Advice On Letter Needed

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• Sassy, usually you are very good at quoting, but not this time ...

• Would you point me to which sections I did choose not to read?

• In general I agree, more paper - better case, but that's not the issue here. Yummy has already sent a letter to the OC requesting "[color=0066FF]evidentiary documentation that substantiates the information"[/color] and she wants a proof of the debt. FCRA does not obligate the OC to send her anything.

• I never said she shouldn't contact the furnishers. On the contrary, I said there are obligations, but without first disputing it with CRA, there is no time period set for this, and there are limitations on enforcing this section.

• Sassy, where in this letter did you see these words (fraud and identity theft)??? Forget the letter, where on this thread (except in your post) do you see these words?

• So, Yummy disputed with the OC, OC did not report a notice of dispute. BUT, they are not in a violation YET. When they report the account (probably at the end of the month, or they could do it every two months), and IF they don't report a notice of dispute, THEN they are in a violation. Don't forget that nobody obligates the OC to report in the first place. I have cards which haven't been updated with the CRAs for months.
  
  FCRA says "[color=0066FF]person may not furnish the information ... without notice that such information is disputed[/color], which means if they haven't furnished any information after they received the notice, they are not in a violaion. I'll say it again - FCRA doesn't obligate them to report the notice, it prohibits them from reporting without notice ... these are two different things. Do not mix "may not furnish without notice" (§ 623(a)(3)) and "shall clearly note that it is disputed" (§ 611(c)), because the first one refers to the OC, the second refers to the CRA ...

 

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• Sorry, Yummy, Sassy got us into otherwise very interesting, but now a little off the topic argument.
  
  As I said before, you have already disputed the account with the OC, the OCs are not obligated by FCRA to respond to you, so it doesn't make sense to complain about it in a second letter to them.
  
  As for the CRA, nobody has argued that after your letter from 10/15/03 they still have 30 days to complete their reinvestigation (§ 611(a)(1)(A)) and 5 days to notify you about the results of their reinvestigation (§ 611(a)(6)), which moves the date to 11/28/03. So, depending on if you get or don't get any responce from the CRA by this date, we will tell you what letter to send.
  
  
  
  P.S. Sassy, to dispute or not to dispute with the OCs is a very interesting topic, but let's not hijack Yummy's thread. Open a new thread, if you want, and let's talk about it.

 

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It is absolutely not off topic NOR a hijacking, everything in this thread is about disputing and following up with the furnisher.

LIKE I said, the second letter you recommend sending (in red -- page 1) SAYS everything but identity theft and fraud, it doesn't use those words, that IS what it suggests.

I'm seeing the problem, vghost, you DO read the FCRA piecemeal and link it that way as well.

http://www.ftc.gov/os/statutes/fcra.htm#623

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

(a) Duty of furnishers of information to provide accurate information.

(1) Prohibition.

(A) Reporting information with actual knowledge of errors. A person shall not furnish any information relating to a consumer to any consumer reporting agency if the person knows or consciously avoids knowing that the information is inaccurate.

(B) Reporting information after notice and confirmation of errors. A person shall not furnish information relating to a consumer to any consumer reporting agency if

(i) the person has been notified by the consumer, at the address specified by the person for such notices, that specific information is inaccurate; and

(ii) the information is, in fact, inaccurate.

(C) No address requirement. A person who clearly and conspicuously specifies to the consumer an address for notices referred to in subparagraph (B) shall not be subject to subparagraph (A); however, nothing in subparagraph (B) shall require a person to specify such an address.

(2) Duty to correct and update information. A person who

(A) regularly and in the ordinary course of business furnishes information to one or more consumer reporting agencies about the person's transactions or experiences with any consumer; and

(B) has furnished to a consumer reporting agency information that the person determines is not complete or accurate, shall promptly notify the consumer reporting agency of that determination and provide to the agency any corrections to that information, or any additional information, that is necessary to make the information provided by the person to the agency complete and accurate, and shall not thereafter furnish to the agency any of the information that remains not complete or accurate.

