TomnTex

TEXAS THREAD - For those living in TX

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We need a TX thread. So, if you have any info that applies to TX residents, put it here:

 

Some people get FDCPA locked into their brain, when TXC392 has a lot more power and can make you more money.

 

§392.202. CORRECTION OF THIRD-PARTY DEBT COLLECTOR'S OR CREDIT BUREAU'S FILES. (a) An individual who disputes the accuracy of an item in a third-party debt collector's or credit bureau's file on the individual may notify in writing the third-party debt collector or credit bureau of the inaccuracy. The third-party debt collector or credit bureau shall provide forms for the notice and, when requested, assist an individual in preparing the notice.

(cool.gif Not later than the 30th day after the date a notice of inaccuracy is received, the third-party debt collector or credit bureau shall send a written statement to the individual:

(1) denying the inaccuracy;

(2) admitting the inaccuracy; or

(3) stating that the third-party debt collector or credit bureau has not had sufficient time to complete an investigation of the inaccuracy.

© If the third-party debt collector or credit bureau admits that the item is inaccurate, the third-party debt collector or credit bureau shall:

(1) not later than the fifth business day after the date of the admission, correct the item in the relevant file; and

(2) immediately on correction of the item send to each person who has previously received a report from the third-party debt collector or credit bureau containing the inaccurate information notice of the inaccuracy and a copy of an accurate report.

(d) If the third-party debt collector or credit bureau states that there has not been sufficient time to complete an investigation, the third-party debt collector or credit bureau shall immediately:

(1) change the item in the relevant file as requested by the individual;

(2) send to each person who previously received the report containing the information a notice that is equivalent to a notice under Subsection © and a copy of the changed report; and

(3) cease collection efforts if the item involves a debt.

(e) On completion by the third-party debt collector or credit bureau of the investigation, the third-party debt collector or credit bureau shall inform the individual of the determination of whether the item is accurate or inaccurate. If the third-party debt collector or credit bureau determines that the information was accurate, the third-party debt collector or credit bureau may again report that information and resume collection efforts


CHAPTER 392. DEBT COLLECTION Texas law requires a CA to take some direct action within certain time frames or be in violation. I read over and over where a Ca has failed to respond to a dv. It seems like this would allow a Texas resident some firepower. Am I wrong here or missing something?

 

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Subchapter E. Defense, Criminal Penalty, and Civil Remedies
§392.401. BONA FIDE ERROR. A person does not violate this chapter if the action complained of resulted from a bona fide error that occurred notwithstanding the use of reasonable procedures adopted to avoid the error.

§392.402. CRIMINAL PENALTY. (a) A person commits an offense if the person violates this chapter.

(cool.gif An offense under this section is a misdemeanor punishable by a fine of not less than $100 or more than $500 for each violation.

© A misdemeanor charge under this section must be filed not later than the first anniversary of the date of the alleged violation.

§392.403. CIVIL REMEDIES. (a) A person may sue for:

(1) injunctive relief to prevent or restrain a violation of this chapter; and

(2) actual damages sustained as a result of a violation of this chapter.

(cool.gif A person who successfully maintains an action under Subsection (a) is entitled to attorney's fees reasonably related to the amount of work performed and costs.

© On a finding by a court that an action under this section was brought in bad faith or for purposes of harassment, the court shall award the defendant attorney's fees reasonably related to the work performed and costs.

(d) If the attorney general reasonably believes that a person is violating or is about to violate this chapter, the attorney general may bring an action in the name of this state against the person to restrain or enjoin the person from violating this chapter.

(e) A person who successfully maintains an action under this section for violation of Section 392.101, 392.202, or 392.301(a)(3) is entitled to not less than $100 for each violation of this chapter.

§392.404. REMEDIES UNDER OTHER LAW. (a) A violation of this chapter is a deceptive trade practice under Subchapter E, Chapter 17, Business & Commerce Code, and is actionable under that subchapter.

(cool.gif This chapter does not affect or alter a remedy at law or in equity otherwise available to a debtor, creditor, governmental entity, or other legal entity.

