LONG: Violation? Yes/No? What next?

Good job Uhack,

Make up a notice of intent to sue. And charge them $1,000 for FDCPA violations. Give them 10 days to cure or be sued. Tell them that IF they cure before the 10 days is up you MAY decide not to sue them.

Also send back their silly computer printout as unacceptable. (Be sure to copy them tho).

Include this in the copy of your letter

§ 808. Unfair practices [15 USC 1692f]

A debt collector may not use unfair or unconscionable means to collect or attempt to collect any debt. Without limiting the general application of the foregoing, 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.

Get prepared to file a small claims case.

Have you studied Spear Vs. Brennan?

 

uhack,

What is the source of this statement from your above post, please?

"...I am distressed that you have not only failed to follow the law and notify me of this alleged debt prior to placing it on my credit report..."

Sassy

 

uhack,

It's a great statement, I'm hoping there's a legal basis to back it up.

I agree with you, absolutely 100%, I'd like there to be a law or caselaw or interpretation somewhere that says the same thing. That is the way, I believe, it's supposed to work as well; however, there's a lot of people who only find out about a creditor via their credit reports.

Do you know if there is something?

Sassy

 

You're right guy's,

This business of placing a derog on your credit report prior to sending the required notice is a HUUUUUGE problem. Uhack DOES have law to back up his position tho.

Wheather the CA notifies you "directly OR indirectly" they are still required to send you your notice WITHIN 5 DAYS. Putting a derog on your file is an indirect communication. The first "dunn" must include your dispute rights. That's why they don't want you to see it.

So, in my opinion they just "pretend" they send it and will insist IN COURT that they did and you didn't respond.

The other layer of complexity comes in when I hear so many suggest that since the CA can't PROVE you recieved it that that will hold up in court. It probably will not.

The judge will have a tendency to believe the CA when they say "we sent it" because to send those notices out CRRR would place an undue burden on the CA. What would be the expense of sending thousands of first notices via CRRR. It is precisely for this reason so many CA's are getting away with this.

But Uhack, push it anyway. Put it in your suit as a $1,000 charge. Just because you probably won't win that component doesn't mean you shouldn't push it.

 

§ 803. Definitions [15 USC 1692a]

As used in this title --

(2) The term "communication" means the conveying of information regarding a debt directly or indirectly to any person through any medium.


§ 809. Validation of debts [15 USC 1692g]

(a) Within five days after the initial communication with a consumer in connection with the collection of any debt, a debt collector shall, unless the following information is contained in the initial communication or the consumer has paid the debt, send the consumer a written notice containing --

(1) the amount of the debt;

(2) the name of the creditor to whom the debt is owed;

(3) a statement that unless the consumer, within thirty days after receipt of the notice, disputes the validity of the debt, or any portion thereof, the debt will be assumed to be valid by the debt collector;

(4) a statement that if the consumer notifies the debt collector in writing within the thirty-day period that the debt, or any portion thereof, is disputed, the debt collector will obtain verification of the debt or a copy of a judgment against the consumer and a copy of such verification or judgment will be mailed to the consumer by the debt collector; and

(5) a statement that, upon the consumer's written request within the thirty-day period, the debt collector will provide the consumer with the name and address of the original creditor, if different from the current creditor.

 

Butch,

Where is the law to back that up?

I don't disagree that it could be argued that a consumer report is an indirect communication.

However, what is the difference between a derog on your CR and an initial letter -- if you don't know about either one?

For instance:

Joe Schmuck Enterprises places a collection tradeline for $100 on 02/00 -- I don't know about it and won't know about it until I either decide to get a copy of my credit report or I am denied for something and get a copy of my credit report -- most likely the later unless a creditnet addict.

Joe Schmuck Enterprises says he mailed me a series of letters prior to placing that on my report, beginning 10/99 -- the first letter he says contained the mini-miranda, the subsequent letters, 11/99 and 12/99 were generic and computer generated.

Either way, your honor I didn't get that letter and your honor I didn't know about it until I reviewed my credit report after being denied a dell (HEY, I'm not a dude, lol) laptop on 03/02.

Again, I don't disagree, I was just looking for something more substanative -- the letter said or implied that it was illegal to place a tradeline on a report without prior notice.

Was uhack bluffing and if he was called on that phrase how was he going to back up the illegality -- that's what I wanna know.

Sassy

 

I just thought of something else, in AZ pursuant to state law, you can request any relevant information at any time and I believe it goes on to say that collection activity must cease until it is provided.

It's been a while since I've reviewed it, so I'll double check on that last part -- maybe state law is where we should be looking for somthing more substantial.

Again, I think it can be argued that a consumer report is a communication -- however, when it will be communicated is a huge unknown.

If you're to have a set in stone 30 day time period for requesting validation, which I believe is absolutely false, then there has to be a verifiable notification as well.

That's at least deceptive and unfair if you can win the communication argument.

Actually, it is absolutely false, the statutes are plain language -- if it meant for the 30 day validation to be 30 days from xx/xx/xx, it would say that. It doesn't however, it says that not validating cannot be construed as an admission of liability.

Sassy

 

Something else,

Dispute it with the CRA's, they have an absolute duty to verify the information to them and if they do you can proceed with your suit.

