Re: Re: Re: Re: Communication ? Butch, Hiding?? Fodder for pondering ;-) http://www.moo3mods.com/FCRA2003.htm (ty ty again and still, Jazkal): FACTA provisions (not yet implemented) under 623(a): § 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. (7) NEGATIVE INFORMATION- (A) NOTICE TO CONSUMER REQUIRED- (i) IN GENERAL- If any financial institution that extends credit and regularly and in the ordinary course of business furnishes information to a consumer reporting agency described in section 603(p) furnishes negative information to such an agency regarding credit extended to a customer, the financial institution shall provide a notice of such furnishing of negative information, in writing, to the customer. (ii) NOTICE EFFECTIVE FOR SUBSEQUENT SUBMISSIONS- After providing such notice, the financial institution may submit additional negative information to a consumer reporting agency described in section 603(p) with respect to the same transaction, extension of credit, account, or customer without providing additional notice to the customer. (B) TIME OF NOTICE- (i) IN GENERAL- The notice required under subparagraph (A) shall be provided to the customer prior to, or no later than 30 days after, furnishing the negative information to a consumer reporting agency described in section 603(p). (ii) COORDINATION WITH NEW ACCOUNT DISCLOSURES- If the notice is provided to the customer prior to furnishing the negative information to a consumer reporting agency, the notice may not be included in the initial disclosures provided under section 127(a) of the Truth in Lending Act. (C) COORDINATION WITH OTHER DISCLOSURES- The notice required under subparagraph (A)-- (i) may be included on or with any notice of default, any billing statement, or any other materials provided to the customer; and (ii) must be clear and conspicuous. (D) MODEL DISCLOSURE- (i) DUTY OF BOARD TO PREPARE- The Board shall prescribe a brief model disclosure a financial institution may use to comply with subparagraph (A), which shall not exceed 30 words. (ii) USE OF MODEL NOT REQUIRED- No provision of this paragraph shall be construed as requiring a financial institution to use any such model form prescribed by the Board. (iii) COMPLIANCE USING MODEL- A financial institution shall be deemed to be in compliance with subparagraph (A) if the financial institution uses any such model form prescribed by the Board, or the financial institution uses any such model form and rearranges its format. (E) USE OF NOTICE WITHOUT SUBMITTING NEGATIVE INFORMATION- No provision of this paragraph shall be construed as requiring a financial institution that has provided a customer with a notice described in subparagraph (A) to furnish negative information about the customer to a consumer reporting agency. (F) SAFE HARBOR- A financial institution shall not be liable for failure to perform the duties required by this paragraph if, at the time of the failure, the financial institution maintained reasonable policies and procedures to comply with this paragraph or the financial institution reasonably believed that the institution is prohibited, by law, from contacting the consumer. (G) DEFINITIONS- For purposes of this paragraph, the following definitions shall apply: (i) NEGATIVE INFORMATION- The term `negative information' means information concerning a customer's delinquencies, late payments, insolvency, or any form of default. (ii) CUSTOMER; FINANCIAL INSTITUTION- The terms `customer' and `financial institution' have the same meanings as in section 509 Public Law 106-102. Sassy
From Sullivan v. Experian, et. al. Please note: I am typing this from a print-out, so there may be typographical errors. Pages 11-13
Basically InoVision was claiming as their defense, since the Sullivan which is sueing us, is not the Sullivan who we were attempting to collect from, we never communicated with the Sullivan which is trying to sue us, so we weren't acting as a collection agency against the Sullivan who is sueing us.
It's been previously established, reporting and continued reporting is a collection activity, nodding. Key here, again, is "disputed debt." In this case, the information was never marked as disputed -- that's the violation. Disputed debt again. It isn't the communication as reporting that is the violation, it is the communication which is known or should be known to be false -- again, the dispute. Agreed, it is a communication, but the violation is the reporting in violation of 1692e(8), which is section 807, False or misleading representations that creates the violation. 807. False or misleading representations [15 USC 1692e] 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: (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. TY for typing it out, jam!!!!!!!! Here's the pdf link (worked for me, JLynn, though I had to reboot first ;-) http://www.paed.uscourts.gov/documents/opinions/03D0468P.pdf For something to be an FDCPA violation, it has to be (from the purpose): 802. Congressional findings and declarations of purpose [15 USC 1692] (a) There is abundant evidence of the use of abusive, deceptive, and unfair debt collection practices by many debt collectors. Abusive debt collection practices contribute to the number of personal bankruptcies, to marital instability, to the loss of jobs, and to invasions of individual privacy. Is it abusive, deceptive, and unfair to report information where the consumer has not been advised of their mini-miranda dispute rights???? That's the question. Everything seems to say it is not, unless that information has been disputed. I think, if you are going to make the argument that it is, then at the time the information is communicated to the CRA, it should also be communicated to the consumer as required by the FDCPA. Again I've got to ask though, now we dispute whenever, saying there has been no previous communication. What does this get us? Establishment that they can assume communication with a consumer (and in 30 days that it is valid) at the time they first reported the information? That could be years before someone ever sees their report or it could well be never. Sassy
Correct me if I am wrong here. I am not the greatest at understand all the big legal jargon and words. I am just trying to understand this thread Is this saying that reporting to a CRA is communication regarding the debt. Therefore making it a violation of the FDCPA when a CA has received a C&D letter?
