Question: I received a letter in the mail from a debt collector I contacted them by phone and asked what I owed. She gave me the amount i owed and stated they would settle for a grand left. I informed her I would look into it and contact her back. One month later I received court papers in the mail stating a lawsuit was filed.
I contacted the collector stated I cannot afford the entire amount and asked what I could settle on. She gave me a quote of $2,000 cheaper then what was stated that I owed.
I settled with it gave her my bank information and tried to scavenger the money. The following day I contacted her again by phone informed her I cannot pay the price I negotiated and to cancel the request she said ok.
Today I asked for a validation of debt and the collector refused stating only during a trial can the validation of debt be provided if an attorney requests it. My question is can I still send a written validation of debt even though I agreed to pay an amount? And, do they have to respond to it and show me proof of debt?
Also, everything I have read states after the initial contact between a collector and a consumer the collector must send written proof of the debt. I never received any validation of debt through the mail. Any information or advice I would greatly appreciate.
Answer: (Disclaimer: I am not an attorney and suggest you seek legal advice immediately.) Debt validation according to the Fair Debt Collection Practices Act (FDCPA) essentially says at Section 809 – Validation of Debts that within five days after the initial communication with a consumer the debt collector must send a written notice containing information about the debt unless that information is contained in the initial written communication.
One of the requirements in the written notice is 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.”
That requirement puts the responsibility of requesting debt validation on the consumer. Debt validation is not included in the initial communication. The initial communication only requires a notice that within 30 days of the initial communication if the consumer requests debt validation and disputes part of the debt or even the entire debt, the debt collector shall provide proof of the debt.
Once a lawsuit has been filed against you the issue of debt validation is irrelevant. You must respond to the lawsuit or a default judgment will be entered against you. Even if you can negotiate a settlement, you should still respond to the lawsuit unless the debt collector has dismissed the lawsuit.
Some debt collectors never send a written communication hoping to get consumers to agree to pay over the telephone. Those debt collectors know they do not have sufficient proof, at least none that would stand up in court, to prove you owe the debt. But it is up to consumers to know their rights when dealing with debt collectors. Debt collectors hope they get you to agree to payment over the phone without you ever exercising your rights.
Nevertheless, I suggest you read a recent question by a consumer regarding requesting debt validation after a lawsuit has been filed. The article may contain useful information for your issue also.
Here is what I also recommend:
(1) Immediately seek legal advice
(2) Respond to the lawsuit to avoid a default judgment being entered against you
(3) All negotiations should be done in writing
(4) Any settlement agreement must be in writing
(5) Stay off the telephone with debt collectors
(6) Never give a debt collector access to your bank accounts
The debt collector is correct in one thing; debt validation can be addressed during the lawsuit. You or your attorney can request all types of information pertaining to the alleged debt in a legal proceeding. And, unlike the Fair Debt Collection Practices Act, a judge will require strict proof that you owe the debt; proof the debt collector has been assigned the debt; and even how the debt amount owed was calculated.
Even if you owe the debt, you or an attorney can challenge a debt collector on whether they can collect the debt. Many debt collectors are unable to prove a legal right to collect the debt even if they have proof. Most debt collectors purchase debts for pennies on the dollar and have no relation to the original creditor and more importantly, the original creditor DID NOT assign or transfer the debt. The debt was purchased by them, not assigned to them. This makes a difference in a legal proceeding.
Consider challenging the lawsuit, you just may end up owing nothing. But if you prefer to settle, make sure you get everything in writing; and, request the lawsuit be dismissed. The best of luck to you.