Is this a FCRA violation to use in arb claim?

[Mimi-to-8]

OK, I'm in a pending court case awaiting a hearing for compel/stay for arbitration in late Oct.

I am rounding up ammo to use on OC. I just got a hard copy of my 3 CR's and need to know if this is a violation to dispute then use as an arb claim.

EQ's "account history codes" are reported by OC as follows:

12/2009=1

1/2010=2

2/2010=3

3/2010=4

4/2010=5

5/2010=6

6/2010=6(charged off)

7/2010=2

They have reported "current status" as: Charge Off

Account "closed" but no closed date reported.

I DV'd the CA atty 4/19. They never validated but filed suit 6/23. OC/CA atty do not have the alleged debt reported as "disputed" on any of the 3 CR's.

I do understand I have to dispute first to have a right of action.

Any help as to violations/disputes/suggestions/advice would be greatly appreciated!

[skippy1960]

Did you ever ask for DV from OC?

[admin]

Probably a violation - if you've disputed in the last 30 days, then yes. After this period, then no.

[Mimi-to-8]

Did you ever ask for DV from OC?

skippy, didn't know I needed to DV the OC when they put CA atty Zwicker in charge of collections.

Probably a violation - if you've disputed in the last 30 days, then yes. After this period, then no.

Admin, I DV'd my "dispute" when dunned by Zwicker back in April. Since then I have been overwhelmed with the lawsuit procedures. But they never reported the debt as disputed.

My understanding is that I first need to dispute with CRA's and if it comes back verified, I then need to dispute with the OC (in that order) to have a right of action.

I know I read somewhere that the furnisher can not have double 30,60,90etc. even after charge off.

If they are reporting 30,60,90,120,150,180,180,60 isn't that an issue?

Is no "close date" an issue?

Edited September 18, 2010 by Mimi-to-8

[admin]

Admin, I DV'd my "dispute" when dunned by Zwicker back in April. Since then I have been overwhelmed with the lawsuit procedures. But they never reported the debt as disputed.

My understanding is that I first need to dispute with CRA's and if it comes back verified, I then need to dispute with the OC (in that order) to have a right of action.?

That's not DV, that's the 623 method (see link above). DV'ing is for collection agencies or anyone acting as a collector. If that's what you meant, I apologize.

[Mimi-to-8]

Zwicker (CA atty) sent dunning letter early April. I DV'd Zwicker in mid-April asking for validation and said I dispute the debt. They never validated but filed suit 6/23.

I have several FDCPA violations on Z and my state law connects these to OC also.

I am trying to prepare to be able to also use FCRA violations in my arb claim. The bigger the claim the better!

I have read the 623 dispute method and understand what to do. However, I am not sure what exactly is reported in error in my CR's to use the 623 method on.

Sorry if I wasn't clear! Any help with this?

[skippy1960]

Mimi,

The reason I asked about asking for DV from OC, at some point is because they are the primary reporter to the Credit Buerua's. When I defaulted on a number of accounts I sent DV/Dispute letters to the OC. So the direction you are trying to go with the FCRA claim may not work.

I am not as up todate as others on the Credit Reporting stuff.

So unless Zwicker is reporting to credit bueraus then there would be no dispute on your credit report....

That is my understanding.

[admin]

Mimi,

The reason I asked about asking for DV from OC, at some point is because they are the primary reporter to the Credit Buerua's. When I defaulted on a number of accounts I sent DV/Dispute letters to the OC. So the direction you are trying to go with the FCRA claim may not work.

DV's don't work on original creditors. They are under no obligation whatsoever to validate a debt.

623 --> OC --> request verification from credit bureau --if verified-->request an investigation

DV--> collection agency -->request validation

[skippy1960]

DV's don't work on original creditors. They are under no obligation whatsoever to validate a debt.

