Need advice. Should I sue col

Discussion in 'Credit Talk' started by bkonner, Oct 1, 2000.

  1. bkonner

    bkonner Well-Known Member


    Should I sue two collection agencies for "re-aging" two loans reported with Esperian?

    I got into terrible financial trouble ten years ago (I am doing quite well now). I defaulted on two debts, one for $ 800.00 and the other for about $ 1000.00. The defaults happened in 1991 and 1992.

    In early 1999 (seven years later, hmm!) I was contacted by two collection agencies who made the usual threats. They also jacked up the total due on both accounts to about $ 1500.00 each because of interest (approximately).

    Both of these accounts turned up in my Esperian credit report. I am not 100 per cent certain that these two collection agencies (CreditTrust of Maryland and the Sagres Company out of the Los Angeles area) reported the accounts, but they are the only two that came after me on these debts; so it seems likely. The Esperian report does not show either collection agency making an inquiry, although Equifax's report does show the Sagres Company (neither debt ever appeared on Equifax's report).

    The end result is that Esperian removed both "re-aged" debts. Nevertheless, financial damaged was done. I think I was turned down for a job with Lockheed (but can not prove this), which required a security clearance. I was also turned down for several car loans.
    I only found out about the accounts being "re-aged" this last July. So, should I sue them, or should I just forget it? What do you guys think?

  2. Pat

    Pat Guest

    RE: Need advice. Should I sue

    Nope, you can't sue them. The standard applied (case law, not statutory law) to CRAs before they have been notified of a dispute is much different than the standard of "reasonableness" a court applies after a dispute.

    Essentially, Experian is not liable if they just "take the word" of the source of information unless you dispute the validity of the information.
  3. bkonner

    bkonner Well-Known Member

    RE: Need advice. Should I sue

    Perhaps I was not clear. I am thinking about going after the collection agencies not the CRA.
  4. Crdt Dfnse

    Crdt Dfnse Well-Known Member

    You May Have Grounds To Sue, I

    Based on what youâ??ve indicated you may have grounds to litigate against the collection agencies. If as you stated they threatened action that could not be taken, or had no real intent to take. For instanceâ?¦

    If a collector stated emphatically that suit was imminent but the account is statute out, meaning beyond the legal limit to sue and prevail. This would be a violation of FDCPA and subject to redress. Proving such violations, however, is another matter but generally (in similar situations) such cases are settled well before court.

    Keep The Faith,
    Anthony Villaseñor
  5. Michael

    Michael Guest

    RE: You May Have Grounds To Su

    I would contact the collection agencies and ask to have proof of the debt sent to you.

    Including all paperwork associated with the debt showing clearly the amounts owing, a break down of principle, and interest, with date of last payment.

    Send the request to them registered mail.
    If they comply you have the proof you need to sue. If they don't comply you have grounds to chalenge the CRA's and also bring up the non compliance of your request in court.

    Remember the burden of proof is on them, to prove you owe the debt, and from where and when!
  6. Crdt Dfnse

    Crdt Dfnse Well-Known Member

    Nooooot Quite

    Michael wrote:
    Send the request to them registered mail.
    If they comply you have the proof you need to sue

    Remember the burden of proof is on them, to prove you owe the debt, and from where and when!

    Your first statement (above) fully demonstrates why the agency probably wonâ??t respond, if they know whatâ??s up. Your second comment (above) is wholly inaccurate but is a common misconception.

    Whenever litigation is engaged for whatever cause of action, it is the plaintiff NOT defendant who bears the burden of proof. In this case the plaintiff being the consumer, and defendant the collection agency. Also challenging directly to the agency could thwart certain legal avenues, damaging a potential case.

    Nonetheless, I understand and appreciate your aim here; itâ??s just a bit off today thatâ??s all. :)

    Keep The Faith,
    Anthony Villaseñor
  7. Michael

    Michael Guest

    RE: Nooooot Quite

    I disagree,

    the debt collector has the burden of proof to substantiate the amount (and validity) he is claiming. Anyone can say you owe money, you do not have to pay it unless they have proof that you owe it.

    If the plaintiff takes the collector to court without first demanding that substantiation, the collector can say that no malice was intended it was an error ect.

    In that situation the Judge will ask the plaintiff to proove he did request this from the collector, and gave the collector opportunity to correct the error. Without this proof there is no evidence of malice and the case will be dismissed.

    This entire case will be based on weather or not the collector acted with malice and deceit! This can only be prooven if the collector is put on notice, and continues to act in such manner!

    Furthermore at the time of the trial, the plaintiff can then offer any possible evidence he may have such as an old credit report showing the original date, or old demands showing the original date.
  8. Crdt Dfnse

    Crdt Dfnse Well-Known Member

    Apples And Oranges

    I believe weâ??re discussing some very distinct issues in context with this thread. You see BKOnner initially asked about litigating against the collection agency, having suggested threatening conduct was engaged. In my follow-up post an example relating to FDCPA was given, based on BKOnnerâ??s comments. After all, he/she stated (to Pat) not specifically considering CRAs.

    Nonetheless, the â??burden of proofâ? is always, without exception, placed with the moving party: i.e., plaintiff. This is a principle foundation of law, very different from establishing prima fecie evidence in the manner you suggested. It appears youâ??ve confused an affirmative defense with good faith doctrines, perhaps not taking into account the full effects of FDCPA noncompliance?

    As far as any requirement for â??substantiationâ? that a debt truly exists in order to prevail in action per FDCPA, case law doesnâ??t support this. Because if the debt collector stated a debt was owed (by re-aging, for instance), when in fact no such activity existed, the rule of least sophistication applies (Bingham vs. Collection Bureau, Inc. â?? 1981). The plaintiff need not show any intent of malice, only that noncompliance with 15 USC 1692.e(5) took place. Noncompliance based on what the least sophisticated consumer is likely to believe as fact, after being falsely informed.

    Now I could bore you (and maybe everyone else) with more case law cites to support what Iâ??m saying. But the bottom-line is; I believe youâ??re aiming at something other than what I was. But I could be wrong. ;-)

    Keep The Faith,
    Anthony Villaseñor
  9. heather

    heather Well-Known Member

    RE: Need advice. Should I sue

    You said these are showing on your credit reports. Are they just reported as collections or are they judgments?

    If they are just collection activities then the statute of limitations would have run out. If they already have a judgement against you, then basically they can come after you 10 years after the judgement and it would be perfectly legal. Once a judgement is entered then the agency also has the right to charge interest to the account.
  10. bkonner

    bkonner Well-Known Member

    RE: Need advice. Should I sue

    These were not judgements. I will never pay them. They were also past the seven year SOL.

    I appreciate yours and everyone elses responses.


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