My lawsuite against Asset Acceptance

[SecretAgentWoman]

I would like to bring a lawsuit against Asset Acceptance. I've done my research, and ask for help filling in the gaps.

First a bit of history:

* The account is on all 3 CRA files.

* It's for an old charged off credit card.

* The amount they claim is $6,478.00.

* It is out of the SOL.

* They have not contacted me, I contacted them when I saw them on my CR.

* I DV'd on 1/3/2007, they replied on 1/19/2007 with nothing but a "statement" on their company letterhead.

* I disputed with the CRAs at the same time, they came back with "updated" - as in the account was noted "consumer disputes" but it remained.

* I sent 2nd DV February 27, 2007 explaining their "proof" is not sufficient and included supporting documentation. I received no response.

* They continue to report this account each month.

Now, as it stands I have 2 issues I want to clear up first:

1. Should I do a second round of disputes with CRAs first?
   
2. Venue
   
3. Monetary Damages
   

Now, I was thinking I may have to do a second round of disputes (I already did MOV with all three) just to prove once again they refuse to validate but still are trying to collect.

Venue may depend on damages I want to collect, but also this from my local small claims court:

Suit against Corporation or Association (15.94)

Precinct where:

(a) All or part of the cause of action arose.

( The corporation has an agency or representative, or

© The principle office is located

Does (a) mean I can file in small claims?

Now, as for damages, can I claim $1,000 federal for each CRA listing? FDCPA

Section 809 (

Also, Texas law allows no less than $100 fine for each violation of the Texas Finance Code, Chapter 392. However, I don't like this language:

(e) On completion by the third-party debt collector of the investigation, the third-party debt collector shall inform the individual of the determination of whether the item is accurate or inaccurate. If the third-party debt collector determines that the information was accurate, the third-party debt collector may again report that information and resume collection efforts.

It sounds as if the collection agency can say "accurate" and doesn't have to prove anything.

[Recovering Attorney]

They answered your DV and marked teh CR as " disputed." Where is the violation in those?

[SecretAgentWoman]

The "validation" did not come from the original creditor? All it was "you owe us" on AAC letterhead...

[IngridA]

The "validation" did not come from the original creditor? All it was "you owe us" on AAC letterhead...

Even so, your DV is probably considered untimely, so technically they didn't have to respond to your request...so they can continue to collect...

Sorry...

[SecretAgentWoman]

Not by Texas law, which allows you to DV at anytime...

Oh well, I just wanted to force them to come off my CR sooner. I suppose I can wait a year...*sniff*

[Recovering Attorney]

Asset likely owns it

[nascar]

Not by Texas law, which allows you to DV at anytime...

A Federal claim filing in a State Court would likely be moved to a Federal Court. State law would no longer apply.

[walterg55]

Texas law is pretty good. I suggest filing solely on Texas law which would preclude a move to Federal (likely remanded if they tried). We get hung up on the Fed laws sometime and overlook the state laws that may be much more friendly. My strategy would be to get them to delete for settlement (Asset that is). Check my PM to you.

[ImNotADeadbeat]

Even so, your DV is probably considered untimely, so technically they didn't have to respond to your request...so they can continue to collect...

Sorry...

Sorry - I'm new to this. What do you mean untimely? Is there a SOL on when you can DV?

I have a TL from Asset for a utility bill from 2003 they say is mine. They are reporting it as of the date they purchased which is in 2006. Do I continue with the DV or am I out of luck?

Also - I have 2 collections for 2005. Am I too late to dispute?

Please help!

[cjtx]

you may sue in small claims court but all you will get is monetary damages up to $5,000 in Texas.

if you want to get an injunction preventing them from continuing to report that TL, then you need to file in district court or federal court. (small claims can't get an injunction).

Besides, you can't sue for libel in Texas small claims courts. You really need to include a claim for defamation of character.

you didn't include all the details about how exactly they are reporting this TL, but Asset commonly lies and reports the account as open, factoring, installment, etc. when it is really a collection. In addition, since it shows as an open account, they report a terrible payment history on a charge-off.

read carefully the finance code and chapter 17 of the business and commerce code, and make them pay.

instead of sending Asset more DV letters, you need to send a 60 day notice ITS specifying the total amount you claim they owe you.

Good luck, and if I can help let me know. i'm going to go after them too.

[sjokinley]

According to several posts I've read, including Kristi's flow chart, and a list I found under suing creditors (above) that gives violation #s and a list of what we can sue for, we can sue a CA who continues to report a TL after failing to validate the debt.

