Thank you for your explanations, (which are greatly appreciated) but I am still very confused. I will be checking this out tomorrow even further but what was explained to me today by several people who were at the hearings was basically, "consumers only prayer will be with the FTC fining them"...I want to know more and will get to the bottom of this... But what this proves to me is that if attorneys are confused it will only be more damaging down the road. One of our biggest problems has alway been that consumers couldn't't find attorneys versed in the FCRA and often told consumers they didn't have a case do to not having "damages". The cra's tried in my case over and over "big deal, what are her damages" under the FCRA emotional duress WAS DAMAGES but many attorneys out there and Judges don't know the FCRA enough to understand how complex it is. After more hours of research than I care to go into, finally my attorneys and our Judge...Got it! The problem is they make these laws so ambiguous that it gives their corporate attorneys so many loopholes to spin things (or try to) their way nobody can find the assistance or expertise needed... My federal case was a nightmare and never wanted to be here again but hearing that our only "prayer" is through the FTC and then seeing how confused we are all at this point, just shines a light on how complex this situation can be. I will let you know what I find out as I will try to get the expert FCRA attorneys that I know to give me a better explanation of these crucial amendments, but so far the feeling from all I have talked to is we are loosing our rights to the courts as what they have given us is disguised to look like the laws have been strengthened, but when you take away our rights to hold them accountable, it takes away with it all the good it do. Thanks Again!!! Denise
This may help too, Denise, it is a copy of the existing FCRA with the FACTA amendments incorporated (in blue) into the text. It's hard to tell what the actual changes are, probably purposefully I say, with the new version published by the FTC. http://www.moo3mods.com/FCRA2003.htm Sassy
Re: Re: must read..no more access to courts Thanks to Jazkal, btw. One should always attribute work from another author. Unfortunately, once an alleged debt gets out into the system, it may get sold around and around like a $2 hooker when the ship comes in. These jokers are so busy screwing each other, once they find out a debt is not legit. they may very well "sneak" it into a portfolio and sell it to some unsuspecting poor slob who buy's old debts. The first CA figures hey might as well make "somethin" on it. Like rats in the swamp they eat their young, and each other. Denise, I'm so sorry to see you goin through all this again. God knows you already paid the price. I think what you need is a letter, on the Doc's letter head, clearing the debt as paid, satisfactorily, long ago. Then whenever this thing rears it's ugli head whip out a copy and send that. Good luck Denise, let us know what happens. .
Re: Re: must read..no more access to courts If Jazkals work is precise, and I have no reason to suspect it isn't, I don't think section 623(b) has been affected at all. I can't see how they can change the law, unless they CHANGE THE LAW. 623 appears to be intact. § 623. Responsibilities of furnishers of information to consumer reporting agencies [15 U.S.C. § 1681s-2] (a) Duty of furnishers of information to provide accurate information. (1) Prohibition. (A) Reporting information with actual knowledge of errors. A person shall not furnish any information relating to a consumer to any consumer reporting agency if the person knows or has reasonable cause to believe that the information is inaccurate. (B) Reporting information after notice and confirmation of errors. A person shall not furnish information relating to a consumer to any consumer reporting agency if (i) the person has been notified by the consumer, at the address specified by the person for such notices, that specific information is inaccurate; and (ii) the information is, in fact, inaccurate. (C) No address requirement. A person who clearly and conspicuously specifies to the consumer an address for notices referred to in subparagraph (B) shall not be subject to subparagraph (A); however, nothing in subparagraph (B) shall require a person to specify such an address. (D) DEFINITION- For purposes of subparagraph (A), the term `reasonable cause to believe that the information is inaccurate' means having specific knowledge, other than solely allegations by the consumer, that would cause a reasonable person to have substantial doubts about the accuracy of the information. (2) Duty to correct and update information. A person who (A) regularly and in the ordinary course of business furnishes information to one or more consumer reporting agencies about the person's transactions or experiences with any consumer; and (B) has furnished to a consumer reporting agency information that the person determines is not complete or accurate, shall promptly notify the consumer reporting agency of that determination and provide to the agency any corrections to that information, or any additional information, that is necessary to make the information provided by the person to the agency complete and accurate, and shall not thereafter furnish to the agency any of the information that remains not complete or accurate. (3) Duty to provide notice of dispute. If the completeness or accuracy of any information furnished by any person to any consumer reporting agency is disputed to such person by a consumer, the person may not furnish the information to any consumer reporting agency without notice that such information is disputed by the consumer. (4) Duty to provide notice of closed accounts. A person who regularly and in the ordinary course of business furnishes information to a consumer reporting agency regarding a consumer who has a credit account with that person shall notify the agency of the voluntary closure of the account by the consumer, in information regularly furnished for the period in which the account is closed.