(3) Duty to provide notice of dispute. If the completeness or accuracy of any information furnished by any person to any consumer reporting agency is disputed to such person by a consumer, the person may not furnish the information to any consumer reporting agency without notice that such information is disputed by the consumer.

You cannot read this seperate from the overall accuracy and responsibilities of the furnisher (regardless of who can enforce) that this section is.

(4) Duty to provide notice of closed accounts. A person who regularly and in the ordinary course of business furnishes information to a consumer reporting agency regarding a consumer who has a credit account with that person shall notify the agency of the voluntary closure of the account by the consumer, in information regularly furnished for the period in which the account is closed.

(5) Duty to provide notice of delinquency of accounts. A person who furnishes information to a consumer reporting agency regarding a delinquent account being placed for collection, charged to profit or loss, or subjected to any similar action shall, not later than 90 days after furnishing the information, notify the agency of the month and year of the commencement of the delinquency that immediately preceded the action.
(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.

Send the letter, upon receipt, dispute with the CRA's and trigger the timeframe -- just as you do with the validation sequency.

(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].

(d) Limitation on enforcement. Subsection (a) shall be enforced exclusively under section 621 [§ 1681s] by the Federal agencies and officials and the State officials identified in that section.

http://www.ftc.gov/bcp/conline/pubs/buspubs/infopro.htm

3. Responsibilities After Notice of a Consumer Dispute from a Consumer --Sections 623(a)(1)(B) and 623(a)(3).

If a consumer writes to the address you specify for disputes to challenge the accuracy of any information you furnished, and if the information is, in fact, inaccurate, you must report only the correct information to CRAs in the future. If you are a regular furnisher, you also will have to satisfy the duties in Item 2.

Once a consumer has given notice that he or she disputes information, you may not give that information to any CRA without also telling the CRA that the information is in dispute.

4. Responsibilities After Receiving Notice from a Consumer Reporting Agency -- Section 623(b).
If a CRA notifies you that a consumer disputes information you provided:

You must investigate the dispute and review all relevant information provided by the CRA about the dispute.

You must report your findings to the CRA.
If your investigation shows the information to be incomplete or inaccurate, you must provide corrected information to all national CRAs that received the information.

You should complete these steps within the time period that the FCRA sets out for the CRA to resolve the dispute -- normally 30 days after receipt of a dispute notice from the consumer. If the consumer provides additional relevant information during the 30-day period, the CRA has 15 days more. The CRA must give you all relevant information that it gets within five business days of receipt, and must promptly give you additional relevant information provided from the consumer. If you do not investigate and respond within the specified time periods, the CRA must delete the disputed information from its files.

Sassy

 

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Either send them a second letter as a follow-up, noting their obligations as a furnisher, or summarize your attempts to get a response from the OC and send it to the CRAs, with this letter (modified for OC's) of LKH's:

Dear Sir/Madame:

This is a request for deletion of a disputed item. I have attempted to have this inaccurate and incomplete reporting verified by the furnisher of information to no avail. I am respectfully requesting that (CRA name), do what is legally mandated by the FCRA and delete the account listing from my consumer file.

Name of Creditor/Agency, Account #_________

On <<date>>, (CRA name) received a notice of dispute from me resulting in (CRA name) advising me that the account had been verified.

Knowing that the information could not in fact be verified, I proceeded to dispute the information and request verification directly from the furnisher of information for which the FCRA provides for.

On «date», «original creditor>> received a request for verification from me. Attached is a copy of that letter along with the U.S. Post Office return receipt showing they did indeed receive the request. As of today, xx/xx/xx, they have failed to provide any proof or respond in any way.

On «date», I sent a second letter. Again, I have received no response. Attached is a copy of the letter and the U.S. Post Office showing they did receive that letter.

On «date», I sent yet another letter. Again, I received no response. Attached is a copy of that letter as well as a copy of the U.S. Post Office return receipt.

The FCRA states that information reported must be accurate and complete; updated and verifiable. It also provides a dispute mechanism initiated by the consumer through the consumer reporting agency and through the furnisher of information.

As detailed above, I have disputed the information for the referenced account, with both (CRA name) and the furnisher of information directly. I have exhausted all recourses provided for resolution of erroneous information and still the information remains on my consumer report.

