validation/dispute w/Equifax *BUTCH

Butch is referring to the following...

Send validation to CA.

Send dispute to CRA after the validation is received.

This effectively puts the FCRA 30 day deadline on the FDCPA Validation, since verification is collection activity; and the FDCPA precludes verification while the account is unverified.

--

The good news is that with Equifax at least you usually have the opportunity to dispute the account again.

--

NOW...

If you can get it in writing that the OC to put into writing that you do not have an account, you can use that to provide documentation to support your dispute.

OR...

You can ask that Equifax verifies the account with the ORIGINAL CREDITOR/OC verification...

The reasons for both of these two are for the same reasons in Cushman v. TransUnion; you are challenging the authenticity of the DF's information, and forcing the CRA to verify with the alleged ORIGINAL SOURCE the OC.

You do not want to try these, however until you are certain that the OC won't be able to find anything -- even if they deleted their computer files, they may have it archived on microfiche if push comes to shove.

 

What could have happened... It happens way too often...

Hospital sends it to the insurance co.
Hospital expects payment from them by xx/xx/xx.
Hospital sends the account to CA.
Hospital gets payment from the insurance co, and 'forgets' to contact the CA.

Or the last step is the tangent - insurance co. denies coverage because of hospital, provider, billing co error, or delay.

In the case of the alternative, because it is provider error, you are usually not held liable, but because the provider had already sent it out to a CA it's in a void; because the OC conveiniently forgets, hey if the CA can get them $ that they aren't entitled to for services that they screwed up the billing for, they think why not.

What you may want to do is contact your mothers insurance co at the time, and ask them for proof of payment (or denial) of the bill. (She may need to contact them directly, if you are not currently on her policy.)

When my sister had a similar situation, she was getting multiple calls daily from a CA for an account that she had a copy of the canceled check from the insurance co, and the CA *REFUSED* to call the OC. So she went to their billing office with the canceled check in hand, told them that they were going to tell the CA that it was submitted in error, and the CA had less than 15 minutes to delete the account, if it was not deleted by the time we got to the CA's offices, we would go to the state insurance commission, and report them (and the CA) for insurance fraud (double billing), and to the federal gov't (who her insurance was through).

 

When the CA green cards, then you send a verification/dispute to the CRA.

If you've disputed it before, that can include a procedural request; as well...

"Since your company has allegeldy verified this account; which is not mine, I am demanding to know how your company allegeldy investigated this dispute."

The goal is to get them to re-investigate. EX is usually the only one which gives a hard time about re-investigating.

 

If EQ never contacted you -- the deadline would have been March 18 -- and it's also good to allow at least a week for mailing time -- March 25.

There is a chance that the notation you saw was their marking it in dispute for the time of the disptute.

Is the trade line still showing as of now?

 

You need to remember that the CRAs don't have a requirement to VALIDATE...

There is a major difference between the CA's needing to validate, and the CRAs needing to verify.

We may have a little more room to require a lot more in depth investigations from the DF thanks to Johnson v. MBNA, but it still doesn't rise to the level of validation.

Essentially all the DF needs to provide the CRA is a yes, no, or update to the following information...

 

Hi can you give me that number for Equifax which you spoke to a live representative. Need badly, but have to wait for credit report which lists the number on it to speak to someone.

 

Re: Re: validation/dispute w/Equifax *BUTCH

"We may have a little more room to require a lot more in depth investigations from the DF thanks to Johnson v. MBNA, but it still doesn't rise to the level of validation."

-Can you provide the cite for this?

-On the same note, there is a recent ruling which all but determined the ALL credit reporting agencies' investigations are "flagrantly inadequate "

Here is it:


GRAHAM v. CSC CREDIT SERVICES, INC.,
GATEWAY, INC., and
CITIBANK d/b/a/ HURLEY STATE BANK,

United States District Court
District of Minnesota

Civil File No. 02-CV-3707


-The court said :

"1The fear of identity theft is not false hysteria, but rather is a way of life in the
digital age. In 2003, the Federal Trade Commission reported that over twenty-seven
million Americans were victims of identity theft in the past five years, including almost
ten million people in the past year. Federal Trade Commission, FTC Releases Survey
of Identity Theft in U.S.: 27.3 Million Victims in Past 5 Years, Billions in Losses for
Businesses and Consumers, http://www.ftc.gov/opa/2003/09/idtheft.htm (Sept. 3, 2003).
Businesses involved in the credit reporting industry need to be aware of this growing
problem and must take reasonable precautions against reporting fraudulent tradelines.
Credit reporting systems that were adequate in the past may be flagrantly inadequate in
this new age. Under the FCRA, credit reporting agencies have a duty to update their
systems to continue to strive for accuracy when new dangers, such as identity theft,
change the definition of what constitutes â??reasonable procedures to assure maximum
possible accuracy of . . . information.â? 15 U.S.C. § 1681e(b)."

 

Re: Re: validation/dispute w/Equifax *BUTCH

Once the furnisher is notified of the dispute, they must conduct their own investigation of the disputed information.

