Re: Re: Re: Re: OC Validation Letter-Please comment I'm still drinking my coffee so I'm not sure you'll not be getting anything intelligent from my keyboard this morning. I'll give it my best non-caffinated shot however. Butch is right about the Richardson case, there's others too, Cushman, Stephenson, are foremost in my mind. But, you have to appreciate the Nelson v Chase ruling and FTC supporting brief to understand how to use it -- that's what is missing. BEFORE Nelson v Chase, that is again the most familiar and popular, NOT the only case, the furnishers (OC's AND CA's) maintained they had NO responsibility to consumers only to the CRA's -- that's the greatest lie referenced above. Further, the CRA's maintained all they were required to do was parrot whatever information the furnishers were providing. No. The furnishers are responsible for the information provided. The CRAs are responsible for the reporting. The CRAs have an umbrella and dual responsibility and are only allowed to assume the information is accurate as provided by the furnisher until it is disputed, or until they know or have reason to know that it is not, then they have a larger role. While I understand that verification and validation, in the end = proof of debt, it is not semantics and the words aren't interchangeable where the FCRA and FDCPA are concerned -- why muddy those waters and allow any doubt of confusion to creep in when building a papertrail? Verification = FCRA Validation = FDCPA They are 2 different processes that both lead to proof of debt -- prove it or remove it. While the FDCPA provides that the documentation IS provided to consumers, the FCRA does not -- that doesn't mean it doesn't have to exist, that it isn't a reasonable request, that it shouldn't be provided, that the CRA's must have something to hang their hats on. The fact is however, it doesn't matter, there could never be a successful enforcement action to collect the alleged debt without it as long as that stays the focus in requesting the information and in building a papertrail that may not ultimately lead to a court room but that would solidly support your position if it was needed and came down to it and that is just what you want to do as a consumer. It is powerful for consumers to hold the furnishers responsible and shatter the myth that they have no responsibilities and aren't accountable to anyone but the CRA's. They do have mandated responsibilities and liability, use that with the same for the CRAs -- it is though 2 different things, BOTH mandated by the FCRA. Sassy
Re: Re: Re: Re: Re: OC Validation Letter-Please comment How about the afternoon ... Seriously, Sassy, when you have the time, take a look again at my post and tell me what's wrong with it. As I am brand-fresh-newbie here, I neen to know if my thinking goes in the right direction. Phleeeease ...
Re: Re: Re: Re: Re: OC Validation Letter-Please comment Butch, thanks for the clarification. Everybody else, thanks for this thread, it's a good one. Can't wait until my green cards come back....
Isn't there a portion of the FCRA suggesting that consumers have no private right of action against furnishers? That the FTC handles complaints against them? I also read some congressional testimony suggesting that consumers had no private right of action under FRCA against furnishers; only against CRA's. Thoughts?
Re: Re: OC Validation Letter-Please comment That was just the ruling on appeal of the Nelson v Chase Manhattan case, kickman, consumers DO have an implicit cause of action against furnishers per the FCRA. And here's the FTC brief, they say, that is just the intent of the FCRA: http://www.ftc.gov/ogc/briefs/nelsont.pdf Here's the case: http://www.law.com/regionals/ca/opi...r/0015946.shtml And from this thread: http://consumers.creditnet.com/stra...d=39474&highlight=sassy+and+patent+and+nelson LOL patent, I'm sorry I didn't know you were a hockey player ;-) You are FAST with that mouse click though. This is from U.S. Law week, it's a good summary, Nelson v Chase as well as Dornhecker (that's out of Illinois I believe) are both online, I'll find you links. Oh hey, maybe the pdf link at the bottom of this article will work for you. Sassy http://subscript.bna.com/SAMPLES/la...15?OpenDocument Consumer Credit--Credit Reports FCRA Gives Consumers Cause of Action Against Furnishers of Credit Information Fair Credit Reporting Act provision that outlines duties of furnisher of credit information once dispute arises concerning accuracy of data in consumer's file, 15 U.S.C. § 1681s-2(b), creates private cause of action for consumer against furnisher. Consumers may sue furnishers of credit information under the Fair Credit Reporting Act for passing on inaccurate data to credit reporting agencies, the U.S. Court of Appeals for the Ninth Circuit held March 1 (Nelson v. Chase Manhattan Mortgage Corp., 9th Cir., No. 00-15946, 3/1/02). Judge John T. Noonan rejected the argument that 15 U.S.C. § 1681s-2(b), which outlines the duties of furnishers once a dispute about the accuracy of their data on a consumer is noted, may not be enforced in a private