The FCRA provides a cause of action for an individual consumer as well as penalties and liabilities for both consumer reporting agencies and furnishers of information for non-compliance as violations of its provisions.

It is evident that the information reported cannot be verifed and therefore must be deleted as required.

When a debt is disputed under either mechanism, a notation must be entered on the debtor's report showing the item as in dispute. Again, this was not done and is a further violation of the FCRA.

Pursuant to the FCRA, if no proof of debt exists and the information reported is not verifiable, it may not be furnished to the consumer reporting agenices nor reported by them. The FCRA also states that consumer reporting agencies must accept written proof from the debtor.

Therefore, I am not asking for an investigation to be done, I am requesting that the entry be deleted in its' entirety as there is no proof of its' existence and the information presently reported is not verifiable, as evidenced by my attached documented proof.

Sincerely,

«Signature»
«Your Name»

From this thread, also here at CNet in the archives, if not up front in the sample letters section:
http://www.creditboards.com/phpBB2/viewtopic.php?t=6086&postdays=0&postorder=asc&start=0

Sassy

 

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ok, I see that you did, with a copy of your first letter to the OC.

That was 10/15, so TU won't even think about being done until 11/15.

So wait!

If you were going to send a second letter to the OC, it should have been before sending the above letter to the CRA with a copy of your first letter.

The idea is, to exhaust all methods of consumer resolution, so the CRA says contact the furnisher or add your 100 words statement, usually, but you jumped the gun. You want to show with the letter above and importantly the attachments, that you tried to get resolution (whether 1 letter or 10), but you've made your choice there, 1 letter.

Wait for your investigation results, if not deleted as requested, request the procedures for verification followed by the CRA.

There's one out front or in the link above.

Sassy

EDITED TO ADD, from vg above, nodding:

 

• 
  I'm seeing the problem, Sassy, you are so anxious to prove that OSs are liable no matter what, that you miss the point of this specific case

• Yummy has ALREADY SENT a letter to the OC. She has ALREADY SENT a letter to the CRA, EIGHTEEN days ago. So your advice to her is to send another letter to the CRA BEFORE the expiration of the 30 day period???

• Where did you see CRA's advice that the account has been verified??? The CRA has not responded yet!

• I'm so sorry ... I thought saying "I have never had an account with your company" was the proper thing to say when I'm 99% sure I have never had an account with this company ...

• I have actually quoted the same subsection (§ 623(a)(3)), you might've missed it ... And it's not "[color=0066FF]regardless of who can enforce[/color]", not at all.
  
  You can build a case against the OC if:
  
  1. You disputed the account with the CRA.
  2. If, upon CRA's verification of the account, you got a proof that CRA has notified the OC in 5 days about the dispute.
  3. You disputed the acount with the OC (just to have more paperwork for the trial).
  4. File a complaint with the Federal or State authorities.
  
  
  The tricky part here is #2 - you can dispute all you want with the OC, but unless you have proof that CRA has notified the OC, you have no case. Of course, you can get a proof like that only if you dispute with the CRA first ...
  
  
  
  P.S. Sorry, Sassy, didn't see your last post ... So, are we on the same track?

 

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Nope Yummy, that's cool, it's noted above in red, disputing with the CRA's (online or letter) forces the 30 days timeframe with the CRA's.

You weren't disputing though, you were asking for deletion based on the letter you already sent to the OC, and specifically say not to reinvestigate.

It's ok though, you'll either end up with a deletion or more ammunition -- they'll delete or reinvestigate based on your letter.

You're in a good place, it shouldn't take more than one letter to the OC, they know what they are responsible for.

You just don't need to send a second letter now, and/or depending on what TU does, a second letter that doesn't acknowledge whatever action they take.

All you did was cut to the chase!

Sassy

 

Re: Re: Advice On Letter Needed

 

• Right, Sassy, but the point is: WHO is the one in what violation? If you can't get the proof mentioned above, sure - CRA is in a violation of § 611(a)(2)(A), but you cannot hold the OC responsible under § 623(a)(3), because of CRA's violation and because they haven't been notified by the CRA.

