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CA pulled my credit report - recourse?


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I just noticed that a CA pulled my credit report twice as a 'soft' inquiry (the ones that do not affect your credit score).

Is this legal and if not what recourse do I have?

Background is that the CA has two medical debts assigned that are being reported on my credit report. I called them in early november and they pulled my CR the next day. I notice that they also pulled it a few months ago. After they puled the CR, I DVd the debts and disputed with CRAs. The CA validated the debts with the CRAs and sent me validation. The CA is in Nevada and I am in California.

Please help - the idea of a CA pulling my CR really creeps me out.

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604(a)(3)(A)

Page 12 of the PDF version on the FTC site.

I think that's true of an OC. But when a CA (not JDB) pulls your report to collect for someone else (the OC), I don't think 604(a)3(A) should apply. Unless, you take the position that I've taken in my other threads that the CA is an agent and acting under the direction of an OC and in that case, I think I'm right in saying that OC's should be held accountable for the actions of their CA's on the legal principle of "law of agency". They should not be able to have it both way. Separate entities for one purpose, but the same entity for other purposes.

I don't see how they could pull a hard inquirey no-matter what. How on earth would that be a "consumer-initiated" pull?

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I think that's true of an OC. But when a CA (not JDB) pulls your report to collect for someone else (the OC), I don't think 604(a)3(A) should apply. Unless, you take the position that I've taken in my other threads that the CA is an agent and acting under the direction of an OC and in that case, I think I'm right in saying that OC's should be held accountable for the actions of their CA's on the legal principle of "law of agency". They should not be able to have it both way. Separate entities for one purpose, but the same entity for other purposes.

How does "or review or collection of an account of, the consumer" not apply?

I don't see how they could pull a hard inquirey no-matter what. How on earth would that be a "consumer-initiated" pull?

Yes, well, just don't say that over on CB. That's been my position for years, and it nearly got me banned.

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How does "or review or collection of an account of, the consumer" not apply?

It sounds fantastic!... IF your the account owner. If you're an ouside collection agency and not the OC, I think it could be argued that you have no right to pull my credit. If you want information about me, get it from the OC.

NOW, as to the second part of my argument, IF a CA DOES have permission to "review, maintain or collect" an account then they MUST be considered an AGENT of the OC to do so. If that is the case, then my argument in the other thread should be valid that under the principle of "law of agency" the OC can be held responsible for what the CA does (FDCPA violations).

Just saying... you can't have it both ways. If the CA can pull reports on you, collect on behalf of, accept payments on behalf of and negotiate settlements on behalf of an OC, then they must be considered an "agent" of the OC and the OC should be liable for their conduct. Who would make a payment to someone who wasn't an agent and acting on behalf of and under the direction of the OC???

If they aren't considered an agent of the OC, then they have no business pulling your credit report for any reason. That would be my argument.

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A CA can review your credit report in connection with collection of a debt.

Edge v. Professional Claims:

At the time that Professional had the "social search" conducted to obtain Plaintiff's address, it had been referred a debt for collection, guaranteed by Plaintiff, from North Shore Hospital. The referral of that debt gave Professional a permissible purpose for obtaining the credit information pursuant to 15 U.S.C. § 1681b. Specifically, Professional sought the information in the collection of a credit transaction involving Plaintiff. This is a clearly permissible purpose under Section 1681b(3)(A). The existence of this permissible purpose constitutes a complete defense to the claim that the information was obtained under false pretenses under Section 1681n(B) and therefore entitles Professional to summary judgment. See Advanced Conservation, 934 F.Supp. at 54-55; Baker, 850 F.Supp. at 264

An OC is not liable for a CA's violations of the FDCPA:

Teng v. Metropolitan:

In this case, there was no evidence adduced that Met Retail was in any way subject to Citibank's control with regard to its conduct in the actual performance of the debt collection work. Since Met Retail was an independent contractor in this situation and Citibank is not a "debt collector" within the purview of the statute, the plaintiff has failed to establish any liability against the defendant Citibank under the FDCPA, and the complaint is dismissed against the defendant Citibank

However, there are other theories under which you could pursue OC liability for a CA's action........just not for violations of the FDCPA.

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A CA can review your credit report in connection with collection of a debt.

