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The Fair Debt Collections Practices Act


CreditHog
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This is a Federal law, does it supercede state?

My report has debt on it that belonged to my wife in 97.

I called the CA, and explained that the debt wasn't mine and I am going to send them a letter to where they need to validate the debt.

They told me the debt was my wife's and since we were married California state law says that it is my debt as well.

I read them the FDCPA riot act and let them know I will not let this go, and that Federal always supercedes state.

I could be wrong but I was on a roll :roll:

I said I am sending certified a debt verification request, and if you don't resond within 30 days, I will sue you in small claims.

Anyways someone else from their agency called me back and let me know they have deleted the derogatory information from the system.

It can't be this easy.. can it?

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This is a Federal law, does it supercede state?

My report has debt on it that belonged to my wife in 97.

I called the CA, and explained that the debt wasn't mine and I am going to send them a letter to where they need to validate the debt.

They told me the debt was my wife's and since we were married California state law says that it is my debt as well.

I read them the FDCPA riot act and let them know I will not let this go, and that Federal always supercedes state.

I could be wrong but I was on a roll :roll:

I said I am sending certified a debt verification request, and if you don't resond within 30 days, I will sue you in small claims.

Anyways someone else from their agency called me back and let me know they have deleted the derogatory information from the system.

It can't be this easy.. can it?

Well first, Fed does supercede State, but most States have laws that enhance the FDCPA and FCRA to the benefit of the consumer, not try to undermine it.

Is it a paid debt or one that is still un-paid? Since it is from 1997, it is due to fall off soon under the 7 year limit if it has not already reached maturity.

Are you still married to her? If not then this should have been settled in the divorce. California is a community property State, so I don't know where they got off telling you it was on your report because you married her. It can only be on your report if the debt was incurred during the course of your marriage. If it existed before you were married, their response is baloney.

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We are still married.

I assume it is paid since she said she paid it, thus asking them for the verification process.

They tell me the debt was too old to verify, so I said then you have no choice but to remove it.

To your other question my wife says the debt was paid and we have 5 cancelled checks to the original creditor from 98/99 but nothing in 97. She says it was paid.

They cannot verify that "I" owe the debt, so my question is since she is my wife does the FDCPA protect me anyways?

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We are still married.

I assume it is paid since she said she paid it, thus asking them for the verification process.

They tell me the debt was too old to verify, so I said then you have no choice but to remove it.

To your other question my wife says the debt was paid and we have 5 cancelled checks to the original creditor from 98/99 but nothing in 97. She says it was paid.

They cannot verify that "I" owe the debt, so my question is since she is my wife does the FDCPA protect me anyways?

FDCPA would protect your from a collection action. The FTC "Cass" letter specifies that reporting to a CRA is a collection action. Since you sent a DV letter, that is likely the last you will here from this CA. You may have to follow up with another letter to the CA if they ignore your DV letter and continue to list on your CR. But past that, you just sue them for $4000...$1000 for the FDCPA violation of continuing collection activities after failing to provide validation...and $1000 for each of your credit reports damaged by their reporting false information under the FCRA.

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The collection laws for the State Of California, found in the California Civil Code, do take precedence over the Federal Laws as described in FDCPA 816. This section says it quite clearly that a State's law will take precedence over Federal if it offers more protection to the consumer, up to the inconsistency.

As to those alleged debts, they are timebarred. They have no legal recourse to the debt. In the State of California, it is a violation to even attempt collection of a timebarred debt, FDCPA 807(2)(A) and/or CCC1788.17.

According to some information, it is a Felony as described in California Penal Code 518-527 for Fraud/Extortion. This is usually only persued if the claim goes to court. I don't have actual documentation, such as a particular case, to prove this part, just information from the Internet.

Look for the "Sticky" in the "Credit Repair Section" regarding "The Law in California". Itt has most everything you need. Also, go online to "Claifornia Codes" or "California Civil Code". You will want to start at Section 1788 and go from there. It is titled the "Rosenthal Fair Debt CollectionPractices Act". Section 1785 begins the laws regarding FCRA.

