Help--Hurry

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Help--Hurry

Maybe this will work;

I redesigned the phrasiology in such a way as I believe Hiding can agree that these statements are true;



(speaking from an FDCPA standpoint now)


ONLY if a DV is received within the first 30 days of the notice of rights, is the CA LEGALLY REQUIRED to reply.

OR

If a DV is sent AFTER the first 30 days, the consumers right to expect the CA to be legally required to reply has EXPIRED.

How's that?



.

 

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Help--Hurry

Hi everyone!
I need some help...please visit this thread thanks.

http://consumers.creditnet.com/straighttalk/board/showthread.php?s=&postid=416933#post416933

 

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Help--Hurry

ok butch i must be missing something between the FCRA and FDCPA

I have read the quotes back and forth you guys must be mentally drained and fustrated.

I see a closed door but a window of opportunity here.

please read the whole thing before you respond so nothing is missed.

in regards to credit reports ONLY and inaccurate info being reported and disputed. I think this is where all the confusion lies..


a consumer disputes an acct that is inaccurate on their CR with the CRA.

the CRA comes back remains or verified etc.

the consumer then contacts the CA / furnisher of info and disputes the accts accuracy at this point and requests validation because of the inaccurate reporting not because they recieved a letter from the CA.

are the furnishers/ca required to respond to prove to the consumer that what they are reporting to the CRA is accurate and verifable?
I know they must do this with the CRA but doesnt the new ammendments to the FCRA require the furnisher to now prove the accuracy to the consumer? or am I wrong?

isnt that the whole issue why we all want to sue for wrong info and disputed accuracy?

sorry for going to this issue again I just need clarification.

because the posts seem to refer to letters from the CA in the 30 day period but what being asked doesnt relate to that but to the accuracy of the CR and the enclosure that the CRA provides to consumers instructing them to contact the furnisher directly if they still dispute the info.

 

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Help--Hurry

Butch,

I would 100% agree with that!!!!

I am almost ashamed that I did not post that "summary" at the outset.

"regards to credit reports ONLY and inaccurate info being reported and disputed. I think this is where all the confusion lies..

a consumer disputes an acct that is inaccurate on their CR with the CRA.

the CRA comes back remains or verified etc.

the consumer then contacts the CA / furnisher of info and disputes the accts accuracy at this point and requests validation because of the inaccurate reporting not because they recieved a letter from the CA."

-Up to the last sentence is all correct. (legally)

"are the furnishers/ca required to respond to prove to the consumer that what they are reporting to the CRA is accurate and verifable?"

-No. (legally)


"I know they must do this with the CRA"

-YES

"but doesnt the new ammendments to the FCRA require the furnisher to now prove the accuracy to the consumer"

-No. This is a misunderstanding that a lot of consumers started believing after the proposed amendments were posted on credit boards on the net.

-YES, FACT section 623 (a)(8) DOES SAY A CONSUMER CAN ADDRESS DISPUTES DIRECTLY WITH THE FURNISHER.

-2 Problems though. 1... (a) is NOT ACTIONABLE by the consumer, and 2....section (8) is NOT ACTIVE. It is an "info" or "statistic" gathering section designed to give Congress and idea if the ability for consumers to dispute info directly with the furnihser may save time and money.

-Personally, I hope Congress keeps the section, makes it "active" and moves it to section (b), thus making it actionable by the consumer. THIS is what most state laws have done.

"isnt that the whole issue why we all want to sue for wrong info and disputed accuracy?"

-YES!!!!!!!

-BUT, there is always a but. IT IS NOT WHAT THEY ARE REPORTING, IT IS HOW THEY GOT WHAT THEY ARE REPORTING.

-I have no idea why it had to be so, but it just is

"sorry for going to this issue again I just need clarification."

- No need to say sorry. IT SERVES TO EDUCATE US ALL

"and the enclosure that the CRA provides to consumers instructing them to contact the furnisher directly if they still dispute the info. "

-THIS IS ANOTHER "SCAM" by the reporting agency to take focus off of their failed investigations

 

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Help--Hurry

BINGO!!!

And when you files suit, you can file in state or federal court for the state law violations....

Are you in CAL??

