JCPR2

Attempting Pay For Delete

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I had a Victoria's Secret account that went delinquent and was sent to their Recovery Team for World Financial Network Bank. In 07/2012 I received a letter stating they are willing to accept 40% of my balance in order to cease further collection and will notify CRA that I had settled my account. I accepted this settlement and paid $263. In 09/2012, my CR showed my payment status was "Legally paid in full for less than the full balance" although it was still showing that I owed (I'm assuming the balance after the 40% was applied). It is now 07/2013 and my CR is showing that my account is beyond 120 days past due and showing a Failure to Pay. I contacted World Financial Network Bank asking if I settled my account, why is it still showing that I owed. The representative stated that even though I paid the settled amount, because I did not technically pay the debt in "full" it will still show on my CR as debt owed. I kindly requested to speak to his supervisor. She was very nice and empathetic although denied my request for Payment for Deletion. She said my only two options are to wait the 7-10 years until this falls off my CR or to pay the balance of $394 in order to have my status changed to "Paid in Full." She stated they cannot do a Pay for Delete as it is illegal and they can verify the debt is mine.

 

What should I do next? Should I send a letter requesting the PDF anyway? Or Is it best to just pay the balance and hope my credit score improves? PLEASE HELP!!

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@JCPR2 - What exactly did the letter say?  This totally sucks.  At least they are not bothering you (I know, small consolation).  

 

I would definitely dispute the account with the credit bureaus.  And pay for deletes are not illegal - the collection agency has full control over what they report.  

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Thanks, @admin. The Settlement Letter states:

 

"I am willing to accept 40% towards your Victoria's Secret credit card account balance in full of $657.53. This means that we will accept $263.01 in order to cease further collection action that will be taken against you. Once you accept and fulfill this offer, I will notify the appropriate national credit reporting agencies that you have settled this account."

 

I contacted them immediately and made the payment over the phone with my debit card. There was no activity from them for two whole months on my CR until 09/2012. Do you think I should try writing a PFD letter prior to disputing with the Credit Bureaus? Is that true what the representative stated that because I settled and did not pay the entire balance it will show in my CR that I still owe? That doesn't make much sense to me... then why settle? What should I do? Every time I call to get answers or to try to settle this account I am shot down stating I can either pay the full balance for nothing better than a Paid in Full status or wait the 10 years.

 

This is really the only big blemish on my CR but it's big enough to prevent me from getting a home loan. :(

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Hmmm, that letter is not good.  Nothing about payment constitues settlement in full or removing from your credit report.  

 

The only thing you could possibly do is send them an intent to sue letter for violations of the FCRA (reporting you when they don't have documentation of the debt).  Most collection agencies don't have any documentation proving that they are even able to collect the debt.  They have no chain of custody stating they were sold or assigned the debt.   Just because you paid on an account doesn't prove that you owe the debt.  

 

I would dispute with the credit bureaus - it could come off (it's unlikely, but worth a try).   That is to get the amount completely gone. 

 

If you just want it paid in full and the mortgage company is ok with that, I might just eat the money in order to get the loan.  

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Thank you so much for your help, @admin. Prior to sending them an Intent to Sue Letter, should I send a Debt Validation just in case? It seems World Financial Network Bank is the original creditor here. Their name is on my original Victoria's Secret statements and the Collection letters as well. I'm a little confused by this set up. With that said, is sending a PFD letter still a viable option?

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@JCPR2 - You can send them a debt validation letter, but they don't have to respond to you in any way.  It's past the initial 30 days of them sending their first letter to you.  If you send them an intent to sue letter, they may also ignore it.  It would be nice to know what they have on you (documentation wise).  That would be the only reason I can see to send a DV letter. 

 

You can try pay for delete and see what they say, but honestly, I'm not sure they would go for it.  