Re: Re: must read..no more access to courts Most likely Denise means this new provision: (D) DEFINITION- For purposes of subparagraph (A), the term `reasonable cause to believe that the information is inaccurate' means having specific knowledge, other than solely allegations by the consumer, that would cause a reasonable person to have substantial doubts about the accuracy of the information. Johnson v. MBNA had a lot to say about what "reasonable" investigation means. Key word = reasonable. This industry is a mess and the FTC and Congress well knows it. Believe me, they would NOT eliminate your rights completely and leave us powerless to defend against the onslaught of this industries chinaniguns. Balance is what Congress is after. They may have toughened, (or narrowed) this definition in FACTA, making it a little less likely to develop a case against the CRA's, but they DID replace that component with a way for us to get the necessary proof which is contemplated in this new 623 definition. ALL they're saying is this gang. If you plan to dispute through the CRA you need a bit more than just your assertion that it doesn't belong on your report. But while doing this they ALSO gave us the right to dispute DIRECTLY with the DF. Effectively REVERSING the old system. Old: We dispute through the CRA which forwards on to the DF to investigate. The info goes back to the CRA for correction, if applicable. New: You dispute directly with the DF. If the TL doesn't belong on your report you may need something that so states. Send THAT directly to the CRA so they can correct. Reversing the polarity (so to speak) is just a way to cut WAY down on the amount of work which the CRA's have traditionally had to do. Think - with this new law which removes them from the step 1 position and puts them LAST instead, they just saved BILLIONS. So in a way yeah, their lobbyists on Capital Hill paid off - in spades. But fear not, we are busy figuring out ways to hammer the DF's first. These poor slobs don't even know what's comin. lol As Sherlock Holmes used to say; "The game, she is afoot, yet again". '
Re: Re: must read..no more access to courts Here's the fix on Denise's link; Analysis of the Fair and Accurate Credit Transactions Act of 2003, Pub. L. No. 108-159 (2003).
Re: Re: must read..no more access to courts I wrote to Attorney Len Bennett who was the attorney on the Johnson v MBNA suit asking him his thoughts on FACTA a couple of times. With his permission, I am posting his letters to me here, as I believe he understands the Amendments better than most attorneys out there. I am including his email address, as I recommend him highly to any consumer who feels they have a legitimate case and need further assistance. I have a high degree of respect for both his expertise level and his compassion for wronged consumers. Denise, The name of the FCRA Amendment is FACTA. It did not add much for the cause, but at least it did not take as large a step backward as feared. Nearly every "improvement" was without a private cause of action, which means that the only prayer for a consumer is through the FTC. I expect you know the challenges there. One big improvement which we fought for is a new provision to 1681s-2(b) which allows the consumer to dispute information directly to furnishers/creditors, instead of having to go through the CRAs. But regardless, the opinion in Johnson v. MBNA really is fantastic. It likely will have more of an impact than anything in the FACTA. The Fourth Circuit held that furnishers have a heightened investigation duty. To now, the industry has claimed that these duties were minimal. Len From: Len Bennett To: Denise Richardson Sent: Friday, July 02, 2004 12:36 AM Subject: Re: FCRA Amendment?? Denise, Thanks for the referral re: Betty Chin. I sent her to two other FCRA veteran NACA attorneys closer to home (she wanted to interview consumers who suffered mortgage turndowns and preferred NY area). These attys were Jamie Fishman, NY, NY, and Jim Francis, Phil., PA. A couple of observations I could offer re: your email and more generally the website (and message board). Please feel free and comfortable to post or share. The FACTA, as with the pre-FACTA FCRA, contains two general types of "rights" - those WITH a PRIVATE RIGHT of action (a right of a consumer to sue in a civil case) and those WITHOUT a PRIVATE RIGHT. There are three primary violators under the FCRA - the consumer reporting agencies, the furnishers (creditors/ debt collectors), and the users of the credit reports. Against the later there is 15 USC 1681b which prohibits the use of a credit report by a person who obtains OR USES a credit