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Counter Claims - Cyber/Computer/Record Laws?


CISGuy
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First: I'm not being sued yet... So, there is no urgency in these questions. Please help anyone in actual distress before bothering with my post. I will be working to clear up my credit history in the coming months and am here preparing myself in the event that I'm served with a lawsuit.

 

Thank You!!! :yahoo: <Stands & Applauds> To all the wonderful people on this forum for taking the time to help Americans under the guns of our corrupt corporate meritocracy. Many of the things going on in this country aren't just by any measure or morality, including these lawsuits. If the original debtor charged off then The People lost tax revenue, that should count as payment. On top of that we bailed these institutions out a few years ago with our tax money and now they're just abusing the system for the sake of greed. These lawsuits are a scam and a gross abuse of our courts... period. (These are my opinions.)

 

Question: Has anyone considered referencing electronic or record keeping laws in their counter claims?

 

As my name implies, I'm an Information Systems guy and am somewhat familiar with cyberlaw, but I am no lawyer. I do know that there are consumer protection laws out there such as: ECPA, GLB, FACTA, Sarbanes-Oxley and that states actually have a lot of their own cyber protection laws. Some of these allow for damage awards to consumers. These JDB's appear to be publicly traded companies, which I believe would make them fall under the jurisdiction of cyberlaw.

 

Why would it matter? Some of the affidavits I've seen mention "account data" and "electronic transmission". Would this not be an admission that the company in question has personal data related to you and that they've transmitted, received and stored it? Some of the laws I'm talking about govern those actions. Personally, I'd have all kinds of questions. "You transmitted my data? Over what medium? What security steps were taken? Who is the officer in charge regarding your data retention, security and destruction? Is any of my information stored on that laptop you have? What protections are in place for it?" There are minimim requirements to be met on these things.

 

Like I said, IANAL, but has anyone looked into this stuff from a legal standpoint?

 

Cheers...

 

 

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You're doing a good thing for yourself by researching in order to learn how to improve your financial situation and to be prepared for the possibility of a lawsuit.  Just like anything else, it's much better to be prepared and nothing happen than to hide one's head in the sand and hope nothing happens.  It's amazing how much stress can be relieved simply by research and preparation.

 

I'm sure everyone here agrees with your assessment of the cc companies.  You need to add JDBs to your description. 

 

Regarding your question, the only thing I can think of right now that refers to "transmission" would be an affidavit used to authenticate documents per Rule of Evidence 803(6).  That's the business records exception.  803(6) is the rule number in most states but not all.  However, the premise for the rule is the same for every state. 

 

That rule states that business records are admissible if there's live testimony or an affidavit stating that the records were "made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness."

 

The affidavit is used to show that the business records offered are what the plaintiff claims them to be. 

 

In a credit card debt collection case, usually the information to which they're referring is transactions related to the account.  Those transactions would be charges, payments, fees, interest, etc.   Of course, that information would be contained in billing statements.  The plaintiff wants to submit those billing statements in order to attempt to prove you had an account with whoever and that the balance they claim is valid.

 

In this case, the transmitted data is not personal data such as a social security number.  That's something you provided when the account was opened.

 

If the OC sells the account to a JDB (junk debt buyer), any information you gave to the OC is given (transmitted) to the JDB.  It's legal. 

 

To make a long story short, if you allege that some law has been broken, you have to prove it.  The one doing the accusing is the one who has to do the proving.

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Sea Dragon dug this one up for his Trial Brief:

 

 

American Express Travel Related Servs. Co., Inc. v. Vinhnee (In re Vinhnee),

            336 B.R. 437 Bankr. 9th Cir. 2005)

 

There is some good info on electronic documents as evidence, their transference, authentication, and lack of trustworthiness. 

 

http://scholar.google.com/scholar_case?case=5307246626155780320&q=American+Express+Travel+Related+Servs.+Co.,+v.+vinhnee+(in+re+Vinhnee)&hl=en&as_sdt=2,38&as_vis=1

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Yes, I will look into it much more if it comes to that. The reason I mentioned it is if they don't handle things correctly consumers can sue for damages with the recent identity laws etc, if their operations are found to be shallow and without adequite document and electronic protection measures. These JDB operations look an awful lot like something we "technical types" like to call a patent troll. A company that buys other companies that have dissolved in order to acquire their intellectual property assets, then starts filing suit against companies (the smaller the better) for relief and damages. Where's the problem? There is nothing to damage, the patent troll pretends it has the intention of making and selling products. But, when the offices are examined, they're nothing but empty desks and a couple of lawyers. It's nothing more than a legal form of rape and extortion on businesses, usually those too small to afford adequite and on-going legal council. So, if these JDB are like patent trolls, they likely are not staffed with people like IT security officers, or taken the required steps one would have taken if hired.

