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Fair Debt Collection Practices Act Order Full CreditWrench Course |
Bad Ideas Can Be Dangerous Bad ideas are all over the internet just waiting for the unwary and unknowledgeable to grab up and use to their eventual disadvantage. An excellent case in point are all of the nutty ideas that are put out about how to get out of paying one's taxes. More people have suffered huge penalties and lost their property and even gone to jail because they followed somebody's ideas who simply thought they were doing good but were totally wrong and doing nothing but endangering those who listened to their nutty ideas. Thankfully, in most cases, all one has to do to avoid falling into such traps is to use a bit of common sense. Stop and think about it for a while and you will soon see the fallacies that are present in all bad ideas. For instance, how can one possibly be born in a country and live there all their lives and then suddenly claim that they don't have to pay the taxes because by some quirk of the imagination or twist of the law they are not citizens of that country and therefore do not have to pay taxes to help support the functions of their government? Many argue that it is their duty as good citizens to make sure that the government obeys the laws too, and that position is clearly supported by the courts as in the ruling of the United States Supreme court in the case of American Communications v. Douds 339 U.S. 382, 442 (1950) wherein the Supremes ruled that "It is not the function of our Government to keep the citizen from falling into error; it is the function of the citizen to keep the Government from falling into error." And again in Sumner v Beeler 50 Ind 341, 342 (1875) that court ruled that "All persons are presmed to know the law, and if they act under an unconstitutional enactment of the legislature, they do so at their peril and must take the consequences Well, most of us aren't attorneys and most of us don't want to take the time and trouble to learn all the laws we might need to know to always be absolutely sure that the government and everybody else obey the law and never deviate from it in any way, shape or form. So our next best line of defense is to at least stop and think a little and use some good old common sense. For instance, does it make any sense that our government tells us that we cannot expect to be able to remove derogatory remarks from our credit bureau files unless they are false remarks or are somehow inaccurate and must be corrected or removed and then spend time and money sending letters to the credit bureaus challenging each and every derogatory remark on our files in the hope that there might be something about them that is wrong or that the credit bureaus might not be able to complete their investigations within the 30 days allowed by FCRA for them to complete their investigations? And how much less common sense is it to pay someone else to do that for you when you could do the same exact thing for yourself and do it nearly for free? After all, the form letters to do that are spattered about the internet like mud puddles after a rain storm. Everybody including the credit bureaus have their favorite version and will freely tell you all about them. But the major problem is that the vast majority of derogatory remarks are true and correct and on top of that, the credit bureaus are not usually the ones that put the derogatory remarks there in the first place. It is the people you didn't pay or didn't pay on time that put them there, not the credit bureaus. You need to understand that the only proper way to handle your problems is to deal directly with the creditor or their 3rd party debt collector or the attorney handling the problem and not trying to beat up on the credit bureaus. So while spending vast amounts of time on various and sundry messages boards that abound on the internet may be entertaining and enlightening, they are also full of mis-information and false beliefs and in most cases following the advice so freely given on them will only lead to grief and misery and quite often a lot of expense for very little results. Everything you do must make good common sense and if it don't then don't do it! Don't just take someone's word for such important things as your credit ratings. Learn to question what people tell you about fixing your credit. Stop and think before you leap. Why is something recommended and what is it based on? Is it based on "it worked for me" or is it based on a law or ruling of the government or a ruling by the courts? If it isn't then it's probably nothing more than snake oil medicine. And watch out for such little tips that will tell you whether the person knows what he is talking about or not. Do they tell you that you should make the credit bureaus validate their listings? If so then the rest of what they are telling you is also likely to be equally bad advice. There is a big difference between verification and validation and if the poster doesn't know that then the rest of his advice isn't likely to be much better. Does he claim that your validation letter should be long and full of questions that the creditor or collector ostensibly must answer and if they don't answer all your questions then they didn't validate the debt and you don't owe it!! Even the fact that the collector fails to validate and ignores your demand for validation does not mean that you don't owe the debt. Not at all! Nothing could be further from the truth. You still owe that debt until it is paid and it is still collectable no matter how many laws the collector may have broken in the course of trying to collect from