• Sassy, you pointed me to § 623(a)(3), so § 623(d) says you have to file a complaint with the Federal or State authorities.

• Because that's the way it works, Sassy. You cannot go after the one for the violations of the other. You must keep track who is responsible for what. Like I said - you can dispute all you want with the OC, this way you will have a good paperwork and you will make a good impression in court that you have tried to resolve the problem out of court. But the fact stays - if you want to get them under § 623(a), you must follow the procedure.

• Yummy, it's not about believing, it's about understanding. If you want to get into the game, you must know the rules of the game. You may as well read "To Live Not To Die".
  
  If you do something wrong, you will suffer the consequences yourself, so never do exactly what everybody says, before you are sure you understand it. We can reccomend you a book, or a movie, or a course of action, but you are the one making the decision if you are going to read the book, or see the movie, or follow "mine", or "his", or "her" course of action.
  
  JMHO

 

Re: Re: Advice On Letter Needed

vghost,

Well, this goes back to your other thread and your belief that you can immediately sue for violations.

You've not followed those threads or the related court cases and documentation, so I'll not be going back there.

That section does not say you have to file a complaint with anyone.

The consumer does not have the burden of verification.

That isn't the way it works, it is the way you say it works.

Yummy, indeed it is about understanding but don't believe you can do something wrong and suffer the consequences, that is dogma. There is no wrong.

Sassy

 

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• When did I say "immediately"? All this writing is to show that it's a whole process, which takes work and time ...

• Sassy, read Young vs Equifax and you will see what I mean ...

• Are you saying that you can sue the OC for CRA's violations and vice versa?
  
  
  
  P.S. You know what ... since this is a very "hot" topic, lets open a new thread and talk about it. This way (I hope the others will join) we can clear it up once and for all.
  
  
  P.P.S. Prove me wrong and I will buy you flowers ...

 

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Read it.

Of course not, I said don't limit your options, actually that case reinforces the need to dispute with the furnisher.

In every case, the consumer has disputed with both the CRA's and the furnisher.

The problem with the case that you sited is that while it says the Plaintiff disputed with all of the Defendants, which was both the reporting agencies and the furnisher, it doesn't say the results of the investigation.

Congress intended, as expressed in the FTC supporting brief and the Nelson v Chase Manhattan case for consumers to be able to sue for violations --the filter is actually in Section 611.

A reinvestigation is required unless it is deemed frivilous or irrelevant. If frivilous or irrelevant, notice with the required information has to be provided to the consumer within 5 days. No frivilous or irrelevant notice = reinvestigation and the dispute has to be transmitted to the furnisher within 5 days.

So, without the required notice you can presume that the reinvestigation is going forward as required.

That's proof and as intended.

However, the real proof that you are stating, could never be obtained by a consumer -- there is a violation one way or the other, this is especially important and why you shouldn't limit your options.

Name them both, the furnisher and the CRA's -- who dropped the ball would be determined in discovery. Then the complaint would be amended accordingly.

The case you cited is a bad one, well, was argued badly anyway. There is no mention of the outcome of the disputes, the issue was actually reinsertion, AFTER an identity theft settlement, that didn't include deletion in the terms, so why they proceeded in the manner they did is beyond me.

Once it was discovered that reinsertion was the issue, and not by the furnisher, they should have amended their complaint and pursued against the CRA's for failure to follow reasonable procedures and failure to adequately reinvestigate.

No flowers needed ;-) You're not wrong though, just that specific proof that points the finger, isn't needed upfront, that is what discovery is for.

However, I think it makes a second letter to the furnisher, after a dispute with the CRA's more important, stating whatever the result was, if you intend to hold the furnishers responsible (or at least leave the option open) which is always riskier than the CRA's.

And a darn good reason to always find a way to work Dixie's cya letter into the mix.

The CRA's can always be held ultimately responsible because they refuse to verify beyond the furnisher or get copies of the documentation that would confirm the information furnished, ever.

Sassy

 

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• This is so sad ... I was already picking the color ...
  