Edge v. Professional Claims:

At the time that Professional had the "social search" conducted to obtain Plaintiff's address, it had been referred a debt for collection, guaranteed by Plaintiff, from North Shore Hospital. The referral of that debt gave Professional a permissible purpose for obtaining the credit information pursuant to 15 U.S.C. § 1681b. Specifically, Professional sought the information in the collection of a credit transaction involving Plaintiff. This is a clearly permissible purpose under Section 1681b(3)(A). The existence of this permissible purpose constitutes a complete defense to the claim that the information was obtained under false pretenses under Section 1681n(B) and therefore entitles Professional to summary judgment. See Advanced Conservation, 934 F.Supp. at 54-55; Baker, 850 F.Supp. at 264

An OC is not liable for a CA's violations of the FDCPA:

Teng v. Metropolitan:

In this case, there was no evidence adduced that Met Retail was in any way subject to Citibank's control with regard to its conduct in the actual performance of the debt collection work. Since Met Retail was an independent contractor in this situation and Citibank is not a "debt collector" within the purview of the statute, the plaintiff has failed to establish any liability against the defendant Citibank under the FDCPA, and the complaint is dismissed against the defendant Citibank

However, there are other theories under which you could pursue OC liability for a CA's action........just not for violations of the FDCPA.

Okay, that's a good citation. My case MAY be a little different, but I'm not sure.

#1 In one of my dealings with the OC, the OC offered to direct the CA to "suspend collection activity for 30 days while we investigate" (showing that they did have control over the CA)

#2 The OC has a special department that serves as an intermediary between the consumer and the CA (more heavily involved in the collection process than other OC's might be. The CA was not just an "Independent Contractor".)

#3 When I disputed the debt with the OC (actually, I disputed it with the CRA's, CA and OC), the OC sent me copies of my statements for the 7 months that were in question and told me to pay the balance immediately. (This would shows that they were the one's owing the debt. That they were still collecting on the debt themselves in concert with the CA.)

#4 I can prove that the OC knew (or should have known) that they were giving false information to the CA in the first place and then verified that information later after they were put on notice once again that it was false. The entire collection process was the result of the OC's willful/negligent collection and reporting practices.

I think I can show that the CA was not acting alone in its collection attempts, but in concert and cooperation with the OC. At the very least, I don't think it could be ruled that my making the OC a party to the case was in bad faith.

END, I do respect your opinion on this issue and concede that you may very well be right. The cases that I've found rule that the OC's can't be held liable because "Congress intended to exclude the OC's from the FDCPA" however, I believe that completely goes against the spirit and intent of the FDCPA. If the OC's are disposed to hire an unscrupulous CA because his illegal activities make him more successful than law-abiding CA's, then consumers and law-abiding CA's pay the price. The law-abiding CA's would be forced to break the law in order to remain competitive with the unscrupulous CA's. The only remedy would be to make the OC's responsible for the actions of their CA's in order to force them to choose their "collection AGENTS" more wisely.

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There is also a lot of case law (Fox v. CitiCorp Creidt Servs., Inc. 15 F.3d 1507, 1516 (9th Cir. 1994); Martinez v. Albuquerque Collection Servs., 867 F. Supp. 1495, 1502 (D.N.M. 1994); Kimber v. Federal Fin Corp., 668 F. Supp. 1480, 1486 (M.D.Ala. 1987); Ditty v. Check Rite, Ltd., 973 F.Supp. 1320 (D.Utah 1997)) that the CA's are liable for the collection practices of the attorneys they hire.

I believe that if I can show that the CA was an "agent" of the OC and not just an "independent contractor" then I have a really good case against the OC.

Input?

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You can bet that in discovery, I'm going to request the contract between the OC and the CA. It may be damning to the OC depending upon how much control (or lack thereof) the OC gives to the CA.

A lack of control could mean that the OC is not an independant contractor (as Teng v. Metropolitan defines it) or if it gives wide control to act on behalf of the OC then it may prove that the OC is actually an "agent" legally defined as:

"n. a person who is authorized to act for another (the agent's principal) through employment, by contract or apparent authority."

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If they aren't considered an agent of the OC, then they have no business pulling your credit report for any reason. That would be my argument.

Nice theory. It would be interesting to see you try to fight a CA on your account and wind up with a judgment against you because your pleadings had no colorable claims for cause of action.

