okay, there is where i think most people(no one in this thread) lose their nerve because they haven't fully read or understood the FCBA and FDCPA. In the FDCPA, while not expressly said (although clarified by the FTC) it is generally considered that upon requested validation of alleged debt, a CA has around 30 days to furnish proof. In the FCBA, the creditor MUST acknowledge dispute of debt within 30 days, and have resolved the dispute within 60-90 days or forfeit rights to the disputed claim. In general, both of these cases are using the estoppel principle that by NOT responding to the dispute, in fact, the debt has no validity and the creditor can NOT force the consumer to pay and can NOT report the disputed claim to CRAs(among others.) humblemarc
But, if they show up in court with the required proof of the debt, then the doctrine of estoppel will no longer apply. They simply chose to ignore you for whatever reason. Maybe you failed to request validation within 30 days of initial communication and they didn't think they had to provide it anymore, or it was an original creditor and was not covered under FDCPA. I am sorry, you have me at a disadvantage on the FCBA provision your are citing i am unfamiliar with it.
FCBA § 161. Correction of billing errors (a) If a creditor, within sixty days after having transmitted to an obligor a statement of the obligor's account in connection with an extension of consumer credit, receives at the {{8-31-82 p.6589}}address disclosed under section 127(b)(10) a written notice (other than notice on a payment stub or other payment medium supplied by the creditor if the creditor so stipulates with the disclosure required under section 127(a)(7)) from the obligor in which the obligor-- (1) sets forth or otherwise enables the creditor to identify the name and account number (if any) of the obligor, (2) indicates the obligor's belief that the statement contains a billing error and the amount of such billing error, and (3) sets forth the reasons for the obligor's belief (to the extent applicable) that the statement contains a billing error, the creditor shall, unless the obligor has, after giving such written notice and before the expiration of the time limits herein specified, agreed that the statement was correct-- (A) not later than thirty days after the receipt of the notice, send a written acknowledgement thereof to the obligor, unless the action required in subparagraph (B) is taken within such thirty-day period, and (B) not later than two complete billing cycles of the creditor (in no event later than ninety days) after the receipt of the notice and prior to taking any action to collect the amount, or any part thereof, indicated by the obligor under paragraph (2) either-- (i) make appropriate corrections in the account of the obligor, including the crediting of any finance charges on amounts erroneously billed, and transmit to the obligor a notification of such corrections and the creditor's explanation of any change in the amount indicated by the obligor under paragraph (2) and, if any such change is made and the obligor so requests, copies of documentary evidence of the obligor's indebtedness; or (ii) send a written explanation or clarification to the obligor, after having conducted an investigation, setting forth to the extent applicable the reasons why the creditor believes the account of the obligor was correctly shown in the statement and, upon request of the obligor, provide copies of documentary evidence of the obligor's indebtedness. In the case of a billing error where the obligor alleges that the creditor's billing statement reflects goods not delivered to the obligor or his designee in accordance with the agreement made at the time of the transaction, a creditor may not construe such amount to be correctly shown unless he determines that such goods were actually delivered, mailed, or otherwise sent to the obligor and provides the obligor with a statement of such determination. After complying with the provisions of this subsection with respect to an alleged billing error, a creditor has no further responsibility under this section if the obligor continues to make substantially the same allegation with respect to such error. (b) For the purpose of this section, a "billing error" consists of any of the following: (1) A reflection on a statement of an extension of credit which was not made to the obligor or, if made, was not in the amount reflected on such statement. (2) A reflection on a statement of an extension of credit for which the obligor requests additional clarification including documentary evidence thereof. (3) A reflection on a statement of goods or services not accepted by the obligor or his designee or not delivered to the obligor or his designee in accordance with the agreement made at the time of a transaction. (4) The creditor's failure to reflect properly on a