623 --> OC --> request verification from credit bureau --if verified-->request an investigation

DV--> collection agency -->request validation

Let me clarify this in California, OC's are bound by the Rosenthal Act which is a state statue which they are seen as a debt collector in the same fashion as the FDCPA governs debt collectors federally. So all may want to check their state consumer law when dealing with debt collection.

My personal experience was the accounts I asked for validation and disputed showed up as disputed on my report, via the OC reporting.

[Mimi-to-8]

From advice given by trueq, I need to first dispute with the CRA's and then if "verified", I need to dispute with the OC before I have a right to use FCRA violations in an arbitration claim.

Here is something I copied for my notes during research of past posts on the subject (I do not know who posted this):

"Unless you bring an account current and then are late again, you can NOT have more than ONE 30,60,90,120 day lates....

Once an account is Charged Off, you can NOT be 30,60,90 or 120 days late...(as it's been charged off). Dispute it, if they verify it, it is a FCRA violation"

I desperately need to know what needs to be disputed so I have time to do it before preparing my arb claim instead of how to dispute it.

I would be happy to scan my 3 CRA's for help finding issues to dispute. Just PM me your email addy.

[Linda7]

Mimi, I wish I could help you, but I don't understand about that either. I did want to share my reading on my credit report as it looks strange too. I have one that is charged off monthly. They show a certain amount was written off, but then show a much larger balance currently due. But, mine shows 30 days past due, 60 days past due, 90 days past due, 120 days past due and then 150 days past due. The earliest charge off shows a July 2006 date, but the 150 days past due is "as of May 2006". So here again - they are showing a charge off date 2 months later than the 150 days past due. I don't even understand what TrueQ is saying, but it appears that my report has the same problem as yours.

And I have no idea if that is a violation or not . . . maybe somebody can tell us!

Edited September 20, 2010 by Linda7

[willingtocope]

Here's the problem. "Charge off" is both an event and a status. Once the CC decides to "take a charge against accured income" on their books, they mark it as CO (really means nothing to you)...that's the "event". From then on, its status is CO...and is reported as such every month. There are no laws that govern when CO must occur.

As for lates, again...it a status...and rather than meaning "its now exactly 150 days late", it means "its at least 150 days late". In that context, they can report it as "at least 60 days late" fror the next 7 years. While bouncing fom 30, 60, 90, 120 back to 60, 60, 60 is certainly confusing, its not illegal...because in the context of what the status means, it is accurate.

[admin]

From advice given by trueq, I need to first dispute with the CRA's and then if "verified", I need to dispute with the OC

You don't "dispute" with the OC, you request an investigation. The threshold for responding to an investigation request is very low. All the OC has to do is say "we investigated and found the information to be true". If you think they are reporting inaccurately to the credit bureaus, then you should be dragging them to court.

before I have a right to use FCRA violations in an arbitration claim.

You can't add violations of the FCRA to an arbitration claim to my knowledge. It's something you would need to file as a separate lawsuit.

For instance, if you were not opting for arbitration and going through the court system, you have to file a counter suit against the Plaintiff for violations. The judge will rule on each separately.

[Mimi-to-8]

Admin, would you mind explaining your basis for your understanding that you can not file FCRA violations in arb.

Why would there be a certain type of claim that was not allowed when the agreement states:

"IT (the agreement) PROVIDES THAT ANY DISPUTE MAY BE

RESOLVED BY BINDING ARBITRATION." "Claims Covered. Either you or we may, without the other's consent, elect mandatory, binding arbitration of

any claim, dispute or controversy by either you or us against the other." "This Arbitration Agreement governs all Claims"?

Here is an arb initiation claim that trueq sent to me as an example:

NATURE OF DISPUTE

Claimant hereby demands that you submit the following dispute to final and binding arbitration (a more detailed statement of the claim(s) may be attached. Fair Debt collections Practices Act (FDCPA); Wisconsin Consumer Act (WCA); Wisconsin Deceptive Trade Practice Act (DTPA); Invasion of Privacy; Fair Credit Reporting Act (FCRA), et. al.     Complaint attached.

