Jump to content

fdcpa question


Recommended Posts

I had a debt collection item on my credit report, due to an AT&T wireless account that I had co-signed as a credit guarantor for a friend while in college. AT&T messed up the paperwork on the account, so that my friend, who was supposed to be the primary account holder, couldn't change the rate plans, which resulted in him racking up about $900 in roaming charges after he moved. The account went into collection in 2003, and I got it off my credit report by disputing it as no knowledge of account.

I was just denied credit, and upon checking my TU credit report, found that it's now back on my credit report.

It seems that the debt was also transferred to a new collection agency, and that they've re-aged the debt to 2005, so it's not scheduled to go off my credit report till 2012.

I know that re-aging is a violation of FDCPA.

But could the CA retaliate for a claim by suing me and getting a judgement for the debt?

Also, when the new CA acquired the debt and resumed collection and put it back on my CR, were they required to notify me? I didn't find out about this till I checked my CR after being denied credit. Is this a violation?

Any advice on how to proceed?

Link to comment
Share on other sites

I was just denied credit, and upon checking my TU credit report, found that it's now back on my credit report.

State and federal violation -- you received no notification from the CA that they were placing negative info on your report.

It seems that the debt was also transferred to a new collection agency, and that they've re-aged the debt to 2005, so it's not scheduled to go off my credit report till 2012.

I know that re-aging is a violation of FDCPA.

You need to verify that they have indeed re-aged. One way is getting something from TU that confirms the dropoff year as 2012.

But could the CA retaliate for a claim by suing me and getting a judgement for the debt?

The CA could file a counterclaim for the debt if you sue first. The CA's first violation alone = $2k, so if you both prevail you'd still come out ahead. They could also sue first, then you'd file a counterclaim. Personally, I see this as 6 eggs vs. 1/2 dozen situation.

IMHO you have 2 choices:

1) Send an ITS letter now. list the violation(s) above, and give them 7 days to rectify (remove from TU, permanent C&D) and compensate you. If they fail, file your lawsuit.

2) Send a DV letter in the hopes that they will continue to break state and/or FCRA law. This could increase your leverage and potential award. But it may also increase the time taken to deal with this situation.

Link to comment
Share on other sites

Hi. I just want to clarify something to make sure that this counts as an illegal re-insertion. It is now a different collection agency that put the negative remark on my CR, although it is for the same item, and I never received any written notice from them that they were doing this.

Also, I will send them a DV letter, as follows. Please let me know if this is appropriate. (Thanks so much for your help!)

Dear Bureau of Collection,

I am writing to you after having learned that you have inserted a negative item on my credit report. I only became aware of this earlier today, due to having been denied credit due to this collection item that you have placed on my TransUnion credit report. I have never received any correspondence from your agency informing me of this debt or your intention to place a negative remark on my credit file.

Please note that I dispute this debt. I ask that you stop reporting this debt to credit bureaus.

I further ask, per the Fair Debt Collection Practices Act, that you provide me with validation of the original debt. I would like you to provide documentation explaining what the original debt amount was, and what it was for. Please explain and show how this amount was calculated. Please provide me with any papers that show that I agreed to pay any such debt. Please provide me with the name and address of the original creditor.

If you cannot validate this debt, please delete it from my credit file, and send me a copy of the deletion.

Link to comment
Share on other sites

True, but I cannot stress this enough, do not run off to the courthouse every time you get a violation. You need to slowly build a case over time and show that what the CA did was blatant and an intentional violation, or you wil come out the loser.

To a certain extent, I agree with you. Where we may see it differently is the part on "intentional." After Methuss showed me another angle, reflecting on personal experience, and re-reading the bona fide error defense, I'd say 99% of what I've read here falls under "intentional."

From personal experience, I've done the immediate ITS (settled out of court one one, got a no-pay for delete and permanent C&D on the other) and the slower DV process (settled out of court). Looking back, I think that I might've gotten a bigger settlement had I built up a case instead of the insta-ITS.

Link to comment
Share on other sites

That and you have to remember that although the FDCPA and FCRA are strict liability statutes, they have this to say about damages:

FDCPA

(B) In determining the amount of liability in any action under subsection (a), the court shall consider, among other relevant factors --

(1) in any individual action under subsection (a)(2)(A), the frequency and persistence of noncompliance by the debt collector, the nature of such noncompliance, and the extent to which such noncompliance was intentional; or

FCRA

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 [/]

or if you don't prove intentional noncompliance

§ 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;

So you can see that while you may in fact win, nothing prevents the judge from awarding a declatory judgement or just awarding you $1 for the FDCPA violation and nothing for the FCRA win. That is why you need to be careful about proceeding.

To be fair, Methus and I have disgreed on this in the past. That is why court is sucha crap shoot.

Link to comment
Share on other sites

Good quotes, divemedic. My hindsight on that settlement partly stems from those federal subsections. What you're saying is certainly legit and reasonable, and after seeing your take I think we're closer to agreement than I originally thought.

Speaking for myself, it's not always about the money. I might take a $1+expenses judgement if it gets my point across to a CA. I might change my tune, however, if they're countersuing for more!

I'll soften my stance a bit, because I don't want to come across as advocating filing a lawsuit at the first whiff of a violation in all situations. Let's just say I fall somewhere in between, depending on the situation.

Link to comment
Share on other sites

Exactly, remember that to be really effective, you need to appear like the victim and you need to have as airtight a case as possible. This accomplishes two things:

1 You are more likely to get a favorable settlement without trial- their lawyer will see it as a more difficult win and recommend a settlement

2 if you DO go to trial, you are more likely to win

Link to comment
Share on other sites

Guest
This topic is now closed to further replies.
 Share

×
×
  • Create New...

Important Information

We have placed cookies on your device to help make this website better. You can adjust your cookie settings, otherwise we'll assume you're okay to continue.. For more information, please see our Privacy Policy and Terms of Use.