Has anyone noticed this before?

Discussion in 'Credit Talk' started by SUNHAWK, Apr 25, 2003.

  1. SUNHAWK

    SUNHAWK Well-Known Member

    I have heard many people state that, if you contact a creditor and they fail to update thier credit report entry as being in dispute, you can take them to court for up to $1000.

    I was closely reading 1681s-2 of the FCRA and according to (c), they cannot be held liable for their action as described in 616 and 617. Or, in other words, if they fail to update the entry as disputed, they can't be held accountable to the consumer.

    So, if this is the case, why do people state you can sue them for this?
     
  2. Butch

    Butch Well-Known Member

    Good question Sunhawk.


    The delimna between "A" and "B" has been pointed out before (mostly well before you joined us). When we sue a furnisher (DF) we MUST do so under 15 U.S.C. § 1681s-2 just as you've been reading.

    But there are 3 Subsections to s-2, "A", "B" and "C".

    When we sue a DF we do so under Subsection B.

    All this really means is that you MUST first dispute through the CRA, (which in turn transmits the dispute to the DF, within 5 days) in order for the CRA AND the CA to work together to resolve the issue.

    If you try to sue under "A" it'll get thrown out.



    LizardKing points out:

    I want everyone to know, in order to sue a provider of information, under the FCRA you must sue under this claim. 15 U.S.C. § 1681s-2(b)

    The (b) is the important part. If you sue under part (a), you do not have the right to as a private individual to file a lawsuit against an original creditor or collection agency.

    In order to sue under part 15 U.S.C. § 1681s-2(b) you must first attempt to dispute the item through the credit bureaus. Only after is has been verified by the original creditor do you have the right to sue in court.



    Now notice "C" that you ask about.

    (c) Limitation on liability. Sections 616 and 617 [§§ 1681n and 1681o] do not apply to any failure to comply with subsection (a), except as provided in section 621(c)(1)(B) [§ 1681s].

    "C" applies to "A", not "B".

    See?

    Good catch !!!


    :)
     
  3. Butch

    Butch Well-Known Member

    .
     
  4. SUNHAWK

    SUNHAWK Well-Known Member

    Thank You! Once again, you come through like a champ.

    2 Questions.

    1) So, since B mentions nothing about being required to update your account as disputed, regardless of whether or not you dispute directly or through a CRA, the account does not have to be marked as being in dispute if listed by the original creditor (in regards to suing them)?

    2) This is a question I have after reading your validation thread. So, if I request validation and then shortly after dispute the account through a CRA, does this necessarily mean that, validation must be obtained to accurately investigate the dispute? Or, in other words, what is the definition of investigation? Isn't it possible that the collection agency could define contacting the original creditor and asking, hey, does this guy owe you money, Yes? Okay. Investigation complete.

    I hope #2 makes sense.
     
  5. jlynn

    jlynn Well-Known Member

    Re: Re: Has anyone noticed this before?

    I think it makes sense (I'm still like you trying to get #1 straight in my head).

    #2 Take a look at this FDCPA opinion letter. Might help you understand:

    http://www.ftc.gov/os/statutes/fdcpa/letters/cass.htm
     
  6. lbrown59

    lbrown59 Well-Known Member

    Re: Re: Has anyone noticed this before?

    2*does this necessarily mean that, validation must be obtained to accurately investigate the dispute?
    SUNHAWK
    ==========================
    IF it's properly validated there is nothing to dispute.

    The END ************************* LB 59
     
  7. SUNHAWK

    SUNHAWK Well-Known Member

    Re: Re: Re: Has anyone noticed this before?

    Hi, the Cass letter is referring to what a collection agency must do if they are going to continue to attempt to collect on a debt (which is provide validation). What I am referring to is what the debt collection agency must do when they are asked to investigate by the CRA as being a furnisher of information.

    What I am wondering is if, through the CRA, as dictated by the FCRA, an investigation to continue to list their entry requires them to obtain validation as required by the FDCPA.

    The requirements for an investigation through the FCRA may be different than the validation requirements to continue collections as the stated in the FDCPA.

    Contacting the original creditor and asking if the debtor owes money may constitue a proper investigation and, as long as they don't continue to attempt to collect and they list your account as being in dispute with the CRA, they may have completed their investigation under the FCRA standards but not the FDCPA standards meaning they don't have a 30 day time limit to provide validation, just to investigate that it is accurate with the original creditor.

    This is what I am wondering.
     
  8. SUNHAWK

    SUNHAWK Well-Known Member

    Re: Re: Re: Has anyone noticed this before?