statement a payment made by the obligor or a credit issued to the obligor. (5) A computation error or similar error of an accounting nature of the creditor on a statement. (6) Failure to transmit the statement required under section 127(b) of this Act to the last address of the obligor which has been disclosed to the creditor, unless that address was furnished less than twenty days before the end of the billing cycle for which the statement is required. (7) Any other error described in regulations of the Board. (c) For the purposes of this section, "action to collect the amount, or any part thereof, indicated by an obligor under paragraph (2)" does not include the sending of statements of account which may include finance charges on amounts in dispute, to the obligor following written notice from the obligor as specified under subsection (a), if-- {{8-31-82 p.6590}} (e) Any creditor who fails to comply with the requirements of this section or section 162 forfeits any right to collect from the obligor the amount indicated by the obligor under paragraph (2) of subsection (a) of this section, and any finance charges thereon, except that the amount required to be forfeited under this subsection may not exceed $50. § 162. Regulation of credit reports (a) After receiving a notice from an obligor as provided in section 161(a), a creditor or his agent may not directly or indirectly threaten to report to any person adversely on the obligor's credit rating or credit standing because of the obligor's failure to pay the amount indicated by the obligor under section 161(a)(2), and such amount may not be reported as delinquent to any third party until the creditor has met the requirements of section 161 and has allowed the obligor the same number of days (not less than ten) thereafter to make payment as is provided under the credit agreement with the obligor for the payment of undisputed amounts. (b) If a creditor receives a further written notice from an obligor that an amount is still in dispute within the time allowed for payment under subsection (a) of this section, a creditor may not report to any third party that the amount of the obligor is delinquent because the obligor has failed to pay an amount which he has indicated under section 161(a)(2), unless the creditor also reports that the amount is in dispute and, at the same time, notifies the obligor of the name and address of each party to whom the creditor is reporting information concerning the delinquency. (c) A creditor shall report any subsequent resolution of any delinquencies reported pursuant to subsection (b) to the parties to whom such delinquencies were initially reported. humblemarc
The loss would be not being paid, either the OC or the CA, if they are alleging you owe something via their reporting. I am disputing the validity of this debt you claim I owe you and requesting proof in the form of validation (FDCPA); being able to verify 100% accuracy in reporting (FCRA); acknowledgment and resolution, statement of accounting or proof of the underlying charge (FCBA). You have a duty to respond to my request (FCBA and FCRA). The FDCPA doesn't say they must respond but as an information furnisher (FCRA) they do if the reporting remains. The estoppel says, in sassy-ease, I've lawfully provided you with notice that I dispute this alleged debt and requested validation as proof of debt; you've ignored my dispute and request for proof. I remain in dispute of this alleged debt and if you again ignore my request I will presume that validation can't be provided. If you can't provide validation, you can't verify accuracy, you can't report. Your silence, after having notice and a duty to respond, stops you from asserting the debt is valid at a future date and allows me to rely on your silence in moving forward with my presumption that the debt cannot be validated. Rather like in the FDCPA under the validation provisions, if you don't dispute the validity within the initial 30 days, the CA can proceed assuming that it is valid. Sassy
OK, so the way I read it, under this act you have exactly 60 days from receipt of billing statement to dispute a billing error you identify. If you fail to dispute within 60 days of receipt of statement with billing error, then they are no longer bound by the act, and estoppel no longer would apply.
This is the only problem I have with the FCBA: FCBA § 161. Correction of billing errors (a) If a creditor, within sixty days after having transmitted to an obligor a statement of the obligor's account in connection with an extension of consumer credit ... Sassy
As I recall, and I do not have it memorized the FCRA requires them to conduct an investigation of disputed information, but does not require them to provide you with the results of the investigation. I am going to review right now. P.S. I am not trying to be argumentative, I am just researching the issue.
