About a year and half ago my credit monitoring agency alerted me that Comcast Cable had done a credit check on me in Georgia. I was stationed in Georgia about 9 months prior before retiring from the Army, but I had never had Comcast and at this point I had just recently moved to Colorado. I contacted Comcast to find out why they had run my credit and it turned out someone had used my name and SSN to get cable in a trailer park nearby my prior military post. I filed an identity theft report with the FTC and with my local police department and faxed all of these documents, along with proof of address and ID, to the Comcast Fraud Department. Comcast told me that they had closed the account and removed all the charges from it so I would not be responsible for anything.
About 2 weeks ago I received another notice from my credit monitoring agency that a collections account for that very same Comcast account showed up on my credit report. A fraud investigator from my credit monitoring agency called Comcast and the debt collector with me to try to help resolve the situation.
Comcast sent us around to about 5 different people, each time saying they were transferring us to their fraud department, until we finally got one rep who put us on hold for about 20 minutes while she looked into the account. She came back and said there were notes in the system about me calling in about the identity theft and that the representative put down that they were closing the account and removing the charges, but for some reason it never happened. The account wasn't closed until several months later after failure to pay and had something like $800 in charges on it. She said she had no idea why it was never closed and that I had done everything I needed to do. She then said she was going to make a detailed note and send us to the fraud department (!), because she had no power to reverse such a large charge. The next transfer took us to a slightly confused gentleman working at the FTC's identity theft hotline. He told us that Comcast has been sending a lot of their customers to the FTC and telling them that it was the Comcast Fraud Department.
Next we called the debt collector that appeared on my credit report. We informed him that the account was related to identity theft and that we were disputing it. He said that he send the dispute over to their fraud department who would verify it with Comcast.
All of these phone conversations were recorded, after informing the relevant parties, by both the Credit Monitoring Agent and me.
Several days after I disputed the debt over the phone with the collector I received a collection notice from them for $633.12 for this disputed Comcast account. They don't state the results from my dispute, just the standard boilerplate collection notice. I don't know if this is a violation or not since they are attempting to collect on the account after I've disputed it and before they sent me any kind of notification that the debt is valid.
It seems like dealing with Comcast's customer service is a dead end and now I am intending to file suit for violations of the Fair Credit Reporting Act and possibly the Colorado Fair Debt Collection Practices Act. I have been contacting attorneys to discuss a lawsuit, but so far the ones I've spoken with feel this claim is outside their area of practice, they are too busy to take another client or they felt they were too inexperienced to handle this type of claim. I am still waiting to hear back from some other attorneys in the Denver area that practice consumer law in the Federal District Court there.
I am about as far from Denver as you can be while still being in Colorado so taking this to Federal Court pro se would be extremely difficult for me. Instead I've contacted my local small claims court to discuss whether or not I'd be able to bring claims under the FCRA pro se. The court clerk wasn't sure and she directed me to the pro se office, who also had no idea. I informed them both that the law states:
§ 1681p. Jurisdiction of courts; limitation of actions
An action to enforce any liability created under this title may be brought in any appropriate United States district court, without regard to the amount in controversy, or in any other court of competent jurisdiction, not later than the earlier of (1) 2 years after the date of discovery by the plaintiff of the violation that is the basis for such liability; or (2) 5 years after the date on which the violation that is the basis for such liability occurs.
However, they weren't sure if the judge would allow it to proceed in this court or not. She suggested I speak with some more attorneys about whether I could bring this to court myself. Of all the attorneys I've asked only one said that it should be no issue bringing it to small claims court. The others said they honestly had no idea about the jurisdiction issue.
I am thinking that taking this to the County court pro se might be a better compromise.
I've been reviewing the text of the FCRA and the FDCPA as well as the Colorado FDCPA.
So far I have identified the following violations of the FCRA:
§ 623. Responsibilities of furnishers of information to consumer reporting agencies [15 U.S.C. § 1681s-2]
a) Duty of Furnishers of Information to Provide Accurate Information
(A) Reporting information with actual knowledge of errors.
(B) Reporting information after notice and confirmation of errors.
(2) Duty to correct and update information
(3) Duty to provide notice of dispute.
(6) Duties of Furnishers Upon Notice of Identity Theft-Related Information
(B) Information alleged to result from identity theft. If a consumer submits an identity theft report to a person who furnishes information to a consumer reporting agency at the address specified by that person for receiving such reports stating that information maintained by such person that purports to relate to the consumer resulted from identity theft, the person may not furnish such information that purports to relate to the consumer to any consumer reporting agency, unless the person subsequently knows or is informed by the consumer that the information is correct.
(7) Negative Information
(A) Notice to Consumer Required
(i) In general. If any financial institution that extends credit and regularly and in the ordinary course of business furnishes information to a consumer reporting agency described in section 603(p) furnishes negative information to such an agency regarding credit extended to a customer, the financial institution shall provide a notice of such furnishing of negative information, in writing, to the customer.
I believe that due to their admitted knowledge that the account was opened as a result of identity theft and their decision not to close the account immediately after being notified, then later sending it to the debt collection rises to willful noncompliance as defined by the US Supreme Court in Safeco Ins Co of America v Burr (06-01-2007), where they state:
"Willful failure covers a violation committed in reckless disregard of the notice obligation. Where willfulness is a statutory condition ofcivil liability, it is generally taken to cover not only knowing violations of a standard, but reckless ones as well."
Even if they did not intend to violate the FCRA and it was just a series of mistakes it was reckless not to close the account immediately and to send it to collections despite being notified it was related to identity theft. Then despite being notified and confirming their mistake they took no actions to correct it.
Something that I haven't been able to find a clear answer on is whether each FCRA violation incurs separate statutory damages of up to a maximum of $1,000 or are all violations together a maximum penalty of $1,000? I've found both answers on the internet without any definitive references. My personal reading of the statute makes it sound like you can only get one statutory penalty.
I'd love to hear everyone's opinion on this matter and would greatly appreciate any references, suggestions, etc.
Thank you all.