quote:

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Originally posted by connorw
Ok. I've been reading various credit boards, looked at everything including the estoppel letter.

A couple of days ago someone posted a link to a collections board, kind of the CA version of this site.

I was roaming around there looking at things to get a perspective for the other side. I ran in to a number of posts that basically said the estoppel letter was a load of bunk.

So now I'm a bit confused. Does anyone have an actual legal opinion on the estoppel letter being valid or not?

Connorw, to the best of my knowledge nobody has ever actually taken the infamous estoppel letter before a court of law for a ruling. Here is why. If one uses a case site in his pleadings before the court that person first makes an argument, pro or con about a certain point he wishes to make before the court in the hope that the present court will rule in the same way that the cited court did. Previous cases are never binding upon the present court. They can only be compelling but never binding. Judges are free to rule in direct contradiction of even the Supreme Court but he does so at his own peril if his ruling is appealed to higher courts. If his ruling is not appealed then he got away with it no matter how outrageous it might be. So in order for a cite to have any effect at all on the court it must be on topic, on point and the reference argument must be clear, concise and also on point. If such is not the case the court will probably just ignore it

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There are 4 issues that I have with the original Estoppel Letter, as found in the sample library. Here's the original, with the 4 areas of concern underlined:

Your Name»
«Address1»
«Address2»
«City», «State» «Zip»

«Company»
«Address1»
«Address2»
«City», «State» «Zip»

«Date»

RE: Dispute Letter of <insert date>

Dear Sir/Madame:

As I have not heard back from you in over 30 days regarding my notice of dispute dated <insert date>, and you have not supplied the demanded proof of the alleged debt, under the doctrine of estoppel by silence, Engelhardt v Gravens (Mo) 281 SW 715, 719,I may presume that no proof of the alleged debt, nor therefore any such debt, in fact exists.

In a good faith effort to resolve this matter amicably, I restate my demand for proof of the debt, specifically the alleged contract or other instrument bearing my signature, as well as proof of your authority in this matter.Absent the proof I've lawfully demanded, you must terminate this collection action and correct any erroneous reports of this debt as mine.

For the record, I state again that as I have no account with you, nor am I your customer, nor have I entered into a contract with you, I must ask for the following information:

Please evidence your authorization under 15 USC 1692 (e) and 15 USC 1692 (f) in this alleged matter.

What is your authorization of law for your collection of information?

What is your authorization of law for your collection of this alleged debt?

Please evidence your authorization to do business or operate in the state of Florida.

Please evidence proof of the alleged debt, including specifically the alleged contract or other instrument bearing my signature.

You have fifteen (15) days from receipt of this notice to respond. Your failure to respond, on point, in writing, hand signed, and in a timely manner, will work as a waiver to any and all of your claims in this matter, and will entitle me to presume that you sent your letter(s) in error, and that this matter is permanently closed.

Your continued silence is unacceptable. Either provide the proof or correct the record to remove the invalid debt from my credit files with the three primary credit-reporting agencies. You are currently in violation of the Fair Credit Reporting Act and the Fair Debt Collection Act.

Failure to respond within 15 days of receipt of this registered letter will result in a small claims action against your company. I will be seeking $5,000 in damages for the following:

Defamation
Let's get real here for a change. A charge of defamation is extremely difficult to prove in a court of law to begin with. Most any attorney will tell you that. But before a person's character can be defamed he must have one to defend in the first place. If a case of defamation of character is brought, one of the first things that would be done is to obtain a copy of the plaintiff's credit reports, his criminal history if any, and any other piece of information that might be found to prove that he had no character to defend and therefore the case should be dismissed. Therefore the plaintiff would need an otherwise spotless record or he could not possibly hope to prevail.

Negligent Enablement of Identity Fraud

Violation of the Fair Credit Reporting Act

After obtaining the judgment against your company, I will obtain a Writ of Execution from the Sheriff's office in your county and I will begin the process of attaching property or funds to satisfy the judgment.
I have serious doubts that in most jurisdictions any such thing would be lawful. In most states one must have a judgment first and then he must make demand upon the defendant and if that is ignored then he must file for a garnishment and then hold asset hearings and get a court order before he can go attach any money or property. In a small claims situation one would be in dire straits indeed if the defendant's principle place of business was in another state or geographical jurisdiction from the one he filed the case in. The court's orders are only enforceable within it's geographical jurisdiction and not in any other. So the plaintiff could have to go to the defendant's home state and ask the court there to affirm the order of the court in which the judgment was filed and then proceed with the collection process according to whatever the law was in that jurisdiction. That is why I say that it is a waste of time to file small claims cases in most instances.

For the purposes of 15 USC 1692 et seq., this Notice has the same effect as a dispute to the validity of the alleged debt and a dispute to the validity of your claims.
In other word, it is nothing more than a 2nd demand for validation glossed over with legalese garbage that is entirely off point.
If you are going to get dumb enough to demand a 2nd time that which you really didn't want in the first place then why not just say so and be done with it?

This Notice is an attempt to correct your records, and any information received from you will be collected as evidence should any further action be necessary. This is a request for information only, and is not a statement, election, or waiver of status.
There we go again. This is a request for information only! It plainly says it is not a statement. Yet it states all manner of horsepuckey.

