PC1978

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About PC1978

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  1. I have had two CA's not respond to a DV and continue to make collection calls. I keep very accurate records and save everything. I sent both of them demand letters with a draft complaint to test the waters and see how they would respond. Both of them responded with a letter stating they sent validation with the "date" it was sent. I would never sue with this as the only violation but if they filed suit I would 100% use continued collection after failure to validate as a counterclaim. Even if they plan on fabricating false evidence to "prove" their story, half the battle once it hits the courtroom is the economics. Make it cost them more time and money than it is worth for them. If you have a valid counterclaim use it as leverage and a sword.
  2. You are going to need to get the dispute removed. I refinanced at the beginning of this year and had this exact same issue. You can do it yourself by writing all of the CRA's for all accounts that have a dispute informing them that the account is no longer in dispute but this could take some time. Most of us are probably aware that the CRA's are not particularly consumer friendly and getting them to react and do it quickly may be a problem and you may have to fight with them to get them to do it. Since your loan won't go through until it is done this will be a major problem, especially since it is time sensitive (to close on time and keep your rate locked). The other option is to look for a lender who offers this service. Since the lenders are a business and profit depends on selling loans the CRA's react much quicker when your request to have the dispute removed is processed through the lender, how convenient for them. In the process of my refinance I was looking at online lenders only. Some did not have this service, some did but charged a fee for each trade line changed. The lender I went with had the service and offered it for free. The reason for the dispute needing removed has to do with a fairly new process called Automated Underwriting. Most lenders now use an automated underwriting process to pre-approve the loans. This has many benefits (quicker, more consistent, pre-approvals are much more secure as the underwriting is done at the time of application) however as you are finding out certain things will make the software deny your approval, including having the word dispute anywhere on your credit report, as was my experience. http://www.investopedia.com/terms/a/automated_underwriting.asp http://www.closeyourownloan.com/whycloseyourownloan/whatisautomatedunderwriting.aspx BTW, my lender (and I highly recommend them) was National Bank of Kansas City. I requested loan info from them through Zillow and that ended up getting me a loan with no closing costs (except the standard appraisal and recording fees), no points and a 3.25% fixed rate on a 15 year loan - at the time of my loan this rate was good down to a median 620 score. And no I don't work for them. It was honestly the easiest and most enjoyable major loan I have ever received. If you go with an online lender they send the notary to your house to sign the documents and close the loan (ours was at 8pm). http://nbofkc.itclix.com
  3. The producer of this video is trying to sell gold but all of the conceptual premises of the video are valid, IMHO. Of, course believing this sort of this thing could turn you into a "conspiracy theorist" or in my opinion a truth seeker. BTW, the bankers, aka power brokers, don't want us to learn the true rules. Just keep spending, stay a debt slave and keep the shell game going, don't ask or try to figure it all out. It is all for our own good, doesn't have anything to do with growing their wealth and power, lol. There are plenty of articles and videos out there on this topic but this video is concise, informative and well produced. If you like it there are 4 videos in the series.
  4. I have just about completed refinancing my home and something came up in the process that I though I would share. This may have been discussed previously but I did not notice in my searches. I decided to apply for a loan to refinance my home that I purchased in 2009. I went through some bad financial times in 2010-11 due to a loss of income and thought that the major obstacle to refinancing would be my credit score/report. My wife and I both have a median score in the 640's (real score) with an 8 year old Bankruptcy, many charge-offs with $0 balance/settled in full, 1 charge off with a balance and 1 medical collection account with a balance. I was looking to go to a 15 year loan, straight re-finance with 80% equity in the home. As I stated, I assumed when I started applying that due to my credit history/score I may have trouble getting financing or would have to get a relatively high interest rate or would have to get an FHA loan (with astronomical PMI). I was pleasantly surprised when I applied at Lending Tree and the first lender I called back took my application, ran my credit report and said I would qualify for a no closing cost loan with no points and 3.375 15 year fixed conventional loan. After looking at the other offers I decided to proceed with this lender. Several days later the lender called me back and informed me that they had to withdraw the offer because my credit reports had "disputes" on it with the main problem being disputes on my current mortgage. This was puzzling to me because I had not done a dispute with a CRA in several years. I called several other lenders to have them run my application and try to get more information on why this would be a problem. After speaking with several other lenders I found out that the lenders all use a Fannie Mae or Freddie Mac automated underwriting process to clear the loans for pre-approval. Any mention of the word "dispute" on your credit report will flag the automated underwriting process and not let the loan go through. I did not have any open disputes and the last disputes I had made were a couple years old. However, many of my disputes from the previous years had left a comment about the account being disputed on the CRA listings. This "dispute" comment was enough for the underwriting process to not allow the loan to proceed. Several of the lenders I spoke with would not proceed and denied the loan based on this dispute comments and not being able to get the loan through automated underwriting. Several others offered a service to remove the dispute comments with the CRA's (which would take a few days) but charged $30 a "dispute" to remove, you can imagine with many disputes on all 3 reports this could get costly. Another option was to contact all the CRA's myself and let them know the account's were no longer disputed. However, this process could have taken months as we all know how responsive the CRA's are when dealing with consumers. After speaking with many different lenders I found a company through Zillow that offered a great deal, it worked out better in the end with this company than any of the other companies I had contacted so I was lucky in that regards. The offered a no closing cost, no points, 3.25%, 15 year fixed conventional loan that was good down to a 621 median score. They also had a service that removed all of the dispute comments from all of my credit reports at no cost to me (this was quite a bit of work for them). If you plan on applying for a mortgage in the future and you have previously disputed items on your credit reports you may want to check your reports for accounts that still have a "dispute" comment even if the dispute is closed. These may severly limit your options and slow down the process when applying for a mortgage or refinance.
