Sassy/Anyone w/Small Clm Experience

Discussion in 'Credit Talk' started by LisaMc, Oct 2, 2002.

  1. LisaMc

    LisaMc Well-Known Member

    I finally got a court date for my suit with my OC. It is 10/16, small claims court.

    This is a general chronology of the events.

    1. I sent a modified validation letter to the OC in April. They were reporting information that was highly questionable on 2 separate accounts. The balances were zeroed out (included in the CH 13) but the "most owed" was escalating rapidly!

    2. In receipt of my letter, they pull a hard inquiry on EXP to "see what we are reporting." VIOLATION #1 Lack of Permissible Purpose, Section 604 FCRA

    3. I sent a letter to them and demanded deletion of the inquiry. No dice.

    4. I sent another letter several weeks later noting 5 violations of the FCRA. VIOLATION #2 & #3 incorrect reporting of the two separate accounts. VIOLATION #4 & #5 was never marking the 2 accounts as "in dispute." They still haven't.

    5. They blew me off.

    6. I sent an intent to sue letter.

    7. They blew me off.

    8. I filed the lawsuit and had their registered agent served.

    9. They write back to me after being served and say "we are going to delete the inquiry as an act of goodwill" and never address the other issues.

    10. They file their answer via a local law firm with the court as "we deny all allegations."

    11. They request mediation through a local attorney.

    12. I decline mediation.

    13. They request, through a local law firm, a jury trial and pay $5 for it.

    14. Several weeks later they pay a total of $9.60 in CRRR letters to request their $5 back. They change their mind about a jury trial.

    Now I am trying to prepare. I must say that I really had hoped that they would settle by now. I offered to settle for deletion of the two accounts and inquiry in every single letter.

    This is what I am prepared for:

    1. I can produce all documents in question--all correspondence, all credit reports with the issues circled as examples, copies of my BK paperwork showing balances and how they have escalated, etc. I can cast doubt on their figures easily.

    2. I can show when they pulled my credit.

    3. I can quote the FCRA for all of this and show the applicable sections.

    4. I am prepared for "I can not hear this case in my court." Jurisdiction issues.

    This is what I AM NOT prepared for:

    1. I CAN NOT ascertain damages, but I don't think I am compelled to do so. Am I?

    2. I don't think I am prepared for "Is this your debt?" Yikes!

    These are some of my questions:

    1. Where can I find good case law for these issues?
    2. Will I need to quote case law?
    3. What other ammunition should I be armed with?
    4. Any other tips, ideas, strategies I should put into play here?
    5. Anything I should specifically watch out for?

    I would appreciate any input anyone can give me. Thanks in advance for all of your help!

    Lisa
     
  2. sirrowan

    sirrowan Well-Known Member

    Why would you be worried about being asked if this is your debt or not? Didn't you say that it was included in BK 13? That should answer itself.
     
  3. LisaMc

    LisaMc Well-Known Member

    The only reason why I brought that up was that it had been an issue for several others. It was my debt. I don't deny that. It seems that small claims judges (from what I have read here) can get caught up in that and miss the big picture.
     
  4. sassyinaz

    sassyinaz Well-Known Member

  5. LisaMc

    LisaMc Well-Known Member

    I don't see this as an attempt to collect. Do You?
     
  6. sassyinaz

    sassyinaz Well-Known Member

    No Lise,

    I don't, but it seems like you said to always be brought up in court nonetheless.

    I think if I were asked the question, if this debt were mine, I would honestly say that, it could be mine and I did include it in BK so it was discharged irregardless. But, at the time of my bankruptcy filing I had not pursued validation and didn't know that I could. I gathered up the bills and gave them to my attorney for inclusion.

    The accuracy in reporting is the problem so I requested validation documentation because I had not ever done so. The validation should be provided to support and as evidence of the reporting. If it can't be verified, it can't be reported.

    Perhaps it would have been more timely to have requested this information prior to having filed BK but I was consumed with the life events and the BK filing itself. I did have legal counsel but he didn't ask me if the debts were correct, he told me to list all bills that I knew of.

    Sassy

    Edit: Butch just posted something yesterday on the FTC's recognition of the amount of people that pay debts that are being pursued but that don't belong to them just to be done with the grief of the collection activity. I'll find it for you.
     
  7. LisaMc

    LisaMc Well-Known Member

    Bump
     
  8. sassyinaz

    sassyinaz Well-Known Member

    Re: HELP quicky please

    Butch | 1919 posts since May 2002 24.208.137.254 | 10.01.2002 @ 20:41

    And don't forget;

    In the case of FTC Vs. United Creditors Alliance Corporation:

    Jodie Bernstein made the following very usefull statement.

    "In the past few years, the FTC has taken action against approximately 20 individuals and companies for alleged debt collection practices abuse. "Among the Commission's concerns in these types of cases," said Jodie Bernstein, Director of the FTC's Bureau of Consumer Protection, "is that some consumers may not actually owe the debts, but may pay them in order to stop the abuse."

