FCRA or FDCPA?

Re: Re: Re: Re: Re: Re: FCRA or FDCPA?

• OK, it's too subjective, so I'll give you that ...
  
  How about
  
  [color=0066FF]§ 616. (a) In general. Any person who willfully fails to comply with any requirement imposed under this title with respect to any consumer is liable to that consumer ...[/color]
  
  - and -
  
  [color=0066FF]§ 617. (a) In general. Any person who is negligent in failing to comply with any requirement imposed under this title with respect to any consumer is liable to that consumer ...[/color]
  
  ?
  
  Where does it say you have to dispute first? There are "Duties of furnishers of information upon notice of dispute", but there is also a "Duty of furnishers of information to provide accurate information". Even 621(c)(1)(B) doesn't set a requirement to dispute.
  
  Furthermore, where do you see a requirement to dispute CRA's violation of FCRA § 605 (a)(4)?

 

Re: Re: Re: Re: Re: FCRA or FDCPA?

oh wow, hi Erik,

Wavinggggggggggggg to you!

Haven't read you in yonks, you've an excused absence note???? ;-)

Sassy

 

Re: Re: Re: Re: Re: Re: FCRA or FDCPA?

Hi. Waving!

I have been working on Identity Theft lately. My credit repair / improvement is going well. Only ONE IIB account left to go! Well actually it's two accounts but only one company. I am slowly getting ready to write a great ITS letter.

Here is some homework for you teach!

Check out:

http://www.creditboards.com/phpBB2/viewtopic.php?t=7775&start=0&sid=bbe30420f564d65fe3ceb88ab9d566a9

OR

http://consumers.creditnet.com/straighttalk/board/showthread.php?s=&postid=385325#post385325

 

Re: Re: Re: Re: Re: Re: Re: FCRA or FDCPA?

Good question Vlad,

As we know, YOU, the consumer, must launch a dispute before the CRA's, OC's or CA's need to address the issue as to whether or not the info. is accurate. There is a VERY specific procedure which is to be followed, TO THE LETTER, before this "system" of dispute/resolution can function efficiently and properly. If this procedure is NOT followed to the letter your legal argument collapses, because YOU made a mistake. You didn't do it right.

Lets work this thing ass backwards. It's a little easier I think.


Whomever (whether an OC or a CA) provides information to a CRA is a DF, as identified in § 623, (furnisher of information). They have certain "duties" once they are notified of a dispute, according to the proper procedure. Congress envisioned both the CRA AND the DF to work together to resolve. They were BOTH to be "in the loop", so to speak.

So the law is laid out as follows, (working backwards):



First the DF is notified of a dispute;

From the FCRA:

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

In red we can see that the DF must be notified PURSUANT TO 611(a)(2). Now we need to go study § 611(a)(2).

• § 611. Procedure in case of disputed accuracy [15 U.S.C. § 1681i]
  (a) Reinvestigations of disputed information.
  (2) Prompt notice of dispute to furnisher of information.
  (A) In general. Before the expiration of the 5-business-day period beginning on the date on which a consumer reporting agency receives notice of a dispute from any consumer in accordance with paragraph (1), the agency shall provide notification of the dispute to any person who provided any item of information in dispute, at the address and in the manner established with the person. The notice shall include all relevant information regarding the dispute that the agency has received from the consumer.

Here, in red, the dispute must be sent to the CRA directly from the consumer, "in accordance with paragraph (1)", which reads:

• § 611. Procedure in case of disputed accuracy [15 U.S.C. § 1681i]
  (a) Reinvestigations of disputed information.
  (1) Reinvestigation required.
  (A) In general. If the completeness or accuracy of any item of information contained in a consumer's file at a consumer reporting agency is disputed by the consumer and the consumer notifies the agency directly of such dispute, the agency shall reinvestigate free of charge and record the current status of the disputed information, or delete the item from the file in accordance with paragraph (5), before the end of the 30-day period beginning on the date on which the agency receives the notice of the dispute from the consumer.

