First, a bit of background, in an earlier post ( http://consumers.creditnet.com/stra...threadid=58559&highlight=Sullivan+and+Equifax ) regarding sending a time-barred cease and desist, I referred to a case cited by WhyChat ( http://whychat.5u.com/ ) which stated that credit bureau reporting was a communication as defined by the Fair Debts Collection Practices Act, Sullivan v. Equifax, Inc. et al., 2002 U.S. Dist LEXIS 7884 (E.D. PA. 2002). sassyinaz pointed out that a problem with that ruling is that it was only a ruling for summary judgment, so it may not be as strong as a precedent as an Appeals Court ruling like Johnson v. MBNA, or a Supreme Court ruling like Heintz v. Jenkins. I am expecting this one to create a little bit of discussion, and hopefully as much discussion as Butch's What is Validation thread, since it is only through hashing this out, we can solidify our positions. The answer to whether or not a CA can report following the cease and desist is found within the Act itself. When looking at the FTC's Berger Opinion, http://www.ftc.gov/os/statutes/fdcpa/letters/berger.htm #3, it appeared that the Supreme Court had widened the definition of COMMUNICATIONS, when it ruled in Heintz v. Jenkins; actually the FTC's Opinion in the Berger Opinion is directly from the Act itself (just mirrored onto attorney's because of Heintz v. Jenkins), the only thing that Heintz v. Jenkins did do was widen it to include any communication from an attorney, including litigation, in an attempt to collect a debt, since it communicates information about the debt to the consumer through any medium, the definition of communications in the Act itself. -- -- Does your credit report convey information regarding a debt directly or indirectly? Now, I wasn't originally going to delve into this secondary topic within this post, but from the earlier post, it ended up going there anyhow, and since the case law has already been cited in this post, it'll make a long story short, hopefully. Thanks for the suggestion Butch... -- -- The Section 809 rights of validation need to be provided to the consumer within 5 days of the original communication to the consumer. Congress did restrict the definition of communication in 809(a) to the consumer, however it did not further restrict the manner of the communications, or the medium of the communications. If Congress had intended for the Section 809(a) notice to only be provided within 5 days of the first direct communication with the consumer, then Congress would have further restricted the definition of communications, as they are supposed to apply to Section 809(a). Let's go back to Heintz v. Jenkins. When a lawyer is acting as a lawyer, and filing a suit, they are not communicating directly to the consumer, but directly to the court, and the consumer is indirectly communicated through the pleadings, summons, etc. The Supreme Court held that these were in fact communications, and communications which required the Section 809(a) notice, and other debt collection notices to be provided. Another objection which sassyinaz made to the reporting to a CRA to fall under Section 809(a), is that it would place an additional requirement on the CRA to provide the Section 809 notices, however that is not the case. The CA is still responsible for providing to the consumer the Section 809(a) notice of rights, even when they can not do so via the same method which the initial communication is made. The FTC's Mezines Opinion states another correlation between litigation, and CRA reporting when it responds to a question about whether or not a CA can comply with the FDCPA's Section 809(a) requirement, and serve a consumer in a state which prohibits any extraneous notices in the summons, or pleading. -- -- The CRA wouldn't be required to provide the Section 809(a) notice, the CA would be required to if the CRA reporting is truly the first communication with the consumer, within five days of the CRA reporting provide the Section 809(a) disclosure.