 

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Help--Hurry

ok try looking up findlaw.com and go to the state of MI and look up the codes and statutes for your state you can type in a search if that doesnt help you I look up some stuff and post it.

 

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Help--Hurry

oh yeah one more thing. go to consumerlaw.org and ck to see if they have info about your states laws.

 

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Help--Hurry

-If you send a request for validation WITHIN the 30 days after the initial communication with the debt collector, it is covered under the FDCPA 809.

-If your state law applies, you can send a DISPUTE to the furnisher of info. BUT CHECK YOUR STATE LAW.

 

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Help--Hurry

what if they dont? what if they just drop it and stop trying to collect, and dont list it on your reports? are they violating something the consumer can sue for?

 

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Help--Hurry

hope you guys dont mine me posting this again some newbies dont know how to use the links to see the postings I found this informative and may answer alot of recent questions on here.

ometimes folks on CN suggest that one of the famous cases we talk about frequently, Spears v. Brennan, lays out what constitutes validation. It does not, unfortunately. But this IS a critically important case for it DOES enumerate some of the components that DO NOT constitute proper validation. It specifically talks about the statement of account. It also mentions that a copy of the contract creating the debt, although one of the components required in validation, does not, in and of itself, constitute proper validation;

target="_blank">http://www.state.in.us/judiciary/op...260101.ewn.html

GREG A. SPEARS,

Appellant-Plaintiff,

vs. No. 49A02-0003-CV-169

TIMOTHY L. BRENNAN,

Brennan maintains, however, that there was no violation of the FDCPA because he â??sent adequate verification of the debt [to Spears] in the October 30, 1996 notice of claim.â? Brief of Appellee at 13. Specifically, Brennan claims that a copy of the consumer credit contract between Spears and American General attached to the notice of claim provided sufficient verification of the debt within the meaning of 15 U.S.C. § 1692g(b). We cannot agree. The contract in no way provides sufficient verification of the debt.

You are in fact entitled to see a copy of the original contract that creates the debt. But even if they do produce that, it still does not rise to the level of validation. In my opinion this is the starting point of their attempt to validate. I'll talk more about the original contract here in a minute, but for now let's stick with the statement of account.

The Spears case goes on to discuss what qualifies as a proper statement of account. Generally, we have hammered this issue to death and the general consensus is that a proper statement of account must meet the following;

It must be complete. In other words it starts on the day the account began (or at least from the date the first transaction occurred) and runs until the last penny on the last day was added to the account. This statement is critical because therein lies the exact date when the account went delinquent, immediately preceding a negative action, important verbiage from the FCRA. It must include late charges, fees, collection fees, atty. fees, interest calculations and most especially every single penny you ever paid on the account from day one. (If not, this may also be an FCBA violation for "Open Ended Accounts")

The statement must contain the dates for all these calculations
The total amount on the statement MUST match EXACTLY the amount they are attempting to collect - TO THE PENNY, unless additional fees can be assessed as permitted by state law and may outside the dictates of your contract.
The statement also MUST come directly from the OC. It CANNOT be a mere reprint of what the CA or collection atty. already have in their system of records.
It must have come from the OC within the 30 day period within which the CA must investigate. In other words, it must be FRESH, not some old item that's been laying around in their office for the last 5 years.
Again in Spears:

A review of the document reveals that it identifies only the terms of Spearsâ?? loan, including a 17.99% annual interest rate and the original loan amount of $2,561.59. The loan agreement contains no accounting of any payments made by Spears, the dates on which those payments were made, the interest which had accrued, or any late fees which had been assessed once Spears stopped making the required payments. Indeed, the existing unpaid contract balance at the time Brennan sent the debt collection notice was at least $350.00 more than the original loan amount. Therefore, Brennan violated 15 U.S.C. § 1692g(b) when he failed to cease collection of the debt by obtaining a default judgment against Spears after Spears had notified Brennan in writing that he was disputing the debt but before Brennan had mailed verification of the debt to Spears. We reverse the trial courtâ??s entry of summary judgment in favor of Brennan on this issue.

I respectfully suggest that your next item of homework is to print out this case and study Spears word for word, with multi-colored high lighters.

Continued:
Butch,

 

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Help--Hurry

Continued:

Now I think we are in a position to get back to the original contract that created the debt in the first place.

