You are watching: I have not supplied proof under the doctrine
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?
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 NameÂ» Â«Address1Â» Â«Address2Â» Â«CityÂ», Â«StateÂ» Â«ZipÂ» Â«CompanyÂ» Â«Address1Â» Â«Address2Â» Â«CityÂ», Â«StateÂ» Â«ZipÂ» Â«DateÂ» RE: Dispute Letter of Dear Sir/Madame: As I have not heard back from you in over 30 days regarding my notice of dispute dated , 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 Iâ??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 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 Sheriffâ??s office in your county and I will begin the process of attaching property or funds to satisfy the judgment. 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. 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. 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. Sincerely, Â«SignatureÂ» Â«Your NameÂ»___________________ Continued:
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<2> Continued:The 4 issues are:That Englehart v. Gravens establishes the WRONG doctrine for most CN situationsAsserting "Negligent Enablement of Identity Fraud" may open the door to numerous additional problemsTurning the Estoppel into a legal affidavit IS JUST PLAIN DUMBYouâ??ve already demanded proof, doing so AGAIN just allows them more time to comply.Issue #1: Englehart v. Gravens establishes the WRONG doctrine for most CN situationsAdditionally, by the time we're finished here you'll also have a better understanding as to why you are NOT limited to the first 30 days, in your demand for validation, as they proclaim. Also the meaning/purpose/functionality of Â§ 809 (c), should become more clear.The problem is with some of the verbiage of the sample letters we use, especially Estoppel. The language Connorw refers to, "from another board" is as follows:And then there is the infamous "estoppel" letter which Gliha also authored. Another belly laugh if I ever saw one. It quotes a Western District of Missouri court case entitled "Gravens v. Englehart" which was an estoppel case based on a promise by Gravens upon which Englehart relied to purchase a piece of property and his reliance later proved to his detriment when Gravens fenced off the only entrance to the property. That is what estoppel is all about. It can be likened to a 3 legged table in that 3 elements must be present to support an estoppel action. If you shepardize the case as I have done you will find that no attorney has ever referenced Englehart v. Gravens in any debt related case, and most certainly not in any FDCPA case.In order for that to happen you, the collector would have had to make some promise or statement to the debtor upon which he relied and which later proved to be to his detriment. NO - that is what Promissory Estoppel is all about.To categorically state: "That is what estoppel is all about" is incorrect. It's a brutal oversimplification of a noticeably semi-complex issue. The argument in the Gravens v. Englehart case had to do with A PROMISE MADE, THAT PROMISE RELIED UPON, AND THEN THAT PROMISE BROKEN. This is the important part, the promisee, in good faith, relied upon the promise of the promisor, only to have the promisor break his promise later, which caused the promisee damage. The fact of the matter is there are numerous different kinds of Estoppel Doctrine. http://www.law.com/index.shtml Collateral Estoppel n. the situation in which a judgment in one case prevents (estops) a party to that suit from trying to litigate the issue in another legal action. In effect, once decided, the parties are permanently bound by that ruling. Equitable Estoppel n. where a court will not grant a judgment or other legal relief to a party who has not acted fairly; for example, by having made false representations or concealing material facts from the other party. This illustrates the legal maxim: "he who seeks equity, must do equity." Example: Larry Landlord rents space to Dora Dressmaker in his shopping center but falsely tells her a Sears store will be a tenant and will draw customers to the project. He does not tell her a new freeway is going to divert traffic from the center. When she fails to pay her rent due to lack of business, Landlord sues her for breach of lease. Dressmaker may claim he is equitably estopped. Promissory Estoppeln. a false statement treated as a promise by a court when the listener had relied on what was told to him/her to his/her disadvantage. In order to see that justice is done a judge will preclude the maker of the statement from denying it. Thus, the legal inability of the person who made the false statement to deny it makes it an enforceable promise called "promissory estoppel," or an "equitable estoppel." Example: Bernie Blowhard tells Arthur Artist that Blowhard has a contract to make a movie and wants Artist to paint the background scenery in return for a percentage of the profits. Artist paints, and Blowhard then admits he needed the scenery to try to get a movie deal which fell through and there are no profits to share. Artist sues and the judge finds that Blowhard cannot deny a contract with Artist and gives Artist judgment for the value of his work.The Gravens v. Englehart case is a "Promissory Estoppel" case. It is not a real estate case.In Gravens v. Englehart, all 3 necessary components are present; a promise made, action performed based upon that promise, the promise turns out later to cause damage to the promissee, because the promissor broke his promise. This Estoppel Doctrine would be appropriate for a case where, for example, the CA promises to remove the TL if you pay. You pay based upon that promise. Later the CA breaks the promise. Here it would be fine to quote Gravens v. Englehart.On the other hand, in most cases where Estoppel is used regarding a CN situation we SHOULD be using Estoppel By Silence Doctrine. This applies when the CA simply ignores your orchestrations and says absolutely nothing. This doctrine is the most widely used of them all, therefore is referred to simply as "Estoppel". It's actually "Estoppel By Silence/Acquescence". Estoppel by Silencen. a bar or impediment (obstruction) which precludes a person from asserting a fact or a right or prevents one from denying a fact. Such a hindrance is due to a person's actions, conduct, statements, admissions, failure to act