    But if it hasn't been properly validated, are they required to validate in 30 days is my question. The FDCPA doesn't say so but Butch has made the argument that, through the FCRA, they have to.

    Butch has stated in his validation thread that, if you investigate through a CRA agency, they must provide validation within 30 days (or, at least that is how I understood it).

    My response is maybe not. They are required to validate under the FDCPA and not the FCRA. Under the FCRA, they are required to investigate which may be as simple as contacting the OC to find out if the information they have is accurate (not necessarily a copy of a contract, etc).

    The reason I am asking this is because I am getting ready to sue a CA. Their lawyer replied stating that they don't have a specific time frame that they must reply with validation as long as they don't continue collection activity (continuing to report a debt on a credit report as disputed does not constitute continued collection activity according to the cass letter). Now, Butch says, if you dispute through a CRA (which I did), they must provide validation if they are going to verify it. However, I am wondering if, through a CRA, if contacting the OC and just verbally asking if the information is correct, sufficies for sufficient investigation under the FCRA.

    I just want to know if I can add to the violation list a failure to provide proof of the debt within 30 days (or, verifing the debt's validity without having information to back it up).
     
  9. SUNHAWK

    SUNHAWK Well-Known Member

    Re: Re: Re: Has anyone noticed this before?

    Or, possibly, to make this easier to understand, here is what happened:

    I requested validation from a collection agency. On the same day or a few days later, I then contacted the CRA they were reporting to and disputed the debt.

    After 30 days, they replied stating that the entry was verified (to the CRA). However, they have not, and still have not, to this day, provided me with any validation and their attorney states they are not required to as long as they continue to list their entry as "IN DISPUTE" and they don't contact me.

    I am wondering, if, in my lawsuit against them, I could list the following two violations:

    1) Verifying the accuracy of a debt under the FCRA without having proper validation of the debt as required by the FDCPA.

    2) Failing to complete an investigation under the required 30 day period as required by the FCRA (since they never provided me with any validation nor did they remove their entry).
     
  10. Butch

    Butch Well-Known Member

    Re: Re: Re: Has anyone noticed this before?

    When I first read the FDCPA and FCRA the first thing I thought was geez this stuff is complicated. But then I started reading case law. Holy Crap! The law itself is simple compared to a supreme court opinion. LOL


    After about the 100th reading I began to believe that, when compared to some other acts of congress, the FCRA and FDCPA are really not that complex.

    Since, I've done yet another flip flop, which caused me to write the Val. thread. And this explains why I struggled with the Validation thread and also why it's very difficult to answer your first set of questions.

    Although the law itself is not all that tough, each individual situation certainly IS. Each situation is as different as the snow flakes. To build a thread that tried to address all the nuance's and various idiosyncrasies of each case was obviously completely impossible. But I think we did build something useful, in that, now we have something of a road map, or template with which we may over lay to our individual situations to see what questions we need to have addressed as we proceed. .


    Your questions are an excellent example of how to properly use that thread as you've asked some great questions.


    Here's some encouraging news; there's always a way. To shut up, forget it, and live with the derog for the next 7 years is NEVER the right answer. We just need to be creative. Don't EVER lose hope, no matter what.

    No matter what happens it's only a matter of time before we wear them down to such a point that they just throw their hands up and say: "hell with it, just delete the damn thing. We have more money to steal than to waste time dealing with this "nutcase".


    I've spent the last 2 hours searching for an interview I KNOW I posted with one of the executives of a CRA. In it, he stated that the most common form of verification is to simply call the DF and ask if the info. is accurate. When the DF says yes, it's verified.

    The other way to approach it, and I know someone posted on this too, is to take a look at the "Human Resources" debts. "job descriptions" as they seek employees for their CRA.

    I've seen the following: "$8.75Hr. You are expected to accomplish 10 verifications PER HOUR." DUH! I wonder how else they could do that if anything more than a 5 minute phone could be involved. They're also expected to update each record.

    But I can't find that right now. That's what happens when you develop 3600 posts. You can't find anything. LOL


    Having said all that lets see if we can dissect your situation and see what can be done with it.
     
  11. SUNHAWK

    SUNHAWK Well-Known Member

    Re: Re: Re: Has anyone noticed this before?

    Hey....I really appreciate what you are doing for me and the time and effort you put into each one of your posts. You didn't get your 3500+ posting status from posting things like "GOOD POINT" or "I agree" but rather very lengthly and intuitive replies.

    Every time I read one of your posts, I walk away with some new info.