One is perfectly entitled to see a copy of this contract. In fact, in my opinion, NOTHING needs to happen until they produce said contract. This is the beginning point of your demand for validation.

[ Side Note: Also, as silly as it sounds I would request the contract, as opposed to a copy of such. I heard of one case where the obviously very young and inexperienced CSR actually sent the original contract, not a copy. Probably a one in a million shot, but hey, who knows. ]

The FDCPA states:

§ 808. Unfair practices [15 USC 1692f]

A debt collector may not use unfair or unconscionable means to collect or attempt to collect any debt ... the following conduct is a violation of this section:

(1) The collection of any amount (including any interest, fee, charge, or expense incidental to the principal obligation) unless such amount is expressly authorized by the agreement creating the debt or permitted by law. PERIOD!!!
No contract, no payment, no negotiations - end of story. Thus is my approach to a CA or collection atty.

In Mecro's case I dare say the CA and collection atty. are hard pressed to come up with this information or they would not have been in such a rush to knock off $4,700 - so be it.

Also, "PSP IN NM" stated that Midland is undergoing a BK proceeding. In these cases it's tough for them to find their respective butt's with both hands let alone a contract from years ago. But a contract they must produce nonetheless.

After all, how does one know that;

The interest accrual is calculated according to the default provisions of said contract?
If the contract allows for collection fees to be included, how would you know if they are correct?

If the contract allows for atty. fees to be included, how would you know if they are correct?
How would you know if ANY of the items I listed as necessary components of a correct account statement are correct without seeing the contract?
How would you know that the contract allows for the OC to forward your personal financial information to a 3rd party for collection unless so stipulated - IN THE CONTRACT?
Etc., etc., etc.
Furthermore, without it they lack proper standing in judicio, (proper standing in court, federally speaking).

According to the Federal Rules of Civil Procedure (FRCP) you have a legal right to demand the original and they have 15 days to produce it or there is NO DEBT.
FRCP - Rule 1002. Requirement of Original
To prove the content of a writing, recording, or photograph, the original writing, record, or photograph, is required, except as otherwise provided in these rules or by Act of Congress.
FRCP - Rule 1003. Admissibility of Duplicates
A duplicate is admissible to the same extent as an original unless (1) a genuine question is raised as to the authenticity of the original or (2) in this circumstance it would be unfair to admit the duplicate in lieu of the original.

And again, in the Uniform Commercial Code (UCC) Section 1-201 (3)

(UCC) Section 1-201 (3)

"Agreement" means the bargain of the parties in fact as found in their language or by implication from other circumstances including course of dealing or usage of trade or course of performance as provided in this Act (Sections 1-205 and 1-206 ). Whether an agreement has legal consequences is determined by the provisions of this Act, if applicable; otherwise by the law of contracts (Section 1-103 ). (Compare
"Contract ".)


So as you can see law is replete with insistence that your right to see an original contract is carved in stone.

Although what does constitute validation is not clearly articulated in law or case law, and for very good reason, the burden of proof to which a collector or OC must rise, before discussions can even begin, is high.

A 3rd component is the agreement between the OC and the CA that names the CA as an "associated entity" and empowers them to even send you a bill in the first place. This element is necessary though, ONLY to the extent that it becomes necessary to deal with the CA. A CA's assertion that you have no choice but to deal with them is nonsense without this agreement. You simply have no reason to deal with them until you get your copy of same. My argument on this point is simple with them and goes like this; "If you insist I have an obligation to deal with you show me this agreement or I will NOT deal with you, no if's and's or but's about it. I hereby unilaterally terminate your association with this account and will be dealing directly with the OC". - PERIOD!!!

There are other factors involved as well. Is the CA licensed to practice in your state and in every other state within which collection activity was attempted, and is such license required in these states? In my state, Ohio, it is not, unfortunately.

Is the Atty. licensed in your state, or his own state, for that matter?

These factors, taken together with the fact that CA's are lazy, apathetic and generally not all that bright in the first place and you have the makings of a situation whereby you can prevail, if handled with the extreme care it deserves.

