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Snewman25

Trying to send ITS to Midland with unfiled court papers

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I'm new to this forum. I'm seeking a little help because I'm also new to dealing with collection agencies. I'm sending Midland Funding, LLC a ITS letter but I want to send them a copy of the unfiled motion(not sure if I'm saying that right xhitwallx . Soo my first question... On the court form it says "The PLAINTIFF must file a small claim action in the county where at least

one of the defendants resides" Does this mean I need to file a small claim action in San diego where their head quarters are or can I file in my county?

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Sorry I just saw this..


1. Who are you suing?

 

Midland Credit

2. How old is the debt?

 

the last payment posted was in 2/2010

3. If the person harrassing you about the debt is a collection agency, Is the debt being reported on your credit report?

 

The debt is being reported on my credit report.

4. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) This means you wrote or called Experian, Equifax and TransUnion.

 

Yes I have disputed all 3 multiple times. I am getting a previously verified from all parties.

5. Has the collection agency sent you a letter, called you on the phone? How did you learn about the collection?

 

I first found out when I saw them on my credit report. They also called me on the phone and told me if paid they would remove but didn't.

6. What state are you in?

 

I'm in NC

7. What kind of debt is this? (credit car, auto loan, student loan)

 

Phone bill.

8. What kind of violations do you THINK the collection agency has committed? What section of the FDCPA do you think has been violated...

 

stating the terms are "1 month", falsely identifying the account as a "factoring account", falsely labeling the account as an "open" account, providing conflicting and false "date opened" information and providing false "account status".

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I'm new to this forum. I'm seeking a little help because I'm also new to dealing with collection agencies. I'm sending Midland Funding, LLC a ITS letter but I want to send them a copy of the unfiled motion(not sure if I'm saying that right xhitwallx . Soo my first question... On the court form it says "The PLAINTIFF must file a small claim action in the county where at least

one of the defendants resides" Does this mean I need to file a small claim action in San diego where their head quarters are or can I file in my county?

 

 

You're in North Carolina?  If so, the following provides that you can file in your own county. However, you need to spend the few extra bucks and file in District Court. Stay out of magistrate court. Some of them aren't even lawyers.

 

 

 

§ 1‑75.4.  Personal jurisdiction, grounds for generally.

A court of this State having jurisdiction of the subject matter has jurisdiction over a person served in an action pursuant to Rule 4(j), Rule 4(j1), or Rule 4(j3) of the Rules of Civil Procedure under any of the following circumstances:

(1)        Local Presence or Status. – In any action, whether the claim arises within or without this State, in which a claim is asserted against a party who when service of process is made upon such party:

a.         Is a natural person present within this State; or

b.         Is a natural person domiciled within this State; or

c.         Is a domestic corporation; or

d.         Is engaged in substantial activity within this State, whether such activity is wholly interstate, intrastate, or otherwise.

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This was posted by Flyingifr(honored member of CIC) on Litigation Ground Rules and sending an ITS letter. 

http://www.debtorboards.com/index.php/topic,7215

I had never heard of factoring so i consulted wikipedia for the definition.

Factoring is a financial transaction whereby a business sells its accounts receivable (i.e., invoices) to a third party (called a factor) at a discount. In "advance" factoring, the factor provides financing to the seller of the accounts in the form of a cash "advance," often 70-85% of the purchase price of the accounts, with the balance of the purchase price being paid, net of the factor's discount fee (commission) and other charges, upon collection from the account client. In "maturity" factoring, the factor makes no advance on the purchased accounts; rather, the purchase price is paid on or about the average maturity date of the accounts being purchased in the batch. Factoring differs from a bank loan in several ways. The emphasis is on the value of the receivables (essentially a financial asset), whereas a bank focuses more on the value of the borrower's total assets, and often also considers, in underwriting the loan, the value attributable to non-accounts collateral owned by the borrower. Such collateral includes inventory, equipment, and real property,[1][2] That is, a bank loan issuer looks beyond the credit-worthiness of the firm's accounts receivables and of the account debtors (obligors) thereon. Secondly, factoring is not a loan – it is the purchase of a financial asset (the receivable). Third, a nonrecourse factor assumes the "credit risk", that a purchased account will not collect due solely to the financial inability of account debtor to pay. In the United States, if the factor does not assume credit risk on the purchased accounts, in most cases a court will recharacterize the transaction as a secured loan.

