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Everything posted by cjtx2

  1. The statute only requires that express consent must be given directly, as you said. I believe there is more flexibility in the way it is revoked and it comes down to whether the person making the call should have known that you had revoked consent. Just because you talk to someone else, there is no excuse to claim consent was still valid for another agent. You probably need to record the call to prove it. Same thing if you notify the company by any other means like mail, fax, email, etc. you have to prove that they received it. A customer statement, even though useless for scoring purposes must be disclosed with the report. If the inquiries show that someone received a copy of your report, the fact that an unedited consumer statement was also attached are business records that must prove withdrawn consent was received.
  2. Assuming you cannot make preempting notices to revoke consent, you can still add a statement to your credit report, which will be delivered to anybody who pulls your report, where you explain, redundantly, if you want, that just because your number is listed, there is no consent. A CRA would rather delete than include your statement, even though it is perfectly legal and within your rights to clarify anything in your report that may be misconstrued. I seriously doubt a person will lose in court against a CRA. When listing numbers, the CRA benefits from the actions of its clients, in this case illegal actions, which brings more business to the CRA. Just because the CRA may raise plausible deniablity as a defense, it does not mean they did not know what was the number going to be used for or that the defense would be sustained.
  3. There is nothing in TCPA limiting who you can revoke consent to. CRAs are just like any other business and they are not immune to TCPA. It makes sense to revoke consent as a pre-emptive strike before you get a call. And it is perfectly legal. Not only you do not have to wait for them to produce some fake consent, but you actually have proof that any implicit/explicit previous consent was in fact revoked. Otherwise, at least the first call gets a free pass. Have you ever heard something like "We will remove your number from our list, but it may take a few days to post, so you may receive other calls". Unless you make a serious threat of a lawsuit, you may end up receiving many more calls and the number is never added to their do not call list. Of course CRAs are not in the business of calling people, so revoking consent to a CRA is not really aimed at them, but their clients. CRAs profit from selling personal information to unscrupulous JDBs and CAs. It is not unreasonable to expect that they will use those numbers to call people who never gave consent. And I assume the more personal info CRAs can provide, including more addresses and phone numbers, the more valuable the report is. We are not talking about being liable just for listing the numbers. The issue here is for listing the numbers, after consent was revoked, knowing or reasonably expecting that they will be used without consent. They are not legally required to list phone numbers and there is no penalty for excluding them. It is a matter of profit for the CRAs, nothing else. I have not found any caselaw yet, but I suspect they either settle or delete the numbers to avoid a judgment.
  4. You can revoke consent to anybody before or after they call you or even if they have no intention of ever calling you. There is no requirement that they obtained the number from you before. Once you make contact with someone, you can revoke consent for a given number, that's it. But you need an exhaustive list of all the people who may act on behalf of a CRA, including/especially their clients. A CA or JDB may have found your number from some obscure skip tracer. The CRA probably got it from a furnisher, an inquiry or a public record. It does not matter where they got it from, You can contact them and revoke consent. The expectation that someone may call the number that was disclosed as part of someone's contact info in a credit report is a reasonable consequence of such disclosure and it falls under the theory of vicarious liability. Even if you disagree with everything else, once the CRA does not have consent to call, it is not unreasonable to request that if it chooses to disclose the number, it must disclose as well a statement where you explain in no uncertain terms that you are revoking consent to the CRA's clients. That is your right under FCRA to include a statement to clarify anything that may be misunderstood. Such a statement makes the number useless or at least much less valuable for the CRA to include.
  5. This is OT, but I am just wondering why Experian gets away with disclosing an estimate of the date an item will be removed. That seems like a conclusion of law, and CRAs are supposed to disclose exactly what was reported to them; i.e; DOFD. Experian was famous for changing the estimated day of removal to the last date the account was updated. Looks like they keep doing it. Some things don't change.
  6. By listing a phone number, the CRAs are telling anyone who gets the credit report that they can use the information to contact you, even any phone numbers are fair game. JDBs and CAs pay for the information so there is a sense of entitlement. I know you can fight it, and they are supposed to produce written proof of consent if it gets to court, but why get into that if you did not authorize the CRA to disclose a private number in the first place? So no JDBs or CAs should be calling that number just because they were able to obtain it from the CRA While TCPA does not prohibit disclosing a number per se, it gives you the right to revoke consent to call. So you can revoke consent to the CRAs, their agents, affiliates, associates, contractors, directors, business partners, and even their clients. Who is liable in case the clients act despite no consent? That is why the contract specifies that the CRA is ultimately responsible for violations. Why disclose a number they know is highly likely to be misused when they don't absolutely have to?
  7. I need to learn about arbitration. I dislike it based on old information because I think arbitrators are not accountable for their decisions as compared to judges where almost everything is public record and many OCs, JDBs and CAs bring a lot of business to those who rule in their favor, so the odds are stacked up against consumers from the start. You seem to have a lot of experience in this area, so I guess I need to take a fresh look at the whole arbitration process.
