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ITS letter to Ditech (evil company) please help


harlock
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Hi,

Ditech has been trying to collect a discharged debt and pull my credit report twice in Jan 04 when the BK was discharged 12/03. Here's what I written so far; it's still not done but please review what I have and make any suggestions.

Thanks

To Whom It May Concern:

For Settlement Negotiations Purposes Only

During a standard review of my credit files from the three major credit reporting agencies I was dismayed to find two inquiries posted by GMAC Mortage/Ditech on January 20 and January 30, 2004 on my Experian credit report

After my bankruptcy was discharged 12/03 any business dealings with you were severed. I did not give you permission to pull my credit report.

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

"(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."

From the 1998 FTC opinion letter Greenblatt at http://www.ftc.gov/os/statutes/fcra/greenblt.htm:

"Any person who procures a consumer report under false pretenses, or knowingly without a permissible purpose, is liable for $1000 or actual damages (whichever is greater) to both the consumer and to the consumer reporting agency from which the report is procured."

Also from the Fair Credit Reporting Act:

§ 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.

Also during this review I discovered you are reporting the account I had with you incorrect and added another trade line. My bankruptcy was Discharged 12/03 but yet in August of 2004 I received a bill requesting payment of my second mortgage again in September and October, even though I called and requested you cease and desist any collection effort since this account was included in bankruptcy. I now have two Trade lines with two different account numbers from you showing 180 days late and 30 days late. I was never late when I filed for bankruptcy and accounts are inaccurate. There should be only one (1) trade line which should state: Included in bankruptcy on 9/03, never late, Date of last Activity 9/03 reported to all Credit Reporting Agencies (Experian, Equifax, TransUnion and etc.). I also demand you cease and desist any attempts in collection of said account I had with you.

I consider GMAC Mortgage d.b.a. ditech.com’s actions to be flagrant willful and malicious violations of the Fair Credit Reporting Act due to the repetitious nature of their occurrences and as such I am preparing to instigate litigation against GMAC Mortgage d.b.a. ditech.com to recover statutory, punitive, and actual damages as provided pursuant to 15 U.S.C §1681n.

In addition, I may seek additional relief as provided under my State’s Unfair and Deceptive Trade Practices statutes and sanctions as provided by the Bankruptcy Court.

However, I would like to provide you an opportunity to settle this matter out of court.

That being said, I am willing to accept a sum of Three thousand dollars ($3,000) and you update all credit agencies with the information I provided (Included in Bankruptcy on 9/03, never late and Date of last activity 9/03) or deletion of the Trade line(s) on each credit agency (Experian, TransUnion, Equifax, etc) in lieu of a monetary settlement,

Second, for the non-permissible credit requests, I would accept deletion of the two non-permissible credit requests and payment of $1,500.

Upon such receipt of such settlement I will consider the matter to be closed and no further action will be taken.

This offer is only good for 21 days after the confirmed receipt of this letter, after which time such offer will become null and void and I will proceed with filing.

I look forward to hearing from you to resolve this in an expeditious and amicable manner.

Attached is a draft of what I will be filing in court.

Sincerely,

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Here's the Very rough draft of the court filing

PRELIMINARY STATEMENT

1. The Plaintiff brings this action for damages based upon Defendant’s violation of the Fair Credit Reporting Act, 15 U.S.C. §§ 1681 et seq. (hereinafter referred to as the “Act”) and 11 U.S.C. Sec. 524(a)2: of the Bankruptcy Laws. Plaintiff seeks actual damages, statutory damages, punitive damages, injunctive relief, cost, and potential attorney fees.

PROVISIONS RELATING TO JURISDICTION AND VENUE

2. The Plaintiff is a bona fide resident of XXX, State of Wisconsin and has been for three months immediately prior to filing this action. Defendant is a foreign corporation authorized to do business in XXX, State of Wisconsin.

3. Plaintiff and Defendant have conducted business in XXX, State of Wisconsin. Venue properly lies in XXX, State of Wisconsin, pursuant to 28 U.S.C § 1391b.

4. Plaintiff files this pleading in the United States District Court for the District of Wisconsin under § 28 U.S.C. 1331 and 15 U.S.C. § 1681p jurisdiction of courts; limitation of actions of the Act, stating an action to enforce any liability created under this title may be brought in any appropriate United States district court without regard to the amount in controversy, or in any other court of competent jurisdiction, within two years from the date on which the liability arises.

TRIAL BY JURY

5. Plaintiff, xxxxx, Pro Se, is entitled to and hereby requests a trial by jury. U.S. amend. 7, Fed. R. Civ. Pro. 38.

FIRST CAUSE OF ACTION

Statement of Facts

6. On January 20, 2004 Defendant obtained a copy of Plaintiff’s credit file (Exhibit “1).

7. Defendant did not have permissible purpose to Plaintiff’s credit report per § 1681(B) of the Act;

Statement of Claim

8. In the entire course of its action, Defendant willfully and/or negligently violated provisions of the Act in the following respects:

a. by obtaining a consumer report from a consumer reporting agency under false pretense or knowingly without a permissible purpose in violation of § 1681n(B) of the Act;

SECOND CAUSE OF ACTION

Statement of Facts

9. Plaintiff repeats and realleges each and every allegation in paragraphs 6 - 8 with like effect as if fully repeated herein.

