I am going to warn everyone who starts reading this that it is kind of long. I do think, however that it covers a a topic that many readers will be interested in, HOW INFORMATION IS VERIFIED. I have three 30-day late payments showing on my credit reports from GMAC for a car loan I took out in 1991 and paid off in April of 1997. My Transunion report has no dates for these payments. The Experian report has 3 dates listed all less than 7 years ago, the most recent one is 2/97. I have records showing that I was late on a payment on 12/92. I don't believe that I was late on these other days. (The late payments DID appear on my Equifax credit report, but when I disputed to them, they took the late payments off.) I disputed to both Experian and Transunion and the lates came back verified. I then called GMAC (this am) to find out what was up. They told me that their computer shows that I was late 30 days 3 times in the course of the loan period but that once an account is paid off with them, THEY DELETE ITS ENTIRE PAYMENT HISTORY. Therefore, they could not tell me the dates of these lates. In the words of the GMAC rep, "the burden of proof is on you to prove that you were not late." Well, being a fully informed consumer because of these boards, I know that the burden of proof is on THEM to prove that I WAS late. I ask to speak to the supervisor, (Pat) who basically tells me the same thing. I tell her, no ma'am (very nicely and politely) you need to provide the dates of these so-called late payments or the information is unverifiable in accordance with the FCRA. Besides, Pat, if you don't have the dates of these late payments, how would I or a potential creditor know if they are more than seven years old or not? This goes on and on until Pat tells me that obviously she knows what she is talking about since she works for the Honorable GMAC who has been in business for 90 years and has financed millions of vehicles. I then very politely ask her to see that these payments are removed from my credit report, and she very politely says no. I then think to myself, well, I'll just call Experian right now! When I tell them that GMAC has no record of my payment history, why they will just say, okay, we'll take care of that right now! No such luck of course, and no such luck finding out the status of my dispute that they have had since June 30 and lost (which they promise they will get back to me on in about an hour.) Anyway, the woman on the other end of the line (who was actually quite nice) states that gee, she would think that if they can't provide the dates that the dispute couldn't really be considered verified, but since GMAC has verified the information TWICE already her hands were tied. So here's the million dollar question...for a dispute to be considered VERIFIED by a creditor, must the dates of these payments be verified? Help?!?!?
Simpler Question I just read my post and I realized that because I was so mad when I wrote it, I was rambling. Here is a simpler version of my question: To verify late payments, is it necessary for the creditor to provide a payment history? I.e., do they need to show when the payment was due and when it was actually made?
RE: Kristi....Help!! Experian To answer that big final question: YES! The burden of proof is on them. You need to write to GMAC's Corporate office (address on their website.)This is long so please, if you are not interested, just skip my sample letter of what I would write. The bureaus are correct for saying their hands are tied if GMAC keeps verifying it as correct. If they did in fact attempt to verfiy it and GMAC replied twice that the info is correct then you are now done with the bureau. Now you need to get to the top at GMAC. I would write this to a head honcho or two head honchos at GMAC (and you can find out who they are under investors or contact at their website) Here is what I would say. This Is NOT legal advice just what I would do Dear Sir: I am writing to you regarding a very important issue that may jeopordize your firms financial security by a violation of the FCRA and the FCBA. I feel it is quite neccessary to inform you as you may be unaware of what the procedure being performed in one of your locations is. I have done business with your firm for a long time. In the course of doing business with you, I keep very strict records of all my transactions and payment history, as I always do with all my debts. At the end of paying off my loan with your firm, I discovered three 30-day lates on my credit report with Experian. I disputed them to Experian and was informed the lates were verfied as accurate. I then contacted one of your employees at (telephone number) whose name is xxxx. She informed me that the records were too old to find since the loan was paid off but proceeded to tell me that they did verify them as accurate because it was simply what the computer showed. She admitted to me that they had no records to back up their claim but refused to investigate further or remove them. I adviced her that according to FEDERAL law that a creditor must be able to prove the debt was valid or accordingly it must be removed. She declined. I contacted the FTC and read the material they provided me regarding my rights and your responsibilities. They again, confirmed that it is the responsbility of the creditor to be able to actually prove the lates and if they cannot and continue to verfiy them as accurate then they have in deed violated the FCRA. My plea to you is twofold. First, I think you should know what actions your employees are taking which can risk your companies financial security and open up avenues for lawsuits and second, because I have every right to be shown actual proof that I was late. If it cannot be proven on your end and I suffer bad credit or loan denials because of it, then I may be forced to take action. That is obviously not what I want to do and why I am involving you