  8. True, it was not necessarily the contract. It was clear that previous express consent was being revoked. The tricky part is that CRAs have immunity to report information about people and they do not need permission to do so. So the CRA felt it could list a private phone number without any consequences. They would be disclosing the number and implicitly telling clients that it was ok to call, giving them express consent. By revoking previous express consent, it would be a violation of TCPA each time the CRA told the number (giving implicit consent) and its clients called the number. The CRA cannot grant a consent it does not have and it was a reasonable expectation that the clients who paid for the credit report would use the information to call. If the CRA really wanted to disclose the number, it had to inform clients that previous express consent had been revoked. It would render the number useless and subject those clients to a violation of TCPA each time they called. Every time they pulled a credit report they were informed it was not ok to call. So deleting the number was the best option. And also, it is not clear if the contract had anything to do with it.
  9. My friend used a contract like that with a stubburn CRA who refused to remove his phone number. He tried everything and the CRA refused big time even alleging that personal info was not subject to verification challenges and so it refused to investigate. Then he told the CRA that he, as a consultant, charged $X for each call he received and that the CRA would be entering into a contract in which it would be liable for any calls made by its employees or its clients who obviously were told by the CRA it was ok to call him despite his explicit revoking of any implicit or explicit previous consent. That continued publication and any calls received from the CRA or its clients would indicate acceptance of the terms and that if they were to reject the terms of the contract all they had to do was remove the number. The number was immediately removed and has not been reinserted. There were no signatures. Not all consumer attorneys are created equal. So I don't presume to know why they don't do it more. Maybe it's bad for business?
  10. Forbearance to sue is a new term for me and I will look it up. Thanks. I found a definition of adhesion contract https://www.law.cornell.edu/wex/adhesion_contract_(contract_of_adhesion) Usually creditors use it, but there is no legal requirement for this. Any party can create it. The contract is either take it as is, or reject it, but they cannot change it. As you pointed out before, a court will likely scrutinize it to look for unconscionable clauses that cannot be enforced. The contract basically charges for the right to commit libel, true. But the way it is worded, it imposes liquidated damages when they perform the action. Any suit to enforce the contract is not a suit for defamation, but to collect liquidated damages to which they agreed by their actions/failure to take effective steps to reject the contract.
  11. no, sorry. My question is about dealing with OCs.
  12. I was looking into Toliver v. Experian Information Solutions, Inc. scholar.google.com/scholar_case?case=7476317046905611411&q=metro2&hl=en&as_sdt=3,44 The case mentions other decisions where a violation of CRRG per se is not enough, but it is a factor. Also in this particular case, they denied some of the plaintiff's allegations based on the definitions in the CRRG. She was alleging that LVNV is not a factoring company, and that a JDB cannot report a defaulted account as open. She presented some evidence, but based solely on the CRRG definitions, the court concluded that it is accurate for a JDB to report an open account as a factoring company, even if the account was charged off.
  13. I am trying to learn. Found some comments that align with what I thought, but as you suggested, in the end what counts is caselaw. I really appreciate your comments. I know there is no secret formula, and I acknowledge it will take a lot of research to come up with a working strategy.
  14. I appreciate your comments and advice and I am here to learn. It has been a while since I have done any research on this, but as you say, many things that used to work, do not work any more. So I have to learn what works now.
  15. As I mentioned I just started the credit repair process, so I am still sending disputes to the OCs before using the 1-2 punch and disputing with the CRAs. Some accounts are still within SOL so it is a possibility that they would sue, but I am trying to establish some leverage and based on the number of false data, the frequency of malicious updates, number of people who have received the false info, etc. suing will not be in their best interest.
  16. I need to look it up. But I know for a fact that for a very long time Cap1 did not report credit limits alleging they were proprietary or something ridiculous like that. They were sued many, many times until eventually they were forced to report credit limits. So I would not be surprised if they are just a lawsuit away from proven wrong. I have disputed this same issue several times for several furnishers and some CRAs delete the history or the whole trade line, so no need for a lawsuit.
  17. Credit scores are not calculated by a reasonable person. A computer program takes whatever data is in a file, assumes it is correct because otherwise you would have disputed it, and calculates a score based on the data, errors and everything. The scoring algorithm cannot ignore information just because any reasonable person would know something. It just looks at a lot of very recent derogatory data. Otherwise, a report allows furnishers to report both status and activity. While the charge off status is already being reported in a different field, there is no activity to report, especially not a new charge off.
  18. There are legal ramifications to a breach of contract, and then there are vindictive actions from sleazy furnishers exploiting loopholes to pressure you to settle. I am merely trying to enforce my rights. No more, no less. Negative ramifications, fine, as long as they are legal. Contracts must have an offer and consideration to indicate acceptance of the terms. In this case my offer is allowing them to commit defamation, as long as they agree to pay for it. In an adhesion contract, consideration is not required as in regular contracts, but acceptance of the terms is indicated through other actions, which make the contract enforceable. In this case, they can stop reporting new activity to reject the terms. Even though it is not specified, they could also respond directly to me denying acceptance. As long as they can show they took effective steps to reject the terms. But simply engaging in behavior subject to the contract without any form of rejection of the terms indicates agreement. It's exactly like arbitration terms or any other change of terms in a credit card. Most of the times you do not have to call or mail to accept the new terms. You indicate acceptance by continuing to use the card. Otherwise, you have to call, write, etc. to let them know the new terms are not acceptable. You do not go on using the card expecting the new terms will just go away.