10. On January 30, 2004 Defendant obtained a copy of Plaintiff’s credit file (Exhibit “1”).

11. Defendant did not have permissible purpose to Plaintiff’s credit report per § 1681(B) of the Act;

Statement of Claim

12. In the entire course of its action, Defendant willfully and/or negligently violated provisions of the Act in the following respects:

a. by obtaining a consumer report from a consumer reporting agency under false pretense or knowingly without a permissible purpose in violation of § 1681n(B) of the Act;

THIRD CAUSE OF ACTION

Statement of Facts

13. On July, 2001, Plaintiff obtained a second mortgage with GMAC Mortgage/Ditech.com. Mortgage of property located at xxxxxx, xxxx Wisconsin xxxx, was secured with a deed of trust. Mortgage was assigned account # *******.

14. On September 2003, Plaintiffs signed a chapter 7 bankruptcy petition at the office of our attorney at his address. Said petition included mortgage (*******) with GMAC Mortgage/Ditech.com.

15. On September, 2003, Plaintiff's bankruptcy petition was electronically filed with the United States Bankruptcy Court, ***** District of Wisconsin. Said bankruptcy petition was assigned a case number of **-*****. Notices were sent to GMAC Mortgage/Ditech.com

16. On December 23, 2003, Plaintiffs were given a discharge to all dischargeable debts, including mortgage, and the United States Bankruptcy Court issued a Final Decree.

17. Plaintiffs continued to receive written forms of intention to collect each month from

GMAC Mortgage/Ditech.com. GMAC Mortgage/Ditech assigned a new account number (*******-*) to mortgage loan of Plaintiff's.

18. In the month of January 2004, GMAC Mortgage/Ditech.com initiated two (2) non-permissible credit report pulls from Experian review inquiry on Plaintiff's credit report.

19. The month of August 2004, Plaintiff received via US Postal Mail, a monthly statement referencing an amount of $xxxx due as of August 2004, on the discharged debt. The same statement referenced an outstanding balance of $xxxx.

20. In the month of September 2004, Plaintiff received via US Postal Mail, a monthly statement referencing an amount of $xxxxx due as of September 2004, on the discharged debt. The same statement referenced an outstanding balance of $xxxxx.

21. On or about October 2004, Plaintiff received via US Postal Mail, a monthly statement referencing an amount of $xxxxx due as of October 2004, on the discharged debt. The same statement referenced an outstanding balance of $xxxxx.

22. GMAC Mortgage/Ditech's continued collection activities in the form of continued mailing of statements (August 2004 to October, 2004) seeking payment and violates and disregards 11 U.S.C. Sec. 524(a)2:

(a) A discharge in a case under this title -

(2) operates as an injunction against the commencement or

continuation of an action, the employment of process, or an act,

to collect, recover or offset any such debt as a personal

liability of the Plaintiff, whether or not discharge of such debt is

waived; and

23. GMAC Mortgage/Ditech's continued collection activities in the form of providing credit bureaus with inaccurate, incomplete information of Plaintiff's account violates and disregards 11 U.S.C. Sec. 524(a)2:

a) A discharge in a case under this title -

(2) operates as an injunction against the commencement or

continuation of an action, the employment of process, or an act,

to collect, recover or offset any such debt as a personal

liability of the Plaintiff, whether or not discharge of such debt is

waived; and

PRAYER FOR RELIEF

THEREFORE, Plaintiff prays that the court grant:

a) punitive damages in the amount of $5,000 as to his First Cause;

B) statutory damages in the amount of $1,000 as to his First Cause;

c) punitive damages in the amount of $5,000 as to his Second Cause;

d) statutory damages in the amount of $1,000 as to his Second Cause;

e) punitive damages in the amount of $10,000 as to his Third Cause;

f) statutory damages in the amount of $1,000 as to his Third Cause;

g) injunctive relief as provided by 15 U.S.C §1681 of permanent removal of inaccurate information;

h) any attorney fees if applicable; and

i) costs.

FURTHER, sayeth naught.

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Something that is TOTALLY LACKING in your tirade is the fact that attempting to collect on a discharged debt is a violation of the Federal Bankrutpcy laws !! This violation is FAR more heinous than the FCRA violations they are also committing and a slap from the bankruptcy court can hurt them far more than the measly 3K for FCRA violations.

These jokers in in contempt of the FEDERAL court order that is the permanent injunction of your discharge. For their multiple violations they can be held in contempt and the court can hit them with some very hefty fines and sanctions. You get to collect damages and court costs that can amount to a lot more than 3K.

If you want them to comply with the laws, use the BK laws, not the FCRA alone.

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