cause of action. The court agreed with the Federal Trade Commission, which argued as amicus curiae, that Congress put no limit on private enforcement. The plaintiff consumer cosigned a mortgage loan in 1995. In 1998, the other cosigner filed for bankruptcy. Even though the consumer continued to pay on the mortgage, he had trouble obtaining credit thereafter because the mortgagee bank reported to a credit reporting agency (CRA) that the account was in bankruptcy. When the consumer complained, the bank explained that its reports merely indicated that the account was affected by the bankruptcy, and that prudent lenders should follow up to ascertain whether the consumer in question had actually filed for bankruptcy protection. The bank also promised to inform CRAs in the future that the account had been affected by a bankruptcy filed by one, but not all, of the borrowers. The consumer continued to have problems obtaining credit. In 1999, he obtained a credit report showing his credit history with the notation "included in bankruptcy." After being denied a truck loan, the consumer filed suit against the bank. The district court held that Section 1681s-2(b) does not permit a private action. The Ninth Circuit reversed. Private Action Inferred Under Sections 1681n and 1681o, the court said, Congress created a private right of action for consumers. In addition, Section 1681s-2(a)(1)(A) prohibits a "person" furnishing information "relating to a consumer" from knowingly furnishing inaccurate information. Subsection (1)(B) strengthens this prohibition, the court said, by prohibiting the furnishing of inaccurate information after notice of inaccuracy from the affected consumer. Subsection (2) imposes a duty on regular furnishers of credit information to correct and update their data, and subsection (3) requires them to notify CRAs of any disputes. Most of the provisions of Section 1681s-2(a) are for the protection of consumers, the court said. Any doubt that a consumer can sue for their violation under Sections 1681n and 1681o arises from Sections 1681s-2(c) and (d), the court said. The former expressly provides that Sections 1681n and 1681o "do not apply to any failure to comply with subsection (a)," and the latter provides that Section 1681s-2(a) "shall be enforced exclusively" by federal and state agencies. Consequently, the court said, "private enforcement under §§ 1681n & o is excluded." Section 1681s-2(b), on the other hand, specifies what happens after a CRA receives notice of a dispute concerning the accuracy of information provided by a furnisher. Under this section, the furnisher has four duties: to conduct an investigation; to review all the relevant information provided by the CRA; to report its results to the CRA; and, if the information proves inaccurate, to report the results to all CRAs to which it has reported the information. The bank argued that Section 1681s-2(b) does not even mention consumers, so the private actions authorized by Section 1681n and 1681o do not apply. This argument, the court said, "has specious plausibility" but "overlooks the fact that the notice which starts the process provided by (b) is notice of a dispute as to the accuracy or completeness of information" contained in a consumer's file. When information in a consumer's file is disputed by a consumer, it is hard to say there is no "requirement ... with respect to a consumer" under Section 1681n, the court said. Adopting the FTC's position, the court said that it can be inferred from the structure of the statute that Congress did not want furnishers exposed to suit by every consumer dissatisfied with the credit information furnished. Hence, Congress limited the enforcement of the duties imposed under Section 1681s-2(a) to governmental bodies. But it also provided a "filtering mechanism" in Section 1681s-2(b) by making the disputatious consumer notify a CRA and setting the CRA up to receive notice of the investigation by the furnisher. "With this filter in place and opportunity for the furnisher to save itself from liability by taking the steps required by § 1681s-2(b), Congress put no limit on private enforcement under §§ 1681n & o," the court said. Judges Alfred T. Goodwin and Stephen S. Trott joined the opinion. Richard S. Rubin, Santa Fe, N.M., argued for the consumer. John F. Daly argued for the FTC as amicus. Gerald D. Waite, Kummer Kaempfer Bonner & Renshaw, Las Vegas, argued for the furnisher. Full text at http://pub.bna.com/lw/0015946.pdf EDIT: This link just worked for me, that's one down! Copyright © 2002 by The Bureau of National Affairs, Inc., Washington D.C. http://www.creditboards.com Sassy
