AboveAverage

CA showing up on my report after I DVed!!!

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Over a month ago, I received a settlement letter from a CA wanting to settle for an account from one of my bad OCs that's about to be SOL in about 6 months (from 2002 and SOL in NJ is 6 years). I responded to the dunning letter with a DV letter asking that they provide proof the debt is mine. The OC charged the account off and now it appears that this CA "owns" the account.

Now as of today, the CA shows up on all three of my CRs. They did not send me anything. Do I have a FDCPA and FCRA violation and if so how should I best proceed? Should I contact an attorney [i can afford one]? This is such crap. If I left out anything pertinent, let me know. I did leave out the names on purpose due to that thread admin put up. That's scary.

Update: They even listed it in dispute to all the CRAs and the CRAs still posted this crap account. Please Help!

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Was the DV timely and are you sure that this was the initial contact from the company? I'm sure it could be, but in my personal experiences, the settlement offers don't come until they've already sent you a dunning that went ignored. Does this settlement offer contain the mini-miranda notice?

If you are certain that they never contacted you prior to this and this settlement is an actual dunning, then yes, reporting is a FDCPA violation. Do you have the CMRRR from your DV letter? If so, what you need to do is send an ITS to the CA advising them that they are in violation of the FDCPA and they must immediately delete the TL, C&D all future collection efforts, and mark the account as "unrecoverable" in their records.

At the same time, you also need to dispute the TL's with each of the CRAs. Odds are the TL will come back as "verified" which will now put the CA in violation of the FCRA in addition to the FDCPA. The FDCPA will be easier for you to work with as a pro se litigant, but the FCRA contains some real weight that you can use for extra leverage if this ever does go to court.

One of three things are likely to happen:

1. CA deletes. Best possible outcome. You win.

2. CA sends you a settlement agreement to sign. Read this document very carefully. It likely contains verbiage that will prevent you from ever suing them (even for future violations). If they send you one, you may want to consider ignoring it and proceeding as if #3 happened--even with the promise of a deletion dangling in front of you.

3. CA ignores your ITS. File a $2000 small claims suit against them for FDCPA and FCRA violations. You can easily do this at your local county court for around $60 or less. They just hand you a form to fill out, you don't have to draft a formal legal complaint.

If you get to Step #3, it's pretty likely that they'll settle with you prior to the hearing. Assuming that you sent all your correspondence CMRRR and you have all your paperwork together, you'll have them over a barrel and they'll know it. You will walk away with a deletion without having to sign such a once-sided agreement and will have some extra cash in your pocket to boot.

If they try to jack you around and intimidate you during negotiations, advise them that you will refer this case to an attorney who specializes in consumer credit law if they don't change their tune. The beautiful thing about the FDCPA is that the CA would have to pay all your legal bills if you prevail in your suit. Lawyers for the plaintiffs in FDCPA cases routinely charge crazy hourly rates because of this ($350+ per hour).

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Actually, if they reported the TL as "in dispute" to the CRAs, then it probably isn't a violation of the FDCPA. You might be able to argue the "timing" of events constitutes "continued collection" (i.e, they dunned, you dv'd, they reported in dispute)...but...since that's what supposed to happen when you DV, I think you'd have a hard time convincing a judge.

However...realize that CAs don't buy debts. Junk debt buyers buy debts. If you're sure that the OC sold it (is the OC's TL marked "sold to another lender" and their balance is $0?), and the people reporting now are really a JDB...then just sit back and wait. If they have proof, you'll be hearing from them again. (Personally, I would never hand money over to a JDB unless ordered to by a court).

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Actually, if they reported the TL as "in dispute" to the CRAs, then it probably isn't a violation of the FDCPA. You might be able to argue the "timing" of events constitutes "continued collection" (i.e, they dunned, you dv'd, they reported in dispute)...but...since that's what supposed to happen when you DV, I think you'd have a hard time convincing a judge.

Good point. I was thinking about my own situation in which they were never marked as disputed until the CRA received the dispute directly from me.

