CA's "willful non-compliance"

[hendu]

When a CA does not validate a debt, continues to verify the entry with the CRAs, in addition to the FDCPA violation, can we sue for"willful non-compliance" and "defamation of character" because of FCRA violations? Just want to know because I have two pending suits against RMA and Amer. Agencies. Has anyone dealt with them?

[c m chase]

Well, willful noncompliance isn't a violation of the FCRA, per se, it's what they did IF they violated. For example, the only thing you can sue a CA for under the FCRA is §623s-2(, which states basically that they have to correct and update false info when it's disputed.

If they don't do that, then them not doing so is either because of willful noncompliance or negligent noncompliance (basically, doing it just to be mean or doing it because they're idiots).

So it's not really a violation...it's a reasoning behind a violation. If that makes sense.

As for defamation of character...you can sue for that depending on what your state's rules say. Some states don't allow it (I believe New York is one). So do a little checking up on that before you go there.

[hendu]

Well CM, I think they are idiots, putting it lightly. I'm in a state that allows a suit for "defamation of character". I would like your opinion of something though........there is a certain member of this forum who seems to be at odds with alot of members (won't mention any names) when it comes to the "validation" process. Is it true that we can only DV a CA within the 1st 30 days of receiving notice of a debt from a CA? I don't think thats true, but I always thought we could DV a CA at anytime when they are reporting info on our credit reports! What is your take on this subjuect? BTW, thanks for the reply!

[adminppdotcom]

there is a certain member of this forum who seems to be at odds with alot of members (won't mention any names) when it comes to the "validation" process. Is it true that we can only DV a CA within the 1st 30 days of receiving notice of a debt from a CA? I don't think thats true, but I always thought we could DV a CA at anytime when they are reporting info on our credit reports! What is your take on this subjuect? BTW, thanks for the reply!

Don't be worried, I don't get offended easy

Is it true that we can only DV a CA within the 1st 30 days of receiving notice of a debt from a CA?

No, it is not true and Ive never said that. What IS TRUE, is that a consumer CAN request verification of a debt at ANYTIME.

BUT, only if the consumer requests verificaiton DURING the 30-day validation period, does the debt collector have to cease communication until they send verification. If the consumer sends a request for verification outside the 30-day verification (untimely), the debt collector is ONLY required to list the debt in dispute.

The high courts have ruled on this many times. If you are talking about court, read cases like Mahon V Credit Bureau Of Placer County

171 F.3d 1197

If you are talking about getting items deleted, many consumer report they have success no matter WHEN they send a request for verification.

I always thought we could DV a CA at anytime when they are reporting info on our credit reports

You are refering about the provision of the FCRA/FACTA which states, in part:

"(A) Reporting information with actual knowledge of errors. A person shall not furnish any information relating to a consumer to any consumer reporting agency if the person knows or consciously avoids knowing that the information is inaccurate."

and:

"(E) DUTY OF PERSON AFTER RECEIVING NOTICE OF DISPUTE.—AFTER

RECEIVING A NOTICE OF DISPUTE FROM A CONSUMER PURSUANT TO

SUBPARAGRAPH (D), THE PERSON THAT PROVIDED THE INFORMATION IN

DISPUTE TO A CONSUMER REPORTING AGENCY SHALL—

(I) CONDUCT AN INVESTIGATION WITH RESPECT TO THE DISPUTED

INFORMATION;

(II) REVIEW ALL RELEVANT INFORMATION PROVIDED BY THE

CONSUMER WITH THE NOTICE;"

Which has lead many consumers to believe they can dispute information with the furnisher directly, and the furnisher has to investigate (ie a DV). The problem is that this section provides no private right of action. Meaning a consumer CANNOT SUE for any violation of this.

Hope that clears it up a little.

[hendu]

"If you are talking about getting items deleted, many consumer report they have success no matter WHEN they send a request for verification. "

Well that's what I'm talking about....DV'ing a CA. I understand that they don't have to respond to a DV letter outside of the 30-day period, but..........if the CA does not validate the debt, not list the account as "disputed" and continue to list the account.....isn't that a violation?