to resolve it. Writing to you is very important because it will confirm that I did all I could to rectify the problem and show just cause that I complied with what I should do as a responsible consumer. Please advice me what you will do to rectify the blatant violation of the FCRA and how you intend to solve it. If you can provide me the records showing I was late three times 30 days, then you have completely complied. Sincerely, xxxxxxx Hope this gives you some ideas! Madelyn wrote: ------------------------------- I am going to warn everyone who starts reading this that it is kind of long. I do think, however that it covers a a topic that many readers will be interested in, HOW INFORMATION IS VERIFIED. I have three 30-day late payments showing on my credit reports from GMAC for a car loan I took out in 1991 and paid off in April of 1997. My Transunion report has no dates for these payments. The Experian report has 3 dates listed all less than 7 years ago, the most recent one is 2/97. I have records showing that I was late on a payment on 12/92. I don't believe that I was late on these other days. (The late payments DID appear on my Equifax credit report, but when I disputed to them, they took the late payments off.) I disputed to both Experian and Transunion and the lates came back verified. I then called GMAC (this am) to find out what was up. They told me that their computer shows that I was late 30 days 3 times in the course of the loan period but that once an account is paid off wi....
RE: Simpler Question Kristi: Its funny, I wrote a letter that looks alot like yours before I read the response to my posting. I fully intend to send the letter tomorrow, certified mail of course. I also spoke to a representative of the local (New Hampshire) GMAC office today. I was then referred to the manager. Both of these people were very very nice...but completely ignorant of the FCRA. Its really hard to believe that people who work in the credit granting industry know so little about the law that applies to them. Anyway, I will let you know about the outcome of my letter. I will be interested in seeing what GMAC's response will be, since the first person I spoke to today told me that GMAC keeps no payment histories on any of its loans once they are paid off. Anyway, I can't thank you enough for your help. By the way, how badly could these three late payments hurt me if I did apply for credit? Since I paid the loan off in April of 1997, they can't be any more recent than that. It doesn't really matter to me anymore whether they would hurt me or not, because now I am in it for the principle of the thing...but I AM curious/
RE: Kristi....Help!! Experian This is not legal advice either, this is what I would do. I would immediatly draft a pleading for declaratory relief, and sue Experian. I would subpoena GMAC's records, and ask a judge to order Experian to comply with the FCRA (FCRA actions may be filed in state or federal court) or go to jail. Regardless of what the FCRA requires Experian to do, they won't do it unless forced to.
RE: Kristi....Help!! Experian Good advice, Pat. A few thoughts of my own: As Kristy says, if the creditor indeed verified it to the bureau, then you need to sue the creditor alone. (Unless you're convinced they faked the investigation, which - I admit - is not so hard to believe). Also, a corporation does not face jail time if found to be in contempt, only financial sanctions. (But that is more than enough to scare any officer of that corporation). Saar
RE: Kristi....Help!! Experian I Concur Saar. If she is completely satisfied with Experians investigation (which is rare) then you have to focus on the creditor for the damages. Before I would draft a declatory, I would make my paper trails of attempts with the creditor to show that you made "reasonable efforts" in trying to deal with GMAC. If that doesnt work you can then sue them but my opinion is that much can be handled out of court if you press hard enough. No creditor wants to end up in court over credit reporting. The loan has been paid and with enough pressure applied, they will give. Saar wrote: ------------------------------- Good advice, Pat. A few thoughts of my own: As Kristy says, if the creditor indeed verified it to the bureau, then you need to sue the creditor alone. (Unless you're convinced they faked the investigation, which - I admit - is not so hard to believe). Also, a corporation does not face jail time if found to be in contempt, only financial sanctions. (But that is more than enough to scare any officer of that corporation). Saar
RE: Kristi....Help!! Experian Do you really believe that a judge is going to send a *corporation* to jail? Maybe by tossing a bundle a papers (e.g. articles of incorporation, stock certificates, etc.) into a cell? Nobody goes to jail for violating the FCRA. It is a *civil* violation, with punishment in the form of fines and/or injunctions placed on the corporation. You claim to have experience with suing creditors, and yet you don't understand simple facts like that? And Madelyn's story suggests that Experian may be at least reasonably in compliance already. GMAC told her that their records show the late payments. So Experian may have just sent an automated query saying something like, "We show three late pays - does that match your records?" This sounds like it is GMAC that is the most responsible for the problem. Sometimes some people seem to be very enthusiastic about the *idea* of lawsuits as some kind of power thing, or a venting of anger. Is the real goal here to fix the dodgy item on the credit report as quickly and smoothly as possible, or is it to expend lots of time and energy jumping into a court case? -- CardReport.Com - Credit Tools, News, And Reference http://www.cardreport.com/
RE: Kristi....Help!! Experian I really don't plan on suing anybody. I just post here so that I can become more educated about the law.
