Thread: Getting ready to file suit...

I may be filing suit in a court of law against a creditor for violation of the Fair Credit Billing Act. This creditor, a bank, has not been able to change my address in it's computers for over 2 1/2 years. I have been paying 'blindly' and in Aug of last year missed a payment. With no statements at all I think I did pretty well, considering. During that time I had sent a change of address (post office type) to the creditor along with indicating the change of address on my payment stubs of the statements that did reach me thanks to my local post office. After 1 yr. the post office stops forwarding. I started calling then and each time was told it had been changed. Months passed and by then I had automatic payments set up with Yahoo Bill pay and let it go but continued to call periodically. Finally, when I pulled my credit report last month I saw a 30 day late for last Aug. for this creditor. I tried calling again and in a 23minute phone call (which I have proof of) the customer service rep discovered that my change of address would not retain in the system even though to all those previous csr's who had tried it "appeared" that it had taken. This csr put it in and closed out the screen and I made him try to go back in and tell me what it said for my address. My hunch was right...it reverted back to the old address. The reason seems to be that this was a checking overdraft loan account and the checking account had long been closed. Without the checking account open, any changes would not take. I then wrote a letter asking for the removal of the 8/2000 late, that a csr personally pull my statements and mail them to me until such time as the computer flaw was fixed and the refunding of any late fees associated with my account during the period in question. That was on 5/30/01. I have heard nothing back - ZILCH. No statements, no call, no communication whatsoever. On June 14th I wrote another letter - more detailed and more aggressive. No reply. It is now 7/3/01 and I have written one final letter which gives them 5 bus. days from signing the certified receipt to resolve this matter after which I will file suit in State and or Federal Court, file complaints with the BBB, the FTC, the Attorney General and any other entities which oversee banking practices in the states in which they do business. I am committed to following this thru and am in the process of doing research on the net before placing this in the hands of an attorney. If anyone has any advice for me or has had a similar experience please share.

I don't have any advice and it hasn't happened to me, but I support you 100%.

breeze

Make sure that this particular creditor is liable under the FCBA. I believe that it mostly pertains to revolving accounts or charge cards it does not cover installment accounts or loans that you pay on a fixed schedule....... if yours doesnt fall under these guidelines, you would need to turn to your states individual laws that protect the consumer. There may be certain Banking and finance laws that cover this situation.

If this is a open, revolving or charge account then you do have remedies under the FCBA.
I would make sure that I communicate with them by certified letter (return receipt) asking them to take care of this. Let them know that they are in violation of the fair credit billing act and that you have proof of a change of address request 20 days before the billing period..Tell them that they have 30 days to correct the situation. Failure to do so will result in you filing an immediate lawsuit in for violation of the Fair Credit Billing Act and Defamation. Let them know that the law gives them 30 days to respond and 90 to remedy the situation. This will get their attention.. If your letters dont do it then sue their pants off just like you said in your post...GOOD LUCK!!!

If you would like the FTC opinion click here http://www.ftc.gov/bcp/conline/pubs/credit/fcb.htm

Mist: In 1992 I wanted to refinance my mortgage, I had been paying with coupon books as well. To my horror I found many payments were misapplied and after numerous exhaustive attempts to get them to correct, it became quite apparent that they had no idea how to derive at the exact amount I actually owed.

To make a very long story short, I iniated suite only after learning that the FTC, consumer protection, Congressional reps, etc. could not help. I testified before the Massachusetts banking commission as well, with petitions signed by hundreds of consumers, trying to force all banks to send consumers monthly statements to afford us our right to verify and track that our payments are being applied correctly.

We eventually settled out of court in 1994 shortly after filing suit and my mortgage was discharged as I argued vehemently that it was in fact THEIR duty to handle my mortgage responsibly. I thought that would be the end of ever having to deal with them. WRONG!

