CA was sent validation letter for three medical collections being reported on credit report. They sent computer print outs on two of them and ignored the third. Two weeks later they sent bill that said: "Please consult your attorney regarding our client's potential remedies and your possible defenses if the total past due amount listed below is not paid within five days." It then goes on to list four creditors, no account numbers and the amounts due don't match with the computer print-outs, although one is within cents, probably added interest. I do know that the two attempts at validation are time-barred by the SOL. What would you do about their threat?
Tell them your attorney said that they can sue but they can't win, since the debt is time-barred. Include a C&D. cc your "attorney"
You could always take their possible bluff. If they threaten to sue within 5 days and do not then they violated the FDCPA. § 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: (5) The threat to take any action that cannot legally be taken or that is not intended to be taken.
There letter with the "consult your attorney" is dated 8/22/02. There five days are up, plus another five. Just found an interesting article at http://www.edcombs.com/CM/News/news7.asp in it they mention that a single violation of [15 USC 1692k(d)] is $1,000. Emotional distress may be sought in [15 USC 1692k(a)(1). It also mentions that each collection agency and individuals associated with it are liable for a separate $1,000. Does that mean I can sue not only the CA but also the women sending me the letter?
Lizardking, So from what you read, can you sue not only the collection agency but also its employees that you had dealings with? I believe that I read somewhere about a lawsuit along those lines, I'll look for it.
FOR RELEASE: SEPTEMBER 11, 1996 MAJOR DEBT COLLECTION AGENCY AGREES TO PAY $146,000 CIVIL PENALTY TO SETTLE FTC CHARGES THAT IT VIOLATED FAIR DEBT COLLECTION PRACTICES ACT http://www.ftc.gov/opa/1996/9609/uca.htm "Further, the settlement would require UCA, for three years, to provide a notice to present and newly-hired employees telling them that they must comply with the federal Fair Debt Collection Practices Act, in trying to collect money from consumers. The notice also informs the employees that, unless the consumer consents, a debt collector may not discuss the debt with any person other than the consumer and a few other persons, such as the consumer's attorney or spouse, and that individual debt collectors may be financially liable for their violations of the Act." Sassy
LizardKing: Can you cite the case that you are referring to above. It would be great ammunition for a lawsuit I am working on. Thanks.
MtNair, The answer to your question is YES. The collection agent is responsible just like the CA or the OC for that matter. The 96 FDCPA adjustments purposely changed the language from "any collection agency" to "any person" to allow for such liability. A "person" is a person OR a company. I like to suggest that when the CA loses the suit I'm getting ready to file they should take the loss from the collectors paycheck at a rate of 25% reclaim. An internal garnishment. Turn the tables.
Please bare with my ignorance here, but I have read the Spears v Brennan case and I'm not sure I follow. Did the court favor in Spears case in regards to the wording of the initial debt letter, specifically with regards to "in writing"??? I have my initial debt collection letter and here's how it reads: Unless you dispute the validity of the debt or any portion of it, within 30 days after you receive this notice, we will assume the debt is valid. If you notify us "IN WRITING" within 30 days after you receive this notice, we will obtain and mail to you proof of this debt or a copy of judgement. The law does not require our office to wait until the end of 30 day period to collect on this past due account, including posting the unpaid account to your credit record for such time allowed by law. If however, you request "IN WRITING" proof of the debt or the name and address of the original creditor within the 30 day period that begins when you receive this letter, he law requires us to stop collecting the debt until we mail the requested information. Now I "requested" something bearing my signature, they didn't provide it.
Thanks for the answer Butch. They still haven't come through with their threat they made on Aug. 22nd. Won't the collector be surprised to be included in a suit, if I decide to file.