We all know that if a debt is on our CR, it is already past the 30 validation period discussed, but we can ask for validation anytime. No, they don't have to respond to us after the 30 days, but if they continue to list the TL without validation, it is a violation of FDCPA section 809(. At least that is how I read it. I could be wrong, but I hope not as I'm getting ready to file.

What would be the good of going through this whole process if they could just ignore us and we had no recourse?

Read the link at the top of the page "Sue creditors and CA's" It names all violations and $ amounts. There is also a post right here that gives the legal definition of validation. I have read many posts on this issue, but the one thing they all agree on is that validation MUST come from original creditor, not just something on the CA's letterhead.

Keep us posted on your suit, Secretagentwoman, they are one of my creditors as well. And good luck.

Oh, I do think you should probably do another round of disputes. If they verify again without validating it shows willful misreporting instead of just being able to claim they accidently overlooked it or something.

[direred]

if you want to get an injunction preventing them from continuing to report that TL, then you need to file in district court or federal court. (small claims can't get an injunction).

I haven't read Texas law precedent, but I'm guessing the conflict of laws in the FCRA will prevent an injunction. Injunctive relief is only granted to government agencies.

[cjtx]

direred:

You are partially right, but injunctive relief and private right of action may also be available to consumers for violations of FCRA 623( "Duties of Furnishers of Information upon Notice of Dispute".

Too bad there is no private right of action for each inaccurate item creditors and collectors report.

Thanks for your reply, now I understand FCRA and its relation to state law a little better!

[direred]

There is no injunctive relief under s2-b.

[cjtx]

There is no injunctive relief under s2-b.

I'm not sure what you mean. FCRA can be a little confusing.

I just re-read FDCPA and it specifically allows state law to give consumers additional protections against deceptive practices by debt collectors.

[divemedic]

Remember this too-

If TX law allows you to DV at any time, and they violate TX law, you also have a cause of action under the FDCPA for taking action they cannot legally take.

[direred]

I'm not sure what you mean. FCRA can be a little confusing.

What I'm saying is that there's no injunctive relief available to consumers under federal or state law.

I just re-read FDCPA and it specifically allows state law to give consumers additional protections against deceptive practices by debt collectors.

Which has nothing to do with how something's reporting on your credit, though.

[cjtx]

Am I misinterpreting Texas Finance Code?

Sec. 392.403. CIVIL REMEDIES. (a) A person may sue for:

(1) injunctive relief to prevent or restrain a violation of this chapter; and

(2) actual damages sustained as a result of a violation of this chapter.

The whole chapter deals with debt collections and responsibilities of collectors when a consumer disputes a debt.

[SecretAgentWoman]

I am sure I can get injunctive relief in Texas, I am not sure in small claims, though.

I think I finally have a strong enough case.

When I discovered re-aging on my Experian file, I did more digging and I can clearly see the OC had a DOFD as September 2000, but the "validation" statement they sent me shows DOFD as January 2001. That's clear, documented, illegal re-aging.

(Not to mention that I was destitute, unemployed, and nearly homeless at that time and there is NO WAY I sent a payment to anyone, let alone bring the account current. lol)

I'm sending them a letter warning them about the violation tomorrow.

[cjtx]

There is no injunctive relief in small claims. that i know for sure.

Have you called the original creditor and traced the account?

I recently called a phone company (OC) and they researched the account but couldn't give me any details because they sold it to a JDB. They gave me the number for them. I called the JDB and they couldn't give me any info either because they sold it to Asset.

I called Asset and they didn't know the original amount. They just had enough information about it to make it look legit, but their representative claimed all they had to report was the balance at the time they acquired it.

And even though she told me the date of last activity, they still report a different one, also re-aging it.

She told me they sent 3 dunning letters to an old address of mine.

Of course she tried to get me into paying it, but I declined the offer telling her that by her own admission the debt was barred by SOL. She started bragging about how they collect 20 year old debts and when she finally let me talk, I told her I had a letter from the previous JDB which stated the original amount and it was different from what they are reporting.

Tell them about the violation but also send an ITS with total damages and how you computed them.

[WILLY]

Has anyone had any luck with the ITS to Asset. I'm currently having issues with them too. Is there a way we could all get together and sue as a big group. Maybe they would change their ways if enough consumers complained. A judge is always more compassionate with negatively affected citizens of their voting community...

[SecretAgentWoman]

Ok, guys - more digging, the original creditor was First Consumers National Bank, a bankrupt, defunct organization.

I had 2 accounts listed from them - both OC TLs came off immediately with a dispute to the CRAs - both JDBs who bought one account each, were listed as well.