 

Thought these FTC letters might be of interest to you.

UNITED STATES OF AMERICA
FEDERAL TRADE COMMISSION
WASHINGTON, D.C. 20580

Division of Financial Practices
Clarke W. Brinckerhoff
Attorney
202-326-3224

June 4, 1999

Mr. Jeff Kosmerl
949 Ormewood Terrace
Atlanta, Georgia 30316

Dear Mr. Kosmerl:

This responds to your request for our views concerning the calculation of the period for which a consumer reporting agency ("CRA") is permitted to report accounts that have been charged off or placed for collection, under the amended Fair Credit Reporting Act ("FCRA").

Section 623(a)(5) requires a party that "furnishes information to a (CRA) regarding a delinquent account being placed for collection, charged to profit or loss, or subject to any similar action" to notify the agency (within 90 days of reporting the account) of "the month and year of the commencement of the delinquency that immediately preceded" the creditor's action. Section 605(a)(4) provides that the CRA may report the information for seven years, in most cases.(1) Section 605©(1) provides that the seven year period begins 180 days from the "commencement of the delinquency" date. Section 605©(2) provides that the section applies "only to items of information added to the file of a consumer on or after the date that is 455 days after the date of enactment of the Consumer Credit Reporting Reform Act ."

Specifically, you ask (1) how the date is determined if there are multiple obsolescence dates where "you have several delinquencies preceding a collection or charge off (8/91 60+, 9/91 60+, 10/91 30+, 11/91 account closed by creditor)" and (2) if "adverse information listed on a report prior to 9/30/97 is exempt from" the procedure set forth in Section 605©(1) .

1. As explained in the enclosed letter (Johnson, 8/31/98), it was Congress' intent in enacting Sections 605©(1) and 623(a)(5) to establish a single date -- the start of the delinquency -- to begin the obsolescence period on these accounts. This avoids the "multiple date" problem that arguably existed prior to the 1996 amendments. In the case you described, the date of the "commencement of the delinquency" that led to the creditor's chargeoff or collection action would be July 1991 or earlier (depending on how long the account was continuously delinquent before that). The seven year period would start no later than January 1992 (180 days later), with the result that the chargeoff or collection could no longer be reported in most cases beyond January 1999.

2. Section 605©(2) states that the section "shall apply only to items of information added to the (CRA) file of a consumer on or after" 455 days after the enactment of those amendments, or December 29, 1997.(2) We read this language to mean that a CRA is not required to use the commencement-of-delinquency date mandated by Section 605©(1) on an account where the chargeoff or collection ("item of information") was first reported to the CRA ("added to the ... file") prior to that date. Thus, adverse information such as collections or chargeoffs reported before December 29, 1997, are not subject to the new "commencement of the delinquency" provision.

The views set forth in this informal staff letter are not binding on the Commission.

Sincerely yours,

Clarke W. Brinckerhoff

1. Section 605 (1 ) exempts credit transactions involving a principal amount of $150,000 or more.

2. Public Law 104-208, the legislation adding the FCRA provisions discussed in this letter, was signed into law on September 30, 1996. Section 605©(1) became effective 455 days after that date, as provided by Section 605©(2). Most of the provisions became effective 365 days after enactment.

