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Credit reporting after law suit.


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Congratulations on your win!

 

Was it dismissed with or without prejudice? 

 

They don't have to remove it, but you have a couple of options. 


You can dispute it with the three credit bureaus and see if they respond. 

 

If you have FDCPA Violations, which more than likely you do, then you can sue them in Federal Court. They usually will settle and part of the settlement can be to delete all CR trade lines, in addition to cancelling the debt and not issuing you a 1099C. 

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The judge said I would get the judgement In five days. The plaintiff lost his argument for admitting evidence and the judge ruled in my favor.

 

It depends on how you won. Dismissed without prejudice basically means it never happen so they can still report. If it was dismissed with prejudice there are options.

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My wife and I were also sued by Portfolio and we won.  We later sued them for continued collection activities because we had file a cease communications with them and a few years later they started calling again.  In our case I tried to get the attorneys to file FCRA violations against Portfolio because they had done an inquiry.  But the attorney said that we would have to establish that they never owned the debt nor did the debt actually exist in the first place.

 

That being said, if the debt did exist, it would not matter if you beat them in court, regardless to with predjudice or without prejudice.  You will have to establish that the debt never existed and that they did not have ownership of the debt.  The court case you just won was for collection of the debt where they probably did not provide assignment.  Just because they did not provide ownership or assignment does not establish that they do not have it.  The court knows that most JDB's will not spend the money and time to go after assignment and will not rule that the JDB does not own the debt, just that they have not provided the right to collect.

 

Now, if you did ask for validation and they have not returned validaton, they cannot continue to report.  But, you must have asked for timely validation.

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Downto0,

 

This brings up a interesting point, I found out that portfolio recovery was collecting on the account by summons. I never had the chance to DV. All communications were done after the law suit was filed. I requested documents for proof of intent to collect debt and they failed to prove it. Possible violation?

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  § 807.  False or misleading representations  [15 USC 1692e]

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:

(1) The false representation or implication that the debt collector is vouched for, bonded by, or affiliated with the United States or any State, including the use of any badge, uniform, or facsimile thereof.

(2) The false representation of --

(A) the character, amount, or legal status of any debt; or

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

(3) The false representation or implication that any individual is an attorney or that any communication is from an attorney.

(4) The representation or implication that nonpayment of any debt will result in the arrest or imprisonment of any person or the seizure, garnishment, attachment, or sale of any property or wages of any person unless such action is lawful and the debt collector or creditor intends to take such action.

(5) The threat to take any action that cannot legally be taken or that is not intended to be taken.

(6) The false representation or implication that a sale, referral, or other transfer of any interest in a debt shall cause the consumer to --

(A) lose any claim or defense to payment of the debt; or

( B ) become subject to any practice prohibited by this title.

(7) The false representation or implication that the consumer committed any crime or other conduct in order to disgrace the consumer.

(8) Communicating or threatening to communicate to any person credit information which is known or which should be known to be false, including the failure to communicate that a disputed debt is disputed.

(9) The use or distribution of any written communication which simulates or is falsely represented to be a document authorized, issued, or approved by any court, official, or agency of the United States or any State, or which creates a false impression as to its source, authorization, or approval.

(10) The use of any false representation or deceptive means to collect or attempt to collect any debt or to obtain information concerning a consumer.

(11) The failure to disclose in the initial written communication with the consumer and, in addition, if the initial communication with the consumer is oral, in that initial oral communication, that the debt collector is attempting to collect a debt and that any information obtained will be used for that purpose, and the failure to disclose in subsequent communications that the communication is from a debt collector, except that this paragraph shall not apply to a formal pleading made in connection with a legal action.

(12) The false representation or implication that accounts have been turned over to innocent purchasers for value.

(13) The false representation or implication that documents are legal process.

(14) The use of any business, company, or organization name other than the true name of the debt collector's business, company, or organization.

(15) The false representation or implication that documents are not legal process forms or do not require action by the consumer.

(16) The false representation or implication that a debt collector operates or is employed by a consumer reporting agency as defined by section 603(f) of this Act.