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Why would you send them an Intent to Sue? What have they done wrong? If you wanted to do a PFD, you probably should have worked that into the deal prior to paying them, but since you were dealing with the OC it seems, they probably won't do it under any circumstance.

 

I started a pretty good conversation with the dark side on insidearm and am learning a lot about PFD. No one will admit that they do it, since apparently it can violate the terms of their agreements with the CRAs, but it seems most will, or at least not respond to a dispute if you agree to pay them. But that is on their word. I wouldn't pay a CA premised on an oral promise they won't verify with the CRA.

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Why are going to send them an Intent to Sue? What have they done wrong? If you wanted to do a PFD, you probably should have worked that into the deal prior to paying them, but since you were dealing with the OC it seems, they probably won't do it under any circumstance.

@gwheelock915 - If they don't have the documentation they shouldn't be reporting on your credit report.  If you actually take them to court to see what they had as far as documentation - you should be able to force them off of your credit report.  If someone's reporting on your credit report it must be accurate per the FCRA.  You can be extreme and take them to court to prove it.

 

How do you know a reporting is accurate?    Yes, it's extreme, but that's the basis of the suit - not accurately reporting.  It's there, the violation for most of these clowns. What kind of documentation do they have?  None. 

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@gweheelock915 

 

Pretty darn good. i m irritating the hell outta Midland and filing complaints everywhere with documentation!!!!.

the most dreaded thing for MIDLAND is " chain of custody " & "documentation" . whether they become factoring accounts or collection agency.

 

Also, never forget filing complaints where it matters? the FTC/CFPB/FedReserve depending on OC or CA.

 

I got them to "no status" first and then continuously writing letters CMRRR for them either sue me & its over with or u removing credit lines, just on basis of timely DV.

 

Isn't that what everyone wants anyways ? getting there!!! will let you know if & when off? or being sued?

 

I am a big time fan of filing complaints with CFPB? i find it works best!!!!!! diligently pursuing CA's  or OC's.

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@energizer I like the CFPB too. The process is good there. I really don't think I can mess with Asset because it was sent to their attorneys last September. A law firm sent them a refusal to pay on my behalf and demanded full validation. Not a peep from them in almost a year. I'm kind of curious if I can politely ask them to poop or get off the pot.

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@gwheelock915 - pretty good if you can get them all the way into court.  You can't just report a collection to the credit bureaus for the hell of it.  You have to have some kind of proof.  And it's $1000 per listing per bureau.  

 

TRW successfully sued for not removing inaccurate information:

 

http://www.creditinfocenter.com/legal/Stevenson_Vs_TRW.shtml

 

Fleet Bank successfully sued for not removing inaccurate information:

 

http://www.creditinfocenter.com/legal/Richardson_Vs_Fleet_Equifax_TransUnion_Experian_Providian.shtml

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gwheellock15

 

i have had Asset Acceptance filing suit on me but never properly delivered to me. stayed on file for a year!!!!!! . i would be aggressive with ASSET if only i knew i can win!!!!!!

 

meaning i have them on FDCPA/Violations?

 

Finally, the lawsuit was never pursued and i was never served. its been 3 years now!!!!

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here is an angle we have used in this situation.

 

FCRA 623 section(a) (1) (A) Reporting information with actual knowledge of errors. A person shall not furnish any information relating to a consumer to any consumer reporting agency if the person knows or has reasonable cause to believe that the information is inaccurate.

 

When a portfolio of bad debt is sold it includes a disclaimer to the purchaser. The disclaimer states that the seller cannot guarantee the accuracy of the accounts being sold. So they have a disclaimer that gives them REASONABLE CAUSE to believe that the information they have about your alleged account may not be accurate so they go ahead and report it any how. 

 

623 (a) (1) b Reporting information after notice and confirmation of errors. A person shall not furnish information relating to a consumer to any consumer reporting agency if

(i) the person has been notified by the consumer, at the address specified by the person for such notices, that specific information is inaccurate; and

(ii) the information is, in fact, inaccurate.