report without one of the specific purposes listed in the section. These claims could also arise against the CRAs, but this claim can be a tough one. The FCRA and FTC view permits the CRA to rely on a "blanket" certification by the user by which the user promises to only obtain a report if it has a permissible purpose. Unless the CRA has been put on specific notice of a bad user, this claim will not succeed. The second targeted defendant is the CRA. The CRA has two primary obligations - Section 1681e(b) and 1Section 1681i. Sec. 1681e(b) requires the CRA to have in place "reasonable procedures to assure maximum possible accuracy" in its creation and publication of a consumer report. (A consumer report includes ONLY the credit report which is provided to the creditor, not the "consumer disclosure" which the CRA provides to the consumer. This is a point of contention with us because there are OFTEN great differences between the two types of reports. The FTC is currently considering a regulation to require the production by a denying creditor of the exact same report which was used by the creditor. This issue is especially important with 'mixed file' cases in which the CRA has combined the files or one or more accounts of two different people. When the consumer disclosure comes out, it is clean because the CRA will only include in the disclosure exact match data. As a result, the consumer cannot determine the cause of the problem. If anyone you know has this problem, they should go the FTC website and contact the FTC to submit a comment in support of such a reg.) The "reasonable procedures" standard is not strict liability. The CRA must have objective information by which it could know that information was inaccurate. In contrast, the 1681i claim establishes that notice, This section requires a CRA to conduct a reasonable investigation. The leading case on this is Cusman, which we used effectively to analogize the investigation standard for furnishers, in Johnson v. MBNA. The CRA's violate this section almost everytime through their use of the form based ACDV system. The CRA have near-minimum wage employees (or for Equifax, Jamaica outsource employees in Montego Bay). their sole job is to translate consumer disputes and documents into a 2 digit code. For example, if a consumer claims an account is wrongfully attributed to the consumer, the dispute would go from the CRA to the furnisher with a "01" code which outputs: "Consumer states not his/hers". The CRA decisions apparently is to continue to break the law and devote greater resources to defense work in litigation. 1681i also prohibits/limits the reinsertion of previously deleted info. The section requires the CRA to forward to the furnisher "all relevant information" - a provision which is ignored 100% of the time. The CRAs NEVER forward docs or dispute letters. Its a policy which is universally applied. We always recommend that consumers only dispute a matter in a separate, mailed letter to the CRAs. No faxes. No calls. No internet. The letters make much better trial exhibits. The final defendant is the furnisher - the creditor/collector who reports account info to the CRAs. The duties of the furnishers are at Section 1681s-2. Sec. 1681s-2(a) is wonderful in language, but useless and irrelevant in application. s-2(a) provides a number of requirements and obligations for furnishers - including a new requirement that they respond to consumer disputes made directly to the creditor. However, s-2(c) and (d) limit the enforcement of the section to government entities. So its useless. And it is ignored. HOWEVER, Section 1681s-2(b) DOES provide a PRIVATE CAUSE of action. This section is triggered only when the consumer sends her dispute through the CRA. The Johnson v. MBNA case held that the furnisher must conduct a thorough investigation, including the review of its original records. The other sections to which you eluded are at 1681t. this prohibits states from passing strongr fair credit laws. This is the section that FACTA was really enacted for. Thats the basics from me. Now - in a recent review of the website postings on a credit rights website, I came across a question about finding a FCRA attorney. There was a statement warning folks to avoid NACA attorneys. This is nuts. I litigate these cases across the country. I have a very good idea of who is out there to offer help. Those of us NACA attorneys who do FCRA work as a fulltime component of our practice number about a dozen to twenty. We know each other and often work together. We share information regularly. We are all NACA members. ANd I do not know of one who is not a committed advocate for the consumer and against the credit industries problems. Many NACA attorneys are formerly with legal aid. Many do considerable pro bono work. NACA attorneys all have different areas of expertise. Some FCRA. Others Fair Debt Collection Practices. Others still auto fraud, or class actions. If you want legal help, you will not likely find it outside this NACA group of advocates. I hope all is well. Regards as always, Len Bennett, lenbennett@cox.net Newport News, VA