you. But if he is forced to pay you damages for those violations and the damages are far greater than what you owe then you might very well make an arrragement where the collector who violated your rights can deduct what you owe from what he has to pay you for having violated your rights under the law. But until the debt is paid you still owe the debt. And does that message on the internet bulletin board tell you that you should send the collector an estoppel letter if the collector fails to validate your debt properly? If so, then you need to find out what estoppel is and how it is used before you send one of those now famous estoppel letters off to a collector who has failed to validate in a timely fashion or not at all. You need to know that the now famous estoppel letter that is commonly advocated doesn't carry one bit of legal weight and that it has no force and effect whatever. It claims that since the collector has failed to validate upon your demand that he now has no right to collect the debt. That's outrageous and here is why it's outrageous and has no force or effect. Estoppel has 3 elements which must be present before estoppel can be perfected. 1. The party of the first part must make some statement or perform some action 2. upon which the party of the 1st part relies 3. and takes some action which later proves to have been to his detriment. The tipoff that the famous estoppel letter has no force and effect and is nothing more than pure hype is the legal quote that is used in that letter which is the case of Englehardt v. Gravens (Mo) SW 715, 719. The MO means it's a case that was heard in a Missouri court of law and the SW tells you what district the court resides in. the numbers 715, 719 are the page numbers in the particular book in which that case is recorded. If you go to a law library and you look up that case you will find that it deals with a 25 foot wide strip of roadway known as the Fredrick Englehardt road and gives access to a piece of property. The road runs through a piece of property owned by Gravens and Gravens fenced off or blocked the road thereby denying someone else their access to their property. It has absolutely nothing to do with debts or the collection of them. And if you also sheppardize the case (which means to look up all the cases that mention that case nationwide) you will find that not one of them have anything whatever to do with the collection or validation of debts. To carry the analogy even further, what did the collector do or say that the debtor relied upon when he faild or refused to validate the debt? Whoops! That killed it if nothing else did. But countless numbers of people reading the message boards are led to beleive that this great estopple letter is the "cat's meow" and a real killer! Yeah, right! Well then, does it work even if it is pure hogwash? Sure it does! At least sometimes it does. And it works because it's a case of the collector being as ignorant about the law as the debtor. One person is ignorant and the other is awfully glad of it if it works. And if it don't, so what? But don't be mislead into using that same philosopy in all situations dealing with debt collection. It will surely lead you to great problems if you do. The only valid use of the famous estoppel letter is to wake the debt collector up and hopefully make him realize that he may be in violation of the law and that maybe he ought to do something other than just continue to ignore the debtors letters deamnding validation. If it serves even that small good then so be it until we can develop better and more effective ways of getting the job done. And we will do that as time goes on. Is the Doctrine of Estoppel of no use in the process of debtor/collector relations? I think not! I think that it can have a very valid use, just not in this way. I have developed a totally new use for Estoppel in getting rid of paid collections/chargeoffs which I think will be of great value in that instance, but it remains unproven in a court of law as of this writing and we cannot be absolutely sure that it is valid until some time in the future when it is tried and ruled upon in a court of law. So if you use it, you must be aware that you do so at your own peril and that I am not an attorney and so am not qualified to tell you that it is valid or how a court might rule on it. We also know that estoppel can have valid and positive results when used by a renter who is chronically late in paying his rent and the landlord finally tires of it and tries to evict on the grounds of lateness in paying the rent. That has been tested in a court of law and the defendant won because he had come to rely on the landlord's acceptance of late rent payments. Once a court of law rules on a particular matter we can then rely on it's veracity but until that happens then we have nothing but conjecture to rely on . In the final analysis it is the courts and their rulings that we must rely to know what the law says and what it means. In the final analysis, if we take someone's word for these ideas that prolificate throughout the internet and other places and that someone cannot back up what he says or claims to know about with court rulings then it is much better to just thank them for their good intentions and move on to others who can back up what they claim with the law and what the courts have ruled about the law. And if they cannot do that and tell you exactly what law, what section of the law and what the courts have ruled and give you the case cites for the court rulings that back up what they say then you probably ought to look elsewhere for your info.
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