The judge will make them prove the debt is yours in the courtroom.

If they had validation, they would provide it, hiding behind a chicken-poop interpretation doesn't work.

Beyond the validation requirements, as a furnisher of information under the FCRA, they also have the duty to report accurate, updated, correct and verifiable information.

They can't get around that.

Sassy

 

Sassy, (Dudette)

I'm a little confused. You must be asking if placing a derog on your report may or may not qualify as a communication?

Is that your contention? Is that what you seek backup on? Is your question based upon the idea that a communication is NOT a communication until you become aware of it?

Also - How bout your opinion on my question at:

http://consumers.creditnet.com/straighttalk/board/showthread.php?s=&pgnum=1&postid=222637#post222637

This is my first Ver. with Exp. and I need some help.

Thanx

B.

 

Butch Dude ;-),

From the AZ Administrative code:

R20-4-1521. Duty of Investigation

A collection agency shall, prior to continuing its collection efforts against the debtor, investigate any claim made by the debtor or his attorney that he is the wrong party, that the debt has been paid, that the debt has been discharged in bankruptcy, or any other reasonable claim that the debt is not owing. A collection agency shall furnish evidence of the debt to the debtor or his attorney if and when so requested.

Just following up on my earlier post, making sure memory wasn't failing.

I'm not confused but I'll defer to your confusion, LOL, just playing. No, I wasn't asking if placing a derog was a communication, I believe it is and I think it's arguable that it is, that's just my sassy humble opinion however, and it won't be defined until someone does argue it in court.

It is moot now that I clarified, but how can a communication be communicated unless more than the communicator knows about it? he he he

Again, I think a CRA report is a communication, based on the definition alone, which is a conveying of information.

uhack said in his first post:

"...I am distressed that you have not only failed to follow the law and notify me of this alleged debt prior to placing it on my credit report..."

This statement is what I wanted the legal source for.

You are asserting that placing a derog on a credit report is an indirect communication or conveying of information as defined in the FCRA, I don't disagree with that; however, I don't understand how this relates to the requirement that within 5 days of the initial communication, HOWEVER it is communicated, the CA must send you the required mini-miranda disclosures and information.

How does the black and white FDCPA requirements, which have a source, relate to uhack's statement that "you have not only failed to follow the law and notify me of this alleged debt PRIOR to placing it on my credit report."

He says it is a law, you said in the next post that he is backed up by law -- I just wanna know which law that is.

I've not seen anywhere in the federal statutes any such provision requiring notification prior to reporting, and, I would LOVE to have it in black and white, handy that would be!

If the CA is saying you didn't respond to the initial letter within 30 days so you missed your chance to validate. You say, but I never got the letter. CA says, yes you did I mailed it on xx/xx/xx.

How can he prove he mailed it and how can he prove you received it -- indeed giving you the notification required.

If the CA places a derog on your credit report it shows the reported date xx/xx/xx. If we all agree that's a communication, then you should get a separate notice in writing within 5 days advising you of your mini-miranda rights and information.

Ok, so what -- the problem uhack is having, as well as rblues I believe on several other threads, is that the CA says I mailed it to you and you didn't respond within the 30 days -- you say I didn't get it.

If the CA then placed a derog on his report and counted that as the initial communication -- he would say the same thing, I mailed it within 5 days of the reported date.

An unscrupulous CA is an unscrupulous CA -- no proof it was mailed and no proof it was received.

Neither scenario though answers the original question -- is there or is there not a law that says a consumer has to be notified BEFORE the information is reported on one's credit report, as both you and uhack asserted?

If you are trying to make the laws associated with the initial notice requirements relevant to this, I'm not getting it.

I don't believe there is a law specifically requiring notification prior to reporting, unless it is buried in state law, but if one is lurking somewhere, I sure want to know about it.

Sassy

 

One thing I always do when writing to a CA is to state

"I am not allowed to receive personal phone calls at my job."

Versus "Do not call me at work".

The destinction is important. It is against the law for them to call you when they know that you are not allowed to receive such calls.

Follow up the first sentance with:
"You have now been notified of this fact. Any calls to me at my job will be refused and will be considered a violation of my rights. I reserve the right to sue you for any and all such violations to the full extent of the law."

Now you know.

 

What happens if the OC misses the 10-day deadline? Sue? Please advise.

Thanks in advance.


-Gavenraj

 

Go down and get filed and have them served. Once they get a case number they'll be in touch, right smartly, to settle. Don't make the threat if you're not ready to back it up.

 

I am inclined to agree. Even the FTC makes a point of saying in their opinion that a CA doesn't need to remove once the account is reported, just mark as in dispute.

The only distinction they make is to say a CA can not report after they have been notified within 30 days that the account is disputed, as this would be considered continued collection activity.

Now, it has been decided by the courts that even filing a suit is considered communication for FDCPA purposes. So, it follows, that if reporting to a CRA is collection activity, then it is probably also communication, and subject to the five day rule.

You are absolutely NEVER going to get a CA on that one though, I think, as they will indeed just claim it was sent. You need to let them bury themselves another way...

 

Re: HELP: Violation? Yes/No? What next?

Of course Uhack, that's a violation.