[admin]

Here is an arb initiation claim that trueq sent to me as an example:

NATURE OF DISPUTE

Claimant hereby demands that you submit the following dispute to final and binding arbitration (a more detailed statement of the claim(s) may be attached. Fair Debt collections Practices Act (FDCPA); Wisconsin Consumer Act (WCA); Wisconsin Deceptive Trade Practice Act (DTPA); Invasion of Privacy; Fair Credit Reporting Act (FCRA), et. al.     Complaint attached.

Was it allowed? Did he win his arbitration case?

FCRA falls under federal law - arbitration is not court. Just sayin'.

[Mimi-to-8]

Was it allowed? Did he win his arbitration case?

I have no idea. I know he knows what he's doing and I have great respect for his arbitration knowledge. The sample claim was sent for me to see how you initiate.

FCRA falls under federal law - arbitration is not court.

The arbitration clause is governed by the "Federal" Arbitration Act.

[willingtocope]

The arbitration clause is governed by the "Federal" Arbitration Act.

I'm afraid you'll have to do better than that. The "Federal Arbitration Act" as defined by http://www.law.cornell.edu/uscode/html/uscode09/usc_sup_01_9.html

seems to me to apply to maritime transacations and perhaps labor contracts. It doesn't say anything about debts....

And, while over the years, the act has been interpreted by case law to include just about ANY contact that includes the correct wording, there is nothing that says the FDCPA, FCRA, or any state law must be taken into account, nor must the abitrator abide by those laws. (Yes, you can sue later if he doesn't,but...)

And, one more point...arbitration is CONTRACT law. You can only demand arbitration if you admit and agree that you are a party to that contract. The FDCPA and FCRA protect you against fraudulent claims against you. The only real argument you have in arbitration is how much you owe.

So...bottom line. A consumer can elect arbitration to delay collections, but it does not make the debt go away.

[skippy1960]

I'm afraid you'll have to do better than that. The "Federal Arbitration Act" as defined by http://www.law.cornell.edu/uscode/html/uscode09/usc_sup_01_9.html

seems to me to apply to maritime transacations and perhaps labor contracts. It doesn't say anything about debts....

And, while over the years, the act has been interpreted by case law to include just about ANY contact that includes the correct wording, there is nothing that says the FDCPA, FCRA, or any state law must be taken into account, nor must the abitrator abide by those laws. (Yes, you can sue later if he doesn't,but...)

And, one more point...arbitration is CONTRACT law. You can only demand arbitration if you admit and agree that you are a party to that contract. The FDCPA and FCRA protect you against fraudulent claims against you. The only real argument you have in arbitration is how much you owe.

So...bottom line. A consumer can elect arbitration to delay collections, but it does not make the debt go away.

I have posed this same question in different posts, and would love to have an answer from Willing or another legal expert.

I have no law degree but here is what is happening in courts as folks electing arbitration and filing MTC or MTS, based on being sued in courts across the country.

1. Suit is filed.

2. Some answering the suit with denials and affirmative defenses. (as in my case personally), then filing MTC or MTS for arbitration.

3. Some are not answering and MTC or MTS for arbitration.

4. Courts are granting these MTC and MTS for arbitration across the country in different states, some with plaintiff needing to initiate claim and some with consumer needing to initiate claim.

So this means that Judges in different counties across the country, aren't buying your assertion that I have to admit to the debt or underlying contract of which the plaintiff has to prove at some point in the process.

If this is such a bad deal why is that all the plaintiffs fight tooth and nail to stay out of arbitration? You would think if this was a bad deal for consumers plaintiff's all over the country would be falling all overthemselves to get to arbitration and take the easy win!

I would say that it would be more useful and helpful for the attornys on this board, to layout in detail what the issues are with this strategy in a lengthy post. Or on the flip side spend a bit of brain power and try to help us with additional ideas to support the strategy.

