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shaneIrish

SHOULD I ARGUE WILLFUL OR NEGLIGENT NONCOMPLIANCE?????

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I want a little debate on this before I argue it in court next month..

I am going to argue "willful noncompliance" as opposed the "negligent noncompliance".

Here are my reasons:

1. Credit Union reported to Equifax that I had a $4728 balance (I have proof of a $0 balance).

2. I disputed through Equifax, Credit Union verified the $4728 as correct

3. I sent the Credit Union receipts/copies of the check I paid the account off with that shows proof of a $0 balance.

4. I disputed it again through Equifax, Credit Union again re-verifies the $4728 Balance as correct...Even after receipt of proof from me that showed otherwise.

I feel it is willful noncompliance because of the fact that I sent them proof of a $0 balance and they choose to ignore it and falsely re-verified the $4728 balance.

What do you think? It is important to me because the civil liability damages are different.

§ 616. Civil liability for willful noncompliance [15 U.S.C. § 1681n]

(a) In general. Any person who willfully fails to comply with any requirement imposed under this title with respect to any consumer is liable to that consumer in an amount equal to the sum of

(1)(A) any actual damages sustained by the consumer as a result of the failure or damages of not less than $100 and not more than $1,000; or

(B) in the case of liability of a natural person for obtaining a consumer report under false pretenses or knowingly without a permissible purpose, actual damages sustained by the consumer as a result of the failure or $1,000, whichever is greater;

(2) such amount of punitive damages as the court may allow; and

(3) in the case of any successful action to enforce any liability under this section, the costs of the action together with reasonable attorney's fees as determined by the court.

(B) Civil liability for knowing noncompliance. Any person who obtains a consumer report from a consumer reporting agency under false pretenses or knowingly without a permissible purpose shall be liable to the consumer reporting agency for actual damages sustained by the consumer reporting agency or $1,000, whichever is greater.

© Attorney's fees. Upon a finding by the court that an unsuccessful pleading, motion, or other paper filed in connection with an action under this section was filed in bad faith or for purposes of harassment, the court shall award to the prevailing party attorney's fees reasonable in relation to the work expended in responding to the pleading, motion, or other paper.

§ 617. Civil liability for negligent noncompliance [15 U.S.C. § 1681o]

(a) In general. Any person who is negligent in failing to comply with any requirement imposed under this title with respect to any consumer is liable to that consumer in an amount equal to the sum of

(1) any actual damages sustained by the consumer as a result of the failure;

(2) in the case of any successful action to enforce any liability under this section, the costs of the action together with reasonable attorney's fees as determined by the court.

(B) Attorney's fees. On a finding by the court that an unsuccessful pleading, motion, or other paper filed in connection with an action under this section was filed in bad faith or for purposes of harassment, the court shall award to the prevailing party attorney's fees reasonable in relation to the work expended in responding to the pleading, motion, or other paper.

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I think you have pretty well proven that it was willfull. Willfull implies that they knew what they were doing wrong.. and you gave them many chances to correct and they didnt.

You go dude!!!

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I would name both the Equifax and CA as co-defendent. My guess, is Equifax did it the lazy way, and never called. They probably relied on some old data or information. If this is the case, the OC may not be at fault. Either way, you can pit them agianst each other and $1000 may fly out. You can get the wrongfull party to make your case. Thats what I would do.

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I just set the subpoena to Equifax for all of the records relating to this dispute. I will see what they send me and if they are at fault, go after them.

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Shane,

I agree with Sky and Timber - it is definitely willful non-compliance.

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Here is the catch:

If you argue ONLY willfulness, and the Judge doesn't buy it, you will lose the whole enchillada. So, you might want to tell the story and then say "Judge, I submit that under applicable law, this conduct amounts to willfulness and my damages are....." "But in any event, the conduct is clearly negligent and, under this theory, I am entitled to ....."

The problem with this approach is that it invites the Judge to "split the baby" and give you negligence allowing both sides to feel they have won something. In the end, you must decide how much risk you are willing to take.

Good luck.

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Personally, I'd go for the non commital angle and mention both of them. Like Cala said, you might get a split, but it's better to get half than get nothing.

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