kanakanaka77

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  1. hence my problem with the DV chart.... IF I dv a dunning letter for a CA which isnt on my CR so as to protect my rights, what good will it do for me to send the same letter to the 3 CRA's if there's nothing for them to reference it since it isnt reported?
  2. I"ve heard this in scattered form a lot but have a few ?'s Are there any specific standards that CA"s must follow in reporting to a CRA? I know they must be complete and accurate, but does that mean they can report a sold account as 180 days late?
  3. It has been my experience that the CA's dont report to the CRA until post- intial 30 day contact period... that being said, why does the DV letter shown on this site threaten CA's with legal action regarding items that have yet to be reported? : "If your offices fail to respond to this validation request within 30 days from the date of your receipt, all references to this account must be deleted and completely removed from my credit file and a copy of such deletion request shall be sent to me immediately. " But the CA has yet to report?? Am i suppose to be using a different DV letter? IF most CA's report after the 30 days anyway why is this letter even valid? I've been told that worrying about an item that's not on my file is somewhat useless? Not that I have any intention of waiting for it to appear. thanks for the help
  4. I understand that, however it's past the 30 day period and i've yet to see capitol management (atlantic) appear on my credit report. So if I DV the CA where is this getting me since i'm post 30 days, and they're not listed on my CR?
  5. my mistake... didnt dv the oc. i reported the account as not mine with the cra's regarding the oc, and it came back as meets fcra requirements. So i've yet to dv the ca because i dont understand what it would help if they're not listing with cra. Why would the cra take interest in investigating a ca that isnt reporting to them? That I think is the sum of my question.
  6. my apologies, but i thought that since i'm trying to get the item removed, and the CA is not listed on my credit report, what's the point? If I dv them and it comes back deleted, what exactly gets deleted? Wouldnt the debt go back to the OC? And wouldnt they be less likely to delete an item if I was only paying half? I think I'm lost on the process of what happens to debt when it gets bought and returned?
  7. I disputed on the basis that the account was not mine, came back verified. I cant find anything else on what are they are listing that they are in violation for though, everything seems spot on (darn)!!
  8. Providian, recently purchased by washington mutual ( now the new OC) is reporting that i am: 180 days late 120 days late 180 days late on a credit card to the 3 cras... Yet the account has been purchased by portfolio who is constantly threatening to sue me and raising the amounts that I owe monthly and reporting it as an installment loan. here's where I try to get a little stupid??!?!?! If the OC isnt reporting it as a transferred or sold account then they are in violation (1)? If in fact they are in violation, then any interest that has accrued through the said CA is also a violation... as the said account has yet to be reported as sold(2)? And the fact that they are reporting it as an installment loan is also a violation (3)? I already DV'ed with the CRA's in reference to inaccurate reporting (as installment) and it came back verified.... So could someone please go over the steps below and tell me where I'm right or wrong? 1) send three letters to the CRA's stating that both the OC and the CA are in violation with the issues listed above? 2) remind them of the complete and accurate necessity? 3) and remind them of their improper investigation procedures from before??? I love you all!!!! Thanks for the repeated attempts to help me through this!!
  9. I have an account with household bank for like $1000 that i dv'ed and it came back as valid. IT shows on my credit report as being Charged-off. Atlantic credit says they are collecting on household's behalf and offering a settlement offer of $500, yet they are not on my credit report?? Should I make correspondence with them or should I attempt to settle with HSBC (oc)... Does this settlement offer seem reasonable or does anyone think i could get them to less being that I have never made correspondence with them at all?
  10. So.... I wanna make sure that this is correct. Charge-offs: cannot be reported as open? have a balance? cannot be reported as installment, revolving, or????? Does anyone have any case law on this possibly being true??
  11. I really do appreciate all the posts you guys reply to... I know it can get frustrating to hear the same ?'s over and over again and I sincerely thank you for you time in looking them over...again...and again!! I'm learning a lot and hope the continuance of ?'s dont annoy you all too much