  19. Sorry for not addressing you directly. Multiple charge off activity is inaccurate. The status is reported as charge-off, which is right, but on the payment activity history, every month there is a new charge off. As I tried to explain, a charge off is the status of the account and there is only one activity from the accounting point of view, at a certain point of time that triggers going from an open account that is late to a charge off. That activity is also called a charge off, by the CRAs and it can only happen one time. Once the account status changed, there is no possible activity that can change the status of the account back to current or X days late, so there is nothing to report anymore. Whether you pay it in part, the charge off status does not change, and if you pay it in full it changes to paid in full but was a charge off. They can sell it and the status continues to be a charge off. Notice that the activity can be either current, 30 days late, 60 days late, etc. and it also changes the status of the account to current, or X numbers late, etc. There cannot be multiple charge offs (as monthly activity) so my report is inaccurate for reporting this false activity every month. So why only one charge off activity? From the accounting point of view there can only be one charge off, but there is also regulation from FDIC (and others) allowing creditors only one charge off per account. Telling the CRAs that an account is charged off every moth is a lie.
  20. Exactly! You are pointing out the difference between account status and account activity. The charge off status is the result of certain activity. That activity does not repeat itself because once the account is charged off, the status stays the same no matter what, even if they sell it or you pay it in full or in part. Unfortunately, the name of the activity (charge-off) is the same as the name of the account status (charge-off) and it makes it difficult for the average consumer to differentiate between the two. And allows sleazy furnishers to get away with murder.
  21. You are assuming that what they report is correct. I have been doing some research and I found a thread here where Methus explains it the way I understand it, but was unable to verbalize. Basically, he explains that a charge-off is a one time accounting event. Once your account reaches that status, there is no new activity to be reported, the account is closed and the status and the date of the status cannot change. It is a major accounting event that is required by FDIC, among others, so there is consistency for financial institutions that must consider the balance a loss timely, instead of dragging the date of charge off in hopes to extend the date the account would be removed. The payment history reflects activity on the account. An account can only be charged off once as an activity. Metro2 allows furnishers to report "D" in the payment history to indicate that there is no history available for a particular month. Reporting multiple charge offs in the payment history does not reflect the status of the account. It shows charge off after charge off with the sole purpose of tanking consumers's FICO scores and force them to settle. The terms of the adhesion contract are not unconscionable because they should not be reporting new charge offs in the first place.
  22. FCRA requires that the consumer's credit file is accurate. The CRRG was developed by representatives from the 3 CRAs to tell furnishers how to report information using Metro2 so that the files stored by the CRAs are an accurate picture of the consumer's account.It is an industry standard. A data furnisher would have a hard time explaining how reporting information for a charge off, when CRRG explicitly bans it, can be considered accurate. At the same time, a CRA that allowed forbidden information would be hard pressed to claim it is accurate. Either the additional info must be removed or the whole trade line is inaccurate.
  23. According to the Credit Reporting Resource Guide: Field 17B (Payment Rating) must be left blank when the Account Status (Field 17A) is 97 (charge-off). Otherwise, when the Account Status is certain (active account) codes, it indicates how late the account was. I have not found special instructions for field 18, which has the 24 month payment history. But I suspect part of the problem is that these rogue furnishers report a payment rating in Field 17B, when they are not supposed to and because of that the information reported is inaccurate, even if the watered down version the CRAs disclose to consumers does not make this inaccuracy apparent, unless you look at the raw data in the file, which is what must be accurate, not just the abbreviated report we get to see.
  24. Thank you! Cap1 is notorious for pushing the envelope. For a long time they did not report credit limits because they claimed it was confidential/proprietary or something ridiculous along those lines. It took many lawsuits until they finally had to do the right thing. They also report business accounts on personal reports. So, two "accurate" reports can produce completely different FICO scores depending on whether the creditor continues reporting negative info every month or just gives up at charge off. I am not convinced that they just stop reporting out of the goodness of their heart. I am a little rusty so I need to do some research, but I suspect there are guidelines within Metro2 reporting that require furnishers to stop reporting payment history after charge off. So even if their reporting is technically accurate, their own industry standard makes it un-reportable. Does that make sense?
  25. Even when you prove that they are reporting incorrect info, the burden of proof to show willful non-compliance is very high, plus you have to show damages, not just that they violated FCRA. The way they interpret it around here (5th circuit) makes it almost useless. I have read about several unsuccessful attempts to do just that. The issue is there is no real chance to opt-out. The payment is part of an established contract. It would require more than just cashing the check to accept new terms.
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