[DUSTY]

I've only seen bits and pieces about this.

1) If you have a COA but, it involves the CA/JDB never sending you ANYTHING as far as validation, how do you prove it. That they didn't send anything. I've read many court cases being lost for this kind of thing. Is it just because they didn't include an affidavit stating so,

OR is there another method?

2) And in the case of the thread that just mentioned 'technical violations' that won't get you statutory violations. If you dispute but with the CA and it's the OC that sends a 'validation', isn't that sufficient for a statutory violation, since the CA is suppose to send it and the CA is the one that is reporting to the CRA's. It would seem important that the furnisher is the one that's on top of what's going on.

[Pale Rider]

Originally Posted by DUSTY

I've only seen bits and pieces about this.

1) If you have a COA but, it involves the CA/JDB never sending you ANYTHING as far as validation, how do you prove it. That they didn't send anything. I've read many court cases being lost for this kind of thing. Is it just because they didn't include an affidavit stating so,

OR is there another method?

The Mahon case is a good read on what needs to be done to prove they followed the proper procedure. Sorry I don't have the link. Basically they have to show they have a reasonable procedure in place to mail out the proper notices and responses.

[Pale Rider]

Originally Posted by DUSTY

2) And in the case of the thread that just mentioned 'technical violations' that won't get you statutory violations. If you dispute but with the CA and it's the OC that sends a 'validation', isn't that sufficient for a statutory violation, since the CA is suppose to send it and the CA is the one that is reporting to the CRA's. It would seem important that the furnisher is the one that's on top of what's going on.

Here is a part of a thread from AOC that I believe will answer your question about technical violations. Remember that $1000 is the max for statutory violations. The court must consider 4 factors before awarding any amount.

-------------

Originally Posted by crwomom

yes, I know this is an old thread...

but, I read this entire case and I'm miffed.

• "After reviewing the letter and the statute, the Court finds the letter violates the FDCPA in several respects."
  
  "A finding of liability under the FDCPA may seem unduly harsh in the absence of harm to the debtor."
  
  "In this action Plaintiff alleges no actual damages. Plaintiff merely seeks statutory damages and attorney fees."
  
  "...because the liability stems from technical violations of the Act and not from any intentional abuse, the Court does not believe there is any basis for an award of statutory damages."
  
  "The FDCPA does . . . mandate an award of costs and a reasonable attorney's fee to a successful consumer..."
  
  "Accordingly, the Court will enter judgment for Plaintiff and order Defendant to pay Plaintiff's costs and a reasonable attorney's fee."

What exacty did the plaintiff "win" here? Looks to me like his attorney was the real winner. What is the "judgement in favor of the Plaintiff" saying besides, "yea, the plaintiff's right, the defendant violated."

Might make some people think twice about suing over a "technical violation" those at CI.com spout off about, especially if they don't have actual damages...which makes me really angry to say. I thought that if a person had prima facie evidence of a violation, whether 'technical' or not, it meant they were automatically entitled to statutory damages. This case seems to say otherwise.

Am I missing something?

Originally Posted by Pale Rider

Crowmom,

Here is what I have read about your question.

Statutory damages would not be awarded or would be small only if the violation is technical. A technical violation would be a violation that does not affect the purpose of the FDCPA.

(e) It is the purpose of this title to eliminate abusive debt collection practices by debt collectors, to insure that those debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged, and to promote consistent State action to protect consumers against debt collection abuses.

Here are a couple of cases that came to that decision.

Pipiles v. Credit Bureau, Inc., 886 F.2d 22 (2d Cir. 1989). Court awarded attorney fees and costs, but no statutory damages, where the collector did not intend to deceive or harass the consumer and there was no evidence that the collector's violations were frequent or persistent.

Clark v. Schwabe, Williamson, & Wyatt, Clearinghouse No. 44,831 (D. Or. 1990). Court awarded no statutory damages for a technical violation in the attempt to comply with ? 1692e(11). It awarded $100 for a violation of the rule against communication with consumers who are represented by attorneys, which demonstrated a more fundamental misunderstanding of the FDCPA�s consumer rights.

Now go back to the section 813:

(b) In determining the amount of liability in any action under subsection (a), the court shall consider, among other relevant factors --

(1) in any individual action under subsection (a)(2)(A), the frequency and persistence of noncompliance by the debt collector, the nature of such noncompliance, and the extent to which such noncompliance was intentional;

The courts are required to consider 4 factors in each case. Intent, frequency, persistence and the nature of noncompliance. If you can prove at least one of these, the court should allow statutory damages.

Court costs and attorney fees are mandatory.

(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.

Actual damages are not needed before statutory damages can be awarded.

We can see this now if we read the opinion

Although Defendant sent out a nearly identical letter to another consumer after Plaintiff's attorney put him on notice of the alleged FDCPA violations, the Court does not find that Defendant intended to deceive or harass consumers or that the violations were frequent or persistent. Accordingly, because the liability stems from technical violations of the Act and not from any intentional abuse, the Court does not believe there is any basis for an award of statutory damages.

[hannah]

Although you may not have received it, if they show up in court with they supposedly sent or give it to you in discovery, they may be able to refute it by using the mailbox rule.

[JayinGR]

I have CL on my site regarding the mailbox rule...

[DUSTY]

I'll find the Mahon case. Your posts help.

...and it's as I thought on 'technical' violations.

Technical violations + no actual damages = hope to get TL deleted

Violations + frequency + willfullness + actual damages = consider to enforce my rights

I did find a good cite on willfullness I posted previously and the standard to prove it wasn't that high.

And yeah... it sucks we have to spend the $$$ for CMRR and they don't.

[Pale Rider]

Mahon v. Credit Bureau of Placer County

(Hint: Someone should please add the text of this case to the caselaw section)

[hannah]

Here are the pdf's of the Mahon case from all appeals.

I also have the Shepherd's cites if anyone needs them.

[DUSTY]

I mean not that straight forward, but the issues are clear.

And, Hannah I'm so glad they let you out for awhile.

[direred]

Unfortunately for those of us in the 9th, Mahon means that after the initial 30-day period, the CA doesn't have to validate.

[Pale Rider]

Originally Posted by direred

Unfortunately for those of us in the 9th, Mahon means that after the initial 30-day period, the CA doesn't have to validate.

That is true in most jurisdictions, and according to the plain language of the FDCPA.