Why Time Barred C&D = Delete (pt 2) Now, onto the question at hand, is CRA reporting allowed on a debt after the CA has been ordered to cease and desist under the FDCPA. For the purpose of this discussion, think only in terms of a time-barred cease and desist, since I personally highly discourage any use of a TOTAL cease and desist (Section 805(c)) in any other circumstance, there are far more safer ways to end CA harassment like a partial cease and desist (Section 805(a)(1)), i.e. notifying them that "all phone communications are inconvenient, and only written communications to the above address are acceptable." -- -- Note: Section 805(b), except as provided for under the section for acquiring the location information about a consumer, a debt collector can only talk to two people for purposes of relaying a message to the consumer, the consumer's attorney, or a consumer reporting agency if otherwise permitted by law. (The additional options are for them to be able to work and contact the creditor, the attorney of the creditor, or the attorney of the debt collector.) Note: Section 805(c) only provides three communications which the CA can make to the consumer, following the receipt of a cease and desist letter. Remember though, that the definition of communications as used in the Act means the conveying of information regarding a debt directly or indirectly to any person through any medium. In the case of a time-barred cease and desist letter, the consumer is informing the CA that options (2) and (3) are not an option, so therefore the only remaining communication allowed under the statute is (1) to advise the consumer that the debt collector's further efforts are being terminated. (If it's a cease and desist not based on the debt being time-barred, both (2) and (3) are still available.) The question is whether or not reporting to a CRA falls into this prohibition. Look carefully at the section of Section 805(b) which allows them to report to a CRA "a consumer reporting agency if otherwise permitted by law" Since under Section 805(c), the only remaining communication which is otherwise permitted by law is to advise the consumer that the debt collector's further efforts are being terminated; is there any way that the CA can report the account in such a way that the only thing that the CA is reporting is that the debt collector's further efforts are being terminated. The only answer to that question is no, since by providing such a notation to the CRA, the CA would be in fact, continuing collection efforts, since under the Cass Opinion reporting is a collection activity. Remember that this is specifically for a time-barred cease and desist, since any other cease and desist allows the CA the other 2 options for communicating, although the CRA reporting would still have to only communicate the three allowed messages.
Why Time Barred C&D = Delete (pt 2) http://64.233.167.104/search?q=cach...1113P.pdf++"S.+Rep.+No.+95-382"&hl=en&start=5 THOMAS v. SIMPSON & CYBAK By its terms, as stated above, the FDCPAâ??s broad defi-nition of a â??communicationâ? encompasses the filing of asummons and complaint. When Simpson filed the summonsand complaint, it conveyed information regarding Thomasâ??sdebt.2The plain language of a statute â??should be conclusiveexcept in the â??rare cases [in which] the literal application ofa statute will produce a result demonstrably at odds withthe intentions of its drafters.â?? â? Castellon-Contreras v. INS,45 F.3d 149, 153 (7th Cir. 1995) (quoting United States v.Ron Pair Enter., Inc., 489 U.S. 235, 242 (1989)). This is notsuch a case; rather, viewing the filing of a summons and acomplaint as an â??initial communicationâ? is consistent withthe drafterâ??s intent.
Why Time Barred C&D = Delete (pt 2) Thank you or your well researched and very well reasoned comments. I designed the SOL letter, and the follow up letter to the CRA's to accomplish a multitude of purposes. Primarily, of course, to prevent a time-barred lawsuit, or at least provide a defense that would be good enough to engender penalties against the CA that would provide a defendant wih a hungry lawyer to help them. Secondly, to prevent the account being resold to another CA as a "tertiary collectible", by providing a legal cease and desist from any collection activities by anyone, it puts the account in the same "market basket" as BK and deceased accounts.A regular "validation" or cease and desist may work with the target CA, but it does not prevent them from marketing the account. Thirdly, and the subject of this post, to obtain a deletion from a credit report.In addition to the Federal statutes and supportive case law and FTC letters,there is also STATE law to consider. I put strong generalized language about the possible applicability of State laws in the letter because MANY States have much harsher regulations, including criminal penalties, for attempting to collect money or threatening any kind of legal action that can not be carried out. I have yet to hear, in the almost 3 years since I designed the "SOL letter" of any one who said it did not work for them.
Why Time Barred C&D = Delete (pt 2) I just wanted to thank you for the time you took to put this information out to us. I'm learning so much from it! Thanks Jam!