Footnote
1House Bill 7 passed during the 78th Legislature, Third Called Session, and amended paragraph (5) which was amended during the 78th Legislature, Regular Session, in Senate Bill 533. The amendment to Senate Bill 533 read as follows:

(5) failing to disclose, except in a formal pleading made in connection with a legal action:

(A) that the debt collector is attempting to collect a debt and that any information obtained will be used for that purpose, if the communication is the initial written or oral communication with the debtor; or

(cool.gif that the communication is from a debt collector, if the communication is a subsequent written or oral communication with the debtor;

I thought I would post this as further information for remedies since there can be both civil and criminal penalties and unlike the federal law I believe Texas allows for injunctive relief.

 

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Hi.  Fellow Texan here.  I found this forum after google-ing Midland Funding after I got served papers and answered the complaint with help from this forum.  I've read a lot of the Midland Funding thread and would like to not hire an attorney but I don't want to screw myself in the process.  I'm wondering if retaining a debt settlement attorney to handle all this might be a solution.  Heard of Johnson and Bryan Attorney's in Houston?  According to their website they school Midland and Johnetta Lang regularly.

 

The initial court date on June 25th so I'm looking to make a decision fairly quickly.  Thanks.

 

R

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You have a lot to learn and process in a short time. If you can afford the attorney or they will take it on contingency, I would go that way. Hopefully you have a few FDCPA/FRACA violations you can counter sue them on.

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Hey Tom,

My original court date was moved by the judge to July 11th.  Would making a motiion to compel for arbitration (JAMS) be an option to see how comitted Midland is to collecting a $2000 debt?  I thought I reset my calendar with the new date but that didn't happen and I would appreciate any advice you can offer.  Thanks. 

 

Randy

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Txrocker will probably have a better idea, but I think you could file an MTC arb and then elect JAMS if its available to you. Make sure that you file for it asap and choose JAMS before they force you into AAA. Read up on Linda7's thread about arb. It will help you a lot. Try and PM her for advice, best of luck.

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Txrocker will probably have a better idea, but I think you could file an MTC arb and then elect JAMS if its available to you. Make sure that you file for it asap and choose JAMS before they force you into AAA. Read up on Linda7's thread about arb. It will help you a lot. Try and PM her for advice, best of luck.

Isn't this thread for information only?  He should go into the regular forum to post about his case, right?

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Isn't this thread for information only?  He should go into the regular forum to post about his case, right?

@Rycher67 - yep absolutely you should post on the legal forum.

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@TomnTex

 


CHAPTER 392. DEBT COLLECTION Texas law requires a CA to take some direct action within certain time frames or be in violation. I read over and over where a Ca has failed to respond to a dv. It seems like this would allow a Texas resident some firepower. Am I wrong here or missing something?

 

The code you provided has to do with credit reporting.  A credit report dispute and a DV request can be 2 different things.  Am I missing something?

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You have to read the entire TFC-392 to fully understand it. It has a lot more power on just about anything against the debtor. To start with, as you noted, if you quote the TFC in your DV letter and they do not reply within thirty days they MUST remove the TL. There is also a lot more in damages that you can get from the debtor. I would have to get back into it, but it is very powerful if you look at it as a whole. In TX you can scare off a lot of JDB's if they are aware of it's power and you can win easier.

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For those using the TFC-392, the following example may help in composing your letter:

 

As I am Texas resident, I will be using Texas Finance Code 392.202 to backup my dispute and I suggest that you adhere to its provisions. I will not hesitate to act if you disregard my rights or violate the Texas Laws you are required to respect. You have 30 days from your receipt of this tracked letter to validate this alleged debt. If you cannot or will not validate this account properly in 30 days, Texas Finance Code 392.202(d) requires any trade lines associated with this alleged debt must be deleted from any and all credit reports/reporting bureaus you may do business with. You are not to sell, transfer, assign, or share any information about me, or this alleged debt with anyone else.

I am reasonably certain that your staff is aware of the current position of many courts that continuing to report a trade line is viewed as continuing collection activities. I am also reasonably certain that your staff is aware of the requirements of the Texas Finance Code pertaining to the reporting of matters that are disputed. In particular, I would again point you in the direction of Section 392.202 which references the duties of the collector upon notification of the matter being in dispute.

Nothing in this letter authorizes a hard pull or a soft pull of my credit information. The account number you have reported to a credit bureau is included and should provide you with sufficient information with which to identify me in your existing records. There should be no basis for you to request additional information from me in the validation process. It is not incumbent upon me, as the injured party, to build your files for you, nor should I pay a penalty in the form of failure to procure credit from existing or new lenders and bear a negative impact on credit scores for your attempts to reconstruct records which you should already have possessed prior to making any claim. If such retrieval is discovered to have occurred, it will be evaluated for action as a non-permissible access of the report as well as retaliatory actions for the exercise of rights provided to me as a consumer under Texas law.

