Tuesday, December 10, 2013

Validation Vs. Verification ~ Defeating the Chaudhry Claim of Debt Collectors

I have not written anything lately because for one, I have been very busy but the second reason is because sometimes I just don't know what would be a good topic to cover.  However, I'm working on a couple lawsuits for clients right now and today, my client sent me the plaintiff's response to her Motion to Dismiss.  The whole entire thing looks like it was put together by an intern with no experience writing briefs or no consistency of thought. Its like they decided to whine that nothing was relevant so boohoo, the court should not grant her motion.  They threw all kinds of stuff into their response, and as I have been researching, I came across a website that had one whole section that was word for word verbatim of one of the points in their response.  Can you say "copy/paste"?  So lame!

Anyhow, the one thing that jumped out at me is the forever favorite fall back case law that they quote, Chaudhry v. Gallerizzo.  Now, I have written about this case law and how to throw other case law back in the collection agency's face.  But here's the problem.  Our court system has what are called "Circuit courts" and they represent sections of the country.  I'm in the 9th Circuit designation.  Unfortunately, many of these circuit courts have upheld the Chaudhry decision for collection lawsuits so you need to know how to fight back.

The Chaudhry case upheld a very minimum standard for Verification.  But, you shouldn't be sending a "Verification" letter to collectors.  Verification is what credit bureaus do.  You send collectors "Validation" letters.  Though it may seem that verification and validation are the same thing, they are NOT!  Collectors love to use the word interchangeably but we need to stand firm on this.  Validation is the Proof. Verification according to the Chaudhry decision, is making sure they have the right person.  They only have to provide you with the Original creditor name, account number, dates, amount owed to supposedly prove that they are attempting to collect from the correct person.   They claim that they don't have to provide detailed records.  They may get away with that explanation during the dispute process, and they might get away with it in court, but not if you know more about Verification and Validation.

The best way I think to explain this so you can beat these lying vultures, is to bring legal resources into the argument.  You start with defining the two words.  Now, I look through many different legal dictionaries that would have some standing in court. You want to build a case against the collector through the dispute process so that you have this folder full of a documented paper trail where you have taken it to them and they continue to violate the law.  That way, when you've had enough, you have the ammunition to sue them, or you have the case built to defend yourself if they take you to court first. Hopefully, there won't have to be any litigation and you can get rid of them by showing them how they will fail if it goes to court.

Validation according to Black's Law Dictionary is "Assessing an action to determine it is complete, correct, implemented and delivering the correct outcome." I actually like the definition given by the Oxford Dictionaries better.  To "Validate" means "to check or prove the validity or accuracy of something" and "Validation" is a derivative of the word "Validate."  Now, did you notice that it means to "PROVE" the accuracy?  This is important.  My favorite definition that is very clear comes from Merriam-Webster, which says "to show the existence or truth of, by evidence." Remember this while I give you the definition of "Verify."

Verification according to Black's Law Dictionary is "... averment that the party pleading is ready to establish the truth of what he has set forth." Also, it goes on to say, "The examination of a writing for the purpose of ascertaining its truth; or a certificate or affidavit that it is true." Now, it also gives some case law and you will see how these collectors fall short.  The court said "Confirmation of the correctness, truth, or authenticity of a pleading, account, or other paper, by an affidavit, oath, or deposition." McDonald v. Rosengarten, 134 111. 126, 25 N. E. ; and Summerfield v. Phoenix Assur. Co. (C. C-) 65 Fed. 296; and Patterson v. Brooklyn, 6 App. Div. 127, 40 N.Y. Supp. 581.

Did you catch what these definitions are saying?  Its saying that "Validation" is the documented proof. Its not just "yeah, we have the right person and here's what you owe and who the original creditor is that you incurred the debt with." Oh, no.  Not even close!  Validation is the PROOF!!!  Don't forget that.  You demand validation, you demand proof.  You are not demanding hearsay, which is what they give you. Hang on to this stuff. Its powerful and important.  I'm so not done destroying their claim of "verification" yet.

Okay, let's tear apart their claim of "Verification."  Did you notice that not just in the definition, but in the supporting case law, that "verification" is them attesting to or certifying or confirming that their claims are true and they can prove it in court?  That's what verification is.  It is swearing under oath that you can prove your claims.  I'm going to break this down for you even more.  When in court, who can testify as a witness?  The answer is, a person with FIRST HAND KNOWLEDGE!  They saw something for themselves, they had the conversation, they were a party to whatever situation, etc.  If they do not have first hand knowledge and try to testify that they heard that the defendant told the other person something or the company claimed that the defendant ran up the debt---STOP RIGHT THERE!  That's HEARSAY and not allowed in court.  Its not evidence of squat!