RE: Kristi....Help!! Experian No, one may sue the CRA for declaratory relief, and win. The minute a judge looks at the documents subpoenaed from the creditor, he will order the CRA in writing to change the credit report. You are correct that the CRA is not liable for any damages in this situation. If you read the full text of the FCRA, you'll note that it does not impose liability on the creditor. If you want to sue the creditor for libel, you may. But while one can collect damages from the creditor by suing for libel, one can not force the creditor to remove the item from the credit report using the CRA. Common sense dictates that the creditor will remove the account once sued for libel, but they can't be forced to do so by the court under the FCRA.
RE: Kristi....Help!! Experian One may be jailed for contempt if one does not follow a judge's written order for declaratory relief. I have never heard of a creditor refusing a judge's written order. I have heard of an individual being sent to jail after refusing to obey a judge's order for specific performance of a contract. As a matter of law, failure to obey a judge's order for declaratory relief can get a corporate officer jailed. You are confusing the law, which is an absolute, with what is probable in an actual lawsuit for declaratory relief. The most probable outcome of a lawsuit for declaratory relief- and my experience in such litigation- is that neither party will ever enter the court. As soon as a CRA gets sued, they will fix the problem. Why would they spend money on legal fees if the plaintiff is only seeking non monetary relief? But what is probable, and what is the law are two different things. In the real world, you are correct, there is no way in hell that Experian is going to refuse a judge's order to ammend a credit report.
Kristiâ??s Letter Is Excellent, Madelyn: I believe Kristi has offered a template for an excellent letter, courteous and not too belligerent or demanding. The main portion of her post I have concern with is that she suggests you send the letter to â??â?¦a head honcho or two head honchos at GMACâ?¦â? This would be a mistake and likely only produce more frustration, presuming Kristi meant that you target a CEO, Pres. Or VP. As former V.P. of operations I can tell you that itâ??s common practice to refer such letters to their respective department heads, and/or to the legal staff. If the letter is referred to the legal department, chances are good it will languish there for some time. I know you donâ??t want to file suit and you certainly shouldnâ??t want any unnecessary delays either, so let me suggest another angle. Send such a letter to the collection manager or compliance officer, because here is where youâ??re most likely to get faster action. If you wish a CC to the V.P. of loan serving this would be a sound tactic, but targeting those mentioned is going to produce more serious results. If you care to understand the reasons why, Iâ??d be happy to explain them. It suffices to say, however, that addressing one of these individuals still provides effective corporate notice. Keep The Faith, Anthony Villaseñor
Other Options Madelyn: Although you wish not to file suit and by professional standards Iâ??m not proposing you do, at least not right away. I believe Pat makes a telling statement (below) in that you may want to reserve this as a last option, if after attempting good faith measures results have not materialized. Litigation can serve many purposes and not all are necessarily adversarial, that is in the sense of anger and revenge. Whereas tactically seeking to prevail by nuisance is within this category, when the probable outcome is clear. Even retaining counsel to draft a simple letter advising of this threat could have the desired affect, and should also be considered as a possible option. All in all I think youâ??re doing the right thing by wanting to avoid lawsuits, thatâ??s honorable and much more rational than jumping triggers. Albeit should your efforts reach a point of diminished return where youâ??re simply getting nowhere, and options are becoming limited? Keep an open mind to the prospect of allowing counsel to advise accordingly, even if this means filing suit. Keep The Faith, Anthony Villaseñor Pat wrote: ------------------------------- As soon as a CRA gets sued, they will fix the problem. Why would they spend money on legal fees if the plaintiff is only seeking non monetary relief?