    I figured that most CRA's simply call or email the creditor and say is what we have on this guy what you want us to have? Yes? Okay...verification complete. This also explains why all my verifications go on for 29 days.

    It's like on day 28, they decide to investigate.

    I know law can be extremely boring (I'm getting ready to enter law school). However, I enjoy it. I wish they would just speak in lamens terms though. Why use ridiculously long words and try to make things sound so complex. It is like they PURPOSELY try to make things complex so it looks professional instead of easily explaining why they did something so the general public can quickly understand it.

    Anyway, thanks for all your help!
     
  12. SUNHAWK

    SUNHAWK Well-Known Member

    Re: Re: Re: Has anyone noticed this before?

    .
     
  13. Butch

    Butch Well-Known Member

    Re: Re: Re: Has anyone noticed this before?


    § 623. Responsibilities of furnishers of information to consumer reporting agencies [15 U.S.C. § 1681s-2]


    (b) Duties of furnishers of information upon notice of dispute.

    (1) In general. After receiving notice pursuant to section 611(a)(2) [§ 1681i] of a dispute with regard to the completeness or accuracy of any information provided by a person to a consumer reporting agency, the person shall

    (A) conduct an investigation with respect to the disputed information;

    (B) review all relevant information provided by the consumer reporting agency pursuant to section 611(a)(2) [§ 1681i];

    (C) report the results of the investigation to the consumer reporting agency; and

    (D) if the investigation finds that the information is incomplete or inaccurate, report those results to all other consumer reporting agencies to which the person furnished the information and that compile and maintain files on consumers on a nationwide basis.

    (2) Deadline. A person shall complete all investigations, reviews, and reports required under paragraph (1) regarding information provided by the person to a consumer reporting agency, before the expiration of the period under section 611(a)(1) [§ 1681i] within which the consumer reporting agency is required to complete actions required by that section regarding that information.


    What happens tho, is what I talked about above. They just make a 5 minute call. The real tough part is to PROVE they didn't do their job properly, and that's actually the challange.


    One way to do it. Is to file suit and start discovery.
     
  14. Butch

    Butch Well-Known Member

    Re: Re: Re: Has anyone noticed this before?

     
  15. Butch

    Butch Well-Known Member

    Re: Re: Re: Has anyone noticed this before?

    So ... along with that which is blue upstairs in FTC v. PCM, here's how I would handle this joker.


    Send him a copy of FTC v PCM and include this in your next letter:

    § 807. False or misleading representations [15 USC 1962e]


    A debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section:



    You have exactly 5 days to fax me a UDF requesting deletion. On day 6 I file suit.

    It's obvious that the FTC's opinion on the matter is that you must remove the TL. Now that you've lied to me, I will be adding yet another $1,000 for violation of § 807. Further, I will be suing your company AND you PERSONALLY (In your private capacity).

    I suggest you consult with COMPETENT legal advice.


    Name it an intent to sue at the top.

    Copy the OC and tell them they will be added to the suit since they are responsible for the violation of their assignees. (This part is optional).
     
  16. Butch

    Butch Well-Known Member

    Re: Re: Re: Re: Has anyone noticed this before?

    Then you'll make a great lawyer.

    Consumer Law I hope.

    :)
     
  17. SUNHAWK

    SUNHAWK Well-Known Member

    Re: Re: Re: Has anyone noticed this before?

    I assume you mean the CRA replied. That means the CA violated. It's also possible that so did the CRA but at this point it's hard to know.

    Yes, I contacted the CA for validation and then disputed with the CRA. Then, the CA verified with the CRA. Then the CRA contacted me and informed me of the verification.

    You're doing great. He just basically told you they can't validate.

    I sure hope you have that in writing. For one thing it's WRONG. He's stating that as long as they don't attempt to collect AND list the item as disputed on the CR, then they may LEAVE the derog on the CR indefinitely. The Act is not very articulate on this fine point. So ... we have to look elsewhere.


    Yes, I do...signed and everything! His exact quote is: "At this time [collection agency] will request the documentation to support this debt from the original creditor. Upon receipt of this documentation, a copy will be provided to you. It is important for you to note that the Fair Debt Collection Practices Act (FDCPA) does not place a limit as to how much time a debt collector has to provide validation. It merely states that collection activities must cease until the validation is sent to the debtor. This account will remain in a cease communication disposition pending the resolution of this dispute."

    I also mentioned suing him in my previous letter and he states, "If you decide to pursue this frivolous claim in the courts, CFC will seek all allowable sanctions against the party bringing forth such a claim." I really enjoyed that part the most.