  12. I'm just trying to get some solid information together cuz I dont want this Dving to get to the frivolous point
  13. I know it's a lot to read...just found it in the archives and thought it might help someone, anyone,lol!!
  14. - - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [**40] D. ATTORNEY FEES Croom, acting on behalf of Defendant in the collection suit, sought and was awarded attorney fees. The statute permitting fees in collection suits provides that "in any civil action in district court, small claims court or magistrate court to recover on an open account, the prevailing party may be allowed a reasonable attorney fee set by the court." N.M. Stat. Ann. § 39-2-2.1 (Michie 1991). Plaintiff attacks Defendant's receipt of an attorney fee award on two grounds. 1. SUPPORTING DOCUMENTATION Plaintiff contends that Croom should have provided documentation when he sought attorney fees. In support of her proposition that documentation is mandatory, Plaintiff refers the Court to the statute's phrase "reasonable attorney's fees." She further cites Gallegos v. Franklin, 89 N.M. 118, 547 P.2d 1160 (1976). Neither the statute nor the case establishes an affirmative duty on attorneys to submit documentation when requesting attorney fees. Rather, the statute permits the court to set fees that are reasonable. The Gallegos court found a trial court's default judgment award of damages without the benefit of evidence to [**41] be an abuse of its discretion. At best, Plaintiff in the present case has questioned the state trial court's exercise of discretion. The FDCPA was not enacted as a means to collaterally attack a state court judgment, but rather as a means to challenge unfair debt collection practices. 15 U.S.C.A. § 1692(e) (West 1982). Accordingly, the court will deny Plaintiff's motion for summary judgment and grant Defendant cross motion for summary judgment on this ground. 2. OPEN ACCOUNTS Defendant categorized Plaintiff's accounts as "open." (DeVine Dep. Ex. 11.) Section 39-2-2.1 only permits the award of attorney fees in "any civil action . . . to recover on an open account." N.M. Stat. Ann. § 39-2-2.1 (Michie 1991) (emphasis added). An open account "does not mean an amount owed on a single transaction or an account stated. It is a written account concerning a related series of debit and credit entries of reciprocal charges and allowances kept open until it shall suit the convenience of either party to settle and close the account." Southern Union Exploration Co. v. Wynn [*1510] Exploration Co., 95 N.M. 594, 624 P.2d 536 (Ct. App. 1981). [**42] The continuity of an open account is broken where the relationship of the parties changes or where the account has remained dormant. 1 Am. Jur. 2d Accounts & Accounting § 5 (1962). The SED charge against Plaintiff was not pursuant to an open account, but rather was a single transaction. Croom acknowledged that according to his judgment, Plaintiff's account with SED was not open. (Croom Dep. at 87.) Neither is the Lovelace account open. Lovelace and Plaintiff never engaged in reciprocal transactions. The transactions all occurred in one month and related to Plaintiff's endometriosis surgery. Shortly after the surgery, Plaintiff ceased accepting medical care from Lovelace and sought out other health care providers to perform the services over again. Plaintiff's account lay dormant for ten months before Lovelace referred it to ACS. Croom acknowledged that a court might find the Lovelace account was not open. (Croom Dep. at 86.) Because neither the SED nor Lovelace accounts were open, Defendant falsely represented the legal nature of Plaintiff's debt and subsequently received an award of legal fees to which it was not entitled, in violation of section 1692e(2) and 1692f(1). Accordingly, [**43] the Court will grant Plaintiff's motion for summary judgment and deny Defendant's cross motion for summary judgment on this ground. Wherefore, IT IS ORDERED, ADJUDGED AND DECREED that Plaintiff's motion for partial summary judgment on the ground that Defendant's mailing to Plaintiff a form letter printed on Croom's letterhead and signed by Croom was a false and misleading representation in violation of section 1692e(3) be, and hereby is granted. Defendant's motion for summary judgment on the same ground is hereby denied. IT IS FURTHER ORDERED that Plaintiff's motion for partial summary judgment on the ground that Defendant's filing of a collection lawsuit against Plaintiff in Bernalillo County was in violation of the venue provision of the FDCPA, section 1692i, be, and hereby is granted. Defendant's cross motion for summary judgment on the same ground is hereby denied. IT IS FURTHER ORDERED that Plaintiff's motion for partial summary judgment on the ground that Defendant's bringing of a collection lawsuit against Plaintiff pursuant to the creditors' assignments of Plaintiff's debts constituted the unauthorized practice of law in violation of section 1692e(5) be, and hereby is granted. [**44] Defendant's cross motion for summary judgment on the same ground is hereby denied. IT IS FURTHER ORDERED that Plaintiff's motion for partial summary judgment on the ground that Defendant's levy of gross receipts tax on debts already including such tax was a false representation of the legal nature of a debt, in violation of section 1692e(2), and was also an attempted collection of an amount not permitted by law, in violation of section 1692f(1) be, and hereby is granted. Defendant's cross motion for summary judgment on the same ground is hereby denied. IT IS FURTHER ORDERED that Plaintiff's motion for partial summary judgment on the ground that Defendant attempted to collect on a time barred account in violation of sections 1692e(2) and 1692f(1) be, and hereby is denied. Defendant's cross motion for partial summary judgment on the same ground is hereby denied. IT IS FURTHER ORDERED that Plaintiff's motion for partial summary judgment on the ground that Defendant's assessment of interest on debts which included gross receipts tax was in violation of sections 1692e(2) and 1692f(1) be, and hereby is denied. Defendant's cross motion for partial summary judgment on the same ground is hereby [**45] granted. IT IS FURTHER ORDERED that Plaintiff's motion for partial summary judgment on the ground that Defendant's alleged attempt to collect interest prior to judicial determination in and in the absence of a contract provision permitting interest was in violation of sections 1692e(2) and 1692f(1) be, and hereby is denied. Defendant's cross motion [*1511] for partial summary judgment on the same ground is hereby granted. IT IS FURTHER ORDERED that Plaintiff's motion for partial summary judgment on the ground that Defendant's levy of interest on debts already including interest was an impermissible assessment of compound interest, and thus was a false representation of the legal status of a debt in violation of section 1692e(2), and was also the attempted collection of an amount not permitted by law, in violation of section 1692f(1) be, and hereby is granted. Defendant's cross motion for summary judgment on the same ground is hereby denied. IT IS FURTHER ORDERED that Plaintiff's motion for partial summary judgment on the ground that Defendant's request for attorney fees without submitting documentation in support thereof was in violation of sections 1692e(2) and 1692f(1) be, and hereby is [**46] denied. Defendant's cross motion for partial summary judgment on the same grounds is hereby granted. IT IS FURTHER ORDERED that Plaintiff's motion for partial summary judgment on the ground that Defendant's attempt to recover attorney fees by representing Plaintiff's accounts as "open" was a false representation of the character of a debt in violation of section 1692e(2), and was also the attempted collection of an amount not permitted by law, in violation of section 1692f(1) be, and hereby is granted. Defendant's cross motion for summary judgment on the same ground is hereby denied. DATED this 14th day of October, 1994. Juan G. Burciaga Chief Judge