 

 

 

§ 808.  Unfair practices [15 USC 1692f]

A debt collector may not use unfair or unconscionable means to collect or attempt to collect any debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section:

(1) The collection of any amount (including any interest, fee, charge, or expense incidental to the principal obligation) unless such amount is expressly authorized by the agreement creating the debt or permitted by law.

(2) The acceptance by a debt collector from any person of a check or other payment instrument postdated by more than five days unless such person is notified in writing of the debt collector's intent to deposit such check or instrument not more than ten nor less than three business days prior to such deposit.

(3) The solicitation by a debt collector of any postdated check or other postdated payment instrument for the purpose of threatening or instituting criminal prosecution.

(4) Depositing or threatening to deposit any postdated check or other postdated payment instrument prior to the date on such check or instrument.

(5) Causing charges to be made to any person for communications by concealment of the true purpose of the communication. Such charges include, but are not limited to, collect telephone calls and telegram fees.

(6) Taking or threatening to take any nonjudicial action to effect dispossession or disablement of property if --

(A) there is no present right to possession of the property claimed as collateral through an enforceable security interest;

( B ) there is no present intention to take possession of the property; or

© the property is exempt by law from such dispossession or disablement.

(7) Communicating with a consumer regarding a debt by post card.

(8) Using any language or symbol, other than the debt collector's address, on any envelope when communicating with a consumer by use of the mails or by telegram, except that a debt collector may use his business name if such name does not indicate that he is in the debt collection business.

 

You can find several in the above that may apply to your situation. Not only can you sue them but also the law firm and their authorized agent that signed the affidavit. 

 

Sounds like they brought  legal action against you without proper legal documentation to follow through with the intent to harass and embarrass. 

 

Other possibilities include adding attorney fees and interest to your summons without legal authorization.

 

Did their attorney call or contact you in any way? If so did he/she disclose each time that they were a debt collector with the intention to collect a debt?

 

A lot of other options may apply to your situation. I would contact a consumer attorney that specializes in FDCPA cases. Most will handle your case without charge. If you win PRA will pay their attorney fees. You can get up to 1K and negotiate cancellation of debt without a 1099c and deletion of CR trade lines. 

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The FDCPA states that:

 

(d) Legal Pleadings- A communication in the form of a formal pleading in a civil

action shall not be treated as an initial communication for purposes of subsection

 

What this means is that a collector, such as Portfolio, can sue you and never initiate initial communication. 

 

 

I requested documents for proof of intent to collect debt and they failed to prove it. Possible violation?
 

 

I think this would fall under legal proceedings although I'm not sure.  It would depend upon the wording of your contact with them.  If it was a personal letter where you asked for verification of the account then maybe.  If it was via request for documents then no.  I also think this is something you should have entered in counterclaims because all violations at the time of an active lawsuit must be brought forward at that time.  I don't think you can sue for violations which happened during the original lawsuit.

 

The next question is, "Did you, at any time, receive a letter from Portfolio containing the maxi miranda?"  This is where you are told that you have the right to ask for validation within 30 days.  If you did and did not request validation then your time to ask for validation has passed.  If you have not then it may be that Portfolio never contacted you by phone or personal letter and the FDCPA does not require that Portfolio should have sent the DV letter.

 

I used to think that a debtor could send a letter or call to the collector and these acts would be initial communication but a case in the 9th district decided that it is only the collector who can initiate initial communiation.

 

In Blair v Bank of America the court said:

.

...several Ninth Circuit cases suggest that the referenced "initial communication" is one from the debt collector to the consumer. See, e.g., Terran v. Kaplan, 109 F.3d 1428 (9th Cir.1997) (whether initial communication violates FDCPA depends on whether it is likely to deceive or mislead a hypothetical least sophisticated debtor);

Mahon v. Credit Bureau of Placer County, Inc., 171 F.3d 1197, 1201 (9th Cir. 1999) ( FDCPA validation of debt notice provision requires only that notice be "sent" by a debt collector; debt collector need not also establish actual receipt by debtor). The court concludes, therefore, that Plaintiff's voice mail to Ms. Smith was not an "initial communication" under 15 U.S.C. § 1692g(a). Accordingly, S&G is entitled to summary judgment against Plaintiff's FDCPA claim.