    Go to:

    http://www.ftc.gov/opa/1996/9609/uca.htm

    And print out that case for future ref.

    Butch, CFP (email is on)

    "Fire is the test of gold, adversity of strong men"
     
  9. sassyinaz

    sassyinaz Well-Known Member

    Lisa

    1. Damages. I'm not sure, Lise, especially as it relates to small claims in Texas, but I will search for you.

    2. You shouldn't need case law for small claims -- that's supposed to be the idea behind it. Once the attorney's get their noses in they seem to bump to the next level (civil). The attorney didn't do that when requesting a jury trial? Or, juries are allowed in small claims in Texas? LOL, or better yet is that why they changed their minds on the jury?

    3. Lise, I think chronological documentation with the FCRA/ FDCPA references are the most important; your papertrail; organized in a way so that the judge can follow the process. I know you've got that!

    4 and 5. I think so much depends on the Judge you end up with. Their attitude about pro se filings, whether they understand the FCRA/FDCPA, whether they are willing to find out and whether you come across in your presentation as having done everything you could do to resolve the problem, with court having been your last resort -- sometimes no matter how right you are, the judge just won't go there.

    2. The this is your debt shouldn't be relevant, especially since included in BK, it's about the reporting and how those errors are impacting you now and how they will continue to impact both you and your score until reported correctly.

    Also, the intent and purpose of BK -- the fresh start ideal.

    I think this too is where you have damages, to credit potential or expectation if nothing else, LizardKing used that before in one of his filings.

    Permissable purpose, that is such an invasion of privacy that the FCRA (in its intent and purpose) is designed to protect. I think it would be important to show that pulling a report itself lowers your score and when pulling in response to a dispute it is really a poisoning and punishment for your having disputed.

    From the 1998 FTC opinion letter Greenblatt at http://www.ftc.gov/os/statutes/fcra/greenblt.htm

    "Any person who procures a consumer report under false pretenses, or knowingly without a permissible purpose, is liable for $1000 or actual damages (whichever is greater) to both the consumer and to the consumer reporting agency from which the report is procured. "

    Have you read Quixote's thread? His case against macys is similar.

    http://consumers.creditnet.com/stra...threadid=30605&perpage=20&pgnum=&pagenumber=1

    For each of your questions, I would find the c-netters closest to your shoes and who have done the research (like Marie for permissable purpose -- she's posted extensively on damages too) and summons them to your thread. They'll get here.

    Quixote too, and this will be his smoking gun, I think, called the CRA that had the inquiry and asked which pp code was given when it was requested!

    Sassy
     
  10. Mommy2cats

    Mommy2cats Well-Known Member

    Re: Sassy/Anyone w/Small Clm Experi

    Are you SURE this is still in Small Claims court? In my state, jury trials ONLY are allowed when they bump it up to Civil. It sounds like that they may have. This is important to know as the rules are different in Small Claims. Can you check this and let us know?

    Mommy2cats
     
  11. LisaMc

    LisaMc Well-Known Member

    Re: Sassy/Anyone w/Small Clm Experi

    YOu can have a jury trial, if requested and fee paid, in Texas. Sounds crazy to me too.

    Why would they request a jury trial, pay the $5 fee plus 3 CRRR letters, and then pay for 3 more CRRR letters to get their $5 back and waive the right to a jury trial?

    I'm baffled!
     
  12. sassyinaz

    sassyinaz Well-Known Member

    What about the FCBA as well as the FCRA, Lise?

    OC's are required to resolve disputes or at least go through the mandated process within the timeframes specified.

    Sassy

    This is from LizardKing, but I don't know what thread I cut and pasted it from:

    With an OC (Original Creditor) they can ignore your FDCPA dispute. That only applies to collection agencies.

    However, an OC must respond to a Fair Credit Billing Act (FCBA) dispute or a Fair Credit Reporting Act (FCRA) dispute.

    With the FCBA, this only applies to open ended credit types. That is typically a credit card, gas card, dept store card, etc. You must dispute within 2 billing cycles. They have 90 days to resolve the dispute. If they completely ignore your dispute and you have proof that you sent it (certified mail) then you will win if it ever goes to court.

    With a FCRA dispute to an OC, first you must dispute it with the credit bureau (CRA). Only after the CRA has verified it, then if you still have a dispute as to the accuracy of what is being reported, then you can sue the OC. This is very important. You must attempt to dispute with the CRA at least once prior to filing a FCRA complaint in court against the OC. The courts have ruled on this issue.

    Lizardking
     
  13. sassyinaz

    sassyinaz Well-Known Member

    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...umber=11&page=0&view=collapsed&sb=5&o=0&part=

    Thank you, Whyspers!
     
