TEXAS THREAD - For those living in TX

[Clydesmom]

3 hours ago, acorn said:

I believe that's the intent of the Texas law.

No it isn't.  The courts are divided on whether a trade line is collection activity and until a definitive ruling is issued by SCOTUS after someone challenges all the way AND the court agrees to hear the case it will remain that way.  Not even Texas requires EVERY collection agency in the country to register and post a surety bond to report to the bureaus.  

2 hours ago, BV80 said:

@acorn

Then you need to call an attorney.   Personally, I don't see how reporting to CRAs could be considered a debt collection action WITHIN the state of TX. 

It isn't.  He is making a huge leap that not even Evil Kenevil would attempt it.  

2 hours ago, acorn said:

The reason I'm asking is that for every trade line we're disputing to the CRA (2 for me, 3 for hubby), NONE of the collection agencies who are reporting those TLs have the surety bond required by the state of Texas.  (They're all beyond the SoL, as well, and we don't recognize any of them, either, which is why we're disputing.)  I was just wondering whether that surety bond thing might be an additional set of teeth to force them to get those TLs off our reports.

No.  The surety bond issue is between the CA and the state of Texas.  ALL that would happen if they were actually trying to collect on the account is Texas would require them to cease collection efforts until they did post it but that does not include removing trade lines.

[BV80]

@acorn

This thread is actually for informational purposes only.   If you have more questions on your subject, it would be best to start your own thread.

[qednick]

Trying to collect from someone in TX without having an active bond posted appears to be a violation of TFC392.101 for which you can claim statutory damages. On saying that, if you file suit or if you complain to the AG, the CA will simply post the bond. But I still think you would have violations if they make collection efforts (letters, phone calls) whilst not having an active bond posted. That's the way I'm reading it.

I've been reading through this thread and I see a couple of things which I think may need clarifying for future readers when utilizing TFC392 for validation purposes:

First, I think you should mention TFC392 in your simple DV request. I say "simple" because I really don't think you need to go into too much detail about what the law says. It should be something like "I request strict validation per Texas Finance Code, Chapter 392". It is not incumbent upon you to tell them what the law says but I do think you need to mention TFC392 for your request to be valid under that law.

Second, you shouldn't mention anything about "60 days right to cure" or anything about DTPA in your initial letter. From what I read, you can only give the 60 days right to cure once you actually have some violations and dollar amounts to claim. The whole process should go like this:

1. Write the CA demanding DV per TFC392--send it CMRRR--don't mention DTPA or 60 days right to cure coz it doesn't apply yet!
2. Wait until a few days after the 30th day from when your letter was signed for--you can really only account for the 30 days from the time they signed for your request up until their response (if any) is dated/postmarked
3. If they've gone over the 30 days, write them again (CMRRR) telling them they violated TFC392.202(b) and that they must cease collection efforts permanently and also adjust the TL's as you want (typically permanent removal). Per TFC392.202(c) this must be done within 5 business days
4. Monitor the time again, from date they signed allowing for weekends and holidays. Add an extra business day to be sure.
5. If they haven't removed the TL's after the 5th business day, write them again specifying the violations, the amount(s) you want and why, and now give them the 60 day right to cure per the DTPA. Advise them that if they don't cure then they (and the surety bonds) are liable to be claimed upon for up to treble the amount(s) you requested.

On point #5, it's important to note that you actually have to specify the actual violations in detail and give specific dollar amounts and explain those amounts (eg. "mental anguish", "lawyer fees", whatever). You should also give a time frame for them to settle with you. For your DTPA claim to be valid you need to give the potential defendant the 60 days to cure and specify the actual violations, give a dollar amount for each one, and explain what the dollar amount is for.  That's why you can't mention the 60 day right to cure in your initial DV letter--because you probably don't have any violations under TFC392 yet, or, if you do, you probably want to see if they don't respond in the 30 days, etc. to rack up more.

Also send the 60 day right to cure letter to the surety bond issuer outlining the specifics of the claims!

Upon receiving your 60 day right to cure letter, the CA can either settle with you or ignore you. If they ignore you, you can file suit against them and their surety bond once the 60 days has passed. However, if the steps above are not followed (particularly Step #5), the defendant can ask for an automatic 60 day abatement of the case.