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Is this on your CR yet?? Also make sure they send you something in writing making sure they closed that account. Otherwise they may try to put it on your report and you got a little mess on your hands, even though the mess can quickly and easily be cleaned up.

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Is this on your CR yet?? Also make sure they send you something in writing making sure they closed that account. Otherwise they may try to put it on your report and you got a little mess on your hands, even though the mess can quickly and easily be cleaned up.

Yes it is on all 3 of my CR's

The CA called me back, a very nice lady unlike the punk I had it out with and she let me know that she removed it from my report, and I should follow up with the CB's to make sure they are off.

Both my debt and my wife's are all past the SOL in California.

Does that mean we can go ahead and dispute all derogatories that are in violation of the SOL?

For example we have Sears from 94 that keeps resurfacing, same with Wards.

We have absolutely no bad current debt for the past 4 years except for the ones that resurface as new from old creditors who sold the debt.

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Both my debt and my wife's are all past the SOL in California.

Does that mean we can go ahead and dispute all derogatories that are in violation of the SOL?

For example we have Sears from 94 that keeps resurfacing, same with Wards.

We have absolutely no bad current debt for the past 4 years except for the ones that resurface as new from old creditors who sold the debt.

I'm worried about the same thing... I'm afraid more crap from 16 years ago is going to start showing up.

I would dispute them all. Remember that a OC doesnt have to respond to a DV-but a letter pointing out that they are reporting to the CRAs beyond SOL and in violation of the FCRA might get those removed.

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I am meeting with an attorney next week. I understand they can't enforce old debt but can they report old debt to the CB's?

Now that is a good question.

Can they blackmail you to settle by reporting derrogatory info to the CB's?

They can try-but its all in violation of the FDCPA.... They MUST remove illedgal items they have reported. If they dont the CRAs must... we are talking SOL here. If they dont-there are violations there too!

I'm racking up the violations... and then taking my buddy who is an attorney to court...

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I'm wondering, so the CB can't report debt outside of the SOL??? Is that just a Cal. State Law???

That is the question I am asking too.

My understanding from reading everything is if the debt was reported before the SOL then it is on for 7 years, but if it is resold and added later and showing as current then it is a violation of the SOL.

Am I right or wrong?

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I'm wondering, so the CB can't report debt outside of the SOL??? Is that just a Cal. State Law???

That is the question I am asking too.

My understanding from reading everything is if the debt was reported before the SOL then it is on for 7 years, but if it is resold and added later and showing as current then it is a violation of the SOL.

Am I right or wrong?

OK-The CRA will report whatever they are given to report. Right, wrong or indifferent (as they are). They have a duty to report items that are VALID under the FCRA. So-that being said.. if they are given invalid information-they report until it is proven to their satisfaction that its incorrect.

Outside of SOL-Thats something because the SOL is determined by the DOLA-LAST PAYMENT DATE. CA's re-age old junk debt. Period. So-the CRA says hey-this is within SOL-its good. The CRAs DONT PROVIDE the DOLA... This is (imo) a HUGE gap in the FCRA. Why is it up to the consumer to prove the DOLA?

Anyway-part of the DV process is to obtain payment history so that DOLA can be properly established. If you sent out a DV and didnt request payment history-you need to send out another one. Once you can (or cant) get the payment history from a CA-you can report back to the CRAs that they could not have validated the item if the CA could not validate with you and provide payment history-THEREFORE, the item must be DELETED...

Welcome to the wait for them to act world...

But track everything-log everything-document, read and document more...

Start deciding now if you want to just get your good credit restored or sue the bastards.... keep in mind-getting the derogs like this removed may or may not help your scores.... but kicking a$$ and taking names later leaves a mark!

J

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I'll try and answer your questions.