Why Time Barred C&D = Delete (pt 2) Cutting and pasting this, from this thread: http://www.creditboards.com/phpBB2/viewtopic.php?t=44240&highlight=sassy+sullivan The FDCPA sez: (c) CEASING COMMUNICATION. If a consumer notifies a debt collector in writing that the consumer refuses to pay a debt or that the consumer wishes the debt collector to cease further communication with the consumer, the debt collector shall not communicate further with the consumer with respect to such debt, except -- (1) to advise the consumer that the debt collector's further efforts are being terminated; (2) to notify the consumer that the debt collector or creditor may invoke specified remedies which are ordinarily invoked by such debt collector or creditor; or (3) where applicable, to notify the consumer that the debt collector or creditor intends to invoke a specified remedy. Quote: (2) The term "communication" means the conveying of information regarding a debt directly or indirectly to any person through any medium. Indeed it does, and when the statute explicitly uses the words "with the consumer" and "in writing" it means just what it says as at least one case, as well as the FTC commentary have established. Brady v Credit Recovery: http://laws.lp.findlaw.com/getcase/1st/case/981497v2&exact=1 In a statutory construction case, the beginning point must be the language of the statute, and when a statute speaks with clarity to an issue judicial inquiry into the statute's meaning in all but the most extraordinary circumstance is finished." Riva v. Commonwealth of Massachusetts, 61 F.3d 1003, 1007 (1st Cir. 1995) (quoting Estate of Cowart v. Nicklos Drilling Co., 505 U.S. 469, 475 (1992)) (internal quotation marks omitted). In other words, the court need not consult legislative history and other aids to statutory construction when the words of the statute neither create an ambiguity nor lead to an unreasonable interpretation. Riva, 61 F.3d at 1007 (quotations omitted). In searching a statute's text to determine congressional intent, we attribute to words that are not defined in the statute itself their ordinary usage, while keeping in mind that meaning can only be ascribed to statutory language if that language is taken in context. Id. (quotations omitted). Applying these, tenets, we conclude that §1692e(8) does not impose a writing requirements on a consumer who wishes to dispute a debt. First, the fact that other sections of the FDCPA - - like §1692g(b) - - explicitly impose a writing requirement suggests that Congress's omission of such a requirement in §1692e( 8 ) was not inadvertent. Moreover, a closer examination of the purposes and effects of the two provisions further supports our conclusion that Congress to require a writing under §1692g(b) but not under §1692e(g). Under section 1692g(b) a consumer must dispute a debt in writing, within an initial thirty-day period, in order to trigger a debt validation process. See 15 U.S.C. §1692g(b). Once a consumer exercises this right, a debt collector must cease all further debt collection activity until it complies with various verification obligations. See id. Section 1692g(b) thus confers verification obligations. See id. Section 1692g(b) thus confers on consumer the ultimate power vis-a-vis debt collectors: the power to demand the cessation of all collection activities. See id. Recognizing the broad consumer power granted by this provision, Congress expressly conditioned its exercise on the submission of written notification within a limited thirty-day window. See id. In contrast, §1692e( 8 ) does not effect debt collection practices at all. See 15 U.S.C. §1692e( 8 ). Instead, §1692e( 8 ) merely requires a debt collector who knows or should know that a given debt is disputed to disclose its disputed status to persons inquiring about a consumer's credit history. See id. Given the much more limited effect of this provision, Congress's decision not to condition its exercise on the submission of written notification makes logical sense. So, while the definition of communication includes the conveying of information regarding a debt directly or indirectly to any person through any medium. Congress went out of its way to purposefully and specifically narrow that definition where it uses the words "in writing" and "with the consumer." Where it is not used, Congress didn't intend to limit whatever action the words are attached to. Similarly, a consumer's report cannot trigger the initial communication that is to be provided in writing within 5 days by the CA, because it specifically includes the words "with the consumer." As confirmed by Sullivan v Equifax, reporting (communication) in violation of 1692e(8), NOT any reporting, specifically defined reporting, is the violation. "...Because reporting a debt to a credit reporting agency can be seen as a communication in connection with the collection of a debt, the reporting of such debt IN VIOLATION of the provisions of 1692e(8) can subject a debt