  
  I know it's not a good case, Sassy. But since it's already on record, some lawyer may try to use it, so I better be ready for it. If I have to do this, I will request that proof from the CRA, if they don't give it to me - their refusal (or at least my multiple requests for it) will make my case against the CRA stronger. I will still bring the OC to the scene, but will be ready to fail because of this proof. If CRA does give me that proof, this will make my case against the OC much stronger.
  
  Or, when I first go to court and their lawyer opens his mouth, I'd probably admit I'm guilty on all charges ...
  
  
  P.S. Yummy, we haven't forgotten about you! Wait until 11/28/03 and tell us what happened. Or, if you get any response earlier - let us know.

 

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I have a headache.

lol

 

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Vlad first of all, I commend you for your studies. You've come a hell of a long way in a very short period of time. You're doin great.


Your point that a "tricky" problem arises when we dispute only with the OC which FAILS to list the account as in dispute is not wholly without merrit. You're actually onto something.

That specific section of law does say the DF may not furnish the info. without including that the disputed item is disputed. So it is in fact beginning to ring a bell with some of these people, meaning our adversaries. I've heard OC's argue that exact position on this, namely;

• "Since we already provided the info. (prior to your dispute) we are under no obligation to renotify the CRA that the item is disputed."

It has always been our position tho, as well as most of what we read, that this isn't correct, that indeed they must provide notice of dispute.

We can file a lawsuit [and still avoid the frivolous lawsuit sanction] as long as we believe we have a legitimate argument. Whether we really do or not is a matter for the "trier of fact".


The good news is that 9 times outta 10 all we need to do is file a suit and we'll get an outta court settlement, which would include, at minimum, the deletion of the neg. TL, which was our goal in the first place.

There is a difference between what is supposed to happen, and what actually does happen in the real world. Sometimes this causes rather animated discussions as it has here. This entire discussion highlights the importance of not only disputing with the OC but the CRA as well, and/or visa versa.

If the procedure is followed correctly, BY ALL CONCERNED, it would NOT be necessary to dispute or even communicate at all with the OC. Once the CRA is notified it's the CRA's resp. to notify the OC, the OC investigates and reports the correct info., and then the CRA makes the correction. While this process is under way the CRA must include that the item is disputed. So speaking from a purely technical standpoint you're right.

Now the problem rears it's ugli head. "How do I know whether it's the fault of the CRA or the OC?

Fabulous question. Here's what Sheffer says (quoting Sullivan):

• SHEFFER v. EXPERIAN: (quoting Sullivan)
  Under the FCRA, a credit reporting agency that has received a notice of a dispute from a consumer is required to promptly provide notification of that dispute to the furnisher of the relevant credit information. See 15 U.S.C. § 1681i(a)(2). Thus, in light of Plaintiff's allegations, it appears that [the merchant] would have been notified by the Defendants about the disputed information in Plaintiff's credit report unless those credit reporting agencies were acting in violation of the FCRA. In any event, this issue is one appropriately resolved after discovery has been completed. See Sullivan v. Equifax, Inc., Civ. A. No. 01-4336, 2002 WL 799856, 2002 U.S. Dist. LEXIS 7884, at * 6 n.3 (E.D. Pa. April 19, 2002). (emphasis added)

To get to the bottom of the issue we have to file suit and start discovery, as Sassy mentioned.

"Somebody" broke the law. Whether it's the CRA or the OC or both is best determined through discovery.

Now discovery is usually not available in small claims, so now we're talking about even more sophisticated legal action, for which most of us are illprepared.

In Congress Assembled:

• In testimony before The Senate Banking Committee, on July 10, 2003, Evan Hendricks, Editor and publisher of Privacy Times, presented the following testimony:
  
  "The 1996 Amendments attempted to preclude the need for litigation by specifying a higher standard of care for CRAâ??s, furnishers and users of consumer reports. We need to recognize the reality that the Amendments have not achieved their goal and that in too many instances consumers who want to protect their good name "MUST SUE". (emphasis added)

So Sassy's right too. Just pushing this position can put us in a good place to assert a legitimate argument which then must be adjudicated in court.

Did I make any sense?

lol