Edit: You probably meant "isn't a violation of the FCRA." The CA would still be in violation of the FDCPA if they reported *after* receiving the DV, but did not respond to the DV. But AboveAverage would have to make the case that they received the DV prior to reporting. We need more info, I think...

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No, actually, I'm thinking they can report a "new" TL "in dispute" after receiving a DV without violating the FDCPA. Not that it matters much, because that in itself is probably not enough to sue over.

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Hmm... I would disagree. Section 809(B) FDCPA:

(B) If the consumer notifies the debt collector in writing within the thirty-day period described in subsection (a) that the debt, or any portion thereof, is disputed, or that the consumer requests the name and address of the original creditor, 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.

There is considerable case law that backs up the assertion that reporting a collection TL to the CRAs constitutes continued collection activity. Whether it's marked as "in dispute" when it's first reported is irrelevant since having any type of collection account on a CR is detrimental to the consumer and is an attempt to strong arm payment.

In fact, I would argue that creating a new TL just to immediately mark it as disputed could be considered a FCRA violation in and of itself. An information furnisher has a legal obligation to only report accurate information. Reporting information that, by there own admission, may not be accurate is a lame attempt to extort the consumer and is a possible FCRA violation.

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Honestly, I'm not sure. There certainly has been case law that reporting anything other than "in dispute" after a DV violates the FDCPA, and they would have no reason to report it as in dispute if they hadn't already received the DV. It sure does appear like an effort to "poison" the credit report. Maybe there is enough to sue...

So...to the OP...if you've got the money for a lawyer...see if there is a www.naca.net lawyer in your area that might be interested in the case.

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Shortbus & Willingtocope,

First of all, I thank you for your responses. I have printed the thread out and will answer your questions as best I can to receive whatever help I can.

I can do a search, of course, but please remind me what is the difference between a timely DV and an untimely one?

There was no dunning letter prior to the settlement letter on this matter. It is in fact a JDB that bought the debt. The OC has zeroed out the account and it does say transferred/sold on all three of my CRs. I guess I thought JDB/CA was the same thing. The settlement letter (which is in front of me and I kept it and scanned it into my PC) does contain the "mini-Miranda." and it encouraged me to notify them in writing. The only thing I might have messed up on was I sent it via the self-addressed stamped envelope they use for payment instead of the correspondence address the have for the dispute. I am of the opinion that should not absolve them as never receiving the DV in the first place. I did CMRRR my DV and it is with my Midland file. (The signed green card and the certified mail receipt).

Should I continue drafting an ITS letter or should I just contact an attorney. I am just starting to see a light at the end of the tunnel and these guys have ----ed with the wrong guy. I'm not a total noob and I know I have rights.

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I contacted two NACA lawyers about this. Left a message and will probably call them back tomorrow if I don't hear from them. In the meantime, I found the CA Fails to validate send to bureaus letter and modified to fit my situation. I included with my letter to the CRAs my drivers license, a copy of the letter I sent to the JDB and a copy of my CM and RRR receipts (the green card was signed).

After looking at the DV letter and this one, it's clear that the JDB definitely did wrong. I'm wondering if I should still send an ITS letter. I'm also wondering if there is anyway I can stop them from selling the debt to someone else now that I became uppity about it? Am I going the right path on this? HELP! My scores are finally going up and I'm really afraid.

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the only way to stop them from re-selling the debt is to somehow have that provision in any type of settlement offer that you engage in with them.

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i am writing in ITS letter and i remember someone in here writing a non disclosure agreement statement to prevent from selling or even giving out information on their account to anyone else. if some can point me and the OP to the right direction it would be helpful because this is the only part I have left in writing.

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here's a "sample" NDA provision I was seeing on another board:

NDASample.jpg

It's mainly for a "normal" NDA - ie not reporting to the CRAs but it can still work, if tweaked.

