BUTCH, et al... *H*E*L*P*

Discussion in 'Credit Talk' started by jam237, Aug 15, 2003.

  1. jam237

    jam237 Well-Known Member

    I am about to scream, or worse...

    I have been fighting with a company for an alleged cc account.

    For 11 MONTHS (as of two days ago)!!!

    On Sept 13, 2002, I sent the CA that had just contacted me a VD request, I then find out that the OC recalled the account.

    About a month later I get a "FCBA" we are processing your inquiry, and have two billing cycles to complete, blah, blah, blah... letter.

    Right at the edge of the 'deadline' they send a cover-letter, and statements for a higher amount then the CA had said, and that their CRA reporting had said.

    I called their #, and asked what was going on, "You're right, the amount really is $xxxx."; so I requested the corrected response, and the supporting documentation, and all of the rest of the missing statements (they only provided a half-dozen to a dozen statements), REPEATEDLY.

    In Jan I receive only a corrected cover-letter (and the statements before the ones that were provided, through the ones that were provided, but none for later -- so the documentation was still supporting the alleged higher balance.) This cycle goes on repeatedly with re-disputing as soon as the deadline passes on the previous dispute, and asking for deletion if they can not support their figures.

    In June I decided I had enough, I followed up the dispute with a BBB dispute about 2 weeks before the deadline for the "FCBA" response. Sent to the company's 'presidents office' a copy of all the previous correspondence, etc. when they said that they couldn't find a listing based on the information provided by the BBB.

    In short I said, if you can't prove the amount that you are listing on the credit report, DELETE AT ONCE!

    Well, I get a response saying; Hey we looked over your information, there are no adjustments, however theres a new balance.

    HUH!!! There are no adjustments but there is a new (LOWER) balance!

    Well, it turns out they had a reason for not providing the last two statements for the *ALL* of the FCBA disputes, those statements proved that LESS money was owed then they were reporting. "Transactions were posted after the last statement was generated, but since no statements were generated, we can't verify that information..."

    THIS was JUNE; After sending a few more letters, pointing out that they are STILL not reporting the correct information, as they now are saying that it is now, TODAY, I receive another letter stating that We've updated our records, if you want the CRAs to update your information, send them a copy of this letter, and if they refuse to update it based on this letter you'll have to dispute it with them.

    Please tell me if a written refusal to update a listing as required by the FCRA is an actionable offense, (it should in the least prove that its a willfull and knowing violation) and grounds for deletion of the tradeline by the CRAs, and which of the CRAs I can plan on having a fight to get rid of the account.

    The one problem I am expecting is that even though all my letters had the account # (s) listed on them, the FOUR letters from the 'preident's office' do not. In the past that has always forced them to 'contact the reporter for verification of the information presented'

    Please help me save what little sanity I have left...
  2. Butch

    Butch Well-Known Member

    Hi Jam,

    Sounds like an Excedrine headache to me too.

    Take a deep breathe. lol

    As you know an OC is not subject to the FDCPA. If you're going to build a case against them it has to be an FCRA case, (for reporting incorrect information).

    I did a post last night that applies to you.


    You haven't said anything about first disputing with the CRA's. This is critical for an FCRA argument.

    You do have an FCBA argument though. But let's get everything on em we can.

    How much are they claiming? How old is it? What state are you in, (and at the time of the app.)?

    If you do owe something, might need to build your case against them and use that as leverage to drive down the settlement amount.

    Also, do a search on "Learn Your FCBA" under Butch.

    Nevermind, here it is:

  3. jam237

    jam237 Well-Known Member

    i replied to this originally right after you posted, but just as i hit <SUBMIT> had a power outage... (at least it was nowhere like the great power outage of 2003...

    according to the information they've provided
    account open date - 5/98
    lp date-8/99
    next due date-9/99

    nov response to validation sent to ca - $1820
    jan response to validation sent to ca - $1086
    june response to bbb complaint - $988

    the only question is which of those the sol is based on in PA... if lp/date, then sol expired a few days ago, if by next due date they still have less than one month to go, and i'm debating if i should keep the argueing alive to make sure that it is kept in dispute...