At least, this is the way I'm reading everything.

EDIT: Oh and I forgot to mention...in your communications (or even a lawsuit if you file one), never ever refer to yourself as a "consumer". Always refer to yourself as a "claimant". This is VERY important!! The DTPA by itself is for "consumers" and you as a debtor are not really a "consumer". However, for the "tie-in" purposes from other statutes such as TFC392, the DTPA specifically allows these tie-in's for "claimants" via those statutes. I believe a couple of courts erred due to confusion about the whole "consumer" thing.

[texasrocker]

On 2/19/2016 at 10:28 PM, BV80 said:

@acorn

This thread is actually for informational purposes only.   If you have more questions on your subject, it would be best to start your own thread.

Exactly.  I was not going to respond to this as we created this thread  to easily navigate through for information specific to Texas defendants but since  inaccurate information has again been posted it needs to be cleared up.  

 

Quote

41 minutes ago, qednick babbled:

I've been reading through this thread and I see a couple of things which I think may need clarifying for future readers when utilizing TFC392 for validation purposes:

First, I think you should mention TFC392 in your simple DV request. I say "simple" because I really don't think you need to go into too much detail about what the law says. It should be something like "I request strict validation per Texas Finance Code, Chapter 392". It is not incumbent upon you to tell them what the law says but I do think you need to mention TFC392 for your request to be valid under that law.

 

Guess what?  The Texas Finance Code has nothing to do with debt validation.  Debt validation is not even mentioned once in its entirety.  Someone misconstrued this where in actuality it is referring to inaccurate items being reported.  It mushroomed after being spread around various message boards as "gospel" by ignorant users who did not bother to actually read the document itself.    

[qednick]

13 minutes ago, texasrocker said:

Guess what?  The Texas Finance Code has nothing to do with debt validation.  Debt validation is not even mentioned once in its entirety.  Someone misconstrued this where in actuality it is referring to inaccurate items being reported.  It mushroomed after being spread around various message boards as "gospel" by ignorant users who did not bother to actually read the document itself.    

The CA only has to respond that they believe the records are accurate, inaccurate, or haven't had sufficient time to complete their investigation. In this respect, under TFC392 you get even less info than you would under an actual DV request under Federal law. I have mentioned this before here at least once. My use of the term "DV" in respect to the above post is because readers here understand that concept. If we're to split hairs, TFC392 is not strictly referring to "inaccurate items being reported" since some CA's may not be reporting at all and TFC392 mentions this fact. It is to simply challenge the accuracy of any debt someone says you owe.

[marianneliberte]

I am a Texas resident and am new to this subject; I'm at the start of trying to handle two credit card accounts that went into default after a stint of unemployment.

Having studied the Texas Thread and spent a moderate amount of time reading in the forums, I am now thoroughly confused. It appears that much of the information in the Texas Thread is inaccurate. TFC-392 does not specifically reference debt validation, but it does include a report to consumer section.

"392.201. REPORT TO CONSUMER.
Not later than the 45th day after the date of the request, a credit bureau shall provide to a person in its registry a copy of all information contained in its files concerning that person."

First, does TFC 392.201 reference what we call debt validation?

Second, what does "all information contained in its files" entail? What can a TX resident expect to receive from a law-abiding collector in response to this DV?

Third, is it accurate that TFC 392.201 mean that a TX resident can request debt validation at any point (not just within the Federal 30-day limit) and the collector is required to comply? There is disagreement on this throughout the forum and in the frequently referenced Texas Thread.

Thank you!

[texasrocker]

Case law for arbitration in Texas courtesy of @Brotherskeeper 

https://www.jw.com/wp-content/uploads/2018/02/Enforcing-and-Avoiding-Arbitration-Clauses-2018.pdf

[Frankringer]

Thanks for this useful info.

[Superdad3d]

I found  a similar arbitration document written by another attorney dated 2016.  Case law is similar but not identical.

ARBITRATION IN TEXAS: 

HISTORY AND ENFORCEABILITY

Arbitration-in-Texas-History-and-Enforceability.pdf