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The Right to Verification of the Debt
When a debt collector communicates with you the first time, it is required to give you written notice of your right to dispute the debt and require “verification.” In my opinion, the level of verification required by law – if you make your dispute in writing – is pretty minimal. Still, the fact is that requiring validation seems to make a significant number of debt collectors go away, so it is apparently worth doing for that reason. It’s also an important first step in preparing to defend yourself from a law suit if it happens.
Remember, they don’t HAVE to verify – they simply have to verify before taking any further actions to collect. If they leave you alone, they don’t have to do anything else.
Deceptive Notice of a Right to Verify
A Dirty Trick by Debt Collectors: “This is a Communication by a Debt Collector” on the Lawsuit
The essence of this trick is the habit debt collection lawyers have of putting on the legal pleadings that “this communication is an attempt to collect a debt… [ and on to the right to require verification].” The problem with this is two-fold. If it WERE a qualified communication, it would violate the FDCPA because the fact of the lawsuit and the timing required by that would “overshadow” the right to require validation.
HOWEVER, A LAWSUIT IS NOT A COMMUNICATION attempting to collect a debt under the FDCPA. Suggesting that it is one, and offering a “right” to require verification, can lure consumers into disputing the debt and requesting validation instead of answering the suit. Then, while they’re waiting for the debt collector to answer their dispute, the debt collector is getting a default judgment against them.
I know they do this trick, and I know that some people fall for it. If you have, you have a strong case for a motion to vacate the judgment. And the whole thing is probably a violation of the FDCPA and would give you a counterclaim under the appropriate circumstances.
I often tell people that they might simply deny every allegation of the petition and put the plaintiff to the burden of proving the case. In some jurisdictions, however, a pleading must be “verified.” That is, you must swear to the accuracy of your pleadings – although I don’t know what the consequences of verifying a pleading that later turns out to be untrue are. Very likely, except in unusual circumstances, there are no consequences if you have any basis for denying at all. It seems likely, although I am not completely certain, that California is a jurisdiction requiring verification. Or to put it slightly differently, in many situations verification is required – I don’t know if there are any in which it is not. Check your rules of civil procedure.
Here is the rule:
Code of Civil Procedure section 437 authorizes denials based upon lack of information or belief “If the defendant has no information or belief upon the subject sufficient to enable him to answer an allegation of the complaint,” it is established in this state that denials in this form are limited to situations where the defendant is not able to deny or admit positively. [5a] Accordingly, if the matter is within the defendant’s actual knowledge or by its nature is presumed to be within his knowledge, or if the defendant has the means of ascertaining whether or not it is true, a denial on information and belief or for lack of either will be deemed sham and evasive and may be stricken out or disregarded. (Mulcahy v. Buckley, 100 Cal. 484, 486-489 [35 P. 144]; Bartlett Estate Co. v. Fraser, 11 Cal.App. 373, 375 [105 P. 130]; [242 Cal. App. 2d 792] Zenos v. Britten-Cook Land etc. Co., 75 Cal.App. 299, 304 [242 P. 914]; Goldwater v. Oltman, 210 Cal. 408, 424-425 [292 P. 624, 71 A.L.R. 871]; Dietlin v. General American Life Ins. Co., 4 Cal. 2d 336, 349 [49 P.2d 590]; Zany v. Rawhide Gold Min. Co., 15 Cal.App. 373, 375-376 [114 P. 1026]; Taylor v. Newton, 117 Cal. App. 2d 752, 760 [257 P.2d 68]; Oliver v. Swiss Club Tell, 222 Cal. App. 2d 528, 538-539 [35 Cal.Rptr. 324].)  Consistent with this rule, therefore, “if the answer fails otherwise to put in issue the material allegations of the complaint, judgment may be rendered and entered on the pleadings.”
In other words, under some circumstances, you can deny on the basis of lack of knowledge or information, that might be disregarded if you are presumed by the law to know the truth of the allegation. Whether a person is presumed by the law to know about old credit card bills is not clear. The best solution might be to deny on the basis of lack of information and belief, and then follow up immediately with a demand for a bill of particulars. If the plaintiff can present you a bill of particulars (unlikely), you might then have to take a second look at the issue.
In my opinion, requiring that a debt collector validate or verify your debt when they first contact you is underused as a weapon. It’s easy and free for you to do (and isn’t hard for them to answer, either), but surprisingly often it can lead to the debt collector walking away and leaving you alone.
The Fair Debt Collection Practices Act (FDCPA)
The Fair Debt Collection Practices Act (FDCPA) gives someone being harassed by debt collectors several useful tools. One of the best of these tools is requiring verification.
A “Secret”(?) Weapon
There’s nothing secret about requiring verification, but in my opinion consumers don’t use this one often enough. It costs nothing to use, takes very little time, and often, all by itself, is enough to convince them to leave you alone and look somewhere else for their victims.
The Right to Verification
Under the FDCPA, the first written communication from a debt collector must inform the consumer of his right to require verification of the debt (if the request is made within 30 days). Verification, or validation requires the collection company to go back to its source, the original creditor, and make sure that the consumer being contacted is the correct person and the debt is valid. Until the debt is validated, the collector may not take any further action on collecting the debt, and at least all the cases I’ve seen have included within that restriction any reporting of the debt to the credit reporting agencies. If the debt collector proceeds without verifying the debt first, you have a right to sue it.
The Requirement Is Absurdly Easy to Fulfill
The obligation is not very significant-a phone call will do, perhaps even as little as a checking of the computer tape or digital record. And yet even this minor obstacle will make the collection company go away surprisingly often. Perhaps the debt collectors view the early assertion of consumer rights as a warning of trouble to come.
Forming Good Habits Early On
And for the consumer, forming the habit of asserting legal rights seems to be an important step in bringing the whole debt situation under control. Out of this small acorn can grow a strong tree of financial security.
How to Require Validation
The way to require verification is very simple. When you receive a debt collection letter you simply write back to the debt collector and tell it you dispute the debt and request immediate verification. No special wording is required–nor is any special delivery (like registered mail), but I always suggest that you in fact send the request by registered mail, return receipt requested, so you will be able to prove that you wrote the letter, sent it, and that it was received by the debt collector. It is also a good idea to keep a copy of the actual letter that you send, too.
What If They’re Just Calling You?
But what happens if you’re just being telephoned by the debt collector? Under the FDCPA, a phone collector is required, within five days of the first contact, to send you, in writing, a notice of your right to dispute the debt and request verification. Failure to do so is a violation of the FDCPA that gives you the right to sue the company. And note that every communication from the debt collector should also have what we call the “mini-Miranda” disclosure, that “this communication is from a debt collector and any information you give may be used to collect a debt.”
Require Verification from EVERY Debt Collector
Every debt collector is different, and each one is required by law to provide you the right to dispute the debt and require verification. But by “debt collector” I mean the company that is harassing you, not the individual who happens to be calling you for that company.
Get in the habit of standing up for your rights, starting with the right to seek verification. Debt collectors are looking for the easiest way to make their profit, and standing up for your rights lets them know you won’t be easy.
What to Do Now
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