    in my last letter i made it perfectly clear that until the credit reports are updated by them, the account is still in a disputed status. and in my letter responding to their request for more information to process the bbb inquiry, i made it certain that they knew that anything that they put into writing alone will not be acceptable, it has to be backed up; and i consider their company correcting the cra reports to be essential to backing up their new claims... especially since their company just changed the cover-letter to reflect the new balance with the same statements earlier...
  4. Butch

    Butch Well-Known Member

  5. Butch

    Butch Well-Known Member

    Executive Summery:


    July 2000 Tab 5
    Duffy v. Landberg
    2000 U.S. App. LEXIS 11614 (8th Cir. (D.Minn.) May 25, 2000)

    Fair Debt Collection Practices Act â?? Attorneyâ??s fees, $100 civil penalty and overstated interest calculation violated Act

    This case was before the U.S. Court of Appeals for the Eighth Circuit on a second appeal of issues under the Fair Debt Collection Practices Act. The defendant debt collector attempted to collect on bad checks written by the debtor-plaintiffs. The plaintiffs alleged that the collection letters they received violated the FDCPA because the defendant demanded a $100 civil penalty, a $20 service charge, a $10 collection charge, and interest charges. The letter also stated that if litigation proceeded, the defendant would seek attorneyâ??s fees. The lower court found that the aforementioned fees were all authorized by a Minnesota statute governing civil liability for the issuance of bad checks. Though the lower court acknowledged that interest charges were â??slightly inaccurateâ? (less than a $2 discrepancy in each case), it determined that â??the insignificant overstatement of interest charges [did] not violate the FDCPA.â?

    The Eighth Circuit agreed with the lower courtâ??s assessment with regard to the $20 service charge and the $10 collection fee; however, it disagreed with the lower courtâ??s analysis concerning the $100 civil penalty, attorneyâ??s fees and the overstated interest. The Minnesota statute said the debtor is liable for â??up to a $100 civil penaltyâ? [emphasis in original]. As it is uncertain that a court would award the entire $100 penalty, the court said, the defendantâ??s demand for $100 was inappropriate. In fact, the court noted, â??the statute requires the collector to settle the claim for court costs, the $20 service charge, and attorneyâ??s fees, if applicable, if the case has not yet been heard by the court.â? Consequently, the defendantâ??s demand for the entire $100 civil penalty was a misleading representation of Minnesota law and, therefore, a violation of the FDCPA. The Eighth Circuit also ruled that the threat to seek attorneyâ??s fees also VIOLATED THE FDCPA. [emphasis mine]
  6. jam237

    jam237 Well-Known Member

    Butch, I summarized the statement about the additional charges posting allegedly after charge-off...

    Essentially the whole thing said "Your [last] monthly billing statement that was generated on xx/xx/xxxx, and with an ending balance after charge-off of $988. After the date of the statement, additional charges totalling $98 were assessed. A statement wa not generated after charge off, to reflect these charges; therefore they can not be verified. This being stated, adjustments were submitted totalling $98, and as of the date of this letter your balance is $988, which remains due to us. Since statements are not generated on charged off accounts it will be your responsibility to track the balance until paid in full."

    Ironically, this is the paragraph after they said that there were no adjustments to the balance or payment history.

    Already asked about the seemingly contradictory nature of those two paragraphs and got a snippy reply which they rephrased it again (both paragraphs in one paragraph, still saying the same things) and as far as we are concerned this matter is closed.

    To which I replied this matter is not closed until my credit reports are updated to reflect what you are now saying, and I receive a copy of all of the credit reports documenting this chage. To which I received the if you want your credit report changed, you have to dispute it yourself, answer.

    According to the statements that they provided the last payment was 8/11 and the next payment was due on 9/12.

    Also, not sure if there are any actions possible under the FCBA for them not thorougly researching all of the issues presented (and withholding the statements requested, until I got the BBB involved.)
  7. jam237

    jam237 Well-Known Member

    Oh, one more thing...

    I think I may have found at least one (maybe two) ways for the FDCPA violations to 'stick' on this account as well...