    I actually asked this question in a previous post, "How long can they list in dispute?" but unfortunately never got a reply (http://consumers.creditnet.com/straighttalk/board/showthread.php?s=&threadid=44888).

    Well yeah, but make sure you're doing this right under the right law. Your violation is that they are reporting information that is inaccurate, or that they have conseously avoided knowing is inaccurate. Look in FCRA

    But since this is a Section (a) violation and we can't hold a DF financially responsible for violation of Section (a), how can I pursue it?

    So your argument right now is with the CA's atty. Basically he's taking advantage of ambiguity in the law to try and manipulate you. Unfortunately for him, HE LIED in the process.

    But if the law is ambiguous on the timeframe, how could I show he lied? He technically did abide by the FCRA when he investigated and replied...investigation meaning he looked at his computer screen and compared what my credit report said and what he had and said it was verified.

    GET THIS!!! I even sent a copy of the letter to Trans Union twice explaining that they have no documentation and I want the debt deleted. Trans Union replied twice verifying it!

    Just to make this post a little longer (sorry), here is what I was going to attempt to sue them on up to this point:

    FDCPA Section 807(8) (twice) for failing to mark the account in dispute (they claim they never received my first dispute letter yet they signed for it....sounds willful to me).

    FDCPA Section 809(b) (three times) for verifying a disputed debt with Trans Union as valid w/o having proper validation, reporting the debt to Equifax AFTER having received validation request, and having their attorney contact me during prohibited validation period.

    FCRA Section 623(a)(3) (twice) for failing to mark the account in dispute (although I know they can't be financially held accountable according to 623(c))

    FCRA Section 623(a)(1)(B) (once) for obvious reasons (but again, it is in section (a) so I can't hold them financially responsible but I will probably list it in my Basis of Lawsuit anyways).

    FCRA Section 623(a)(2) (once) for obvious reasons.

    I just wanted to make sure that all sounded valid.
     
  18. SUNHAWK

    SUNHAWK Well-Known Member

    Re: Re: Re: Has anyone noticed this before?

    I sent Trans Union one more letter giving them one final opportunity to remove the entry as the debt is not mine and the collection agency has acknowledged that they have no documentation to support the debt.

    If they verify it again, off to the courts with them too!
     
  19. SUNHAWK

    SUNHAWK Well-Known Member

    Re: Re: Re: Has anyone noticed this before?

    The proposed settlement would require PCM to provide correct delinquency dates when reporting collection accounts to credit bureaus. The agreement also mandates the proper investigation of disputes. Where PCM learns during an investigation that account records no longer exist for a disputed debt, the company must delete the information from credit bureau files within five days. Finally, the agreement would require PCM to report as "disputed" all accounts where consumers have disputed the information with PCM.

    Send them a second letter, CRRR. Or if you fax it, do it from a 3rd party fax machine and keep the confirm. Include a copy of everything including this PCM case with the 5 days highlighted.

    Tell them you MUST receive a UDF within 5 days or, on the 6th day you'll be filing a lawsuit.

    Oh - and start getting ready.


    AWESOME!!! This is exactly what I was looking for in my past post a while back when nobody seemed to know for sure. Thanks!

    I actually have sent them three intent to sue letters (one via fax and two via mail). I'm going through on this one though.
     
  20. SUNHAWK

    SUNHAWK Well-Known Member

    Re: Re: Re: Has anyone noticed this before?

    So ... along with that which is blue upstairs in FTC v. PCM, here's how I would handle this joker.


    Send him a copy of FTC v PCM and include this in your next letter:

    § 807. False or misleading representations [15 USC 1962e]


    A debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section:


    You have exactly 5 days to fax me a UDF requesting deletion. On day 6 I file suit.

    It's obvious that the FTC's opinion on the matter is that you must remove the TL. Now that you've lied to me, I will be adding yet another $1,000 for violation of § 807. Further, I will be suing your company AND you PERSONALLY (In your private capacity).

    I suggest you consult with COMPETENT legal advice.


    Name it an intent to sue at the top.

    Copy the OC and tell them they will be added to the suit since they are responsible for the violation of their assignees. (This part is optional).


    Great advice! Do you think I should send them one more intent to sue or move forward? They actually bought the debt so I can't include the last part.

    Sorry our posts are crossing :-(. Ignore the part in my other post where I asked about how I can prove he lied!

    I have a 3 page long Basis of Lawsuit clearly detailing everything and I am very ready to move forward if need be. Hopefully the court will accept and file this with my lawsuit.
     

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