I have some questions on my ongoing oc validation efforts. I sent an oc validation letter to the Dept. of Ed., and 28 days later I've heard not a peep from them, except that my gc came back signed. They haven't pulled a cr, and they haven't marked the tradeline as disputed by me, the second of which is an FCRA violation at the 30 day point. I disputed with all the CRA's, I'm at about the 10 day mark with all 3. I haven't heard anything else from them. I also sent an oc validation to 5/3 bank at the same time, green card never came back, and the USPS website doesn't indicate that it was ever delivered. so, given all this, I have the following questions: 1. Is the department of ed. held to the same standard on not reporting a dispute as other oc's? I know they have special protection on bankruptcy inclusion, didn't know if there was anything else... 2. If an oc was to report a tradeline as in dispute, would it definitely show up on privacy guard, or should I pull a report directly from a CRA? 3. What do I do next? Do I send estoppel, or ITS? It seems to me, since this isn't an FDCPA issue, that estoppel would be of no use, and I should go to ITS. 4. Do I wait the full 30 days for the CRA's before I send ITS? 5. What do I do if the CRA's do nothing with my dispute? 6. Do I send another OC validation to 5/3? If the letter I previously sent comes back to me as unsigned, do I have any sort of FTC violation? Keep in mind that it is the oc in this case, and thus not governed by FDCPA. Thanks for the help, this board is wonderful.
Section 623(a)(3) uses the term "[color=0066FF]person[/color]", which is defined as "[color=0066FF]any individual, partnership, corporation, trust, estate, cooperative, association, government or governmental subdivision or agency, or other entity[/color]". However, if they reported the TL on Oct 30 and you disputed it on Nov 01, FCRA does not obligate them to re-report the TL just because of the dispute. Only if they re-report the TL without a notice of dispute, then they will be in a violation. Also, have in mind that pursuant to Section 623(d) this subsection may be enforced exclusively by the Federal and State authorities. PG claims that they use the same information as the CRAs do. So it must be true. However, as I was told once by PG and MyFico, the CRAs update first their satellite database, then, on a regular basis, they have to update the main database which is used by PG, MyFico, etc. So, sometimes it could be not true. In any case, if I needed a CR to be used as an evidence, I would request it directly from the CRA. That way they cannot use the third party (PG, MyFico) as an excuse. As I mentioned above, you can file a complaint with the FTC, but you cannot sue them for violations of §623(a). Yes, you have to wait for the CRA's responce. If it comes as "verified", disputed it again with the CRA as "not mine" and state that the DF has failed to validate. Wait the 30 days, then pull your report to see if it's marked as "in dispute". If they do nothing, they would be violating several FCRA sections. In most cases, they do respond, so when you get their responce, come back and let us know. First, let me clear up the terminology - there could be no such thing as a "FTC violation". The possible violations would be under FCRA and/or FDCPA. Since you don't have the GC, you better talk to USPS - you have paid for a return receipt. If you get the letter back, don't open it and keep it that way - you may need it as an evidence. If USPS cannot do anything, do the same as in #3, but state that the DF has refused to sign up for your letter. They are not obligated by any law to sign up for the letter. You may use a little trick I've learned here. Stamp the letter with "CHECK INSIDE". This would trick the agency to accept the letter. If needed you can explain later that when you wrote "CHECK INSIDE" you did not mean that you enclosed "A written order to a bank to pay the amount specified from funds on deposit", but were merely trying to instruct the recipient "To inspect so as to determine accuracy, quality, or other condition" of the contents inside the envelope ... This is a wrong understanding of the FDCPA definitions. If the OC decides to collect the debt themselves instead of usng a CA, they would be categorized as a "debt collector" and their actions in relation to collecting the debt will be governed by the FDCPA. HTH
vghost, thanks alot, that was very informative. That brings to mind a couple more questions. 1. I thought the oc had 30 days to complete an investigation of my complaint. It was my (apparently mistaken) understanding that they had to change the tradeline to being "in dispute" as this would indicate that the investigation existed. Apparently that's not so. How then do I know if they have completed an investigation? 2. The department of ed. sent me a letter, which I still have, that said they are going to seize my tax refund. I had not thought of the oc being a debt collector before your post, and previously they had used a ca, although have since reverted to handling the matter in house. I take it then that this letter would be proof that they are a debt collector, and as such are required to send validation, which they have failed to do, is this correct? Thanks for the help, the last post straightened out a few misconceptions I had.