[adminppdotcom]

"If you are talking about getting items deleted, many consumer report they have success no matter WHEN they send a request for verification. "

Well that's what I'm talking about....DV'ing a CA. I understand that they don't have to respond to a DV letter outside of the 30-day period, but..........if the CA does not validate the debt, not list the account as "disputed" and continue to list the account.....isn't that a violation?

Just want to know because I have two pending suits against RMA and Amer. Agencies.

I thought it was in the context of suing from what you posted.

Anyway, it's all a timing issue. They may or may not be in "violation."

[hendu]

In what way would it be a violation?

[c m chase]

Say.....you send a DV to the CA and then, after they receive the DV, you dispute with the CRAs. If the CA has your DV in hand and then verifies the trade line with the CRAs as correct WITHOUT noting it 'in dispute', then...it's a violation.

So I take it those accounts aren't listed in dispute after you sent DV and disputed through the CRAs?

[hendu]

No they aren't CM, not only are they not listed "in dispute", but they are still listing them and they never validated the debts with me. By not validating and still listing the items, isn't that a violation as well? i.e.

"1)Collection agencies if they have not validated your debt and they still continue to report to the credit bureaus

2)Consumer protection afforded by the FDCPA

3)FDCPA Section 809 (

4) $1,000 violation"

[c m chase]

I think the only place where that's the case is Texas...and it's not under FDCPA...it's under state law.

They CAN list it...but they HAVE to list it in dispute. So, you DO have an FCRA violation there, assuming you disputed with the bureaus.

Also....HOW are they listing it...exactly? You might have FDCPA violations in the listing, too. (For instance...if they're listing it as an installment account or if the amount it more than you really owe.)

809( doesn't say they can't report.

[adminppdotcom]

No they aren't CM, not only are they not listed "in dispute", but they are still listing them and they never validated the debts with me. By not validating and still listing the items, isn't that a violation as well?

The debt collector is ONLY required to send the consumer verifcation under 2 conditions:

(1) They receive a TIMELY request (meaning it has to be received within the 30-days immediately following the intial communication with the consumer during which the debt collector OVERTLY attempted to collect);

AND

(2) The debt collector continues collection efforts.

As far as marking it "in dispute", the consumer can notify the debt collector DIRECTLY or through the consumer reporting agency, and, IT DOES NOT HAVE TO BE IN WRITING.

[hendu]

they are just listing it as a collection (it does not say, "account in dispute).....both of the CAs are doing that!

So let me get this straight.....if I send a DV letter to the CA, they ignore my request and still verify it with the CRAs, that is legal?

[DocDon]

No it isn't. It's still illegal under the FDCPA. You have to remember our aspiring attorney here only speaks in case law.

[agn140]

i sent a dv to RMA in Las Vegas for cap1 acct. They continue to call me in violation of the dv which has a c&d also. They claimed the one time I spoke to them on the phone that even though they were a ca and collecting that I should have sent the letter to cap1. They are totally clueless at RMA. I'm just letting them build up my case and I will send them an ITS after thirty days and then off to Fed court.

[hendu]

No it isn't. It's still illegal under the FDCPA. You have to remember our aspiring attorney here only speaks in case law.

Thanks Doc, that's what I thought. Granted, the CAs are not calling or sending letters to me. I was just merely taking the advice of some peoples' posts on this forum. These CAs have accounts on my report, I have asked for validations from the both of them. They both ignored me. I had already disputed with the CRAs, both listings came back verified. Neither listing says "in dispute". Now I may have them on a FCRA violation, but what about them listing it without validating? Is there a reference of where someone had this problem, sued and won?

[adminppdotcom]

they are just listing it as a collection (it does not say, "account in dispute).....both of the CAs are doing that!

That can be a violation of FDCPA 807 [15 USC 1692e] (8):

"(8) Communicating or threatening to communicate to any person [consumer reporting agency] credit information which is known or which should be known to be false, including the failure to communicate that a disputed debt is disputed."