I affirm under penalty of perjury under the Laws of the Land for the United States of America, that the foregoing is true and correct, to the best of my knowledge and belief.
Go look up the legal definitions of perjury. And what you find isn't going to make any difference anyway since the Bill Clinton debacle. He committed perjury and just about castrated the perjury laws.

Sincerely,

«Signature»
«Your Name»

___________________

Continued:

1. That Englehart v. Gravens establishes the WRONG doctrine for most CN situations
   It sure is. In fact, Estoppel is a separate doctrine
   and assertion of violation of it's doctrines is a totally separate issue and charge from FDCPA. You will not find mention of estoppel anywhere in FDCPA or any of the consumer laws nor in any consumer related court case. If you doubt that then go shepardize the term and you will see for yourself.
   
   
2. Asserting "Negligent Enablement of Identity Fraud" may open the door to numerous additional problems
   
3. Turning the Estoppel into a legal affidavit IS JUST PLAIN DUMB
   Not if you have a situation in which it applies.
   
   
4. You've already demanded proof, doing so AGAIN just allows them more time to comply.
   Not really. However, in net effect, yes. On the other hand one cannot realistically expect to file a suit on just the failure to validate issue alone and win.
   

But everybody's right, it does work. You don't have to be an atty., but you do have to be right. So when you're at that point with your adversary, and you've carefully selected the correct circumstance and the appropriate doctrine, fire away.
Ah Yes, as Admiral Ferrigut purportedly said while trying to fight the British in the Liousiana swamps, "Damn the mosquitos, full speed ahead!"
(LOL)

Issue #4: You've already demanded proof, doing it AGAIN just allows them more time to comply.

Once your first Val. Demand is ignored, it is silly to allow them yet another opportunity to comply. You know how so many of these CA's love to tell you that "since you failed to demand verification within the first 30 days your right to do so is now GONE"? That's how it works. Why do you suppose the CA's refuse to allow YOU another opportunity to comply. lol

Your position should be exactly the same, "since you failed to respond to my demand for validation within the first 30 days, a reasonable time, your right to assert the debt is now GONE"!!!

(sound familiar)?
Yes, and just as dumb as ever, unfortunately. The reality is that no matter what atrocities they might commit they are not estopped from collecting the debt. Even if they go to your home and punch you out they still have the right to collect the debt. They may have to pay for their violation(s) of the law but they are never estopped from collecting the debt except by virtue of payment of the debt in full by the debtor and then only if he can prove beyond any shadow of a doubt that he did pay in full and when and to whom, bankruptcy or by dint of having made a new contractual agreement with the original creditor or his duly appointed agent or employee. It is just that simple. And the rest of these bullshit arguments are just that. Bullshit.

By the time you get to this point Estoppel is HINDSIGHT.

That's the same crap they pull on you because it IS real. But as you shall see it doesn't apply to you, but IT DOES TO THEM. :)
Bullshit! It does not apply to either unless by admission.
But not in a court of law where the rubber meets the road.

However, in order for this to work properly you MUST set it up right, which brings us to my final point, which btw, is critical.You should be setting them up for your Estoppel, in as far as, if they fail to respond they will lose their ability to assert their position later.
Don't you and a zillion other people sure do wish it were true, but if wishes were horses beggars would ride.

That's what Estoppel means. It's EXACTLY the same thing as a CA telling you that if you don't request verification within the first 30 days you lose that right.
Pretty much true. Both examples are pure bullshit. That is how the are EXACTLY the same thing.

Why then, you may ask, don't I lose the right to demand validation if I fail to respond, as indicated in their first dunning notice, as they so often like to tell me? Isn't what's good for the Goose, also good for the Gander? Great question, the answer to which provides proof perfect that the Estoppel Doctrine is alive and well, and most certainly DOES apply to debt collection. is that neither loses their rights under the law. The debtor does not lose his right to receive validation of the debt and the debtor does not lose his right to collect. His right to collect can only be taken from him by a court of law and the debtor's right to receive validation of the debt also can only be taken from him by a court of law or his aquiesence in the demanding. If one has a right under God, under the Constitution or under the law they can never be forcefully taken from him except by God or by Law or by his own ignorance or consent and quite often not even then.

Estoppel Doctrine goes without saying. It's thousands of years old and comes from Old English Common Law. Common Law means Common Sense.
It means no such a silly thing. Common law is clearly defined in law and in various constitutions and is a specific legal entity.

Where common sense prevails it's not necessary to write a statute. The common sense is; "A PROMISE MADE SHOULD BE A PROMISE KEPT" . and ., "IF I SAY SOMETHING IS ONE WAY AND YOU DON'T OBJECT, THEN I MUST BE RIGHT". Everybody already knows this stuff. So that's why you don't find it in positive law.
Well, I most assuredly object to your bullshit arguments
and I'm here to tell one and all that that is exactly what they are and are of absolutely no substance or benefit to anybody but you. You are so far off the wall and out to lunch that you won't even make it back for Xmas dinner.

CRITICAL->So if Congress meant to save you, the consumer, from this "common sense" Doctrine, which "goes without saying", they would be required to say so now wouldn't they? You would have to be "affirmatively excluded" from that which is, by default, already presumed. And that, dear CN fellow traveler is precisely what they did, to wit:

• DEFECATE or
  
• GET OFF THE PORECLAIN!