Which brings me to the next point I'd like to mention. In the good old CN days we used to take one fine point in the law and hammer it for days. We moaned, groaned, argued, posted case law, FCRA, FDCPA, FCBA, FTC Staff Opinions and argued some more. Sometimes issues culminated in a general consensus and sometimes they didn't. These are things I don't see that much of lately.

Kathycmh recently said; "I spent my entire Saturday digging through the law to find one thing". She continued; "I must be crazy".

No she's not crazy, she's dedicated, and in my opinion a prime candidate to become a credit correction champion. I see the same dedication from others as well. So sorry for not mentioning you here. But many need to get back to basics. I only know what I know because I studied hard and foresook many weekends.

Please take this comment in the true spirit in which it is intended. Just a gentle nudge to some to help stay on track, because I do know that if I can do it so can you.


In conclusion (thank God )

I do wish I could just tell Mecro exactly what to do next, but I cannot. He/She has other things to worry about too. For example, just because they can't "seem" to come up with a contract or a statement doesn't mean this material doesn't exist and won't be forthcoming at the last minute. This is never a problem of course unless the debt is legit. I believe I can help Mecro best, and the rest of the board too, by outlining this general approach to validation. There's a heck of a lot more to this case than what is posted here so far but perhaps this is a good beginning.

If Mecro sticks to his guns and insists upon proper validation, continues with letters up to a point and waits it out, I bet they'll settle for FAR less than $3,000. At that point we have a payment strategy which should allow you to come back around, after the debt is absolved, and sue with an offer to drop the suit in exchange for a deletion.

I hope this helps.



Butch,

 

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Help--Hurry

I like this particular thread best.

I think mainly because, at least so far, it's still clean. Please let's keep the discussion on a conceptual basis rather than argue, for example, the color of Gloria Mahon's underwear.

Right about now you're probably beginning to think I must have "switched sides". Hiding and Butch are in cahoots to undermine CN. LOL

YEP, they got to me and made me an offer I couldn't refuse. ~ (jk)


You guys know me well enough to know I would never tell you something which I don't strongly believe to be correct. Even if it causes a temporary upheavel on the ENTIRE board.


For those reading along let me point out that even if we are beyond the first 30 day "validation Period" this does NOT mean we are powerless to do anything but live with the negative remark on our CR's.


Now THAT'S not correct either.


It's just that our approach has been a bit off track, that's all.

This thread will develop as we go along. Frankly I believe it's a good idea to have this conversation anyway, but it will take a while for this discussion to mature.

What will become apparent, as we go along, is that filing suit will be a necessary credit correction component in a considerably larger number of cases.

Sorry 'bout that.




.

 

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Help--Hurry

-NO

 

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Help--Hurry

.

 

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Help--Hurry

NOW WE'RE GETTIN SOMEWHERE


With Hiding90 getting us all refocused on these basic validation questions, let me work to advance the conversation because, like I said, right about now is when you're probably thinking we took all your power away. Nothing could be further from the truth.

We need to point out some concepts which, once the fundamentals of the FCRA & FDCPA are mastered, we will need to discuss a few more advanced concepts if we are to "tie it all together" so to speak.



Throughout Law you'll see a word which means a great deal more than it appears to mean on the surface.

That word; "REASONABLE"


Seriously, think about this word for a sec. What exactly does it mean? What is reasonable to me might not be reasonable to you. If you and I do disagree, who decides who's right and who's not?


This word has a different meaning than the normal definition we attach to it in our everyday language.

The legal definition of "reasonable":

• reasonable
  adj., adv. in law, just, rational, appropriate, ordinary or usual in the circumstances. It may refer to care, cause, compensation, doubt (in a criminal trial), and a host of other actions or activities.
  
  Oh great, that sure clarifies. What is "rational", "appropriate", "ordinary" or "usual"?
  
  LOL
  
  
  reasonable care
  n. the degree of caution and concern for the safety of himself/herself ...
  
  reasonable doubt
  n. not being sure of a criminal defendant's guilt to a moral ...
  
  reasonable reliance
  n. particularly in contracts, what a prudent person would believe ...
  
  reasonable speed
  n. the speed of an automobile determined to be lower than the ...
  
  reasonable time
  n. in contracts, common custom in the business or under the ...
  
  reasonable wear and tear
  n. commonly used in leases to limit the tenant's responsibility ...