  5. Yes you need to have them served, even though they will be getting/reading it on behalf of their client. You are in effect suing them and since they are new party they have to be served with a summons and complaint (which in this case is your counterclaim). We settled, they dismissed their case with prejudice and I dismissed my counterclaims. I don't think you could get $1000 from each party since it is all part of the same action. You may also want to look at procedure, like I said before I am not sure if this was exactly the right procedure but it worked. I have seen cases where the Defendant filed a "third party complaint" to bring the third party into the action.
  6. I did it in Ohio once before, joindering an additional party is allowed in the Civil Rules. I am not sure if this was the proper way to request it, but it worked. I included the following in my answer and counterclaim. The language in my request is taken directly from the Ohio Rules of Civil Procedure so you may want to look at the Arkansas Rules. You do have to have the Third Party served properly since they are a new party to the action, they must be served by a method approved by the court, the same way a new lawsuit is started, to ensure they receive the summons and counterclaim. DEFENDANT’S REQUEST TO JOINDER ADDITIONAL PARTY: Now comes the Defendant in the above entitled matter and pursuant to the Ohio Rules of Civil Procedure 13(H) and 20(A) respectfully requests to Joinder Additional Party based on facts stated below: The Defendant respectfully requests that: XXX XXX XXX XXX Be joined as an additional party, hereinafter referred to as Third Party Counterclaim Defendant, with the Plaintiff in the DEFENDANT’S COUNTERCLAIM AGAINST THE PLAINTIFF AND THE THIRD PARTY and Be joined in one action as defendants with the Plaintiff as there is asserted against them jointly a right to relief in respect of and arising out of the same succession of occurrences and a question of law and fact common to all defendants did arise in the action. Third Party Counterclaim Defendant need not be interested in defending against all the relief demanded. Judgment may be given against one or more defendants according to their respective liabilities. Third Party Counterclaim Defendant did VIOLATE THE CONSUMER PROTECTION AFFORDED THE DEFENDANT BY THE FDCPA as set forth in COUNT 2 of the DEFENDANT’S COUNTERCLAIM AGAINST THE PLAINTIFF AND THE THIRD PARTY.
  7. Razor Capital was pretty agressive with me. They are somewhat newer and I believe smaller than some of the more established JDB's so they may not have as many lawsuits out there number wise. I informed their attorney in writing that I would be filing an FDCPA counterclaim (on a $1300 alleged debt) and they still filed.
  8. I actually was kind of theorizing that you could make a case that a JDB could not use a CA based on how the law is written. It plainly states who a debt collector can talk to, does it make sense, no. But what does it say? Will the argument win in court, who knows, but we all love the strict liability of the FDCPA so why would this section not be strict liability. Your theory is stronger in that if the JDB claims the CA is a totally seperate entity and thus the DV only applies to the CA then you raise the 805b third party communication. They of course then would claim that the CA is a valid 3rd party as a representative of their company, which means that the JDB should be subject to the DV. Of course they will both try to avoid blame, CA will say they sent it to JDB and JDB will say they were never told of the DV.
  9. That was my point. It makes no common sense but if it is what the law says and if there is no case law to support either side of the argument eventually someone may step up and give it a whirl in court. If you argue that for the purposes of 1692c the JDB is a creditor and not a debt collector then the JDB can talk to anyone they want about your debt and not be in violation of the FDCPA (like I said before they are probably violating some other privacy law but they are not violating the FDCPA).