1. A negative TL can remain on your CR for up to 7 yrs from DOLA,

unless your particular State's Laws say otherwise if they offer more

protection to the consumer. Upon reaching that date, the TL shall be

removed. Unfortunately, it does not always happen as it should. This

is why you should monitor your CR at least every 6 mths. Sometimes

the CRA is the cause, while other times it is the reporting party who

has the wrong date reported, or their tape has a problem. What is

happening is their tape still contains your info, so it is automatically

reported each month or during their reporting cycle. For this reason,

you must contact the reporting party directly to remove it. The other

problem is the debt buyers who think because they purchased the

debt they are now the OC therefore restarting the clock. All that is

usually necessary is to send them a C&D advising them of the law that

the debt can only be reported for 7 yrs and they are in violation of

FCRA 605© for reaging the debt. Even though they now own the

debt, they cannot change the DOLA for any reason unless you enter a

new contract or allowed under the law.

2. As to the continued reporting of a timebarred debt in California, this is

one of my pet peeves. The FDCPA says that a CA or OC cannot

misrepresent the legal status of a debt (FDCPA 807(2)(A)). California

says that it is a violation to even attempt collection of a timebarred

debt. Remember, the SOL only refers to the OC having any legal

recourse, such as the filing of a suit. It has nothing to do with the

reporting period. Next, Federal says that continued reporting of a

debt that has not be validated or verified is a violation as it is

considered continued collection activity. I say that continued reporting

of a timebarred debt is also continued collection activity. Am I right?

I don't know. I sent a letter to the California AG and got a generic

response telling me to hire an Attorney. They treated it like I was

referring only to me when I was asking as a whole to see what the

State's position was on this subject. If I had a way to do it, I would

put my letter and their response on this site for everyone to read.

3. There are times you will find an old account that originally contained

negative comments, that now show all positive. I still don't fully

understand it, but, from what I found out is after so many years an

account goes positive and will stay on your CR for up to 10 yrs. We

have one on ours that originally had some negative info. Even though

it showed all positive when we disputed, I was told it would stay for 10

yrs. because it is a positive account.

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Thats what I was thinking, that it can be reported on your credit report 7 years from the DOLA. I just read the FCRA and didn't see that, but I did skip some of it though due to it not really applying to anything.

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It was too late to be able to edit my last post to add this. I forgot to add!

Go to the "Is There A Lawyer - - " and search for my thread titled "Is Verifying Of Timebarred Debts w/CRA legal?". you will find some good discussion regarding this question. It does not give the answer, but, it does ask the question and gives good argument to consider.

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From teh referred lawyer thread:

3. Here the CA has not filed suit. It has not threatened suit. It has just reported accurate information to the CRA since the debt still exists whether or not it can be enforced in Court. The FCRA impliedly permits the reporting of the debt for 7 years.

So we know or we think we know that a debt in California past SOL can in fact be reported, but if consumer has not paid CA a cent, (thus admitting and entering a new contract) can CA open a new derrogatory on your CR? And if so is it 7 years from when they apply it or is it 7 years from the time the timebarred debt was first written off?

ExampleA: Old debt

JJ Credit Card

open 1992

status closed

balance 0

reported 1996

written off

transferred etc

last payment February 1996

(Should be off report right? Actually it converted to a positive on it's own)

ExampleB:NEW

Progressive Asshole Management

open 3 2003

status closed

balance 8000

reported 3 2004

seriously past due

in collections, etc

(This is the same debt as above in exampleA )

So my question is does this stay on for 7 years from the 3 2004 date or from the original date as in example A?

That is what I need to know.

Thanks!

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This is an illegal TL. They have reaged the debt. This is more than likely a debt buyer who thinks they can get away with this. Since you have absolute proof of when the debt went delinquent originally, you can get this deleted quite easily, in most cases. Send a &C&D to this A$$wipe outfit citing the laws as they are written. You will use FCRA 605© for the reaging. Go to the FTC site and search through the "Opinion Letters" to find the one(s) that apply. If they do not respond as they should, send them an ITS and file if necessary. If you do send an ITS, be sure and include a filled out copy of the claim from the court. Do not file, just fill it out.

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