Be advised you are hereby put on the 60 day notice of "right to cure" as allowed under the Texas Business and Commerce Code (BCC17). In addition to the reporting requirements incumbent upon third-party entities, Texas law also contains a bonding requirement. A search of the list of bonded agencies provided to me by the Legal Support Unit/Statutory Documents Section of the Secretary of State did support that a bond was in place at the time your office claims to have reported the file. Records reflect that the bond is underwritten by Bond Underwriter Company (policy number xxxxxxxxxxxx) and involvement of their claims personnel has been held in abeyance pending your compliance with the issues in this letter.

Failure to timely and fully validate this alleged debt will result in an actionable offense(s) under Texas state law, in which damages will also be sought under § 17.41 Deceptive Trade Practices-Consumer Protection Act of the Business and Commerce Code (BCC17). Those damages are subject under Texas law to a trebling upon a showing of gross negligence. Should legal action be necessary, venue shall reside in Dallas County, Texas. Upon a favorable finding in the Dallas County courts, claim will be made against the bond. There are no federal questions being raised in this matter and any attempt to remove an action to Federal Court will be challenged.

This document is also to serve as notice that the only form of correspondence I am willing to receive from your business is through the written communication at the address listed below. Telephone calls to my home or place of employment are inconvenient. I retain the right to use this correspondence and all following communications in any court proceedings arising in regard to this account.

 

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@ Tom n Tex

 

I did send out this texas Finance Code Dv letter to Midland Credit Management explicitly explaining the dispute as written in your thread. (with few modifications). This is the response i got back from Midland in about 10 days

 

The purpose of this letter is to advise you of the results of our investigation of your dispute pursuant to Texas finance code and/or Fair Credit Reporting Act.

Please be advised that we have determined that our credit file and credit reporting of the above refrenced account is accurate, and therefore we deny the inaccuracy of the disputed item. We will be closing our investigation of your dispute and resuming regular collection activities as allowed by the Texas finance code and/or the Fair Credit reporting Act

 

In response to your dispute, we have requested that the three major credit bureaus change the status of this account to "disputed". Your credit report will not be updated if the federal credit reporting period has expired.

 

If you have additional documentation or information related to the dispute, please send it to

Attention: Consumer Support Services
POBOX 834939

San Diego, CA 92193

We can b reached at *(800) 3825-8131 x 32980 should you have further questions.

Sincerely,

 

Consumer Support
The account may still be reported on your credit report as unpaid.

 

 

What do you do next now???? It is a ditto exact letter with addition of texas Finance Code which i have previously received from them

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What thread do you have listing your situation? I will need to review it to see what to do next. Texrocker may also hve some input.

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This thread is for resource info, you will need to start your own thread so that we can answer you in it. Texrocker will probably need to weigh in on this as he has more experience in that dept. He is pretty busy right now, but pops in. send him a PM.

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Texas Home stead exemptions as of 2007:

 

Property Code Sec. 52.0012, which became effective September 1, 2007, provides a procedure for releasing homestead property from a judgment lien.

Property Code Sec. 52.0012 provides for the filing of an Affidavit that must substantially comply with the form that appears in this section of the Code. Filing of the affidavit must be preceded by a 30 day notice letter, sent certified mail and addressed to the judgment creditor and its attorney of record.  The letter must contain a copy of the affidavit that the homestead owner intends to file in the real property records.

Tarrant Bank v. Miller (833 S.W.2D 366) which decided that a judgment creditor was liable in damages if it failed after demand to give a partial release of a judgment as to the debtor’s homestead.
 

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You guy's are getting some good stuff on here, thanks. I've been on a 5,000 mile roud trip to TX and have not had much time to work on it, or to get on here period. Keep it up....

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Hello -- I am a newbie here so if I am in the wrong place please let me know and I will make the correction immediately.

 

My question is simple I am pretty sure---I am in Texas and I had a debt collector get a summary judgment on me (they were tricky--they hid the hearing date from me so I was not in attendance).

 

OK I have removed it and placed it under "is there a lawyer in the house" == hope that's right and sorry for the inconvenience!

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