  10. I do not know if there is any case law out there ruling on a JDB communicating with a CA but if there is not then would not both sides be bringing their theories and opinions to court and be trying to convince the Judge/Jury that their opinion is the correct opinion. Common sense would say that if a JDB wanted to hire a CA to help them then they should be able to, if I owned a business and there was a company that could be of service to me that I wanted to hire and there was a law that said I could not I am sure I would not be happy about it and wonder what kind of sense that law makes. But we are dealing with the law/legal system and not common sense. Most of us here know from experience that if you ignore the law/legal rules and use only common sense in the courtroom you may be in trouble. For example if a person was sued by a JDB for $5000 on a debt that they knew 2 years ago was a $500 credit card and that person knew nothing of the legal system or how to win their case in the courtroom there is a good chance they could show up to court and tell the judge yeah I owe but I think it is closer to $500 and common sense would tell you that a $500 debt can't become $5000 in 2 years. The JDB would say I have this statement here that says you owe $5000. And for the person's common sense they just got a $5000 judgement handed to them. My point is that on it's face the thought that a JDB can't hire a CA seems ludicrous. However, if there is no established case law anywhere to support either side if you want to press the issue then the most persuasive party with the most law on their side wins. Even if you assume that the JDB can partially be considered a creditor (which is currently being discussed), for the purpose of 805b I do not see how the JDB could not be considered a debt collector. If they are not a debt collector for 805b then the section does not apply to them and they can discuss the debt with whomever they please and not be in violation of the FDCPA (they may be in violation of other privacy laws but would not be in violation of the FDCPA). From there a strict reading of the section leads you down a path that does not leave any room for interpretation to whom the JDB can discuss the debt. ( COMMUNICATION WITH THIRD PARTIES. Except as provided in section 804, without the prior consent of the consumer given directly to the debt collector, or the express permission of a court of competent jurisdiction, or as reasonably necessary to effectuate a postjudgment judicial remedy, a debt collector may not communicate, in connection with the collection of any debt, with any person other than a consumer, his attorney, a consumer reporting agency if otherwise permitted by law, the creditor, the attorney of the creditor, or the attorney of the debt collector. As far as a JDB selling to another JDB the out I see in 805b is the phrase "in connection with the collection of any debt", when selling the debt they are not trying to collect the debt. But even so, who says this is about common sense, it is about how the law is written and how the legal system works.
  11. I think you are in a position where if you pursue this there will not be a lot or any history-precedent to go off of. That is why I keep wondering out loud if anyone has ever tried this angle because I don't ever remember reading about it, although I am not as active in these discussions as a lot of other members are. The way I see it you would have had a stronger argument for continuing to collect after failure to validate had your intitial DV gone to both the CA and JDB but even then you still would have had to overcome their argument that they had never contacted you and thus were not subject to a proper DV. By the way, I agree with you as I filed a counterclaim in a case for this exact thing. The way it stands now you still have to convince the judge-jury of the above and then add in proving that the CA was legally obligated to forward the DV to the JDB. I think you are correct that CA would claim that they didn't have to send it and the JDB will claim the CA never sent it to them, and they both will claim bona fide error. The original CA also has a valid statute of limitations claim against an FDCPA suit if it has been more than a year since they sent the account back to the JDB, you may need them for discovery but it might be too late to sue them. If I was in this exact situation because everything is so untested I would not file a lawsuit but would save it for a counterclaim, that is just me though, I am not as daring as many. I also would go after the communication with an unauthorized party pusuant to 805b, I personally think this is the stronger claim if there is no case law to back any of the arguments up on either side because of how specifically the section is written. For me it would be a leverage tool if sued but for others they may want to pursue it harder.
  12. That is what I was thinking. I still wonder if anyone has gone down this road in court because even though it may seem unreasonable on its face (and JDB's think the whole FDCPA is unreasonable) 805b seems to be very specific and straightforward about who a debt collector can communicate with. When the law was written it probably wasn't considered because if an OC sent a debt to a collector if they couldn't get results they either sent it back to the OC or the OC recalled it so they could give another collector a shot, I don't think a collector would sub-contract a debt to another collector on behalf of the OC. The JDB dynamic was not prevalent when the law was written.
  13. Sorry, I didn't realize that the first attempt was an attorney. If a JDB did send a debt to a non-attorney collection agency then I think someone may have an 805b claim.
  14. That is the Chaundry case and the other side cited it. In my reply to their motion I explained it in full context. If you look at the ruling the debt collector had already provided a ton of "verification" basically gave them a running tally of documents from the opening of the account (more than we could ever dream of getting from a JDB). The ruling in the case was specific only to the defendant wanting verification of attorney fees. Debt collectors always take the case out of context and say it applies to DV of the debt.
  15. The more I try to think through this the more it logically makes sense but I am interested to hear any rulings or other people's experience with this. An OC is not a DC in terms of the FDCPA and can farm the debt out to as many CA's as they like as much as they want. However, A JDB strictly in terms of the FDCPA and when attempting to collect a debt is considered a DC. If the JDB is subject to 805b then there are very limited people to whom they can communicate information about the debt. They can communicate with the "original creditor" (in FDCPA terms it is well settled that they cannot classify themselves as a "creditor"), an attorney they retain, etc. Nowhere in 805b are they given the right to communicate information about you or the debt to another CA who is not their attorney.