Now, I just spoke with Genesis Financial - the OTHER JDB - and they told me when I DV'd they contacted the OC only to find out they couldn't contact them because they no longer existed. They agreed to delete, and are sending me a letter stating so.

So...Asset Acc. somehow contacted an OC that doesn't exist to get the validation for this account? The plot thickens...

[TwoFaced]

Been dealing with Asset too. From what I have learned, they speak little, file a lot and the only way to beat them is to get the goods on them and take them to court.

So far Trans and EquiFax both removed all asset info from my reports but Exp hasnt removed squat.

I have court on Friday with them so of course I am going to run up thier bills as much as possible. They already know I have them on 2 violations...dummies called me twice last week after they got my DC 6 Apr. I informed them I intend on collecting. I have another court date in may for another account. I plan on fighting both as far as I can get them. I know the account in May I had disability insurance on that account which the OC never followed thru with, so I plan on going with a breach of contract on thier end and ask for a total refund from asset for the monies I spent on the insurance, LOL j/k.

Anyways, I have been reading a lot on Asset. There are a lot of unsettle cases dealing with them you might want to google them for court cases.

[SecretAgentWoman]

What do you guys think?

To Whom It May Concern:

This letter is to inform you that I am in receipt of a signed card showing your agent signed for my letter regarding illegal re-aging of this debt (article number XXXX XXXX XXXX XXXX XXXX).

I’ve thought about this long and hard, and I am just about fed up with your office’s blatant violations of Federal and Texas law. Sure, I could leave well enough alone, but I’m not going to. I am going to make you understand that you can bully other uninformed people into paying, but you can’t bully me. And if you don’t back down, and delete all mentions of this account from my credit file with all three major bureaus, and really quickly – it’s you who are going to pay me.

Let me explain.

You are fully aware of the law. You understand that if I dispute this debt, you have to go to the original creditor and provide documented validation of the debt.

FDCPA § 809 (

If the consumer notifies the debt collector in writing … that the debt, or any portion thereof, is disputed, … the debt collector shall cease collection of the debt, or any disputed portion thereof, until the debt collector obtains verification of the debt or any copy of a judgment, or the name and address of the original creditor, and a copy of such verification or judgment, or name and address of the original creditor, is mailed to the consumer by the debt collector.

TFC §392.202. CORRECTION OF THIRD-PARTY DEBT COLLECTOR'S OR CREDIT BUREAU'S FILES. (a) An individual who disputes the accuracy of an item that is in a third-party debt collector's or credit bureau's file on the individual and that relates to a debt being collected by the third-party debt collector may notify in writing the third-party debt collector of the inaccuracy. … If the third-party debt collector reports information related to the dispute to a credit bureau, the reporting third-party debt collector shall initiate an investigation of the dispute … and shall cease collection efforts until the investigation determines the accurate amount of the debt, if any.

Sending me a typed “you owe this debt” on your letterhead IS NOT verification or proof of any investigation on your part. As a matter of fact, I have documentation from all three credit bureaus AND another junk debt buyer which clearly states that they are UNABLE to contact the original creditor, verify the information or otherwise get ANY documented proof that I ever had an account with the original creditor, First Consumers National Bank, let alone owe any back debt, because the original creditor no longer exists and cannot be contacted. I presume then, your “investigation” was no investigation at all. Unless, of course, you can provide me with the name, address, and phone number of the agent for this creditor that provided this information to you so I may take my dispute to them directly.

OH WAIT – you never DID provide me with that info, did you, per the statute above? You know, the one that requires you to send me the name and address of the original creditor. Let me check your letter … nope, I was right. IT IS NOT THERE!

Ok, we know this much. We also know that you VERIFIED this debt as accurate to the credit bureaus when I initiated a dispute through them. So, now you are 1) continuing to collect on an unverified debt and 2) misrepresenting the debt as valid.

FDCPA § 807. False or misleading representations - A debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section: … (2) The false representation of -- (A) the character, amount, or legal status of any debt; or (

any services rendered or compensation which may be lawfully received by any debt collector for the collection of a debt.

FCRA § 623. Responsibilities of furnishers of information to consumer reporting agencies (a) Duty of furnishers of information to provide accurate information. (1) Prohibition. (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 has reasonable cause to believe that the information is inaccurate.

TFC § 392.304. FRAUDULENT, DECEPTIVE, OR MISLEADING REPRESENTATIONS. (a) Except as otherwise provided by this section, in debt collection or obtaining information concerning a consumer, a debt collector may not use a fraudulent, deceptive, or misleading representation that employs the following practices: … (7) misrepresenting the character, extent, or amount of a consumer debt.