Unfortunatley, in my case, they didn't leave me alone there...the Bank merged with Fleet Bank and the computers kept reporting "mortgage write-off" even though we were never late on any payment. They even eventaully sold this non-existent debt to a collection agency which finally and suprisingly took a Federal Lawsuit to stop further damage to my credit. It was all directly tied to what you are currently going through unable to verify how our payments are being applied. Get amortization schedules from the bank!! If you would like my Docket number from my first case to forward to your attorney I would be happy to supply you with that and any other information that may assist you in seeking justice. Many people have heard of and discuss my ongoing nightmare Federal lawsuit but were unaware of what horrors I went through from 1992-1998 prior to being forced into the second suit. This was due to a gag order that was placed on me in the original settlement that ordered I not discuss the merits of the case. The gag has been lifted due to the Settlement Agreement now in place that supercedes all other Agreements in which I am gaged from the amount of settlement. Good luck and please feel free to email me. Below I will copy the original letter I wrote to the Editor of our local newspaper in which I went public before initiating suit in hopes they would respond. Their response never corrected the errors, we had not other option but to initiate suit.
_______________________________________________
The Recorder, Greenfield, Mass., Thursday, October 20, 1994

Shawmut messed up mortgage

An open letter to Shawmut Bank:
In 1988, we signed a fixed rate equity loan with Shawmut Bank. When numerous bookkeeping errors were discovered over 2 and one half ago, we Immediately brought them to your attention. Continual endurance on our part and what we believe to be knowing and willing disregard on your part, has caused us to realize our only assurance of resolving these issues is through a court of law. After countless broken promises by more than 14 Shawmut Bank representatives in Worcester, Hartford, Boston and Greenfield, to resolve these ongoing problems produced by Shawmut Bank, the errors have grown to a magnitude where the correct balance of our account is unattainable,
Continual errors have been made while applying our monthly payments and our “extra principal" payments made to Shawmut Bank, When additional principal payments were made, they were not applied as a principal reduction, but rather, applied as "Payments in advance'' never applying an interest credit. To correct your errors your instructions were to "pay principal payments only" while our account was a being "researched.' This generated additional interest which proved to be further damaging to our account.
Furthermore, both the FDIC and the Consumer Protection Office of the District Attorney's Office have on at least three occasions requested that you sit down with us and by hand recalculate our loan- Shawmut refused, saying their corporate headquarters in Hartford were "in a secured area where consumers were not allowed in-" in December of 1993, after my repeated insistence, I was finally allowed to meet with a Shawmut representative in Greenfield, who reviewed the documentation and canceled checks that I provided. The representative acknowledged Shawmut did in fact have bookkeeping problem and stated that our account would now become a "top priority." Since that meeting more than nine months ago Shawmut has failed to take any effective measures in correcting our account or preventing further damage,
Your conscious & regard for our right as consumers has prompted us to engage in raising public awareness of Shawmut's accounting practices which are undisclosed to consumers, This includes Shawmut's practice, which is contrary to local banks, that it does not honor a 15-day grace period without accruing additional interest and Shawmut's practice of not applying payments on the date of receipt but rather the day after receipt of payment, even if paid in the morning hours the prior day. These influential facts must be disclosed to consumers to permit them to make a knowledgeable decision when obtaining a loan.
We strongly encourage, consumers to call 1-800/SHAWMUT and request a "payment history schedule" enabling them to verify how their monthly payments are being appplied. We also advocate banking with local community banks where consumers feel important and respected, not ignored and neglected.
DENISE RICHARDSON

You're kidding, right?

There is no "Fair Credit Billing Act" (your words, not mine)

Even if you argue a cause of action under The Fair Debt Collection Practices Act (FDCPA), original creditors are exempt from this federal statute. Only third party collection agencies (with very rare exceptions) are liable under the FDCPA.

There isn't? You'd better alert the FTC.

http://www.ftc.gov/os/statutes/fcb/fcb.pdf

I think I saw a post where you were offering to help someone with their credit situation. If you weren't aware of the Fair Credit Billing Act, I'd suggest you refrain from offering your services to others, and I'd suggest others not contact you for help.