1*How would I know that I'm within the SOL for enforcement? 2*If you don't want to pay the collection agency how do you get them off your back if you don't send them a Cease and Desist Letter? Lashay ************************* 1*Read the red new bee links 2*See 1 ><- <>- ><- <> ~~~ ><- <>- ><- <> ><- <>- ><- <> ~~~ ><- <>- ><- <>
nice post sassy, have another off the wall question if anyone can answer. in regards to a CRA and disputed acct. in this case the furnisher is an OC I have disputed an acct 3x with the CRA each time it was verified and remains. sent several letters to both the CRA and the Oc asking them to delete as the acct is unveribale and is inaccurate. the oc has no proof of the acct and knows this acct is not mine but refuses to delete, do you count each time the acct was verified a violation or just once. I have had the same issue with all 3 CRA now. just trying to figure out how to count the violations. thx for the help...
Re: Re: Communication ? Butch, Hiding?? Sassy: The point is that InoVision was arguing that they were not acting as a collection agency against the plaintiff since they had never contacted the plaintiff. (Therefore the FDCPA didn't apply to them in regards to the plaintiff.) Since it is a 'communication' as broadly defined by the act, and one of the two special cases for third party no permission needed for disclosures; anything that is reported to the CRA is presumed to be an indirect communication to the consumer. If the CA is prohibited by a C&D (for a time-barred debt) from communicating to the consumer directly, in-direct communications through the CRA would also be barred. Since reporting to the CRA is not one of the three specifically permitted post-C&D communications to the consumer. Those three are exclusively; "we are closing the account"; "we are going to sue you"; and "you are being served with the lawsuit". Unless the CRA reporting only states one of those three continuing to report to the CRA post-C&D would be a violation, since any type of communications to the consumer would be barred by the C&D, directly, or indirectly, unless they fall into one of those three allowed classes of communications.
Re: Re: Re: Communication ? Butch, Hiding?? LOL lbrown you crack me up 2 for 1 special thx for helpine me out here. so If I understand you right since the acct was reinvestigated and verified 3x thats 3 violations for each credit bureau that did this plus violations for the furnisher as well
Re: Re: Re: Re: Communication ? Butch, Hiding?? all right cha ching need to get the ball rolling then thx 4 your help
Re: Re: Re: Re: Communication ? Butch, Hiding?? Jam, maybe a tad of semantics here, but InoVision didn't argue that it was not a collection agency. They first asserted that the FCRA didn't apply to them since they were not a CRA -- the Court took care of that with the reminder that since the previous amendments, section 623, to include furnishers of information, prohibiting the furnishing of information by furnishers that is KNOWN to be inaccurate or if the furnisher consciously avoids KNOWING that the information is inaccurate. It is important that this account never belonged to the Plaintiff. She DISPUTED it numerous times with the furnisher directly as well as the CRA's. InoVision argued they had conducted NO collection activity, the reporting and continued reporting, AFTER she disputed is what made them liable under the FCRA as a furnisher and under the FDCPA in violation of 1692e(8), communicating or threatening to communicate information which is KNOWN to be false or should be known to be false, including the FAILURE to communicate that the debt was DISPUTED. The lack of a dispute notation is what Sullivan's claim was against them under the FDCPA. This case confirms that once something is disputed, reporting and continued reporting, are indeed collection activities. "...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." That sentence addressing communication doesn't end with a comma and it does NOT say reporting a debt to a CRA can be seen as communication period. Sullivan was able to make this argument successfully because it had been DISPUTED, numerous times with InoVision directly as the furnisher as well as the FCRA. Importantly too, as the Court noted, it was the disputing with the CRA's that triggered the responsibility to investigate -- confirming again, that disputing directly with the furnisher certainly has an important place in the attempted resolution process prior to legal action, but, it is the disputing with the CRA's that trigger any investigation responsibilities they can be held liable for. Had Sullivan only disputed with the furnisher, there would have only been the FDCPA violation; failure to communicate that the information was disputed (again, the dispute notation). It is important as well, that we don't know how this case ended up, the Court was ruling on the Motion to Dismiss, the FCRA and FDCPA claims survived -- we don't know the ending. No where was it addressed in this case that reporting was or wasn't a communication, directly or indirectly, with the consumer. The issue was, whether reporting and continued reporting, AFTER information had been disputed, was a collection activity. However, I can fly with you here, that reporting is a communication because of the plain language of the definition. I still can't jump to it being an indirect communication with the consumer triggering the validation notice in writing within 5 days, because by your own interpretation, that