I have been working since May to get 2 paid collections removed from my Trans Union report. After sending request for validation, litigious nutcase, and finally intent to sue letters by CRRR and fax, I finally received a response from the CA's president. Any comments or helpful hints? I am planning a small claims suit for violations of the FDCPA and FCRA in the maximum of $1500. This is today's CA response to a copy of my proposed civil suit: Mr. Consumer: I am in receipt of your latest fax in connection with your claims and allegations of XYZ CA violation of the Fair Debt Collection Practices Act and/or The Fair Credit Reporting Act. While I appreciate the lengths that you have gone through to have the collection information removed from your credit record, I believe I am on firm legal ground in saying that no violation of either law has occurred. Legal counsel for XYZ CA concurs with that position. Your reference to the Fair Debt Collection Practices Act and our obligation to validate debts six months after payment simply does not hold water. And, while you are correct in your assertion that within thirty days of notification we are obligated under FCRA to report your accounts as disputed, you should be advised that we have taken the necessary steps to meet that obligation as of June 20, 2002 by flagging your accounts as disputed within our computer system. Within the next sixty days, Trans Union will process its tape cycle at which time your accounts will update to the disputed status. As a data provider to Trans Union, XYZ CA has no direct access to your credit report and no control over when Trans Union updates its tape files. The law, however, requires us to take the necessary steps to effect notification to Trans Union about the disputed status of your account and this we have done within the time frame allowed by law. In the meantime, I share your concern over the time frame and will be most pleased to follow up on the status of our notification to Trans Union to insure that the account status is accurately reflected on your credit report. Until then, you may wish to reconsider your position in connection with litigation against our firm. I can assure you that we are extremely familiar with the laws you referenced in the copy of your complaint and we will vigorously defend our compliance, procedures, and practices through counsel if you choose to proceed, Such defense will include our counterclaim for abuse of process. Finally, I invite you to direct all future correspondence on this matter to me personally by either fax at xxx-xxx-xxxx or to our mailing address You have my assurance that we will follow up with Trans Union and accurately report the disputed status of the subject accounts. Sincerely, President, XYZ CA
Hi Lex, Well we finally have it in writing. I've pondered the problem of placing an "in dispute" notation on your report as required by law. It's a real problem. Suppose you put an account in Validation on Jan 1. On Jan 2 the CA enters the "in dispute" into their system. The tape update does not get transmitted to the CRA until Jan 30. (now 1 month later). The CRA decides to finally run the tape update 1 month later. (now 2 months). And the update hits your report within 30 days. (now 3 months). CAN IT BE SAID THAT THE CA AND CRA COMPLIED WITH THE LAW? ???????
Hey Lizardking I agree that their "abuse of process" is pure junk and is yet another collection agency attempt to intimidate the consumer and bludgeon them into submission with what is really just smoke and mirrors... as an aside, though... if the consumer sues then sends a settlement letter... could that have the perception that the consumer is indeed using the litigation process abusively?... (especially knowing the ca will likely throw that in as their defense). I mean, it's not as though the consumer doesn't have violations... they do... but I'm wondering how the perception of a settlement letter might hurt them if the ca does use the abuse of process defense.. (I am hoping you'll bounce this off your father in law)... I would think common sense says small claims doesn't require an atty... so how is it abusive? Like slander and libel... the truth is the best defense and if the ca is breaking the law... then how can they even throw abuse of process out there..? As per the lawsuit.. then if they ca is saying that the cra is responsible... if I were you, I'd get actual damages now...then sue both TU and the collection agency. Let them sort it out as to who is responsible...
That is why I always immediately dispute the account with the CRA once I know the OC or CA has my full dispute and validation letter. You can then clearly show the court that on this date which on your credit report shows date last reported and verified that the CA did not communicate to the CRA that the item was in dispute. I don't care how they have it in their computer my only concern is if they complied with the law and notifed the CRA when they contacted them for my dispute whether or not they told the CRA it is in dispute. You mean to tell me they will update everything and re-report the same but the notation for "Consumer Disputes" is not listed or will not be listed for several months??? That is hogwash!! Have the CA president bring to court with him the procedures the CRAs use in updating their computers and actual proof that it takes them months. I know this isn't true because things get deleted and updated all the time. If this were the case if the OC or CA did not respond in 30 days allowed by law then the CRA would delete the account. But...For the next 3 months it would still show, but rest assured the CA,OC or CRA says it will show deleted within 90days, we just have to wait to recycle our tapes!! What BS!!! Sue them now!!! Tac
Thanks for the feedback so far! Those SOB's waited 29 days to supposedly mark the accounts as disputed in "their" computer, then claim it can be many more months to see it show up with Trans Union. I thought I might have them on the failure to note as disputed under FCRA, but I think they may have saved themselves. If it gets to court, I will demand proof of the evidence that they notified TU. I definitely have them on the failure to validate, I believe. They sent a computer printout from the OC along with a print screen from their accounting program...also sent a page of terms from the OC (a cable company), but nothing with my signature on it. This was sent to me CRRR on day 29, but they have failed to provide anything at all regarding the second account (a utility company). Like many of you, I view the "abuse of process" threat as an intimidation tactic. This CA is headquartered in this state, over 4 hours drive away. If you do the math on the time an attorney would have to sink into their defense, they are definitely better off simply deleting.
The abuse of process is bogus. Especially, if this is the first time you've used the court. I've heard of people that sue 20-30 times a year sometimes have an abuse thrown against them, but certainly not your first time. As far as the settlement letter. I've heard from many attorneys that it shows going to court was a last resort. Sometimes the judge will be mad at the CA for not settling and waisting the courts time. Even if you got countersued your homeowners insurance would pay to defend you under the liability portion of the policy. Be tough with them.
Keepmine, where are you? I don't know this for certain, but you might. It seems to me that offers of settlement are not brought up in court. I've never seen where one was. I don't think the judge will hear that type of information, although I can't say why or even for certain that its true. You must be wondering why I even bothered to post at this point...lol. I'm hoping someone can post and clarify the why's or why not's of this. L
Just another thought.......the CA sent me this letter via fax without a cover page or any "confidential" notation to the main fax line at my place of work. I did not ask them to contact me in this manner. Would it be a stretch to apply the FDCPA prohibition of "open communication" such as postcard to this situation.....??after all, the full text of the letter was available for all to see! (In fact, a co-worker handed it to me saying here's your fax)
Whyspers, Here I am! I've never seen anyone mention a settlement proceeding before the judge. Now, I've been in chambers when the judge throws up his hands and tells the lawyers ,"you 2 need to work something out"! As to the abuse of process. I agree the way the CA phrased it is nuts. But, a number of states have enacted legislation that the winner of a civil suit may petition the trial judge to order the loser to pay their legal fees. In my state, that extends to small claims court.
Keep in mind. The CA is making a demand from you. The only way to defend yourself is to go to court and let a judge decide.
