Hi, I have an issue that I have not seen on this board and need advise on getting it resolved. I filed BK7 three years ago and got a discharge in 2004. My wife did not file. The statements on one CC account included in the filing showed both of our names on them. We are 95% certain that this was in error, as she most likely did not sign any documentation asking to be included on the account, although she did use it as an AU. After my filing, the OC started sending collection letters to her. Each such letter was disputed in the appropriate way and each was ignored by the OC. We have documentation for this, although these letter stopped in 2004. The account has been resold at least four times. I say "at least" because we have gotten phone calls about this account from CA's who never sent collection letters. Each written collection attempt was disputed and we have documentation for this. The last such dispute was in November 2005 and we never heard from the CA again. However, in March 2006 this CA reported this account to all three CRA's as a collection account. There was no notation on any CR that this was in dispute. We disputed this with each CRA, but the CA validated the tradeline anyway. I count about nine violations of either FCRA or FDCPA just with the last CA. However, since there are interstate issues here, litigation in federal court will be inconvenient and expensive. There is also the issue of being only 95% certain that my wife is not responsible for this account. Any suggestions on how to proceed from here would be greatly appreciated.
Has the most recent CA sent you their initial letter, notifying you of your right to dispute? Have you requested validation from this CA? What "interstate" issues are you referring to? Collection disputes involving FDCPA violations routinely involve a CA in one state and an alleged debtor in another. You are damaged where you are, not where they are. Suit can be brought in state or federal court where you are, and need not be filed where the CA is located: http://www.ftc.gov/os/statutes/fdcpa/fdcpact.htm#813 "813. Civil liability [15 USC 1692k] .. (d) An action to enforce any liability created by this title may be brought in any appropriate United States district court without regard to the amount in controversy, or in any other court of competent jurisdiction, within one year from the date on which the violation occurs." Same for FCRA: http://www.ftc.gov/os/statutes/fcradoc.pdf "�§ 618..Jurisdiction of courts;limitation of actions [15 U.S.C.�§ 1681p ] An action to enforce any liability created under this title may be brought in any appropriate United States district court,without regard to the amount in controversy,or in any other court of competent jurisdiction,not later than the earlier of (1)2 years after the date of discovery by the plaintiff of the violation that is the basis for such liability;or (2)5 years after the date on which the violation that is the basis for such liability occurs."
Thanks, ontrack, for the reply. Yes, the most recent CA has sent their initial letter, to which we responded in November 2005. No response received to our dispute letter. The "interstate" issue has to do with enforceability of any judgment. Yes, we can go to a local court and probably win. Collecting in another state, especially on any judgment won in a state court, is much more of a problem, especially since our state, New York, does not licence CA's. Also, it seems that only federal courts can force the CA to remove the offending item.
You appear to be assuming that because they are in another state, there is no recourse because of the cost. That is not necessarily the case, and if it were, CAs could sit in their home state and trash out of state consumers' reports with impunity. You should run this by an attorney experienced in FDCPA and FCRA law. You can find one at naca.net, among other places. Often, they will take a few minutes to review your case for free, or take cases such as these on contingency. If you have to sue, under FCRA and FDCPA, the court can award reasonable attorney's fees, on top of damages. Some consumers have reported that they get better justice in Federal court anyway, since the knowledge of the judges regarding FDCPA and FCRA law is better.
Thanks, ontrack. I did not focus of the attorney contingency fee route and will look into it. Also, do you have an opinion regarding what I mentioned in the original post, namely, that there is a 5% chance that my wife is actually obligated for this account? Since no one has ever produced any document that she signed, what is the likelihood, three years after the account went into default, that such documentation could surface? If this were your situation, would you pursue removing this tradeline from a CR, or would you let sleeping dogs lie? Thanks in advance for your input.
Whether you pursue it may be something you discuss with an attorney with FDCPA experience. Your decision might depend on what the SOL is for this type of account, as well as how much debt is claimed. You might also weigh whether damages and FDCPA violations might offset or exceed any amount owed, if indeed you owe any amount, or whether they might be usable in negotiating a settlement.