Re: Re: OC Validation Letter-Please comment Continued And Dornhecker, same thread: Here's Dornhecker: http://www.a2cb.com/collection/may2001.htm May 2001 Court Says Furnishers Face Reinvestigation Liability Under FCRA The U.S. District Court for the Northern District of Illinois has ruled that consumers may sue those who furnish data to credit reporting agencies for failure to carry out their reinvestigation responsibilities under Section 623 of the Fair Credit Reporting Act (FCRA). (Dornhecker v. Ameritech Corp., N.D. Ill., No. 00 C 26, 6/7/00). The judge ruled that while the FCRA does not specifically create such a liability, one could be implied from the way the law is written. The case involved telephone accounts that were fraudulently opened in some consumersâ?? names. When the subsequent debts were not paid, the phone company retained a collection firm to pursue the bad debts. The collector reported the adverse information to the credit reporting agencies and when the consumers found out about it they asked the credit reporting agencies for reinvestigation of the data as well as reported the fraud to the phone companies. Two of the consumers sued the phone company, alleging it violated Section 623(b)(1) of the FCRA by failing to properly reinvestigate the disputed data. The phone company said it was only obligated to pursue a reinvestigation when contacted by the credit reporting agency. The consumers argued that furnishersâ?? duties under 623(b)(1) are indeed owed to consumers. They pointed out that Congressâ?? exemption of furnishers from liability under subsection (a) implicitly made them liable under subsection (b). If Congress had meant to exempt furnishers from liability under subsection (b), it would have stated that fact as it did in subsection (a). The court said it ruled as it did because itâ??s apparent consumers are members of a class that the FCRA sought to protect and that legislative history shows an affirmative attempt by Congress to hold furnishers of information accountable if they continue to supply inaccurate data after they have been notified. It also backed its decision based on two cases that had been previously adjudicated. The first involved a similar suit by a consumer over reinvestigation responsibilities under 623 (b)(1). The court held that â??there is not authority supporting the proposition that the FCRA does not create a private right of actionâ?. The court recognized that furnishers were exempt from civil liability from subsection (a), the FCRA did give consumers a cause of action against â??personsâ? who are willful or negligent in complying with the Act. The second citation concerned a case that set forth factors for determining if a private cause of action is implicit in a statute. Saying this case met all four factors, the court concluded that the consumers could file suit against furnishers of data for failing to comply with Section 623 (b)(1). Dornhecker: http://www.proselitigant.net/wwwthr...&sb=5&o=0&part= Thank you, Whyspers! EDIT: Oh dear!!!!!!!!!!!!!!! Whyspers, who moved your cases? well, I know who, but where or are they just gone? Sorry for another edit, found it, from Whyspers: http://forum.creditcourt.com/discus...ges/15/562.html LOL, here's the whole case: http://www.ilnd.uscourts.gov/JUDGE/..._OPIN/00c26.PDF http://www.creditboards.com The Watkins letter: http://www.ftc.gov/os/statutes/fcra/watkins.htm snippet: Section 623 was added to the FCRA by the Consumer Credit Reporting Reform Act of 1996 (Public Law 104-208, Title II, Subtitle D, Chapter 1, the "CCRRA"). That major overhaul of the FCRA was signed into law on September 30, 1996, and most of its provisions became effective one year later. We understand your point that the obligations imposed by Section 623(a) on furnishers of information to CRAs (and the remedies it provides consumers for violation) are limited, and your view that CRAs should be more vigilant as a result. However, the FCRA imposed no accuracy duties at all on the furnishers of information to CRAs prior to the addition of Section 623 in the CCRRA. Even though the Section is limited in some respects, it imposes legal obligations where none existed before. Section 623(a)(1)(B) forbids furnishers from continuing to report inaccurate information that is disputed by consumers in writing to the address provided by the furnisher (using the procedure you cited). In addition, Section 623(b) imposes clear investigative duties on furnishers when they receive disputes from CRAs, and allows consumers to sue violators of this subsection to obtain damages (which may be punitive if the consumer shows willful violation) and attorney fees. Prior to the addition of Section 623 in 1996, the FCRA provided for none of those duties or liabilities on furnishers of information to CRAs. Sassy
Re: Re: OC Validation Letter-Please comment I'm sowwy. :-( But thanks for the case, sassy. I skimmed over that case a few months ago, but didn't pay close enough attention. Kinda like today ... Thanks again. Sorry for being so dense.
Re: Re: OC Validation Letter-Please comment No worries, kickman, you weren't dense that is just what they want us to believe and we've been told endlessly. We think they aren't lying to us or allowed to lie. That's why there's so many problems getting the furnishers and CRA's to do what they are required to do. The fainting was dramatic, but hey, I've rootbeer, better than smelling salts! ;-) It's all good! Sassy
Re: Re: OC Validation Letter-Please comment Thanks to all for the replies.....very informative....much appreciated.