    #1 -- it is fraud to infer or imply that the transfer or sale terminates any rights (including by the commentary transfer of the account back to the OC)

    § 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:

    (6) The false representation or implication that a sale, referral, or other transfer of any interest in a debt shall cause the consumer to --

    (A) lose any claim or defense to payment of the debt; or

    (B) become subject to any practice prohibited by this title.

    Which would include the misrepresentation of the amount in the november response, and in all of their other responses, and refusing to provide the documentation.

    #2 -- harder to prove -- i think that the CA was actually the OC using an assumed name, it just seems way too conveinient that this OC would use a CA which has a name almost word for word identical to their own name. In their response to the BBB inquiry "Please be advised that FNCB is not a DBA of FNBM. FNCB is an outside collection agency that attempts to collect on past due accounts, on behalf of FNBM." But like we can trust them to admit a direct connection to this 'collection agency'. ;) How many OC's use a CA which more than half of their name (not just the abbreviations, but the actual name) matches verbatum... Does not pass the stink test... :)

    Section 803(6) defines "debt collector" as a party "who uses any instrumentality of interstate commerce or the mails in . . . collection of . . . debts owed . . . another."

    3. Application of definition to creditor using another name. Creditors are generally excluded from the definition of "debt collector" to the extent that they collect their own debts in their own name. However, the term specifically applies to "any creditor who, in the process of collecting his own debts, uses any name other than his own which would indicate that a third person is" involved in the collection.

    A creditor is a debt collector for purposes of this act if:

    He uses a name other than his own to collect his debts, including a fictitious name.
    His salaried attorney employees who collect debts use stationery that indicates that attorneys are employed by someone other than the creditor or are independent or separate from the creditor (e.g., ABC Corp. sends collection letters on stationery of "John Jones, Attorney-at-Law").
    He regularly collects debts for another creditor; however, he is a debt collector only for purposes of collecting these debts, not when he collects his own debt in his own name.
    The creditor's collection division or related corporate collector is not clearly designated as being affiliated with the creditor; however, the creditor is not a debt collector if the creditor's correspondence is clearly labeled as being from the "collection unit of the (creditor's name)," since the creditor is not using a "name other than his own" in that instance.
    Relation to other sections. A creditor who is covered by the FDCPA because he uses a "name other than his own" also may violate section 807(14), which prohibits using a false business name. When he falsely uses an attorney's name, he violates section 807(3).
  8. jam237

    jam237 Well-Known Member

    Butch, any ideas on what I could dispute to keep the dispute alive (even though I said that it wouldn't be resolved until they report it correctly.)

    Any way that I can force them to prove that the CA is not their company?

  9. jam237

    jam237 Well-Known Member

  10. Butch

    Butch Well-Known Member

    Ok Jam,

    We're gettin down to the wire where we can be sure the SOL has expired. I'm assuming you're correct with your 8/99 DLA.

    SInce they withdrew this account from the CA has the CA deleted the TL?

    Also the OC is NOT reporting, correct?

  11. jam237

    jam237 Well-Known Member

    The OC is still reporting, and never updated to show that the account has been disputed since 9/02, nor to reflect the current balance since 6/30/03, when the presidents office sent the letter stating that they were reporting unverifiable information.

    The OC last updated the account on 01/02 on all 3 CRAs.

    On TransUnion this is the negative account at the top of my file...
  12. Butch

    Butch Well-Known Member

    Re: Re: BUTCH, et al... *H*E*L*P*

    Well here's what I would do.

    I'd fax them an ITS with a deadline, and a copy of FTC v. PCM, and then I'd follow that with CRRR. I'd copy the original, the admin. office of the president AND their office of chief council, and the same with the CA.