So let me get this straight.....if I send a DV letter to the CA, they ignore my request and still verify it with the CRAs, that is legal?

Yes and No. If the request was TIMELY, and they did not send verification BUT still reported, it is illegal. IF the request was NOT TIMELY, and they reported without sending verification, it is NOT illegal.

But regardless of the timing of your request, they have to mark is in dispute as noted above.

Hope that clears it up a little.

[hendu]

So if the initial contact is not received by the consumer from the CA within 30 days, (let's say it got lost in the mail).......and receive it 2 months later, then the CAs do not have to respond to verification requests because the 30 days are up? and put on your reports what they want?

[adminppdotcom]

So if the initial contact is not received by the consumer from the CA within 30 days, (let's say it got lost in the mail).......and receive it 2 months later, then the CAs do not have to respond to verification requests because the 30 days are up? and put on your reports what they want?

Generally, its 30-days from when the consumer receives the notice of validation right, or SHOULD have received it. But under the "common mailbox rule" they ONLY have to show that it was SENT and not that it was received by the consumer.

But the initial communication can be a phone call as well. And this phone call CAN BE INITIATED BY THE CONSUMER....hint hint.

[DocDon]

Case law. Case law. Case law. Shut the F up about your goddamn case law for a second. Seriously.

The FDCPA is the law. Until the FDCPA is changed, any violation of the FDCPA as written is still illegal. It can be argued in court using case law, but one court's ruling is just the basis for one side of the argument in the courtroom.

A lot of drunk driving cases are thrown out based of case law. Guess what? Doesn't make it o.k. to go out and drive drunk.

[hendu]

OK DocDon.....I just want to ask your opinion and I PROMISE I will leave this alone. Do I go and sue these idiots? I was headed down that path but those case law comments made me hesitate. Bottom line is:

I got No response from the CAs (after I Dv'd them), they verified w/the CRAs and they aren't listing these accounts as "disputed" on my reports. To sue or not to sue? Thanks Doc!

[adminppdotcom]

Case law. Case law. Case law. Shut the F up about your goddamn case law for a second. Seriously.

The FDCPA is the law. Until the FDCPA is changed, any violation of the FDCPA as written is still illegal. It can be argued in court using case law, but one court's ruling is just the basis for one side of the argument in the courtroom.

A lot of drunk driving cases are thrown out based of case law. Guess what? Doesn't make it o.k. to go out and drive drunk.

I thought the poster was asking about case law, but I guess I was wrong

[c m chase]

Sorry, but I gotta say it. Though I may not be an expert...or even anywhere near that title...I see it as caselaw sometimes HAS to be used, whatever side you're on. Sure, FDCPA is law and it's written in stone, but it doesn't explain everything.

§809 ONLY says what should happen if we dispute within 30 days. It doesn't say "if they dispute any other time" or "they're screwed after 30 days" or "well, we meant after 30 days, too"....it ONLY states 'within the thirty-day period". Plain text. No caselaw.

So that's when we have to say "well....now what?" And I think that's where opinion letters and caselaw come in. You have to work off something.

[DocDon]

Look at the requirements to change the FDCPA / FCRA.

Then look at what it takes to win a case.... convincing the judge / jury that your argument is better... then, if it goes to appeals, again it's whose argument is better. So then you end up with case law that favors one viewpoint of the same law, and another that favors the other side.

Of course case law comes into play, and you should be aware of it, but the words remain unchanged in the actual law itself, which must mean it's still arguable in a court of law. N'est pas?

If you're going to quote case law, then indicate it's a court's interpretation. Stop telling new members it's WRONG, or ILLEGAL, or anything else it's not.

[c m chase]

Oh, of course!! There's most likely oodles of caselaw supporting both sides...that's why you need to have a bigger pile of caselaw next to your table.

Not only does it take covincing the judge...it also takes winning of the fight of who has the most drive, time, money, access and available bullsh..t.

[DocDon]

Well, case law is malleable in that a court across the country can rule 180 degrees in the other direction another court was going.

Passing off case law as "what the FDCPA means" is beyond comprehension.