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here's a "sample" NDA provision I was seeing on another board:

NDASample.jpg

It's mainly for a "normal" NDA - ie not reporting to the CRAs but it can still work, if tweaked.

Would that work if I made it one sided? (i.e. the JDB)? I have to inform the CRAs to let them know I had tried to get the debt validated and that I want them to remove it or else they will violate the FCRA, right?

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Would that work if I made it one sided? (i.e. the JDB)? I have to inform the CRAs to let them know I had tried to get the debt validated and that I want them to remove it or else they will violate the FCRA, right?

no, the idea is, after you get the NDA signed and returned to you, that you dispute the TL with the CRA's and if they come back verified, you get paid.

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If it comes down to you suing them, then you'd use such a NDA clause. But you'd have to have it get to that point. I'm not so sure it's to that point yet...

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(Sigh...)

I will consult an attorney then. I'm mailing my CRA letters first thing in the morning. I think the fact that the TL is on my reports counts as at least one violation as I had asked them to send me proof the debt was mine. At least that's what I'm hoping.

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I retained a bonafide NACA lawyer on this matter. I have to be totally honest with all of you, I probably know maybe 1-5% of the FCRA and FCDPA. With what little I knew, he was genuinely impressed. I explained to him what I posted here and printed out and copied all correspondence with the JDB and the CRAs. He then explained to me that the JDB does not have to respond to me and they have that right. I then responded with this question "Wouldn't the fact that the JDB is now reporting to my credit reports be considered a collections action? And if it is a collections action, why would they do that without validating my debt?"

That must have been the password to the clubhouse he was looking from me, because he then got both a FCRA and FCDPA retainer agreement to sign. He answered "yes, it is" to that question and he is waiting for my responses back from the bureaus and is hoping they come back "verified" so I can get a FCRA violation.

I'm on contingency (I told him I wanted contingency or I would either have to find someone else, or friggin do pro se....which I really would not have wanted but I WOULD HAVE IF I HAD TO). It is part of my retainer agreements. When it is over, I will say who the JDB is as well as how it went. I will keep you all posted and thank you all for your time.

NACA definitely rocks!! But so does CIC!!!

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Wonderful!

Open up that can of whoop-a$$ on them!

Yeah, I need one for CMI! I think I am going to consult a one those attorneys this week and see what they tell me.

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Yeah, I need one for CMI! I think I am going to consult a one those attorneys this week and see what they tell me.

www.naca.net

Make sure that he is experienced or an expert on FDCPA and FCRA in your state. You don't want some kid fresh out of law school. :)

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JDB is requesting my assistance so they can help me end this quick....yeah, and I'm going to be the next Pope. :rolleyes:

They are basically asking me to send them copies of any documentation I have.

I basically faxed the letter to my attorney, but what do you guys think the next action should be? I am thinking my attorney will send a letter to them sicking on them....or probably choose to wait until the 30 days of my dispute to the CRAs are over so we get a FCRA....

I am of the opinion that I should not respond to this letter...am I right?

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Let them hang themselves first, by waiting until the 30 days are expired.

It's not your job to supply info to them. You mentioned it's still within SOL, so if you prove the case for them, they will sue.

Looks like right now they got nothing, since they want to trick you into producing documents they should have received from the OC oe the JDB they bought it from.

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Let them hang themselves first, by waiting until the 30 days are expired.

It's not your job to supply info to them. You mentioned it's still within SOL, so if you prove the case for them, they will sue.

Looks like right now they got nothing, since they want to trick you into producing documents they should have received from the OC oe the JDB they bought it from.

Thanks cjtx, that was exactly what I was thinking. I wasn't going to help them mess with me.

Yeah, I definitely have something actionable based on what I see here and my attorney's willingness to help me out with this.

They are basically done. It's just waiting for the CRAs to get back to me now.

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TU basically used the information I sent to them to update the TL and then say that it will be gone the same time my OC who sold the debt will be gone. I imagine the other two will play the same game. (sigh.....)

The attorney got faxed with it. Let's see what he says.

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