 

http://scholar.google.com/scholar_case?case=14261298191664405545&q=Blair+v+Bank+of+America&hl=en&as_sdt=2,50

 

 

So, you cannot initiate the initial communication.

 

One thing that you can do is dispute the debt and then Portfolio will have to list the account as disputed.  If they don't then they have violated the FDCPA.  Otherwise, just wait and see if Portfolio calls or sends a letter.  Then they will have to give you the maxi miranda. 

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Sounds to me like you won based on the merits of the case.

Judgment in favor of defendant ......... not actually a dismissal so, with/without prejudice doesn't really come into play.

 

It has been adjudicated that you don't owe this alleged debt.

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You should still dispute the debt to Portfolio. If they don't list their trade line as disuted then you have them on a violation of the FDCPA. Even if they do list the tl as disputed, the CRA's won't consider that account when they assess your credit score. Either way it's a win for you.

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The case was dismissed with prejudice. Send PRA a letter with the court order. In the letter state that continued reporting to the CRAs constitutes continuing collection activites. Per the court order, PRA, nor any other company can collect on this alleged debt. This is a one time demand or face legal recourse to remove any tradelines or references to the alleged debt with all three CRAs. You have 30 days to remove. If I do not receive written confirmation from your company within 30 days, I will be forced to take legal action against you for violating the FDCPA.

 

I will await your reponse.

 

Best Regards,

 

XXXXXX

 

I sent a letter like this and a week later I got a letter back stating the tradelines will be removed within 30 days.

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I am not so hung up on counter suing them I am just glad I won.

 

The Judge would not let them admit the evidence due to hearsay affidavit and I challenged the trustworthiness of their evidence. The plaintiffs lawyer swung and missed when I accused them of entering documents for the purpose of litigation because the affidavit was signed 5 months after the start of trial and some of the documents had be redacted.  I had him in a trap, instead of addressing the case laws to support his affidavit he spent five minutes arguing it didn’t matter when the affidavit was signed and forgot to argue the business records exceptions to the hearsay rule, the judge got tired of his yakking and asked if he was finished, then ruled in my favor. I must say that the Judge was very consumer friendly and the plaintiff’s lawyer was a moron.  

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If Portfolio is already reporting, they don't have to inform the CRAs that the debt is disputed.  In Wilhelm v. Credico, the 8th Circuit Court of Appeals ruled that a debt collector does not have to report a debt as disputed if the CA is already reporting when the dispute is made known.

 

I would dispute first with the credit reporting agencies.  If the JDB verifies, go from there.

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In the Wilhelm case the collector, Creditco, never reported the debt at all when Wilhelm disputed.  As long as Potfolio does not report then they do not violate the FDCPA nor the FCRA where a data furnisher must report every piece of information when they report a tl.  If Portfolio would report again without listing their tl as disputed, after the op disputes, then they do violate the FDCPA...but, then, BV80, you already knew this, didn't you.

 

The 623 dispute is nearly useless.  I doubt if Portfolio will even answer.  If they don't there is no private right of action.  You have to follow up with the 611 dispute (reinvestigation).  This involves the CRA directly and they have to contact Portfolio and Portforio has to verify else the tl is deleted. 

 

I would first dispute directly to Portfolio.  If they update their tradeline undisputed then the op has a violation.  Portfolio usually reports to TransUnion but if they do report to the other two then there would be a total of 3 violations. 

 

It is worth disputing using the 623 method then following up with the 611 method.  I did this and TransUnion screwed up because they did not do the list of things they were supposed to do.

 

Op after you finish your victory dance you should dispute.  You can dispute at anytime.  I know how it feels to win against a major JDB because I did it.  You just want them to leave you alone and you want to live a normal life.  However, in hindsight, I wish I would have taken advantage of all the violations.