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Nice theory. It would be interesting to see you try to fight a CA on your account and wind up with a judgment against you because your pleadings had no colorable claims for cause of action.

Agreed, if you try to nitpick you might just end up paying their attorneys fees for the cost of defending the suit. There goes that 100K / year

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Agreed, if you try to nitpick you might just end up paying their attorneys fees for the cost of defending the suit. There goes that 100K / year

I don't have any inquiries on my credit report from any collection agencies. I'm not going to file any such claim at all. I'm just saying that if it is true that they can pull a credit report and that is permissible purpose under "account maintanence, review or collection" then they are really closing the gap between them and the OC and it just helps my case that the CA is an agent of the OC.

I'm glad that they can. I'm just saying that in principal, I don't agree with it and while I would not bring an entire case around that act, I would probably include it if I had a lot more concrete violations.

If it were a "hard inquiry", I would say that is definitely a mis-representation of purpose for pulling the CR.

Sadly, there's no inquiry from my CA so I can't include that as one of the claims.

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The reason it works between CA's and attorney's is because they are both debt collectors and both subject to the act.

Though OC's have been held liable for the negligence of a CA they hired, the FDCPA claims are ultimately dismissed because the FDCPA cannot be applied to them.

If you cross a highway median marked for authorized vehicles only, you are subject to the applicable statute. That same statute cannot be applied to an authorized vehicle. Though if the authorized vehicle does so in a negligent manner, other laws can be applied; simply not the one that provides permission for their use of the median.

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The reason it works between CA's and attorney's is because they are both debt collectors and both subject to the act.

Though OC's have been held liable for the negligence of a CA they hired, the FDCPA claims are ultimately dismissed because the FDCPA cannot be applied to them.

If you cross a highway median marked for authorized vehicles only, you are subject to the applicable statute. That same statute cannot be applied to an authorized vehicle. Though if the authorized vehicle does so in a negligent manner, other laws can be applied; simply not the one that provides permission for their use of the median.

Okay, gotcha.

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This board doesn't have an ignore function. Pity. I'm done trying to help you, dude.

??? I don't know what that's about. You actually agreed with me on the hard inquiry issue. I have a collection on my report, but not an inquiry from the collection agency. If I did have an inquiry, I would call it an "impermissible purpose" if I had a lot of other very solid claims (which I do).

I've read a TON of case law over the last few weeks and there have been some VERY far-reaching arguments made in the claims that I've read regarding the FDCPA and FCRA with no judge ever imposing attorneys fees or sanctions for those arguments. the judge simply dismisses the claims that he/she feels are without standing.

Anyway, thanks for the "help".

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Okay, that's a good citation. My case MAY be a little different, but I'm not sure.

#1 In one of my dealings with the OC, the OC offered to direct the CA to "suspend collection activity for 30 days while we investigate" (showing that they did have control over the CA)

#2 The OC has a special department that serves as an intermediary between the consumer and the CA (more heavily involved in the collection process than other OC's might be. The CA was not just an "Independent Contractor".)

#3 When I disputed the debt with the OC (actually, I disputed it with the CRA's, CA and OC), the OC sent me copies of my statements for the 7 months that were in question and told me to pay the balance immediately. (This would shows that they were the one's owing the debt. That they were still collecting on the debt themselves in concert with the CA.)

#4 I can prove that the OC knew (or should have known) that they were giving false information to the CA in the first place and then verified that information later after they were put on notice once again that it was false. The entire collection process was the result of the OC's willful/negligent collection and reporting practices.

I think I can show that the CA was not acting alone in its collection attempts, but in concert and cooperation with the OC. At the very least, I don't think it could be ruled that my making the OC a party to the case was in bad faith.

END, I do respect your opinion on this issue and concede that you may very well be right. The cases that I've found rule that the OC's can't be held liable because "Congress intended to exclude the OC's from the FDCPA" however, I believe that completely goes against the spirit and intent of the FDCPA. If the OC's are disposed to hire an unscrupulous CA because his illegal activities make him more successful than law-abiding CA's, then consumers and law-abiding CA's pay the price. The law-abiding CA's would be forced to break the law in order to remain competitive with the unscrupulous CA's. The only remedy would be to make the OC's responsible for the actions of their CA's in order to force them to choose their "collection AGENTS" more wisely.

Well. this is where the thread became hijacked.

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