This leads into my next beef with your company. You know that the law states that the credit reporting agencies cannot list a derogatory account for more than 7 years past the date of first delinquency on the account, right? Of course you do! THAT is why you illegally changed the date to fool the credit bureaus into keeping your listing on my file past the time period! How do I know? I will be happy to explain it to you.

The original creditor USED to have a listing on my credit report. They reported the date of first delinquency as September 2000. That would mean, if it were a valid account, it would naturally fall off my credit file in August of 2007. Funny enough, the “validation” letter you sent me says that the date of first delinquency is January 2001. I REALLY appreciate you providing me concrete proof that 1) you never did go to the original creditor to get validation and 2) you made up the date to keep a derogatory trade line on my file longer to attempt to collect on a debt you have no right to collect on.

FCRA § 605. Requirements relating to information contained in consumer reports (a) Information excluded from consumer reports. Except as authorized under subsection (

of this section, no consumer reporting agency may make any consumer report containing any of the following items of information: ... (4) Accounts placed for collection or charged to profit and loss which antedate the report by more than seven years.

TBCC § 20.05. REPORTING OF INFORMATION PROHIBITED. (a) Except as provided by Subsection (

, a consumer reporting agency may not furnish a consumer report containing information related to: … (5) another item or event that predates the consumer report by more than seven years.

Now, obviously, the above law refers to the credit bureaus, and not you, and damn skippy if I am not instigating a dispute regarding the age of this trade listing with all three. But here’s the rub, they are going to contact YOU and ask YOU to investigate this claim with the original creditor. And what are you going to do about it? Think very carefully because I have excellent records.

Let me expand on that.

I decided I would love to speak to someone down at Asset Acceptance personally so someone could explain to me personally what the hell you are thinking. I’ve called 4 times, actually. I was transferred from department to department. I laughed when the legal department told me they had no idea why I got transferred to them (I have an inkling, though). In the end, everyone eventually determined to send me to the “compliance” department which I have learned isn’t a department at all, but a voice mail that says “write us” and hangs up. Nice going. So, now you are depriving me of the right to dispute this with you directly, too. I have all this documented.

I told you in my last letter that I’m ready to go to court over this, and I haven’t changed my mind. This letter is fulfilling the Texas legal requirement that I contact you, notify you of your violations, and give you adequate time to rectify them. See, there is no way you can claim bona fide error after documented multiple communications, a passage of more time than I should have allowed, and two rounds of disputes with the credit bureaus.

This is my letter to inform you of my intent to sue. I can get damages – uh, I haven’t actually calculated them, I’m going to get a lawyer to do that for me. But Federal law allows $1,000 for each violation … and Texas law allows $100 each violation plus treble damages under the Texas Deceptive Trade Practices Act. I would further remind you as in Wenger-vs-TransUnion Corp No 95-6445 CD Cal Nov 14, 1995), that you may be liable for willful non-compliance. Add that to defamation of character, intentional infliction of emotional distress, monetary damages for hurting my chances for getting a mortgage, my attorney and court fees, and possibly even punitive damages…I am sure I can collect more from you than you are asking from me, at any rate.

My next communication will be from me regarding the lawsuit. Meanwhile, I’m preparing my complaints to the FTC and the Texas Attorney General. I anxiously await your response.

Most sincerely,

SecretAgentWoman

[cjtx]

A few comments.

You can't seek private right of action for violations of FCRA 623(a). That can only be done by FTC and/or your attorney general.

I've read some gurus here have suggested you can accomplish the same by using FCRA 623( Duties of Furnishers of Information upon Notice of Dispute.

As I understand it, each FCRA violation is $1,000. However, for FDCPA, you need to show a number of deceptive practices to recover $1,000. Also, from what I've read, Texas courts don't automatically award $100 for each violation of the Tex. Fin. Code 392. You have to show real economic damages.

Your best bet is the Texas DTPA. By showing a violation of TFC 392, you can recover triple actual damages; i.e.; economic damages + mental anguish + pain and suffering + punitive damages!!! This is for each violation of TFC 392.

Now, if you're only suing for FCRA and FDCPA, you don't need to warn them. Just file your complaint.

If you want to sue through Texas DTPA you need to give a 60 day notice with the amount of damages you are seeking and the way you computed that total, basically explaining which violations and statutes you refer to. During those 60 days they may offer to settle and you basically have to accept what you requested or they will use it as a defense.