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In the Wilhelm case the collector, Creditco, never reported the debt at all when Wilhelm disputed.  As long as Potfolio does not report then they do not violate the FDCPA nor the FCRA where a data furnisher must report every piece of information when they report a tl.  If Portfolio would report again without listing their tl as disputed, after the op disputes, then they do violate the FDCPA...but, then, BV80, you already knew this, didn't you.

 

I only cited the 8th Circuit.  They quoted not only the 1st part of the FTC commentary which was relevant to Wilhelm's claim, but they also quoted the second part.  If you read the ruling, you'll see where they emphasized certain parts of that commentary.

 

1. Disputed debt. If a debt collector knows that a debt is disputed by the consumer . . .
and reports it to a credit bureau,
he must report it as disputed.

2. Post-report dispute.
When a debt collector learns of a dispute after reporting the debt to a credit bureau, the dispute need not also be reported.

FTC Staff Commentary, 53 Fed.Reg. 50097-02, 50106 (Dec. 13, 1988)(emphasis added).

 

They emphasized #2.

 

Some district courts have cited the case in reference to post-report disputes and agreed with that commentary.

 

 

The 623 dispute is nearly useless.  I doubt if Portfolio will even answer.  If they don't there is no private right of action.  You have to follow up with the 611 dispute (reinvestigation).  This involves the CRA directly and they have to contact Portfolio and Portforio has to verify else the tl is deleted.

 

The 623 method involves first disputing with the CRAs.  It is not useless.  It preserves your private right of action to sue under the FCRA.  If the JDB doesn't respond to the dispute from the CRAs, the entry must be deleted.  If they do respond and verify inaccurate information, you have an FCRA violation.

 

If there is inaccurate information on your CR and you first dispute with the CA/JDB, that is what waives a private right of action for that inaccurate information.

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The 623 method involves first disputing with the CRAs. It is not useless.

 

 

I said it was "nearly" useless.  The only "use" it has is that you need to first dispute with the data furnisher (collector, etc.) under 623.  And the 623 method is to the data furnisher itself, not the CRA. 

 

 

If the JDB doesn't respond to the dispute from the CRAs, the entry must be deleted. If they do respond and verify inaccurate information, you have an FCRA violation

 

Under the 623 method the data furnisher is required to respond to the consumer and not to the CRA.  If the df does not respond to the consumer, there is a FCRA violation but the consumer does not have private right of action.  The consumer would have to give the details of the violation to the FTC and they would have to sue...fat chance unless that particular df violated a lot of consumers - and the JDB's know it so they don't answer.  Even if the FTC does sue, the consumer does not get any damages.  This is why the 623 method is nearly useless.  It's just something you need to get out of the way so you will have a private right of action under 611 if you ask for a reinvestigation of the dispute under 623.  However, the df probably will verify the debt and you probably won't get a violation. 

 

I got lucky when I used the 611 method and TransUnion did not repond as the FCRA prescribes.  And sometimes the df's verify information that they should not and the CRA's reverify because the df's are paying customers, while the consumers are generally a pain in the neck and don't pay a nickle for the CRA's time.  The CRA's and df's conspire to befuddle the consumers and most of the time the consumers simply give up - even though the information is wrong.  They should sue, but they don't because, let's face it, suing someone is much much harder than defending onself from a lawsuit.

 

 

If there is inaccurate information on your CR and you first dispute with the CA/JDB, that is what waives a private right of action for that inaccurate information

 

No you have it backwards.  You have to dispute the df first (CA/JDB) using the 623 method.  You kind of got 611 and 623 mixed up.  Even if you do dispute using the 611 method first you don't lose your private right of action to file under 623 then 611.  If you eroneously file under 611 the CRA's either won't respond (because they don't have to since you did not file under 623) or they will tell you that you must first dispute directly to the df.  At any rate, you don't lose your right to dispute directly to the df's under 623 simply because you disputed to the CRA's first under 611.

 

The FCRA is a hard read.  I'll tell you what really helped me was the link at the top of the page the cic site has for the 623 method.  I recommend that everyone interested in disputing information on their cr should read this article. 

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