  14. sassyinaz

    sassyinaz Well-Known Member

    Re: Sassy/Anyone w/Small Clm Experi

    LOL Lise,

    Because the last thing any sane attorney would want is an oppressed by the system consumer appearing in front of their peers -- all who will be able to relate to you and empathize with your story.

    http://www.asua.arizona.edu/asua/P&S/Legal/sc_ct.html

    Mommy2Cats, did you file for specific damages or just the statuatory amounts for the violations?

    Sassy
     
  15. Mommy2cats

    Mommy2cats Well-Known Member

    Re: Sassy/Anyone w/Small Clm Experi

    Since I filed in Small Claims, I justfiled for the statutory amounts for the damages. Since, in both my cases, they've moved to Civil - I'll ammend the complaints.

    By the way, filed my Motion for the Student Loan case on Monday. The judge will rule on it next Friday, October 11th. If I succeed (which I sure hope I do), I will then file an ammended complaint for $5,000 and ask for a jury trial. I would think I would have some specific damages for a derog that had been on my credit reports for six years too long....

    Mommy2cats
     
  16. sassyinaz

    sassyinaz Well-Known Member

    Re: Sassy/Anyone w/Small Clm Experi

    OHHHHH, this is good from the NACM of TEXAS:

    http://www.nacmtx.com/scott.html

    The FTC slates in its legal opinion that a vendor must obtain the consumer's consent prior to pulling a consumer credit report, even for a legitimate business purpose. What is the FCRA and what does the FTC's recent legal opinion mean to the credit professional?

    The FTC's legal opinion

    The FTC is a federal regulatory agency responsible for enforcing certain legislation, including the FCRA. NACM requested the FTC to provide an opinion to the legal question whether a vendor extending commercial credit must obtain consent prior to pulling a consumer credit report to be used for business purposes, or for a personal guarantee of business credit. The FTC states that a vendor must obtain the consumer's consent prior to pulling a consumer credit report. However, the FTC made clear the scope of the FCRA is limited to consumer credit reports: "we interpret it to mean that reports to business [vendors] by commercial reporting services such as Dun & Bradstreet, which compile data and provide such reports only for commercial purposes, are not covered by the FCRA." Opinion at p.2.

    Legitimate Business Purpose Exception Not Recognized

    FCRA as a general rule requires a trade credit grantor to obtain written authorization form an individual to run a consumer credit report. Prior to the FTC opinion, there seemed an exception to FCRA where consent seemed not to be needed if there is a legitimate "business purpose" in connection with a credit transaction. The general language of the business purpose exception seemed to suggest that a business need may be sufficient to allow a credit professional to pull a consumer credit report without guarantee such as a corporation's president. The FTC opinion does not recognize the business purpose exception. The FTC notes that the business exception "provides no authority for a [vendor] to obtain a consumer report in connection with a credit application for an commercial purpose." Opinion at p.3. The Ftc opinion also does not recognize a right to pull a consumer credit report for personal guarantee without first obtaining consent: "there is no permissible purpose to obtain a consumer report on a corporate principal to evaluate the capacity of the company to pay a judgment." Opinion at p.3.

    It should be noted that credit information providers, such as Experian, are generally not a safe harbor for vendors that contract with the information provider for credit reports. Thus, if a vendor fails to obtain authorization to pull a credit report and the report is pulled through the credit information provider's service, the vendor may be liable for violating FCRA. The contract between the vendor and the credit information provider generally states that the information provider is not liable for the vendor's failure to obtain a consumer's consent.
     
  17. sassyinaz

    sassyinaz Well-Known Member

    Re: Sassy/Anyone w/Small Clm Experi

    ok nodding,

    I couldn't recall if you had amended or calculated specific damages. And I can't open any more windows to pull your threads up, LOL. I'm trying not to crash.

    I can't wait until you hear something!!! I'll be on pins and needles until the 11th.

    The only thing I worry about with the lower courts in small towns is the good ole' boy factor, like Christine has run into too, but if that's the kind of judge you get, that's what you get.

    Sassy
     
  18. sassyinaz

    sassyinaz Well-Known Member

    Re: Sassy/Anyone w/Small Clm Experi

    This is good too, for both of you, Quixote too, again from Texas. Texas is on it!

    www.jtexconsumerlaw.com/FCRA.pdf

    The strongest cases of furnisher liability arise when the creditor has clearly been informed of its error and failed to make corrections. A consumer is in astrong position when the creditor is informed in writ-ing of a dispute, with appropriate details of the errorand of the importance of an accurate credit record tothe consumer, and when a copy of the dispute given tothe reporting agency is also given to the creditor

    Sassy
     
  19. LisaMc

    LisaMc Well-Known Member

    Re: Sassy/Anyone w/Small Clm Experi

    Sassy, where do you get all of these great references?
     
  20. sassyinaz

    sassyinaz Well-Known Member

    Re: Sassy/Anyone w/Small Clm Experi

    I'm giving google a workout at the moment, Lise, fcra and texas.

    Texas seems to have a huge focus on fcra and consumer laws in general. WOW!

    Sassy
     

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