 

I found this place because I checked my credit report and found Midland Funding LLC on there. It shows date opened in 2011, I opened no account with "Midland" in 2011. It also shows "last reported delinquenices" in year dates since then, when I haven't received any such notice, etc. It also shows an original creditor of "CIT Bank" which I never had an account with either. Even if I did, the date for that one is 2006, past SOL in the State of Texas. So, I'm preparing in case I receive a summons when I make attempts to push this off.

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I should mention too, if they are considered a "lender" and mail you something that does include your full social security number or account number... Sox violation. (I believe.)

 

Edit: No, Gramm-Leach-Bliley Act.

 

http://en.wikipedia.org/wiki/Gramm-Leach-Bliley_Act#Financial_Privacy_Rule

 

Edit Again: (From Wikipedia)

 

The Financial Privacy Rule requires financial institutions to provide each consumer with a privacy notice at the time the consumer relationship is established and annually thereafter. The privacy notice must explain the information collected about the consumer, where that information is shared, how that information is used, and how that information is protected. The notice must also identify the consumer’s right to opt out of the information being shared with unaffiliated parties pursuant to the provisions of the Fair Credit Reporting Act. Should the privacy policy change at any point in time, the consumer must be notified again for acceptance. Each time the privacy notice is reestablished, the consumer has the right to opt out again. The unaffiliated parties receiving the nonpublic information are held to the acceptance terms of the consumer under the original relationship agreement. In summary, the financial privacy rule provides for a privacy policy agreement between the company and the consumer pertaining to the protection of the consumer’s personal nonpublic information.

 

On November 17, 2009, eight federal regulatory agencies released the final version of a model privacy notice form to make it easier for consumers to understand how financial institutions collect and share information about consumers.

Financial institutions defined

The GLB defines "financial institutions" as: "…companies that offer financial products or services to individuals, like loans, financial or investment advice, or insurance." The Federal Trade Commission (FTC) has jurisdiction over financial institutions similar to, and including, these:

  • non-bank mortgage lenders,
  • real estate appraisers,
  • loan brokers,
  • some financial or investment advisers,
  • debt collectors,
  • tax return preparers,
  • banks, and
  • real estate settlement service providers.

These companies must also be considered significantly engaged in the financial service or production that defines them as a "financial institution".

Insurance has jurisdiction first by the state, provided the state law at minimum complies with the GLB. State law can require greater compliance, but not less than what is otherwise required by the GLB.

 

Did any of you with "Midland" on your credit report receive a privacy notice annualy?

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I understand that the FTC has jurisdiction over debt collectors.  But, are debt collectors considered to be "financial institutions" under Gramm-Leach-Bliley or the FTC?

 

They appear to agree within their "consumer bill of rights", I wonder if you can call them out on violations of their stated intentions in court. Lots of people show a demonstratible hardship that they sue anyway.

 

http://en.wikipedia.org/wiki/Encore_Capital_Group - Bill of rights located there.

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They appear to agree within their "consumer bill of rights", I wonder if you can call them out on violations of their stated intentions in court. Lots of people show a demonstratible hardship that they sue anyway.

 

http://en.wikipedia.org/wiki/Encore_Capital_Group - Bill of rights located there.

 

You are doing your research.  Good job!

 

However, I'm not sure I'd depend upon Wiki for any kind of proof in court.  But it might be a good place to look for other sources.  For instance, Wiki led you to Encore's Bill of Rights which is on Encore's website.  I've read it before.   But whether you could sue or claim a defense based upon that "bill of rights", I don't know.  

 

For instance, a store may have a policy that they will treat customers fairly.  Well, how is "fair" defined by the store?  How is it defined by law?  Then, if you bring a claim stating that you weren't treated "fairly", does it comply with any definition that is actionable by law, and can you prove it?

 

When Encore states they'll treat people fairly, I assure you that "fairness" is the least of their worries.  Their bottom line is how much they can get out of you. 

 

I'm not trying to bring you down.  Your questions and observations are great and need to be addressed.  In my opinion, you've made valid points based upon your knowledge.   But, we need to see how your knowledge jives with law and can possibly be applied.  Rules of evidence address electronic records.  See what your state laws and court rules have to say about them.  Then use the appropriate court rule or state statute to search case law in your state or federal courts. 

 

Here's what I do:

 

Go to http://scholar.google.com/schhp?sciui=2&hl=en&as_sdt=0,41.  Click on "legal opinions and journals".  Then click on "Advanced Scholar Search".  Go down to the bottom of that page and click on "Select specific courts to search".   After that, you'll see "state courts" and "federal courts".  If you're using a rule from your state court, you'll click on your state in the "state courts" section.

 

Then, at the top of the page, enter the rule along with any search terms you might to include.  If nothing shows up, eliminate your search terms and just include the rule alone.  Any case law related to your terms will show up.  Read the cases to see if the court addresses the rule and how the court addresses it.

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