Oh but there's so much more regarding verification.  A 3rd party collector CANNOT themselves verify any alleged debt.  Why? Look at the last couple paragraphs above.  They were not on the original contract. They were not a party to the original transaction.  They were not personally involved from the get go nor were they employees of the original creditor nor did they ever personally handle the alleged account when it was with the original creditor.  All they can provide is "Hearsay."   Now let's look at what the FDCPA says about verification.  I'm tying this all together and you will see very soon how you can whip their butts with this stuff.

The FDCPA regarding "Verification" and "Validation" of debts is found in 1692g. I'm going to show you how they do not verify nor validate when you demand validation. It is found in (b) of 1692g.  Here's a portion of that which is very important. It says, "...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."  I capitalized the "AND" for emphasis.  They have to send you a copy of the verification.  What is verification again?  It is swearing under oath that they can provide the proof.  How many times have you received a response from a 3rd party collector that has the name of the original creditor, amount of debt, relevant dates, etc. accompanied by a notarized statement from the original creditor "verifying" that they have the proof and are willing and able to testify with first hand knowledge that the 3rd party's claim are valid?  I'm willing to bet that 99.99% of you will say "NEVER!!"

They don't send a statement from the original creditor, sworn under oath, by someone authorized, willing and able to testify in court. That means, they never truly verify the alleged debt. When they send copies of statements, computer printouts, letters claiming they consulted with the original creditor or checked their records, they send you the name, address, amount, etc., but no notarized statement from the original creditor, remember this:  They have not validated, they have not verified, they have failed.  

So they can throw the Chaudhry v. Gallerizzo case at you all they want. They can throw other case law at you like Graziano v. Harrison claiming that computer printouts are sufficient. But, if they lack true verification, a notarized statement by a qualified representative of the original creditor that they attest to the validity of the alleged debt and will testify as much with the documentation, in court, they have failed at validation. They have failed at verification. They have not qualified their claim to allow them to resume or continue collection activity in accordance with the FDCPA.  

That's how you shoot down their bs. That's how you take it to them in your disputes and in your lawsuits, whether initiated by them or you. That's how you should win!

I'd love to hear from you.  If you have questions, email me or call me. If you don't want to repair your credit by yourself, I'd love to help you. Again email me or call me.  My information is up at the top on the right hand side. If you loved this information and it helps you, please leave a comment below.  I don't allow spam with links to porn sites or substandard credit repair sites to post.  But, I love legitimate comments and recommendations for more credit repair topics you'd like me to cover.  Those will be approved right away.

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8 comments:

  1. yeah that's true article about Validation Vs. Verification ~ Defeating the Chaudhry Claim of Debt Collectors. so nice information, thanks for sharing. please visit here for credit repair letters. I think it will be helpful for repair credit. thank you.

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  2. I hope more consumers take time out to explore more consumer protection laws on the the state and federal levels. It’s very important as a consumer to know some of these things. Nice Article! perfect credit

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  3. This comment has been removed by the author.

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    1. Thank you both for finding value that can help you in my articles. One thing I don't get though, is Pravas, you compliment me and probably didn't know this stuff before you read it here. So why the heck did you try to spam me and send people who learn from me, to a credit repair scammer site? They don't know this stuff. I know because I'm the one who teaches many, many people how to help their credit repair clients! I appreciate your words but your spamming my blog is the reason why I moderate and why I have a script to disable links to crap sites, and why no one will ever be directed to that substandard site from my blog!

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  4. Hello Shannon I would like your help with disputing they're suppose we verified with third party that your no is correct total crap , equifax removed it but transfusion and Experian have not

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    1. Hi SuperSamira,

      I'm not totally sure what you're asking because there's some missing words in your sentence. It appears that you have been disputing with the credit bureaus and only EQ deleted. If this is the case, then you need to contact the collection company directly. Tell them that since the bureaus claim that they verified, they need to prove their claim through validation. Since they verified, provide the sworn affidavit of verification also. Then give them the list of items they need to send you for full validation and until they do, they need to remove their crud from your credit reports as that is continued collection activity without validation and is a violation of the FDCPA.

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  5. Hi and thanks ...im thinking of starting a business helping people ...im a barber and have many client plus my self i could help. Im in california southern L.A. i also was gonna go into real estate after h.s."00".i dont own Anything other than my business and a recently purchesed car, however my credit is low 500....omg i dont even spply for things...so i wanna get to the bottom of this. If you teach me ill pay u.

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    1. Thank you for your confidence in me. However, there's a lot to running a credit repair business besides just disputing bad credit. I think it would be hard to teach 30 years of research and implementation in a short period of time. There's also a lot of costs involved as well.

      The comments section is not the place to discuss this though. You'll need to contact me privately and I will really need to give it some thought.

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