So to complete the circle, here's paragraph (5):

• § 611. Procedure in case of disputed accuracy [15 U.S.C. § 1681i]
  (5) Treatment of inaccurate or unverifiable information.
  (A) In general. If, after any reinvestigation under paragraph (1) of any information disputed by a consumer, an item of the information is found to be inaccurate or incomplete or cannot be verified, the consumer reporting agency shall promptly delete that item of information from the consumer's file or modify that item of information, as appropriate, based on the results of the reinvestigation.

If we are to develop a case against a DF for violations of the FCRA, we have no choice but to do so pursuant to §§ 623 1681s-2 (B). The "B" is the important part, which, once again:


So, provided the DF is notified, THROUGH THE CRA, that a dispute exists they have duties to investigate and report corrections.

See?

Also, you were exactly right. This has ONLY to do with an FCRA case against a DF. It has NOTHING to do with an FDCPA argument.

One additional thought; It is NOT required to dispute directly to the DF in order to have a legal argument with them, as I think it was Erik who said above. But it is a profoundly good idea. Otherwise, as Phibb is discovering, you won't know who the culprit is. Rest assured they WILL blame each other and you're left standing there dumbfounded wondering how in the world you'll discover WHO it was who screwed up. They ain't gonna tell ya. (but there is a way to fix that too).



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Re: Re: Re: Re: Re: Re: Re: FCRA or FDCPA?

Oh,

There are 3 states in which it is a violation to attempt the collection of post SOL debt, irrespective of legal action or a threat thereof.

Wisconsin

Minnesota (I think)

California

I was not aware of Vermont, but won't question Sassy's acumen.

 

• 
  OK, Butch, you're refering to § 623 (b), which says "[color=0066FF]Duties of furnishers of information upon notice of dispute[/color]", so everything under and related to this subsection will be "dispute" related.
  
  Let me take you to read the subsection above:
  
  [color=0066FF]§ 623 (a) Duty of furnishers of information to provide accurate information.
     (3) Duty to provide notice of dispute.
     (4) Duty to provide notice of closed accounts.
     (5) Duty to provide notice of delinquency of accounts.[/color]
  
  I give you the easy ones - (a)(3), (a)(4), and (a)(5), because (a)(1) and (a)(2) use more subjective wording, like "consciously avoids knowing" and we could argue all night long ... So, what obligates us to dispute these violations before filing a complaint with the federal and/or state agencies? Note that under (a)(3) we have already disputed, but it is about a new violation - not providing a notice of this dispute.
  
  
  Also, as I have asked several times (it seems noone dares to answer this question), how about this:
  
  [color=0066FF]FCRA § 605. (a) Information excluded from consumer reports. Except as authorized under subsection (b) of this section, no consumer reporting agency may make any consumer report containing any of the following items of information:
  
  (4) Accounts placed for collection or charged to profit and loss which antedate the report by more than seven years[/color]
  
  So, what happens when CRA reports an account, older than 7 years (as pibb said in his first post)? What obligates us to dispute this before taking them to the court?
  
  
  Your turn ...
  
  
  P.S. Not to mention the violations listed in "When is suing time?" ...

 

Re: Re: FCRA or FDCPA?

As fun as it sounds, none of these violations can be pursued until we dispute pursuant to section 611(a)(2) [§ 1681i] because the duty of the furnisher of info. doesn't even kick in until we do.



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Re: Re: FCRA or FDCPA?

I remember Sassy once pointed out that you should study the Amicus brief in the Nelson v. Chase case.

Did ya do that?

???

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Re: Re: FCRA or FDCPA?

• 
  Butch, I know it's better for me (the consumer) to dispute with the CRA first. I would do it in any case, besides, this way I'll give them the opportunity to get themselves into deeper trouble ...
  
  As you know I don't have a court experience, so I'm trying to figure out what exactly the law says.

• I'm not sure what you mean ... Section 611 is about "Procedure in case of disputed accuracy", (a)(2) is about "Prompt notice of dispute", and I was talking about the cases when we are not obligated to dispute ...

• Yes, but it is again about § 623 (b), failure to address Nelson's dispute, and as I said before - I was talking about the cases when we are not obligated to dispute ...
  
  [color=0066FF]Plaintiff Toby Nelson brought this action against defendant Chase Manhattan
  Mortgage Corporation (â??Chaseâ?), alleging that Chase violated Section 623(b)
  of the Act, 15 U.S.C. § 1681s-2(b), by failing to take appropriate steps to
  address Mr. Nelsonâ??s dispute regarding information Chase had furnished to the
  major CRAs.[/color]
  
  
  
  And again - first I need to find out where exactly the law stands, then it's going to be easier to catch the practical nuances ...