Thanks in advance for a response....

[willingtocope]

So this means that Judges in different counties across the country, aren't buying your assertion that I have to admit to the debt or underlying contract of which the plaintiff has to prove at some point in the process.

I'm not a lawyer either...but...logic dictates that the reason the judge compels arbitration is because he believes you ARE party to the contract. He may not say that in so many words, but I'm guessing that's the reasoning.

If this is such a bad deal why is that all the plaintiffs fight tooth and nail to stay out of arbitration? You would think if this was a bad deal for consumers plaintiff's all over the country would be falling all overthemselves to get to arbitration and take the easy win!

I'm not saying its a bad deal. I'm saying its a delaying tactic, and, if you truly owe the debt, and are willing to take the chance that the plaintiff may decide not to spend the money (their bad for stating in the contract that they would pay for it) and therefore leave the suit in limbo...use it.

I'm also saying that just like the SOL in most states, this tactic does NOT make the debt go away. It does NOT prevent the OC, CA, or JDB from continuing to try to collect. They just can't use the courts to do it. (okay...if they do continue to call you at all hours, you can sue them...but, you'll be suing them for FDCPA and / or FCRA violations. You can't sue them for failure to arbitrate a contract dispute when you don't admit that you were a party to that contract in the first place).

[skippy1960]

I'm not a lawyer either...but...logic dictates that the reason the judge compels arbitration is because he believes you ARE party to the contract. He may not say that in so many words, but I'm guessing that's the reasoning.

Here is why I asked, prior to the NAF debacle the Banks would initiate claim with arb forum against comsumer based on contract, capture their win with a fight or without, then go to court and confirm. Small numbers of consumers then show up and fight in court they weren't party to arbitration or didn't know they were, bank wins! So the courts never decide if it is a true contract relationship until after the arb was completed.

Finally, being part of a contract relationship doesn't dismiss the OC/JDB from needing to prove their case in arbitration. They still have to prove ownership, chain of custody, etc, to win.

I'm not saying its a bad deal. I'm saying its a delaying tactic, and, if you truly owe the debt, and are willing to take the chance that the plaintiff may decide not to spend the money (their bad for stating in the contract that they would pay for it) and therefore leave the suit in limbo...use it.

We agree, on this one precisely.

I'm also saying that just like the SOL in most states, this tactic does NOT make the debt go away. It does NOT prevent the OC, CA, or JDB from continuing to try to collect. They just can't use the courts to do it. (okay...if they do continue to call you at all hours, you can sue them...but, you'll be suing them for FDCPA and / or FCRA violations. You can't sue them for failure to arbitrate a contract dispute when you don't admit that you were a party to that contract in the first place).

We agree here also.

[RebelLady]

They just can't use the courts to do it. (okay...if they do continue to call you at all hours, you can sue them...but, you'll be suing them for FDCPA and / or FCRA violations. You can't sue them for failure to arbitrate a contract dispute when you don't admit that you were a party to that contract in the first place).

That's the main object in electing arbitration. Possibly in someone's lala land, courts are what courts should be. Unfortunately, most of us don't live in lala land. Judges are, prior to taking their thrones in the courtroom, biased against pro se litigants and, it would appear, have already decided that the Defendant is a low-life who is trying to avoid paying what they owe.

I recently received an interesting letter. Its about a class-action suit that I somehow got involved in against Midland Credit Funding. It was revealed that over 23,000 consumers were robbed by Midland Funding by affidavits that contained false information. 23,000 consumers!!!!

In my case, I attempted to have the affidavit stricken...but being pro se as well as a low-life trying to avoid repaying money I owe...the judge refused to strike the affidavit. But, according to this class action suit, I was correct and the judge and the plaintiff and their alleged attorney...LIED to the court. So we're gonna slap them on the back of the hand and tell them what naughty people they were, fine them and divvy up the fine to the consumers who got ripped off! Oh gosh, how harsh of us!!