    • USA v. PCM

      The complaint:

      B. failing to properly investigate consumer disputes, as required by Section 623(b) of the Fair Credit Reporting Act, 15 U.S.C. § 1681s-2(b), when consumer reporting agencies refer disputes to the defendant pursuant to Section 611(a)(2), 15 U.S.C. § 1681i(a)(2) . In order to comply with Section 623(b) when a consumer disputes the accuracy of information reported by the defendant to a consumer reporting agency, defendant shall either verify the information with the original account records within the time period set forth in the Fair Credit Reporting Act or take all necessary steps to delete the information from the files of all consumer reporting agencies to which the information was reported. In any situation where the defendant either knows that no original records exist, or is informed by the original creditor that no records exist, the defendant shall, within five business days after receiving the consumer dispute, notify all consumer reporting agencies to which the information has been provided that the information is to be deleted from the file of the consumer who has disputed the account;

      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; and

      D. failing to comply in any other respect with the Fair Credit Reporting Act.

    I'd have a 2 week deadline. On day #15, I'd go downtown and file suit, which is exactly what I'd say in the ITS. But I'd actually do it Jam. If you want I can make sure you get the ITS I've used in the past that gets IMMEDIATE attention. Just send me an email and I'll fire it back to ya.

    Additionally, I believe they would push their case ONLY in the event they think they can get some money out of it. If you make them aware that YOU are aware the SOL has expired, they will realize there's nothin in this case and probably acquiesce.

    But this strategy would involve a big decision on your part, and that is; will you do it? Moreover, I think you'll actually have to because they just aren't taking you seriously anymore, (if they ever did). I'm also assuming you looked and found we are correct on the SOL.

    (Don't forget SOL for FDCPA is only 1 year)

    Also make sure they don't get anything from ya until 10/01, for reasons discussed above. So this weekend think about what you're willing to do to hopefully get this resolved. Talk to spouse if necessary. If you don't want to actually file, that's ok, we're not out of ideas yet.

    Part of your decision should also be what the rest of your CR's look like. I might do all this only if it would clean up my CR. If there are other items of info. that need fixed, it might be ok to take the slower route. But we may need to pretty much start over with the CA.

    So ... there ya go Jam. There are a LOT of people around you that will help ya through it, but it is one to wade into carefully.

    Let us know.

  13. jam237

    jam237 Well-Known Member

    Re: Re: BUTCH, et al... *H*E*L*P*

    Well, the last TU FAKE score that I received (before they stopped giving them out) was 704. (Nothing recent really except for currently deferred student loans. And only one account which is still within the SOL, which I never heard from the latest CA, since they had the account dumped on them; their first correspondence that they probably received from me was probably the letter that I sent their previous CA which basically tore the previous CAs math to shreds; followed up by the one that I faxed to them when I disputed their tradeline... The new CA had apparently had already listed it, but the entry deleted when I asked Experian to validate it...) There are a few other accounts on the negative side of the TU report, but most of those have drifted to the bottom end of the impact scale. (and the score should be higher than the 704, because an account which was allegedly $5000+ on an alleged $3000+ 'lease' was nullified by an FTC settlement because of the OC's fraud. Its showing up on TU as a PCO but they kept the date of status (on TU) as 9/98, so it nose-dived down to the bottom of the report, and now has been deleted off of Experian (after being verified less than a month ago as PCO, but re-aged about a year and a half because they deleted the duplicate tradeline with the correct dates), and I'm disputing it on Equifax to see if they're going to let it delete off of them before trying to challenge it on TransUnion.)

    So I guess, step 1 on going after the OC for the FCRA violation would be on October 1, mailing a dispute to all three CRAs, disputing the entire tradeline, and including the letter from the presidents office, which says that they were reporting unverifiable information; and the one which they said that they refused to update the tradelines. And then hoping that the OC doesn't include either the "in dispute", or the corrected information.

    The CA has a bye on any action because of the one year SOL, the OC set it up so that the CA contacted me at the T-13 months to SOL time-table; which means that as of earlier this month, they were clear of the SOL; my original validation letter was dated Sept 13, 2002; and the OC recalled the account when I was still nieve enough to think that that meant that the CA was legally out of the picture... ;( Gee, so much knowledge in less than one year...
  14. jam237

    jam237 Well-Known Member

    Re: Re: BUTCH, et al... *H*E*L*P*

    I was trying to post this additional section right after the other one, but i was getting web site errors right after posting...