RE: Kristiâ??s Letter Is Excelle I appreciate your feedback and view but I respectfully disagree. Doing this now for over 17 years, I must say action gets action and let me explain. Working in the banking and credit industry all these years, I have seen first hand what positive attention going to the superior results in. We took those letters very serious when it was addressed to the higher up whether it be the controller or VP. In this situation, they have no choice but to comply so who cares if the higher up is irritated by involvement. Let him earn his 87000.00! While I appreciate your angle, I do not think however that it really makes a difference here because when I say head honcho, I mean Controller, Superior, VP or whom ever else she can involve for action. A perfect example: I had a client who had been trying to get a reply from Citibank for over 2 years. She wrote and called everyone she could by using the methods suggested by the "Controller-Collection manager". She could not get a reply. I wrote 1 (one) letter to the CEO of Citibank and cc'd the FCO. Bingo. A reply within 4 business days by courier. I state this, from experience. CreditDefenses.com wrote: ------------------------------- Madelyn: I believe Kristi has offered a template for an excellent letter, courteous and not too belligerent or demanding. The main portion of her post I have concern with is that she suggests you send the letter to â??â?¦a head honcho or two head honchos at GMACâ?¦â? This would be a mistake and likely only produce more frustration, presuming Kristi meant that you target a CEO, Pres. Or VP. As former V.P. of operations I can tell you that itâ??s common practice to refer such letters to their respective department heads, and/or to the legal staff. If the letter is referred to the legal department, chances are good it will languish there for some time. I know you donâ??t want to file suit and you certainly shouldnâ??t want any unnecessary delays either, so let me suggest another angle. Send such a letter to the collection manager or compliance officer, because here is where youâ??re most likely to get faster action. If you wish a CC to the V.P. of loan serving this would be a sound tactic, but ta....
Essentially On The Same Page Kristi: You know weâ??re in agreement yet the only reason I mentioned anything, is that I know a few folks at G-mac and since thatâ??s the firm in questionâ?¦ Anyway, itâ??s sort of six of one â?? half dozen of the other. Bottom-line is that Iâ??m certain Madelyn will benefit from your letter, no matter WHICH head-honcho she eventually writes it to. Keep The Faith, Anthony Villaseñor Kristi wrote: ------------------------------- While I appreciate your angle, I do not think however that it really makes a difference here because when I say head honcho, I mean Controller, Superior, VP or whom ever else she can involve for action. A perfect example: I had a client who had been trying to get a reply from Citibank for over 2 years. She wrote and called everyone she could by using the methods suggested by the "Controller-Collection manager". She could not get a reply. I wrote 1 (o....
RE: Kristi....Help!! Experian "One may be jailed for contempt if one does not follow a judge's written order for declaratory relief." I don't see how. If that order compels him/her to do (or to avoid doing) something - it is not a declaratory relief, but an injunction. Saar
RE: Essentially On The Same Pa Agreed. You may have personal knowings of operational procedures at GMAC but in general is what I was speaking of. Thanks for being clear on that. Have a great day. Kristi CarreonandAssociates.com CreditDefenses.com wrote: ------------------------------- Kristi: You know weâ??re in agreement yet the only reason I mentioned anything, is that I know a few folks at G-mac and since thatâ??s the firm in questionâ?¦ Anyway, itâ??s sort of six of one â?? half dozen of the other. Bottom-line is that Iâ??m certain Madelyn will benefit from your letter, no matter WHICH head-honcho she eventually writes it to. Keep The Faith, Anthony Villaseñor Kristi wrote: ------------------------------- While I appreciate your angle, I do not think however that it really makes a difference here because when I say head honcho, I mean Controller, Superior, VP or whom ever else she can involve for action. A perfect example: I had a client who had been trying to get a reply from Citibank for over 2 years. She wrote and called everyone she could by using the methods suggested by the "Controller-Collection manager". She could not get a reply. I wrote 1 (o....
RE: Essentially On The Same Pa Well....gee Anthony, since you know people at GMAC, maybe YOU could take care of this for me??
Injunction And Declarative Ord Saar: Just FYIâ?¦ An â??injunctive orderâ? is an equitable redress that prohibits threatened conduct, while a â??declaratory judgmentâ? (the actual technical term) is a formal statement pronouncing oneâ??s rights or condition. It can be said that injunctions PREVENT, while declaratory judgments BIND (obligate) the litigants to certain issues. Keep The Faith, Anthony Villaseñor
