Hey all, I have a question about this post on kellyscott s thread "You're well within your rights to sue. Your case can be dismissed if you don't have any actual damages... or if nobody other than you has seen the double reporting. that's why it's imperative to apply for local credit and get denied (or at least for credit)... that way the report is seen by a creditor and that way you have actual damages all at once. Zcraws say that without actual damages the case can be dismissed before word one is said... I hope you've seen Lizardking's lawsuit. You get to sue under willful and negligent noncompliance (n and o sections) and then you list how they screwed up.. eg: verified incorrect information, double reported etc. You can always ammend your complaint before going to court and you can refile if it gets dismissed without prejudice." I am not a lawyer type so can you help explain 1. What are actual damages? 2. What are the other types of damages? 3. how do they relate to fcra & fdcpa I have something brewing up here and want to think ahead. thanks
I tried to answer this yesterday, but wasn't able to post for some reason. 1. Actual damages are "out of pocket" damages. A typical example would be if you buy a car that was advertised with 2.9% financing, but you could only get approved with 21.9% financing. Your actual damages would be the difference you are paying between the 2.9% and the 21.9%. 2. Other types of damages are statutory damages and punitive damages. Statutory damages are what is allowed by statute...for example...the up to $1000.00 per action allowed by the FDCPA (I believe) for violations would be statutory damages. I think everyone knows what punitive damages are...but they are designed to punish the violator and provide an incentive for them not to do it again. 3. Depends on your situation. Usually you have to have actual damages in order to have a cause of action. With both the FDCPA and the FCRA, statutory damages are allowed and if you can prove it was willful, you might have a good case for punitive. Hope this helps! L
Yep Actual damages can also include denial of credit and expenses incurred while trying to get your reports fixed. One of the best fcra attys recommends applying for a specific amount on credit at a local bank. That way, if it goes to court, the bank employee can get a subpeona and appear in court as to why you were denied. Also, you have to apply somewhere because if you read the definitions in the fcra, a consumer report is not the copy the consumer gets... it's only the copy that a creditor sees. Meaning: if you're the only one who sees the errors you can't sue under the fcra because the copy of the report you've seen doesn't meet the def of the report.... and from that definition is how you get the powers of willful and negligent noncompliance of the fcra. (Cousin v TU appeal explains this). Meaning: apply and either get denied or get a higher cost of credit and use that as your actual damages You actually sue under several sections of the fcra... willful noncompliance negligent noncompliance and you list every violation under each. You let the judge sort out whether it was willful or negligent...
Thank you wyspers for your response I did a little research the night I posted that and kind of figured out my own answer. In reading the Fdcpa.I have come up with a few new questions. I brought them up before but The issue was never answered completely. here it goes If an OC sells an account that is not in default to another person . I see that this new person is excluded from the definition of a Debt collector(dc). But what if this same account is aquired in a corporate purchase, not merger, years after it was charged off with the second guy. I am talking strickly about a revolving charge account. . Is the person who bought this account last a dc? this is something I have going on. an account opened with friedmans jewelers was bought or merged into a privately held company Mark Morgan (while in good standing). then nearly three years after chargeoff was sold along with all other assets of marks & morgan to signet . The account is being reported by Kay jewelers on all three crs and also marks & morgan on ex & eq. Their response to my request for proof of a legitimate debt came on stationary with the letterhead sterling jewelers dba kay jewelers. A copy of original application with friedmans jewelers and a printout of some data sheet with the words collection agency written on the top line. What do you guys think about this one?
a little bumparooni, time for me to go night night or I guess day day . graveyard is getting to me lol. I hope you all will have some input on my situation
okay everyone, I woke up today to find that they completd my reinvestigation with experian complete. They deleted marks & morgan but verified the reaged Kay jewelers line. How can kay jewelers report that I had a revolving cc with them. when this was charged off long before they aquired the debt? I never had a cc account with them. From what I have been reading in the fdcpa and staff opinion letters Kay jewelers is not excluded from the definition dc. there is also an opinion letter stating anyone who aquires "defaulted debts" for the purpose of collecting on them is excluded from being a creditor. Am I right? off to work I go , see ya all later