    Am I correct in reading that under (c) that to require the tradeline to be updated with the notification of dispute, the FCRA doesn't require that the dispute had been made via the CRA, as long as the dispute is made either in writing, orally, or by electronic means? So that they'ld already in violation of the FCRA for not marking the tradeline as being in dispute already, since they received the first dispute on 9/25/2002 (the validation request which was sent to the CA; and they issued the FCBA dispute auto-response for stating that as the date of receipt of the dispute) and never marked the tradeline as being in dispute...
  15. jam237

    jam237 Well-Known Member

    Re: Re: BUTCH, et al... *H*E*L*P*


    Take a look at this opinion; the way that I read this opinion, the minute that the presidents office realized that they were reporting unverifiable information; they were required to immediately update all three CRAs, even without a dispute from me to the CRAs.

    The key is the line that says that they have an ongoing duty to update the CRA of any changes to the accuracy of the information...


    "Further, you report that in some cases 'the school no longer has a contractual relationship' with the credit bureau to which it reported the account originally. You ask if the school must report the updated information to the original credit bureau, and if that agency is required to accept the data. Based on the facts presented in your letter, we answer both questions affirmatively.

    Section 623(a)(2) of the FCRA addresses the duty to correct and update information by 'furnishers,' or persons who furnish information to consumer reporting agencies ('CRA') such as credit bureaus. In particular, this section requires a person that 'has furnished to a consumer reporting agency information that the person determines is not complete or accurate' to 'promptly notify the consumer reporting agency of that determination' and provide any information needed to make it complete and accurate.(1) Thus, on its face, this provision requires a furnisher to provide corrected or updated information to the consumer reporting agency that it had reported to originally. A furnisher that reports current information to a different CRA has done nothing to 'correct and update information' with CRA that possess the information that the furnisher has now determined is incomplete or erroneous. This duty extends to all student loan accounts reported to CRAs, regardless of whether they were accurate at one point, because the section requires the furnisher both to 'update' accounts as well as to 'correct' those that were erroneous when submitted to the CRA."


    One more thing I just stumbled on when looking at the FTC web site... :)

    California-based Debt Collector Agrees to Pay $300,000 Civil Penalty to Settle FTC Charges of Violating Debt Collection and Credit Reporting Laws


    The second bullet seems to re-inforce my reading of the Harris opinion, that as soon as they realized that the information was incomplete or inaccurate, that they had to report it immediately.

    "The 1997 amendments to the FCRA for the first time imposed legal duties on debt collectors, and others that furnish information to credit bureaus, regarding the accuracy of that information. According to the FTC's complaint, D.C. Credit Services and Cohen violated the FCRA by:

    * furnishing information to a consumer reporting agency when they knew or consciously avoided knowing that the information was inaccurate;
    * failing to notify promptly a consumer reporting agency that previously-furnished information is incomplete or inaccurate, after defendants had so determined;
    * furnishing adverse information to consumer reporting agencies without disclosing that the consumer previously had disputed the information being reported; and
    * falsely reporting the date of delinquency of a debt."
  16. Butch

    Butch Well-Known Member

    Re: Re: Re: BUTCH, et al... *H*E*L*P*

  17. Butch

    Butch Well-Known Member

    Re: Re: Re: BUTCH, et al... *H*E*L*P*

  18. Butch

    Butch Well-Known Member

    Re: Re: Re: BUTCH, et al... *H*E*L*P*


    Not only that but you have evidence. I LOVE it when that happens because the CRA's NEVER forward your evidence to the DF's as required by law. So here we have an "institutionalized" [I call it an intrinsic] violation. It's automatic. That's the major component that makes me confident that I can deal with ANY TL.

    So my point; [lol] I think you're right. They should note as in disopute regardless with whom you first dispute, and I would argue that way.

    But would you agree with the statement; "it might be arguable in court"?

    If you do then we should fix it ahead of time. That's all I mean. I don't want them to have ANY wriggle room.
  19. Butch

    Butch Well-Known Member

    Re: Re: Re: BUTCH, et al... *H*E*L*P*

  20. sassyinaz

    sassyinaz Well-Known Member

    Re: Re: Re: BUTCH, et al... *H*E*L*P*

    oh wow, you have to dispute with the CRA's and you have nothing to hang your hat on until you do so.

    Check the enforcement provisions of (a) and (c) before believing you can sue, as an individual, based on them.


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