mitchra, You're in my head!!!!!!! LOL In the same way that consumers can request validation beyond the initial 30 days because of the last clause saying failure to validate won't be considered an admission of liability, can the creditors do the same, I guess would be the question. No where though do they have a same or similar clause, they are only bound to respond. Sassy
Mitchra, No one's reading you as argumentative, this is only the discussion that marc wanted. If it can be tossed around and discussed it can be made to work for us in a way that we can all be comfortable with. I appreciate the discussion. Sassy
Ok,( i don't want to start another flaming thread about deadbeats), in LK's case, I believe his argument was that since the debts were not his(which they were) he only FOUND out about the debts when he first checked his reports about 2 months before he disputed them. However, i also feel that the burden(according to the FCRA) is still upon the furnisher of the info. to provide verification/validation upon request (at any point). To me, this makes sound legal sense. As has been argued many times on this board, the furnisher does NOT have to report to the CRA. Now using the principle of estoppel (here's where the Gravens' case might apply) the damage caused by the original party was not discoverd until some years later. (edit) therefore, the injured party (the consumer) could assert their rights at that point, humblemarc
Here is FCRA, notice it does not require them to notify consumer, only CRA of investigation results.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. (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. § 624. Relation to State laws [15 U.S.C. § 1681t]
shhhhhhhhhhhhh marc, Don't wake them up, they're still trying to figure George's slim ball comment out, that really applied to Bobby that George thought was opie, but wasn't. LOL Sassy
However, nowhere in the FCBA does it prohibit or forfeit the right of the consumer if they dispute after the 60 days. . .whereas, it expressly says the creditor forfeits their rights after 90 days. humblemarc sidenote--FirstUsa has been very diligent about deleting old chargeoffs when people dispute them with the CRAs or them. Why is this? I believe somebody, somewhere sued them for the inability to furnish the consumer with complete info. about their account.
Nodding mitchra, But the phrase in the FDCPA that allows us to request validation at anytime -- that doesn't exist in the FCRA or FCBA, nor is there a similar phrase that would allow the creditor to make the same argument we do. That's what I was looking for, wording that would allow them to say, I don't have to respond to you. When they are requested to respond, they have to do something -- there's no out for them. It's homecoming night, I'm the mum in charge of picking up the angels at 1a or they turn into pumpkins. I'll ponder these postings while driving with all the freshman couples sneaking kisses when they think I'm not looking ;-) You're not going to get flamed from me, marc, on LizardKing's ID theft strategy. I've said before that I've not claimed it myself, C13 gets in the way, nor do I know that I really could, but I don't have a problem demanding that same level of proof. It's a good thing for all of us to keep in mind when requesting and being provided documentation. Prove this is mine, if you can get it in your head that it is not, or could not be, then you can see what is needed as proof. Really, I think, what we know or don't know is irrelevant, it's about the documenation -- morality doesn't factor into it for me. It's about the rules of reporting, and I don't recall reading the word morality at all in the FCRA, FCBA or FDCPA. If you are claiming ID theft and you didn't dispute until you knew, that then challenges in a different way that the statement/bill indeed was ever provided or received, and the creditor argument that it was mailed, as a matter of business practice, couldn't work or be valid -- because that is just how identity theft works. The system itself would then be enabling identity theft -- which is now the #1 crime, says HH with my last promo offer. Sassy
You're right. But it's not in the FDCPA either. But it is a staff opinion letter from the FTC and through case law, that we use this guideline. however, i believe 30 days is a common amount of days for many things to be verified or responded to. I.e. CRA disputes, replies to lawsuits, etc. humblemarc
Marc, In your previous post you cite a case where the debt was actually not valid. It was a "real" mistake. As such the FCRA would cover it's removal with or without estoppel. I simply fail to see the relevance of estoppel in credit repair, other than a scare tactic against creditors to make you sound very litigious. I am not against it, as I stated before I would simply not use it with attorneys or legal experts as they may perceive you to be "legally uneducated" and not take you as seriously.
i'm not quite sure which thread you are referring to, but in LK's case(where the debt was valid) the Experian attorney told him off record that their main reason for deleting the accts. and not going to court was due to the premise of estoppel by silence. So either their attorney was ignorant(which is often the case) or the principle holds some weight. Hopefully, the legal minds will respond to this thread tommorrow with their opinions. humblemarc
Oops I just saw that, I thought you said it was not valid before. Anyway, estoppel is not about asserting legal rights, it is about failing to assert legal defense within a reasonable time frame. I do not believe the FCRA requires the OC to provide you with validation results (that is the FDCPA), rather it requires them to conduct an investigation and update info accordingly based on the results of their investigation. They must mark the account in dispute during the investigation. If they were to show up at court with documentation evidencing their investigation and the debts legitimacy, then I think estoppel will not apply. I am anxious to hear a lawyers take on it as well.