collector to liability under the FDCPA." The finding that reporting a debt to a CRA can be a communication is specifically attached to the violation: http://www.paed.uscourts.gov/documents/opinions/03D0468P.pdf The liability attaches because it has been disputed and if the information is inaccurate. Which is consistent with the FTC's opinion letter oft-cited Cass letter: http://www.ftc.gov/os/statutes/fdcpa/letters/cass.htm Further, the FACTA amendments (not yet implemented) include specific provisions for notification to the consumer in writing and within 30 days of negative information being provided for reporting. Congress has NOW made notification a requirement where there was none before. Ya'll keep skipping this part of the Sullivan ruling: As confirmed by Sullivan v Equifax, reporting (communication) in violation of 1692e(8), NOT any reporting, specifically defined reporting, is the violation. "...Because reporting a debt to a credit reporting agency can be seen as a communication in connection with the collection of a debt, the reporting of such debt IN VIOLATION of the provisions of 1692e(8) can subject a debt collector to liability under the FDCPA." And another good thread, specific to WhyChat's letter: http://www.creditboards.com/phpBB2/viewtopic.php?t=37224&highlight=sassy+sullivan Please see the thread linked immediately above the quote, there is NOT many states, there is 1 state, Wisconsin, based on an unpublished case. The other TWO states are California (with a threat of litigation) and Vermont (which extinguishes the debt once the SOL has run). And the same topic at yet another state, another good thread: http://www.debt-consolidation-credi...B2/viewtopic.php?t=12314&highlight=timebarred Sassy
Why Time Barred C&D = Delete (pt 2) I am glad Sassy is so persistant in her efforts to question the validity of the SOL letter, it has kept the availability of this technique to delete SOL accounts in the forefront on these and other forums. I am considering designing a new letter as a further follow up to the SOL letter, as I have heard of one person whose account WAS tranferred to another CA, and re-reported after the first CA received the SOL letter and THEIR entry was deleted on the credit reports. The new letter will be for the "new" CA, however I would need to know if ANYONE ELSE had their account sold and re-reported after sending the SOL letter, as I don't want to bother if this was just a fluke with the one poster.
Re: Why Time Barred C&D = Delete (pt 2) I don't know why you insist I question your letter, I surely don't and never have. The violations stated as violations, aren't violations under the sections cited, that's all. I didn't participate in the thread at CIC, that's why I linked it and continue to do so, the participants in that thread are primarily attorneys. I didn't start this thread nor any of the threads at CBoards. Your letter isn't the topic anyway, the case cited is, Sullivan v Equifax, in both this thread and the related thread linked by jam. Sassy
Re: Why Time Barred C&D = Delete (pt 2) As an aside,since SassyinAz seems to think that my references in the SOL letter to State laws on extortion had anything to do with the caselaws she referred to on reporting being equal to collection activities, I am posting a typical State's extortion statutes. ( Arizona) 13-1804. Theft by extortion; classification A. A person commits theft by extortion by knowingly obtaining or seeking to obtain property or services by means of a threat to do in the future any of the following: 1. Cause physical injury to anyone by means of a deadly weapon or dangerous instrument. 2. Cause physical injury to anyone except as provided in paragraph 1 of this subsection. 3. Cause damage to property. 4. Engage in other conduct constituting an offense. 5. Accuse anyone of a crime or bring criminal charges against anyone. 6. Expose a secret or an asserted fact, whether true or false, tending to subject anyone to hatred, contempt or ridicule or to impair the person's credit or business. 7. Take or withhold action as a public servant or cause a public servant to take or withhold action. 8. Cause anyone to part with any property. B. It is an affirmative defense to a prosecution under subsection A, paragraph 5, 6 or 7 that the property obtained by threat of the accusation, exposure, lawsuit or other invocation of official action was lawfully claimed either as: 1. Restitution or indemnification for harm done under circumstances to which the accusation, exposure, lawsuit or other official action relates. 2. Compensation for property that was lawfully obtained or for lawful services. C. Theft by extortion as defined in subsection A, paragraph 1 is a class 2 felony. Otherwise, theft by extortion is a class 4 felony.
Re: Why Time Barred C&D = Delete (pt 2) Sassy: That discussion was the starting point of this, however I based everything on the specific language of the statute itself, and not on the Sullivan v. Equifax case.