There are many different standards of "reasonableness". There is the reasonable Man standard, for example, or the reasonable Woman standard.

Would those 2 standards be different? Well they sure could be. Suppose I was in a bar room brawl and proclaimed my innocence. I would want a reasonable man standard. The men would be more likely to understand why I had to mop the floor with this guy.

Suppose one of you girls were raped. You may want a reasonable Woman standard. Would women be more likely to understand your horror?

The reasonable standard used in FCRA or FDCPA cases is the gender neutral; "The Reasonable Person standard".

CRA's and OC's alike are required to employ "Reasonable" Procedures To Assure Maximum Possible Accuracy".


From a lawsuit template;

• 59. Defendant, EQUIFAX, failed to employ reasonable procedures to timely and properly reinvestigate the accuracy of the erroneous, negative data upon being notified by Plaintiff and/or subscribers that such information was erroneous.

§ 602. Congressional findings and statement of purpose [15 U.S.C. § 1681]
(b) Reasonable procedures. It is the purpose of this title to require that consumer reporting agencies adopt reasonable procedures for meeting the needs of commerce for consumer credit, personnel, insurance, and other information in a manner which is fair and equitable to the consumer, with regard to the confidentiality, accuracy, relevancy, and proper utilization of such information in accordance with the requirements of this title.


§ 606
(c) Limitation on liability upon showing of reasonable procedures for compliance with provisions. No person may be held liable for any violation of subsection (a) or (b) of this section if he shows by a preponderance of the evidence that at the time of the violation he maintained reasonable procedures to assure compliance with subsection (a) or (b) of this section.


Well I won't beat this word to death but try something very interesting. Go over and open the FCRA in your browser window. Type in the word "Reasonable" in your "find" function under "Edit" pull down menu. You'll see MANY hits.


So this is your argument. Whether or not their investigation is "reasonable". They say yes, you say no.


OK - the reasnable person standard is;

WHAT A MAJORITY OF PEOPLE, OF SIMILAR INTELLIGENCE, WOULD CONSIDER TO BE REASONABLE, UNDER SIMILAR CIRCUMSTANCES.

That means, if this argument cannot be worked out between parties there's only ONE other way to get to a solution, A JURY!

See where we're going with this?


Since we now have a legitimate argument for which only a jury can sort out, you have a legitimate reason to file a lawsuit. It's the lawsuit your adversary wishes to avoid, NOT losing in court. 97% of all cases filed get resolved out of court.

Follow what we're teaching here, and you can deal with 97% of your problematic TL's.

See?






Users should implement and use reasonable procedures to see that consumers receive all required notices and disclosures if adverse actions are taken.

Section 615 provides in part that "No person shall be held liable for any violation of this section if he shows by a preponderance of the evidence that at the time of the alleged violation he maintained reasonable procedures to assure compliance with the provisions of this section."


A portion of Section 615 of the Fair Credit Reporting Act, as amended, is reproduced here:
"(c) Reasonable procedures to assure compliance. No person shall be held liable for any violation of this section if he shows by a preponderance of the evidence that at the time of the alleged violation he maintained reasonable procedures to assure compliance with the provisions of this section."


Johnson v. MBNA:

• OPINION
  WILKINS, Chief Judge:
  MBNA America Bank, N. A. (MBNA) appeals a judgment entered against it following a jury verdict in favor of Linda Johnson in her action alleging that MBNA violated a provision of the Fair Credit Reporting Act (FCRA), see 15 U. S. C. A. § 1681s-2( b)( 1) (West 1998) (amended Dec. 4, 2003), by failing to conduct a reasonable investigation of Johnson's dispute concerning an MBNA account appearing on her credit report. Finding no reversible error, we affirm.
  
  
  So in Johnson, it not only took 12 Jurors to decide what is reasonable, but also an Appeals Court.
  
  Reasonable is a BIG DEAL.
  
  
  
  .

 

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Help--Hurry

Well naturally I got timed out before I could make my post right.



.

 

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Help--Hurry

LOL hate that...

Oh. and dont blame me for starting this LOL

 

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Help--Hurry

Good question.

No CM. I don't see anything actionable here.

If they drop collection afforts, and it's not on your CR, what's the problem?



.