As far as I'm concerned, our court system is just as corrupt and just as useless as the NAF ever dared to be and should the opportunity present itself, I will gladly choose arbitration rather than to face this totally incompetent entity we call our judicial system again.

RL

Edited September 23, 2010 by RebelLady

[admin]

As far as I'm concerned, our court system is just as corrupt and just as useless as the NAF ever dared to be and should the opportunity present itself, I will gladly choose arbitration rather than to face this totally incompetent entity we call our judicial system again.

RL

You're more than entitled to your opinion, but I would rather go with the court system - reading the rules of arbitration gave me the impression that the decisions were very subjective and the laws were not enforced.

I'd take my chances with court any day. From what I've read, most judges try and give pro ses a lot of latitude for technical errors and on occasion even try to help them out.

[nobk4me]

I'm afraid you'll have to do better than that. The "Federal Arbitration Act" as defined by http://www.law.cornell.edu/uscode/html/uscode09/usc_sup_01_9.html

seems to me to apply to maritime transacations and perhaps labor contracts. It doesn't say anything about debts....

And, while over the years, the act has been interpreted by case law to include just about ANY contact that includes the correct wording, there is nothing that says the FDCPA, FCRA, or any state law must be taken into account, nor must the abitrator abide by those laws. (Yes, you can sue later if he doesn't,but...)

And, one more point...arbitration is CONTRACT law. You can only demand arbitration if you admit and agree that you are a party to that contract. The FDCPA and FCRA protect you against fraudulent claims against you. The only real argument you have in arbitration is how much you owe.

So...bottom line. A consumer can elect arbitration to delay collections, but it does not make the debt go away.

The arb clauses in the cardmember agreements usually state that the arbitrations are to be governed by the Federal Arb. Act, and that arb is to apply to any dispute arising out of the contract, and includes agents and assigns.

No, arb doesn't make the debt go away, but it changes the dynamics and cost-benefit anaylsis of debt collection. In court the creditor law firm has a filing fee of about $100 (where I am), and it's a familiar process and maybe they are buddies with the judge. In arb it's an unfamilar process and it's expensive. Now they are facing thousands of dollars in arb fees. It becomes a case of 'do the math.' No rational creditor is going to spend $5000 to collect a $1000 debt.

So it will probably be sold to a JDB. Rinse and repeat. And the clock keeps ticking, and eventually the debt will be out of statute.

[RebelLady]

You're more than entitled to your opinion, but I would rather go with the court system - reading the rules of arbitration gave me the impression that the decisions were very subjective and the laws were not enforced.[/QUOTE]

That's even better for the respondent and why I tell people to make certain they are aware of all the Rules of Procedure of the arbitration organization they'll be using.

Most of the cc agreements I've read and have copies of clearly state that the arbitration will be conducted "according to the Rules of Procedure in effect at the time the claim is made." What better grounds could be used by the respondent to vacate an arbitration award than that the arbitration organization was in "breach of agreement" during the arbitration process?

RL

[RebelLady]

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

NOEMIA CARVALHO, on behalf of ü

herself and other similarly situated

people, No. 09-15030 Plaintiff-Appellant,

v. ý D.C. No. 5:08-cv-01317-JF

EQUIFAX INFORMATION SERVICES, OPINION LLC; EXPERIAN INFORMATION

SOLUTIONS, INC.; TRANSUNION LLC,

Defendants-Appellees. þ

Appeal from the United States District Court

for the Northern District of California

Jeremy D. Fogel, District Judge, Presiding

Argued and Submitted

February 11, 2010—San Francisco, California

Filed August 18, 2010

Before: Diarmuid F. O’Scannlain, Stephen S. Trott and

Richard A. Paez, Circuit Judges.

12097

Not sure if this will help but its something you can take a look at. It will let you know something about how courts apply laws to the CRAs...

RL