From FTC Staff Opinion Letter to Cohan.
Section 611(a)(1) requires the consumer reporting agency, upon dispute by the consumer of the completeness or accuracy of any item of information, to "reinvestigate . . . and record the current status of the disputed information, or delete the item from the file" if it cannot be verified within 30 days. Section 611(a)(2) requires prompt notice to the furnisher of information of a consumer dispute. The furnisher's responsibility to conduct an investigation of disputed information, imposed in Section 623, is a discrete requirement, separate from the CRA's obligation to record the current status or delete unverified information. Thus, if the furnisher fails or refuses to conduct an investigation (which may constitute a separate violation of the FCRA by the furnisher), the CRA must still comply with Section 611.

The FCRA does not specify what constitutes a proper investigation. Several court cases have adopted a standard of â??reasonable investigationâ?.

http://www.paed.uscourts.gov/documents/opinions/03D0591P.pdf

The Act does not provide any indication as to the level of investigation required under 1681s-2(b)(1). Section 1681s-2(b)(1)â??s investigation requirement for furnishers, however, â??is analogous to the requirement imposed upon credit reporting agencies under § 1681i(a) to reinvestigate a consumerâ??s dispute regarding information contained in his credit reportâ? and, therefore, furnishers of credit are required to conduct a reasonable investigation. Bruce v. First U.S.A. Bank, National Association, 103 F. Supp. 2d 1135, 1143 (E.D. Miss. 2000). In Bruce, the Court employed two factors to determine whether a furnisher of information engaged in adequate investigation of a disputed debt: â??(1) whether the consumer has alerted the agency that the initial source of the information may be unreliable or if the agency knows or should know that the source is unreliable, and (2) the cost of verifying the accuracy of the source versus the possible harm of reporting inaccurate information.â? Bruce, 103 F. Supp 2d 1135, 1143 (E.D.Mo. 2000). Whether such an investigation has been conducted is generally a question of fact for the jury. See Cushman, 115 F.3d at 225; Henson, 29 F.3d at 287. Again, InoVision argues that the level of investigation it conducted satisfies the requirement imposed by the FCRA because the debt was accurate while Plaintiff disagrees.


http://www.epic.org/privacy/fcra/03-1235.pdf

MBNA argues that the language of § 1681s-2(b)(1)(A), requiring furnishers of credit information to "conduct an investigation" regarding disputed information, imposes only a minimal duty on creditors to briefly review their records to determine whether the disputed information is correct. ...

By contrast, Johnson asserts that § 1681s-2(b)(1)(A) requires creditors to conduct a reasonable investigation. We review this question of statutory interpretation de novo...

In interpreting a statute, we must first "determine whether the language at issue has a plain and unambiguous meaning with regard to the particular dispute in the case." Robinson v. Shell Oil Co., 519 U.S.337, 340 (1997). "Our inquiry must cease if the statutory language is
unambiguous and the statutory scheme is coherent and consistent." Id. (internal quotation marks omitted). "The plainness or ambiguity of statutory language is determined by reference to the language itself, the specific context in which that language is used, and the broader
context of the statute as a whole." Id. at 341.

The key term at issue here, "investigation," is defined as "[a]detailed inquiry or systematic examination." Am. Heritage Dictionary 920 (4th ed. 2000); see Websterâ??s Third New Intâ??l Dictionary 1189 (1981) (defining "investigation" as "a searching inquiry"). Thus, theplain meaning of "investigation" clearly requires some degree of careful inquiry by creditors. Further, § 1681s-2(b)(1)(A) uses the term "investigation" in the context of articulating a creditorâ??s duties in the consumer dispute process outlined by the FCRA. It would make little sense to conclude that, in creating a system intended to give consumers a means to disputeâ??and, ultimately, correctâ??inaccurate information on their credit reports, Congress used the term "investigation" to include superficial, unreasonable inquiries by creditors...

We therefore hold that § 1681s-2(b)(1) requires creditors, after receiving notice of a consumer dispute from a credit reporting agency, to conduct a reasonable investigation of their records to determine whether the disputed information can be verified.

We often refer to the Wollman Letter when talking about validation requirements and that a computer printout is not sufficient. The FTC has put more burden on a furnisher, requiring the furnisher verify the debt with the original account records. If the records do not exist, the disputed information must be deleted.

http://www.ftc.gov/os/2000/08/performconsent.htm
failing to properly investigate consumer disputes, as required by Section 623(b) of the Fair Credit Reporting Act, 15 U.S.C. § 1681s-2(b), when consumer reporting agencies refer disputes to the defendant pursuant to Section 611(a)(2), 15 U.S.C. § 1681i(a)(2) . In order to comply with Section 623(b) when a consumer disputes the accuracy of information reported by the defendant to a consumer reporting agency, defendant shall either verify the information with the original account records within the time period set forth in the Fair Credit Reporting Act or take all necessary steps to delete the information from the files of all consumer reporting agencies to which the information was reported. In any situation where the defendant either knows that no original records exist, or is informed by the original creditor that no records exist, the defendant shall, within five business days after receiving the consumer dispute, notify all consumer reporting agencies to which the information has been provided that the information is to be deleted from the file of the consumer who has disputed the account;

Consumer reports must be complete and accurate, and CRAâ??s must maintain reasonable procedures to ensure maximum possible accuracy. A consumer report cannot be incomplete or misleading, even if it is technically accurate. The furnisher must provide the most complete and accurate information available.