Our mission: To prevent business practices that are anticompetitive, deceptive, or unfair to consumers

Division of Credit Practices
Bureau of Consumer Protection

Clarke W. Brinckerhoff
Attorney

(202) 326-3224

August 31, 1998

Mr. Clifford A. Johnson
1917 Surrey Trail
Bellbrook, Ohio 45305

Re: FCRA §§ 605© and 623(a)(5) - "Commencement of the delinquency"

Dear Mr. Johnson:

This responds to your request for our views concerning the calculation of the period for which a consumer reporting agency ("CRA") is permitted to report accounts that have been charged off, placed for collection, or subject to similar action, under the amended Fair Credit Reporting Act ("FCRA"). You report that the following series of events occurred with respect to one of your credit accounts:

"My last payment was received by the creditor 12/96. My payments were due monthly and I missed the 1/97 payment and all subsequent payments culminating in a charge off. This creditor does not report to the credit bureau until the account is 90 days delinquent. . . . The creditor contends that the delinquency did not occur until 3/97 because that is when they first reported it."

Section 623(a)(5) requires a creditor that reports a chargeoff to a CRA to notify the agency (within 90 days of reporting the account) of "the month and year of the commencement of the delinquency that immediately preceded" the chargeoff. Section 605(a)(4) provides that the credit bureau may report the chargeoff for seven years. Section 605©(1) provides that seven year period begins 180 days from that date. In the scenario your reported, it is our view that the delinquency that led to the charge-off "commenced" in January 1997, the month the first payment was missed. Thus, that is the month and year that the creditor must report to the CRA, and that the CRA must use to calculate the time period dictated by Section 605.

We are not in accord with the contention that the date "when (the creditor) first reported" the chargeoff to the CRA constituted the start of the delinquency. Sections 605©(1) and 623(a)(5) were recently added to the FCRA to correct the ineffectiveness of the previous FCRA, under which the date that started the seven-year period was uncertain or under the control of the creditor.(1) The legislative history of these provisions makes it clear that they were designed to correct the often lengthy extension of the period that resulted from delayed creditor action:

Current law generally prohibits consumer reporting agencies from including in a consumer report accounts placed for collection or charged to profit and loss which antedate the report by more than seven years. The Committee is concerned that this seven year limitation is ineffective. In some cases, the ... action occurs months or even years after the commencement of the preceding delinquency. ... Consequently, the consumer report may contain such information even if the delinquency commences more than seven years before the date on which the report is provided to a user.

The Committee bill specifies that the seven-year period with respect to information concerning a delinquent account charged to profit and loss . . . may begin no more than 180 days after the commencement of the delinquency immediately preceding the ... action.

S. Rept. 104-185, 104th Cong., 1st Sess. 39-40 (emphasis added).

Thus, Congress intended to establish a date certain -- the start of the delinquency -- to begin the obsolescence period (now seven years, plus 180 days).(2) The alternate view stated to you (that the date of reporting controls) is at variance with both the plain language of these amendments, and the intent of Congress in enacting them.

In sum, we believe that the phrase "commencement of the delinquency that led to the action" in Sections 605©(1) and 623(a)(5) of the FCRA should be construed according to its normal meaning. If a consumer falls behind on an account and never catches up, the delinquency has its "commencement" when the first payment is missed. From that point on, the account is past due and thus delinquent.

The opinions set forth in this informal staff letter are not binding on the Commission.

Sincerely yours,

Clarke W. Brinckerhoff

1. The Consumer Credit Reporting Reform Act of 1996 (Title II, Subchapter D, of Public Law 104-280, signed into law on September 30, 1996), made many other changes to the FCRA.

2. The additional 180 day period accords a measure of flexibility to credit bureaus whose furnishers may provide them with the wrong date. However, the expansion of the time period that Section 605 allows chargeoffs and similar actions to be reported accents the desirability of treating the "commencement" of the delinquency as the first missed payment -- not some later date that would further extend the period.

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What was false about the "open" date and the "account status"?   Are you planning on suing under the FCRA, FDCPA, or both?

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