 

Re: Re: FCRA or FDCPA?

Gettin a little sleepy here but before I say goodnight I'll add that this whole area of law is very new. Most of this stuff hasen't even been litigated yet.

I've never had to go to court either, thank God.

I just know from all the reading I've done, and sometimes I'm even wrong. lol


I'd say if you think you even might have a case, file it. We all need case law.

lol


Night.

 

Re: Re: FCRA or FDCPA?

TY Butch,

Good work!!!! I'm nodding and flying with ya! and another waveeeeeeeeeee to Erik, those are awesome threads -- what a huge web, eh? Red pill or blue?

No one was NOT answering your question, vg, people sleep sometimes.

I don't think it's a new area of law though, quite the opposite, it has just been missed in this thread. All the available caselaw and to make a finding of even negligent noncompliance, forget willful, that's a near impossible standard, show that the CRA's are allowed to take at face value the information furnished as accurate until it is disputed.

It is that way by congressional design, consumers are charged and responsible for policing the accuracy. It was determined to be too huge a burden on the CRA's and furnishers to be the other way around. So, that is the consumer's responsibility, if not accurate, you have to let someone know.

They are required to have procedures in place to prevent this kind of thing from happening, so, you have to show that they didn't follow reasonable procedures to assure maximum possible accuracy.

It isn't enough to have a violation on its surface, while it is a violation, it is not one that they will be held responsible for, unless there is no procedure in place to prevent it and if there is one in place, as required, you have to show they didn't follow it.

The enormity of the intent of congress in making consumer's responsible for the policing is being missed in this thread.

My question is, following the above line of thought, to Pibb, was that TL first reported with a 1992 date?and, was it then verified by the CRA's with a 1992 date being reported.

Did you use the word "dispute" in your correspondence with the CA directly and how did you dispute with the CRA's and for what reason?

The problem for Pibb is the timing, it is too tight and is barely the 30 days allowed for a reinvestigation. A consumer doesn't ever has to dispute with the furnisher directly, you just can't hold them responsible if you don't -- that is the CRA's out, so it doesn't make sense not to do so, if even they never respond directly to you, should you intend to hold them responsible.

Part of their procedures has to be the 623(b) requirement that the commencement of the delinquency date be furnished and that it be furnished within 90 days of the information. Had this gone beyond that timeframe, I think it would be a slam dunk violation, if that was specifically disputed with the CRA's.

As it is though, that information isn't even required to be provided to the CRA's yet, as all of this has occurred within a month, and with the OC saying that the account was to be recalled from the CA as of October 13th -- that isn't even 30 days YET.

So, that's my question, Pibb, was this first reported with a 1992 date on your reports?????

Sassy

 

Re: Re: Re: FCRA or FDCPA?

• I know, Sassy ... even I sleep sometimes ...

 

Re: Re: Re: FCRA or FDCPA?

ok Pibb, nodding, pursue the FDCPA violations then.

I am sorry I am on the fly today, have Butch post the link to the PCM FTC settlement (or search it up) and use that with your other violations to pursue the DOLA furnished!

You can use that settlement to reinforce and support your position.

Additionally, have you checked your state laws, there may be provisions for specific information that has to be provided by Ca's.

Check this thread too, there are good links that will help you, the referenced PCM may be in there as well, didn't have a chance to re-read the whole thing.

http://consumers.creditnet.com/stra...p?s=&threadid=39135&highlight=sassy+and+swede

OC's can be held responsible and since the school is so concerned about it and you've definate damages, I'm thinking it won't take much to convince them how crappy this tactic is and to make a trail with support that overlooking the dola by 10 years was no accident.

Others have been successful, at cboards, typing a complaint as it would be filed in court, and forwarding that with a cover letter saying should there not be resolution within whatever amount of time, you'll be filing the attached complaint and securing legal representation for which the FDCPA provides an award of.

With those disputes you can pursue FCRA section 623 as well -- with the punis.

Sassy

 

• 
  Here it goes ... USA vs PCM ...