 

Re: Re: validation/dispute w/Equifax *BUTCH

The one problem with DATA FURNISHER initiated disputes, is that there is no private right of action if the data furnisher does not perform a dispute correctly, however if you initiate the dispute through the CRA, there is a private right of action.

They must either CONCLUSIVELY VERIFY or notify the CRA that they can not CONCLUSIVELY VERIFY.

The big change post-Johnson is the CONCLUSIVE part. Frankly Gateway was equally as wrong in their verification on a NOT MINE dispute. Fraud is a clear case of NOT MINE, yet they still reported that it was the consumers account knowing that the company knew that the account was fraudulent in nature. Both the CRA & the DATA FURNISHER are responsible if the investigation is not complete. Gateway should have told the CRA that they had concluded that the account was fraudulent even in the face of a standard not mine dispute. This is why requiring that the DATA FURNISHER only matches up two out of four pieces of identifying information is idiotic. Even in clear cases of fraud, chances are good that at least two pieces of information would match up with the consumers information.

BTW: the part of Johnson v. MBNA Pale Rider quoted was part of part II. Part III is equally as important.

Johnson v. MBNA; 4th Circuit Court of Appeals, No 03-1235

Linda Johnson v. MBNA America Bank, NA, and Experian Information Solutions Incorporated; Equifax Credit Information Services Incorporated; Trans Union LLC.

"III.

MBNA next contends that even if § 1681s-2(b)(1) requires creditors to conduct reasonable investigations of consumer disputes, no evidence here supports a determination by the jury that MBNAâ??s investigation of Johnsonâ??s dispute was unreasonable. We review the denial of MBNAâ??s motion for judgment as a matter of law de novo. See Baynard v. Malone, 268 F.3d 228, 234 (4th Cir. 2001). We must view the evidence in the light most favorable to Johnson, the nonmovant, and draw all reasonable inferences in her favor without weighing the evidence or assessing the witnessesâ?? credibility. See id. at 234-35. "The question is whether a jury, viewing the evidence in the light most favorable to [Johnson], could have properly reached the conclusion reached by this jury." Id. at 235 (internal quotation marks omitted). We must reverse if a reasonable jury could only rule in favor of MBNA; if reasonable minds could differ, we must affirm. See id.

As explained above, MBNA was notified of the specific nature of Johnsonâ??s dispute namely, her assertion that she was not a coobligor on the account. Yet MBNAâ??s agents testified that their investigation was primarily limited to (1) confirming that the name and address listed on the ACDVs were the same as the name and address contained in the CIS,3 and (2) noting that the CIS contained a code indicating that Johnson was the sole responsible party on the account. The MBNA agents also testified that, in investigating consumer disputes generally, they do not look beyond the information contained in the CIS and never consult underlying documents such as account applications. Based on this evidence, a jury could reasonably conclude that MBNA acted unreasonably in failing to verify the accuracy of the information contained in the CIS.

MBNA argues that other information contained in the CIS compels the conclusion that its investigation was reasonable. For example, in support of its alleged belief that Johnson was a co-applicant, MBNA presented evidence that Johnsonâ??s last name had been changed on the account following her marriage to Slater and that Johnsonâ??s name was listed on the billing statements. But this evidence is equally consistent with Johnsonâ??s contention that she was only an authorized user on Slaterâ??s account and that, to the extent MBNAâ??s records listed her as a co-obligor, those records were incorrect. MBNA also points to evidence indicating that, during her conversations with MBNA following Slaterâ??s bankruptcy filing, Johnson attempted to set up a reduced payment plan and changed the address on the account to her business address. However, a jury could reasonably conclude that this evidence showed only that Johnson had tried to make payment arrangements even though she had no legal obligation to do so. Indeed, Johnson testified that, during her conversations with MBNA, she had consistently maintained that she was not responsible for paying the account.

Additionally, MBNA argues that Johnson failed to establish that MBNAâ??s allegedly inadequate investigation was the proximate cause of her damages because there were no other records MBNA could have examined that would have changed the results of its investigation. In particular, MBNA relies on testimony that, pursuant to its five-year document retention policy, the original account application was no longer in MBNAâ??s possession. Even accepting this testimony, however, a jury could reasonably conclude that if the MBNA agents had investigated the matter further and determined that MBNA no longer had the application, they could have at least informed the credit reporting agencies that MBNA could not conclusively verify that Johnson was a co-obligor.4 See 15 U.S.C.A. § 1681i(a)(5)(A) (West 1998) (providing that if disputed information "cannot be verified, the consumer reporting agency shall promptly delete that item of information from the consumerâ??s file or modify that item of information, as appropriate, based on the results of the reinvestigation") (amended Dec. 4, 2003)."