Re: Re: Re: must read..no more access to courts I always credit Jazkal for his work and you know it. Certainly I don't need to dig up the previous threads and link the history of that hypocritical statement, Edwin. If you click on the link, you'll note that Jazkal's name is right there on the front page. Denise, Thanks for sharing those emails from Mr. Bennett, that's good reading and a keeper!!!!!!! Sassy
Re: Re: Re: Re: Re: must read..no more access to courts What a great synopsis of the private right of action by the consumer. Virtually all of this has been covered on this board, in one place or another. Thanks to Bennett for encapsulating. Loan Queen has a situation which drops right down in the middle of what Bennett is saying; namely CRA's violate § 611 every time http://consumers.creditnet.com/straighttalk/board/showthread.php?s=&postid=426728#post426728 § 611. Procedure in case of disputed accuracy [15 U.S.C. § 1681i] (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. EVERY SINGLE PERSON ON ANY OF THESE BOARDS WHO DISPUTES THROUGH THE CRA'S, WITH SUPPORTING DOCUMENTATION HAS ALMOST AN AUTOMATIC ACTIONABLE VIOLATION.
Re: Re: Re: Re: Re: must read..no more access to courts Also in Bennett's EM is a brief description of the difference between the "Consumer Disclosure" and the "Credit Report"; Marie, in a post from some time ago, in which David Szwak weighed in; My copy NOT like creditors' copy A MUST READ !!!!! Saar said it best; Many of the same atty's that did the Tabacco Cases are workin on it. .
Re: Re: Re: Re: must read..no more access to courts Thanks all for your much appreciated support. Today I received my car insurance renewal and it dawned on me that I wanted to check around for better quotes but with this hugh collection debt appearing on my credit reports, not only will I receive the inquiries (which I never ageed with as far as that goes) but I will most likely suffer in my premium because of their inaccuracies, my rate they offer me will be at the higher end!!!! It just snowballs in all aspects of our lives! I will be sure to find out what the difference in price is when I follow up on this Tues.!!!!!
Re: Re: Re: Re: must read..no more access to courts How many of the 3 reports is this one Denise? ???
Re: Re: Re: Re: must read..no more access to courts Denise, Since this all started with NCO dropping the ball, you know they had their butts handed to them by the FTC, yes???? I'm thinking you should be able to backtrack and use that against all the CA's involved. http://www.ftc.gov/opa/2004/05/ncogroup.htm http://www.creditboards.com/phpBB2/viewtopic.php?t=36985&highlight=sassy+keepmine http://www.creditboards.com/phpBB2/viewtopic.php?t=44472 In the last thread, keepmine says: Additionally, NCO is required to implement a program to monitor all complaints received to ensure that reporting errors are corrected quickly. I wonder if you can demand a description of the procedure they are using in order to comply with the consent decree? Why shouldn't they have to clean up their messes that they passed on? Sassy
Re: Re: Re: Re: must read..no more access to courts Sassy...Thanks so much for all the info...yes, as I have been digging deeper I find NCO is Medcl. I never dealt with collection companies so I didn't know they too utilize different company names. Do you know if IMBS was ever related to NCO? Because they were the first ones to write and call me and they also had the info that it was paid. Then it went to NCO...then medclr on credit report then "Gold Key Credit". Gold Key credit assured me this would be taken care of after spending many hours on the phone with them together with many blue cross reps that went out of their way many times to help. We both also faxed them pages of proof it should never have even gotten into their hands! I also understand the FTC is looking into more complaints so I have filed with them as well. Butch: I am waiting for my Experian and TU reports as I started with Equifax because they were the cause of my interest rate going sky high as I was told it was "due to Equifax report". I'll keep you all posted as I am looking into all my options to get this cleared up! Again, THANKS!