NUTZ, I just lost a great post. LOL I'm working on this issue too KHM. Recent case law decisions suggest that even when disputing with a CA it needn't be done in writing. The FCRA simply says: "Upon notification" of a dispute but they're referring to disputing with the CRA. When filing a demand for val. with the CA it has been long understood that this needs to be in writing, but recent decisions are leaning distinctly in the opposite direction. I think because the "least sophisticated consumer" may not know how to write. The FDCPA clearly says your dispute must be in writing, and it even suggests an example of a dunning letter, I think in the Staff Commentary. In the letter it does say "in writing". I don't think the mere assertion that the dunning notice is outta compliance because it so states will win the day in court. But I do think that if you dispute an item verbally (or electronically) and they ignore that, it's a violation. This is new territory tho. Go back and recheck your Spears case and see if that referred to dipsuting with the CRA (via FCRA) or disputing with the CA (via FDCPA). I forget and lack the time to check right now. Good catch tho. http://www.ftc.gov/os/2000/08/performconsent.htm UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA SOUTHERN DIVISION UNITED STATES OF AMERICA Plaintiff v. PERFORMANCE CAPITAL MANAGEMENT, INC., a California corporation Defendant. CIVIL NO. blah blah blah CONSENT DECREE Defendant broke the law when: C. failing to report accounts as "disputed" to consumer reporting agencies as required by Section 623(a)(3) of the Fair Credit Reporting Act, 15 U.S.C. § 1681s-2(a)(3), when consumers dispute accounts either in writing, orally, or by electronic means; The defendant in this case is a collection agency. ~
I've always thought PCM was an interesting case. I'm posting the complaint here. Contains a lot of gooood stuff. http://www.ftc.gov/os/2000/08/performcomp.htm UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA SOUTHERN DIVISION UNITED STATES OF AMERICA Plaintiff v. PERFORMANCE CAPITAL MANAGEMENT, INC., a California corporation, Defendant. CIVIL NO. COMPLAINT Plaintiff, the United States of America, acting upon notification and authorization to the Attorney General by the Federal Trade Commission ("Commission"), by its undersigned attorneys, for its complaint alleges as follows: VIOLATIONS OF THE FAIR CREDIT REPORTING ACT FIRST COUNT 8. Section 623(a)(5) of the FCRA requires anyone furnishing information to a consumer reporting agency regarding a delinquent account placed for collection, charged to profit or loss, or subjected to any similar action, to provide to the consumer reporting agency, not later than 90 days after furnishing the information, the month and year of the commencement of the delinquency that immediately preceded the action. 9. In numerous instances, in the course and conduct of its business, defendant has reported information about debts to consumer reporting agencies using a date of delinquency other than the month and year of the delinquency that immediately preceded the action. 10. The acts and practices alleged in Paragraph 9 constitute violations of Section 623(a)(5) of the FCRA, 16 U.S.C. § 1681s-2(a)(5). Pursuant to Section 621(a)(1) of the FCRA, 15 U.S.C. § 1681s(a)(1), the acts and practices alleged in Paragraph 9 also constitute unfair or deceptive acts or practices in violation of Section 5(a) of the FTC Act, 15 U.S.C. § 45(a). SECOND COUNT 11. Section 623(b)(1) of the FCRA requires furnishers of information to consumer reporting agencies to conduct an investigation when a consumer reporting agency forwards to the furnisher a notice of dispute in accordance with the provisions of Section 611(a)(2) of the FCRA, 15 U.S.C. § 1681i. 12. At the present time, PCM receives notices of dispute from consumer reporting agencies in the form of written consumer dispute verification forms. When PCM receives consumer dispute verification notices, it is the practice of PCM to compare the name, address, and information in PCM's computer database with the information provided on each consumer dispute verification form. Where the two match, PCM reports that it has verified as accurate the information in its files. The actual records of the original creditor are not reviewed, nor is the matter referred to the original creditor for the original creditor to verify the accuracy of the information. 13. Because PCM collects accounts that are often old, information in its computer files may not be accurate for a variety of reasons, including incorrect updating of addresses, errors in recording names and information, and problems with the original creditor's records. Accordingly, verifying information in the computerized PCM file does not constitute an "investigation" for purposes of Section 623(b) of the FCRA when a consumer disputes the accuracy of the information. 14. The acts and practices alleged in Paragraphs 12 and 13 constitute violations of Section 623(b) of the FCRA, 16 U.S.C. § 1681s(b). Pursuant to Section 621(a)(1) of the FCRA, 15 U.S.C. § 1681s(a)(1), the acts and practices alleged in Paragraph 17 also constitute unfair or deceptive acts or practices in violation of Section 5(a) of the FTC Act, 15 U.S.C. § 45(a). THIRD COUNT 15. Section 623(a)(3) of the FCRA provides that if the completeness or accuracy of any information furnished by any person to any consumer reporting agency is disputed by a consumer, the information must be noted as disputed. This provision does not require disputes to be in writing. 16. In numerous instances, consumers have informed defendant over the telephone that they dispute information furnished by the defendant to a consumer reporting agency. It is the practice of the defendant to inform consumers who report disputes orally that they must dispute the accounts in writing. The defendant does not report oral disputes to the consumer reporting agencies to which it furnishes information. 17. The acts and practices alleged in Paragraph 16 constitute violations of Section 623(a)(3) of the FCRA, 1681 U.S.C. § 1681s-2(a)(3). Pursuant to Section 621(a) of the FCRA, 15 U.S.C. § 1681s(a)(1), the acts and practices alleged in Paragraph 13 also constitute unfair or deceptive acts or practices in violation of Section 5(a) of the FTC Act, 15 U.S.C. § 45(a). Further, poster sayeth naught. LOL