would mean it would also be presumed that the required validation notice was provided with the reporting of the information to the CRA's. The FDCPA does not say the intial communication with anyone, it says specifically, the intial communication WITH the consumer. We already have a hard enough time showing that there was EVER a communication with us directly, why would you want to widen this focus from the consumer receiving notice (and receipt is specific) to the reporting of information to a CRA???? I'm flying with you here, though it wouldn't even be specific to a time-barred debt, cease all communication would then include reporting. The FDCPA does not specifically state: 1. We are closing the account 2. We are going to sue you 3. You are being served with a lawsuit Those are too narrow, it says: 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. The key to this case, is that the information was DISPUTED, both with the Furnisher (InoVision) directly and with the CRA's -- that is what triggered the liability. A cease communication demand wasn't addressed and doesn't negate the known or should have known language (reporting or communicating in violation of 1692e(8)). Again, this case was a ruling on the Motion to Dismiss, we don't know how it ended up, though I'd like to. The cease communication provisions of the FDCPA, like the validation notice requirements, specify "with the consumer" (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 -- The court specified, communication (reporting) in violation of 1692e(8) can subject a debt collector to liability. If they had not included that caveat, I'd be flying with you! Inclusion of the words "with the consumer" where stated in the FDCPA, is purposeful language, similar to the inclusion of the words "in writing." "...The complaint alleges that InoVision has "continued to report such inaccurate information to various credit reporting agencies...has filed to mark the debt as disputed and has continued to attempt to collect monies for the Plaintiff regarding the inaccurate information by the aforementioned conduct." Sassy
Re: Re: Re: Re: Communication ? Butch, Hiding?? I think you have a stronger case that reporting, or even inquiring, is "continued collection" than that it is "indirect communication" with the consumer after a C&D. In particular, an inquiry must have had a PP, which could only be that the party pulling is a "debt collector" if they are not the OC.
Re: Re: Re: Re: Communication ? Butch, Hiding?? ............Dang - Sorry I missed this from ya Jodi. Sure we have backup. FDCPA Commentary: SECTION 809 -- VALIDATION OF DEBTS Section 809(a) requires a collector, within 5 days of the first communication, to provide the consumer a written notice (if not provided in that communication) containing (1) the amount of the debt and (2) the name of the creditor, along with a statement that he will (3) assume the debt's validity unless the consumer disputes it within 30 days, (4) send a verification or copy of the judgment if the consumer timely disputes the debt, and (5) identify the original creditor upon written request. Failure to provide the 5 day notice, within 5 days from the first communication, is a violation. .
Re: Re: Re: Re: Communication ? Butch, Hiding?? Section 809 from the FDCPA: § 809. Validation of debts [15 USC 1692g] (a) Within five days after the initial communication with a consumer in connection with the collection of any debt, a debt collector shall, unless the following information is contained in the initial communication or the consumer has paid the debt, send the consumer a written notice containing - Sassy
Re: Re: Re: Re: Re: Communication ? Butch, Hiding?? Remember though, that the term COMMUNICATION is directly or indirectly, through any medium. The CA must presume that at some point (and under FACTA this is even more correct, since every consumer is entitled to at least one free report annually), will have this information COMMUNICATED to them, therefore within 5 days of that communication they need to provide the validation notice, the most logical thing therefore, would be to send the validation notice to the consumer at the same time as they send the initial report to the CRA, that way they can be assured that even if the CRA discloses the information to the consumer on that same day, that the CA had provided the required disclosure on the same day.
Re: Re: Re: Re: Re: Re: Communication ? Butch, Hiding?? Can't disagree with that. However, the FCRA and it's reporting requirements are seperate from the FDCPA requirements for collecting. CA's presuming, he he he, well I do agree that's what they'd do if they were smart and cared about consumers getting their validation notice and complying with both the letter and spirit of the law. Still nothing requires a communication at all and they'd have no way of knowing if and when, if ever, a consumer requested their report, free or otherwise. If you think about it further, that would be detrimental to consumers because it would establish a firm and known date (as a matter of common business practice) that triggers the 30-day time frame for disputing the debt's validity with the cease collection provision attached. And, still can't get around, where the FDCPA uses the words "with the consumer" it does so purposefully. I think it's a good argument, always have, especially with automated monitoring services as well -- there's just a lot of holes to making it work. I'd love someone to pursue and get a ruling on it. Sassy