Re: Re: Got Questions, Need Answers It's time now to distinguish between OC being a Data Furnisher (DF), and OC being a Debt Collector (DC). As a DF, they fall under the FCRA regulations, as a DC they fall under FDCPA regulations. Having said so, I'll use DF or DC instead of OC to avoid any confusion. FCRA does give the DF 30 days to complete an investigation, but according to §623(b)(1) this applies when the CRA sends them a notice of dispute, which means you have to have disputed it with the CRA first. As I said in my previous posting, #1, acting as a DF they don't have to change the TL, but they cannot report it again without the notice of dispute. It is known as a good strategy to dispute with the DF to build a good paperwork for the court, but the real dispute starts when you dispute with the CRA first. However, the FDCPA § 807 (8) states that a "[color=0066FF]... failure to communicate that a disputed debt is disputed ... [/color]" is a violation of this section. So if they act as a DC, they are in a violation. FDCPA § 807 (5) states that the "[color=0066FF]threat to take any action that cannot legally be taken or that is not intended to be taken[/color]" is a violation of this section. In a Staff Opinion Letter to Douglass FTC discusses the following: "[color=0066FF]The text of the letter suggests that, although legal action has not currently been commenced, it may be commenced in the future if the debt is not paid. To the extent that this implication is contrary to fact (i.e., legal action is never or almost never initiated), it would also violate Section 807(5).[/color]" In a Staff Opinion Letter to Fagin FTC discusses the following: "[color=0066FF]As your inquiries recognize, however, the more usual context in which "intent" arises in connection with threats of suit is the issue of whether the incidence of actual filings of suit is the statutory determinant of "intent." ... Intent may be inferred or demonstrated by a number of factors or circumstances; but where, as here, the threat of suit is direct and unqualified, it is hard to escape the conclusion that the major determinant is whether, in the absence of payment or other action on the account, suit is actually filed in this and a majority of similarly-situated accounts.[/color]" So you may have them here on another violation. I say "may have", because I am surprised that the Dept of Education would send such a letter to hang themselves. You are right. Since the TL is not listed as "collection" this letter would be the only proof they act as a DC. FDCPA § 809 states that a DC have "[color=0066FF]five days after the initial communication[/color]" to send the consumer a notice, containing specific items, including the amount of the debt, the name of the creditor to whom the debt is owed and few important statements. They didn't send you that notice, so when acting as a DC they are in another violation. Read the forementioned FCRA and FDCPA sections and the FTC letters, so you can better understand and build your case. Here are the links (just click on them): FCRA: http://www.ftc.gov/os/statutes/fdcpa/fdcpact.htm FDCPA: http://www.ftc.gov/os/statutes/fdcpa/fdcpact.htm SOL to Douglass: http://www.ftc.gov/os/statutes/fdcpa/letters/douglass.htm SOL to Fagin: http://www.ftc.gov/os/statutes/fdcpa/letters/fagin.htm
Re: Re: Got Questions, Need Answers Forgot to add something important ... FDCPA § 809 (b) sets the rules for the actual debt validation. However, it is tricky, because it is time-tied to the notice which you never received and may not apply in your case.
Re: Re: Re: Got Questions, Need Answers An original creditor, collecting on their own behalf, is not a debt collector under the FDCPA. Student loans are a completely different animal. I believe they can take your tax refund, and I believe they can garnish wages without a court order. The OP really needs to do some studying about Fed Student loans. Not harping, this just bears repeating. Read Sec. 803, FDCPA for the definitions (and in particular the exclusions). There are some very good opinion letters on this as well.
Re: Re: Re: Re: Got Questions, Need Answers jlynn is right, this is my mistake and I apologize. jlynn, reading the definitions and the SO leters made me think about something else. Is the Dept of Education the original creditor? I don't know how the student loans are managed, but doesn't DOE just approve and recommend, so later another (financial) institution actually gives the credit and becomes the original creditor?
No experience with student loans, just read some stuff here. Do some searching, I think it was Marie that had excellent information on this. As I said, they are a different animal all together.
jlynn is right about student loans. I don't know a lot about them either, but I do know this--they are NOT required to sue you to get a judgment. They can seize your tax refund and any other money the government owes you. They can go directly to garnishment action. There is no SOL, they can AND WILL come after you eventually. Contact the Dept of Ed now, and see what arrangements you can make. Validation is not going to get you out of this. And the federal government is not to be taken lightly!!
DOE can have their own loans. I have one with them and 3 more through a bank that were guarenteed by the government. DH has one with the DOE that he had defaulted on, they took one refund and we were able to start making payments to the 0DOE for the remainder. It is now a good TL. Try to work with them if you can.
Ok, thanks for all the help. A few things which I know for sure, as this case pertains to me, and I have done a smidgin of homework on it: 1. The DOE CAN NOT garnish without a judgement. I have an uncle who's a lawyer, and he's given me a little advice on all this, although he has no experience or knowledge with contract law, thus my need to ask questions here They definitely can seize IRS refunds. Really, the refund is money that you've given the government already, they're just keeping it instead of giving it back to you. I don't know if that qualifies them as being collectors or not, I'd love some insight. My gut tells me probably not. 2. The DOE does grant student loans itself. I wish they didn't, because then I wouldn't be in this mess right now. WHAT I REALLY NEED is some advice from someone who really knows student loans well. I'll try to email Marci, and I'll post another thread. If anyone knows of a situation where someone has gotten a deletion on a DOE student loan, please send info my way, I can't find anything in the search engine. There's got to be some recourse, because I truly do have info on this tradeline that's bogus. My email's on. Thanks alot for all the help again, it's greatly appreciated.
