.

I printed them out -- all of them, and I also saved them as PDF.  The relevant page in this mess is time stamped.

[Mischievous Smurfy]

If you print out the web pages, it won't matter whether they change them or not.

Also, the code for the pages should be available through discovery if you get that far, assuming that the code files are not destroyed ASAP.

I was just getting ready to go get some zzzzs.   Now I'm going to have nightmares of trying to explain to a judge what all the source code gobbledygook means.  I know at least one who doesn't understand plain English ... who shall remain unnamed.... although for the few that can follow the hints her name isn't that hard to find.

[Mischievous Smurfy]

would render 1692g illusory.

I think the words you want are "superfluous, void, or insignificant" U.S. v. Campos-Serrano, 404 U.S. 293, 92 S.Ct. 471, 30 L.Ed.2d 457 (1971) (quoting Washington Mkt. Co. v. Hoffman, 101 U.S. 112, 115-16, 25 L.Ed. 782(1879))


I think it should be held that the first writen communication should include 1692g.  But I have a feeling that would be a hard one to sell.

[Plubbo]

I think the words you want are "superfluous, void, or insignificant" U.S. v. Campos-Serrano, 404 U.S. 293, 92 S.Ct. 471, 30 L.Ed.2d 457 (1971) (quoting Washington Mkt. Co. v. Hoffman, 101 U.S. 112, 115-16, 25 L.Ed. 782(1879))


I think it should be held that the first writen communication should include 1692g.  But I have a feeling that would be a hard one to sell.

Class action firm here in Chicago refused to file on the matter.   

So now I either find another firm for a 2nd opinion, file singular action myself or just give up.

I am reading every FDCPA case in the 7th circuit to get a feel for what my chances are.  The 9th circuit has one promising case, but the notion that a CA would send you a robotic call directing you to a web site, and then give you one written notice that has no 1692g(a) notice, and then send you that notice 5 days later but only if you did not pay by then, sounds horrible, but fits snugly within the statute's language...

No court likes to rewrite the law past its explicit language.

Thoughts?
Plubbo

"

[Plubbo]

Interesting...

"Marshall-Mosby does not allege that the CRI letter omits the required validation notice. Instead, she claims that additional language in the letter contradicts and "overshadows" the validation notice and thus violates the FDCPA. Indeed, we have held that a violation of the FDCPA occurs when a dunning letter is confusing to the unsophisticated reader, even if the letter technically complies with the FDCPA by including the required validation notice. See Bartlett v. Heibl, 128 F.3d 497 (7th Cir. 1997); Chauncey v. JDR Recovery Corp., 118 F.3d 516 (7th Cir. 1997); Avila v. Rubin, 84 F.3d 222 (7th Cir. 1996). Debt collectors "may not defeat the statute's purpose by making the required disclosures in a form or within a context in which they are unlikely to be understood by the unsophisticated debtors who are the particular objects of the statute's solicitude." Bartlett, 128 F.3d at 500; see also Russell v. Equifax A.R.S., 74 F.3d 30, 34-35 (2d Cir. 1996); Graziano v. Harrison, 950 F.2d 107, 111 (3d Cir. 1991); Swanson v. Southern Or. Credit Serv., 869 F.2d 1222, 1225 (9th Cir. 1988). The key consideration is "that the unsophisticated consumer is to be protected against confusion whatever form it takes." Bartlett, 128 F.3d at 500; see also Gammon v. GC Servs. Ltd. Partnership, 27 F.3d 1254, 1257 (7th Cir. 1994). In analyzing dunning letters under the FDCPA, the critical question is "whether a dunning letter is confusing." See Johnson v. Revenue Management Corp., 169 F.3d 1057, 1060 (7th Cir. 1999)."

Marshall-Mosby v. Corporate Receivables, Inc., 205 F.3d 323 (7th Cir., 2000)

This makes me think that the web site, which sports four payment links but no hint of validation rights, could easily cause a consumer to pay off an invalid debt by concealing his or her right to dispute the debt, and then no validation notice need ever be sent.  They're sowing confusion as to the consumer's right to dispute the debt in the first instance.

Thoughts?

Plubbo