Re: Re: Why Time Barred C&D = Delete (pt 2) I understand, jam, should have said the only thing the WhyChat letter has to do with the topic is the reference to Sullivan v Equifax, sorry and thanks for clarifying. I don't disagree with your post or the reasoning, I think the only hurdle is the "with the consumer" however, back to Sullivan, if you don't skip a whole reading of the paragraph referring to reporting as a communication (nodding) IN VIOLATION of 1692e(8) -- that exposes the CA to liability, I think that can be used to close that gap and take away the foothold. Here's 1692e(8) (8) Communicating or threatening to communicate to any person credit information which is known or which should be known to be false, including the failure to communicate that a disputed debt is disputed. So I'm thinking, send a C&D, essentially refusing to pay (communication section) because the debt is time-barred, requesting all communication cease (communication section) and that the information is false (allows you to use Sullivan for reinforcement and kicks in the liability for reporting in violation of the above section) and it's validity disputed (either previously or by the same letter -- known or which should be known to be false, don't think you can skip that part and use Sullivan). I've no idea why you think I have a wild hair and are now changing the subject to extortion claims -- if you wanna pursue extortion it goes against everything you've ever said. Criminal provisions aren't enforceable by a consumer alone either. That's the whole point, if you are going to say something is a violation, be sure it is, or at least that you can make a good case for it being so and you can enforce it. Sassy
Re: Why Time Barred C&D = Delete (pt 2) Sassy, you may remember that you JUST posted a critique of the portion of my post that dealt with the use of the harsher State laws in my SOL letter. Let me try to understand what you are claiming to be the "misstatements" I have made. You apparently believe that in dealing with any credit repair that a consumer is limited to statutes and precedents in case law that are related to "violations" of Federal and State consumer credit laws. I disagree. I believe that ALL State and Federal statutes can and should be used. I designed the SOL letter to accomplish a purpose, as outlined in my earlier post. The threat of a debtor filing a criminal complaint against a CA for extortion based on State laws, is, in my opinion, much more effective than an ITS letter. It is not enough to know case law and be able to cite statutes from the FDCPA or FCRA or FTC opinion letters, in order to accomplish anything one must avail themselves of all possible legal tools, and know how to use them.
Re: Re: Why Time Barred C&D = Delete (pt 2) Ummmmm nope, your post said many states, your letter requires a specific state statute -- I said there were 3 states, that's not many. Wasn't a critique at all. Never said you made a misstatement so that quote doesn't belong to me. Nope, that's not what I believe. Works for me. There's the problem, this thread isn't about you or your SOL letter. No one in this thread mentioned an ITS letter. Read then what you quoted in AZ statutes above, this part in particular: A person commits theft by extortion by knowingly obtaining or seeking to obtain property or services by means of a threat to do in the future any of the following: What does reporting have to do with knowingly obtaining or seeking to obtain property or services? How frustrating, your own website says the letter is to be used in response to a threat of a lawsuit or legal action -- don't know why you have to keep changing your mind, you didn't even write it to be all encompassing. Really, everything isn't about you or one of your letters, only the reference to the Sullivan case cited in your letter and that has to do with reporting as a communication. And, your statement in this thread in response regarding many states; however, it isn't relevant or have anything to do with jam's position. Sassy
Re: Re: Re: Why Time Barred C&D = Delete (pt 2) Refer to the Cass opinion, as to what the purpose of reporting is, it is an attempt to obtain payment for services by causing damage to the alleged consumers reputation until they have paid (and more then likely continue to cause damage for several years more).
Re: Re: Re: Re: Why Time Barred C&D = Delete (pt 2) I understand that, jam, for the extortion provisions to be applicable there has to have been a knowing obtaining or seeking to obtain property or services. "...A person commits theft by extortion by knowingly obtaining or seeking to obtain property or services by means of a threat to do in the future any of the following: So, extortion would only be applicable if there was one of those 2 things going on. Sassy
Re: Re: Re: Re: Re: Why Time Barred C&D = Delete (pt 2) If a CA is sent a letter that states their claims are time-barred, and that continued reporting is considered a collection actvity, they have been put on notice that any continue reporting MAY be considered extortion under their State's laws. It seems fairly clear cut to me.
Re: Re: Re: Re: Why Time Barred C&D = Delete (pt 2) Fair enough, ty ty, nodding with everything in your last 2 posts. Except for this:
