Mitchra- I believe this is the end of my help in this area, I have no clue about debts being placed on CC's. MAYBE you could use the FCBA in your favor. If this is like a regular CC, which I'm assuming it's the Cap One deal they offer people, you can use the fcba in your favor, I THINK!! I know nothing about the FCBA, but I think as long as you get monthly statements and it's issue by an FDIC isured bank it may help. AGAIN, I am not 100%, I'm not even 5 % positive on this.
Fair Credit Billing ACt. I think you would dispute the original charge, but you may only have 60 days from the original charge, I'm not sure. It's almost like a validation for OC's.
Not at all. The concept of the "least sophisticated consumer" comes into play here. Basically an individual who is UN-sophisticated cannot be expected to know all the ins and outs of the law to the same extent the CA is expected to. For this reason the law was designed to give the benefit of the doubt to the consumer. In the Miranda Warning on your first dunning notice it states, (or should state) "You must notify this office of your dispute within 30 days, otherwise we may assume the debt to be valid." Sound familiar? The CA must give you 30 days to dispute the debt during which time they are NOT entitled to assume the debts validity. If you don't they may assume the debt to be valid as of the 31st day. Operating under the assumption that the debt IS valid allows them to do more to collect than when they cannot. Such as send you immediate payment demands or file a lawsuit. In the case of Nelson V. Chase, Nelson nailed the CA because they filed suit against him on the 27th day, thus overshadowing his 30 day dispute rights. Now - once that 30 days is up and you have NOT disputed, they can proceed as if the debt IS valid and may continue to do so until such time as YOU dispute it's validity, regardless of WHEN that may be. This changes the burden of proof BACK to the CA. Essentially, we're in a paperwork war. Provision is made for a reasonable period of time (judged to be 30 days) to elapse which allows those who send paperwork to proceed with action if their paperwork is ignored. It has it's origin in the UCC. If this burden of proof provision didn't exist we'd never get anything done just because everyone would simply ignore their mail. lol This is a simple version of a complex issue but that is the concept, the logic behind WHY it's this way. Recent case law has bolestered this post. I don't remember right this minute which case law items address this issue but I'll try and find it for you Mitch. Let me know if this clears anything up and don't be afraid to be cornfused
Spears V. Brennan "The Illinois district court concluded that requiring an unsophisticated consumer to exercise his rights under the FDCPA immediately or lose them is contrary to the basic premise of the Act, which is to protect unsophisticated debtors from debt collectors who may use the legal system, about which the consumer has little knowledge, to bludgeon them into submission.â? Blakemore, 895 F. Supp. at 983 (quoting Oglesby, at *10). So just to make sure Congress inserted the following: § 809. Validation of debts [15 USC 1692g] (c) The failure of a consumer to dispute the validity of a debt under this section may not be construed by any court as an admission of liability by the consumer. Hope this helps.
Perfect Butch, That alleviates my fears; the logic is impecable. I have been awake all night thinking about whether or not I should send Mr. Cooke one last letter offering settlement in exchange for deletion when and if they fail to validate and mark my TU item "disputed by consumer", or should I just sick my law dogs on him. I talked to the guy (Mr. Cooke) for an hour about how they were breaking the FCRA by re-aging the debt and re-inserting it under a new line item and he wouldn't have any of it. He thinks he has some moral obligation to leave this thing on my report. Two for the price of one mistake if you ask me, plus I'll suffer an additional 4 years! I went the validation route so I could rack up additional violations on them other than just the re-aging issue, but I wsan't sure if it would hold up. I think the way you explained it makes good sense. Thanks again. Mitchra P.S. if you need a good laugh read pulse's bankruptcy diary if you haven't already.
mitchra, I have been searching for this info as well. I can not find anything that states, if you miss the 30 day period you can still dispute. On the other hand I have not read a post were the 30 day rule was used against a consumer. So maybe we can ask in a differant manner. Has a CA ever raised the 30 day rule on disputes to anyone??? JohnM
Happens all the time John, Often I think it's because the training for these people is "less than perfect". lol It's a well settled legal principle that your rights are something that you must positively assert of lose them. Don't forget, with regard to credit repair you are always the least sophisticated consumer.
Bucth- I think a different route should be taken, he is dealing with Cap One, the thrid purchaser of this debt. But I believe because they have placed it onto a credit card that the FDCPA wouldnt come into play anymore. I mentioned the FCBA, but again, I am not an expert with the FCBA, can anyone shed some more light on it? Is this the way he should go?
It is listed as a paid charge off. The credit card account is not in dispute. It would be the same had I used a card I already had to pay the CA with. They are not reporting the credit card incorrectly at all >Paid as agreed - never late< It is the debt they purchased which they re-aged and reinserted. So technically it is a paid charge-off, except I haven't finished paying it so I think I can still request validation from the CA. But regardless, of all of this, I am under the impression that ca's can not re-age an item based on the date they purchased it. The date from which the 7 years should commence is from the time you first became delinquent on the original account and never cuaght up. My real rub on this is CAP1 is reporting it as a paid charge off, and the b*stards never charged it off, the OC did, and they charged it off back in 1998. For some reason, they feel the moral obligation to report on the behalf of the OC. To a computer system it just looks like two separate accounts that have nothing to do with one another. I have an excellent payment history with CAP1 and they have upgraded the card to a gold and given me $200 additional CL increase since I got the card for a total CL of $2500. They just want to make me dependant on them by keeping me subprime as long as possible. If I could just get over this hurdle it's down hill from here. P.S. They can't re-age a charged off account because the consumer pays it can they? If they can, then I guess, There goes my case...lol Please excuse the rant...
Ok I want to make sure I understand completely: You had a CC with OC "A", it charged of in 1998. OC "A" sold it to CA "A" CA "A" sold it to CA "B" CA "B" sold it to Cap One. Cap one made a deal to place the debt as a new CC?? Here's the sticky part: OC "A", CA "A", CA "B" Can NOT reage it, but I am not sure if Cap One can. Here's how it should report, IF MY scenario is right. OC "A" should say sold/transferred $0 balance same thing for CA "A" and "B" Now I *THINK* Cap one has to either report it as pays as agreed (seeing as you were never late with this "deal"), or charged off with the 1998 date. Now who's on first?
You got it. Actaully you had one too many sales in your run down. OC (Transouth) sold to the Associates - who then sold to Cap1. Cap1 reports the credit card with the old debt - "paid as agreed never late" as a positive listing on all 3 of my reports (I don't have a problem with this). But, on TU they show a paid charge off >status as of 04/2001<. This is a clear case of re-aging the debt, and I can't understand their persistence in reporting it. Why are they reporting it? What is their motive? maybe to keep me sub-prime as long as possible...
PS. It wasn't a CC. It was a defaulted auto loan. The car was reposessed and the balance left owing after the auction is the debt in question. Long story....
Try to find out which company sold the car at auction and get some proof from them regarding the debt, I'm assuming its the OC. They will say they sold to so and so, who sold it to Cap One. Then contact Cap one and ask for a copy of the purchase and sales agreement from the auction as well as YOUR original purchase and sales agreement. You MAY be able to use the FCBA with Cap One to dispute the charge saying the amount is incorrect and ask for all supporting documents to be sent to you. I THINK!!!! It's late, night!
Also... always remember to check and see if your state has any better laws. Often times, eg in Texas, the state laws are more stringent than the federal ones. In Texas, there is a 30 day rule regardless of when the consumer initiates the validation request... and as Butch brilliantly points out... you send your info certified rr so you have proof not only of mailing but of receipt... did the CA do that with their initial contact letter??? NOPE... in fact, you have proof they didn't even have a correct mailing address... bingo.. you could then state you're in the 30 days from first realization of the supposed debt and that the CA hasn't even given you the first letter with mini-miranda hence they have to stay within 30 days now... also.. while realistically there's not a 30 day time limit that's applying to you now (unless your state laws impose a better limit)... they can not continue collection activity until validating... continued collection activity includes: continuing to report the account continuing to access your reports continuing to contact you in any way other than to validate the debt read the Nelson v Chase Manhattan case. It is also illuminating on how the consumer can win these validation cases. Basically, you want to set them up for violations. you have the validation clock ticking... now... dispute with the cra's... if the collection agency verifies the debt before validating it to you then they have both violated the fdcpa (continued collection activities before validating) and fcra (continuing to report a debt without being able to substantiate it)... you can give them the courtesy 30 days or so from receipt of your validation letter (and let the cra investigation run its time) then go directly to lawsuit... if it takes them several months to get info then you could actually get them to court with no papers.. the key is to also take case law in with you... FTC opinions are nice but they're not legally binding You know... the account might be fraudulent and you just didn't know about it. also, check to see what your state collection agency laws are and see if they have to be bonded etc in your state. If they have to be...are they? Go after them... it's fun and profitable.
Repos can be really fun. Again.. do a bit of state law research. Often times before the sale they must do a 3rd party estimate of worth send you a statement that it will be sold and where send you a notice that it was sold, for how much etc the normal one they forget is to get the car looked at before sale... in a few states, you're not responsible for deficiencies after the sale... again, do a bit of research to help protect yourself.