 

 

Now the other issue is that they are reporting a debt that they cannot prove that they own. So if they cannot prove ownership they in no way have the right to report something they do not own.

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gwheellock15

 

i have had Asset Acceptance filing suit on me but never properly delivered to me. stayed on file for a year!!!!!! . i would be aggressive with ASSET if only i knew i can win!!!!!!

 

meaning i have them on FDCPA/Violations?

 

Finally, the lawsuit was never pursued and i was never served. its been 3 years now!!!!

 

What you need to do is file a motion to dismiss for want(lack) of prosecution.

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Now the other issue is that they are reporting a debt that they cannot prove that they own. So if they cannot prove ownership they in no way have the right to report something they do not own.

@BTO429 - Exactly.  

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Le

 

Thanks, @admin. The Settlement Letter states:

 

"I am willing to accept 40% towards your Victoria's Secret credit card account balance in full of $657.53. This means that we will accept $263.01 in order to cease further collection action that will be taken against you. Once you accept and fulfill this offer, I will notify the appropriate national credit reporting agencies that you have settled this account."

 

I contacted them immediately and made the payment over the phone with my debit card. There was no activity from them for two whole months on my CR until 09/2012. Do you think I should try writing a PFD letter prior to disputing with the Credit Bureaus? Is that true what the representative stated that because I settled and did not pay the entire balance it will show in my CR that I still owe? That doesn't make much sense to me... then why settle? What should I do? Every time I call to get answers or to try to settle this account I am shot down stating I can either pay the full balance for nothing better than a Paid in Full status or wait the 10 years.

 

This is really the only big blemish on my CR but it's big enough to prevent me from getting a home loan. :(

Lets examine the letter and what the court looks at. In an fdcpa suit a court will look at what the letter states and what it may lead "the least sophisticated consumer to believe. By the statement saying "balance in full" this letter could very well lead a least sophisticated consumer to believe the debt is settled in full. I would say you have a very good chance with this letter in court.

 

A letter like this is what is considered a quasi (constructive) contract. A contract does not really exist with this letter because no one signed it. A quasi contract is a fictional contract created by courts, where an actual contract does not exists. If is created for equitable purposes not contractual purposes. it is a legal substitute formed to impose equity between two parties. It is used when a court finds it appropriate to create an obligation upon a non-contracting party to avoid injustice and to ensure fairness.

 

Quasi-contracts are defined as "the lawful and purely voluntary acts of a man, from which there results any obligation whatever to a third person. With quasi-contracts no consent is required, and the obligation arises from the law or natural equity, and is derived on the facts of the case.

 

The defendant's liability under quasi-contract is equal to the value of the benefit conferred by the plaintiff. The value of this liability is usually the fair market value of the benefit and not necessarily the subjective value that the defendant enjoys. Your fair market value is what the letter states "payment in full." Because that is what you should have enjoyed from what the letter states.

A fair market value is usually determined by what is known as Quantum Meruit or "for as much as is deserved. The quantum meruit can sometimes be what was implied by a persons actions or what a person stated, either verbally or written.

 

Since quasi contracts are also known as constructive contracts the constructive part means "that which is interpreted to be." There are all sorts of constructive theories be it criminal or civil. But what you are looking at is a constructive fraud.

 

Constructive fraud is a legal fiction that is used in law  to describe a situation where a person  gained an unfair advantage over another by deceitful, or unfair, methods. In a court of law you need not prove intent, like you would if actual fraud was committed.

 

The elements to prove in constructive fraud are that a duty was owing by the party to be charged to the complaining party due to their relationship, a violation of that duty by the making of deceptive material misrepresentations of past or existing facts exists, the was a reliance thereon by the complaining party, that there is injury to the complaining party as a proximate result thereof; and that an advantage was gained by the party to be charged and it was at the expense of the complaining party.

 

Now if you convince the court that constructive fraud did exist, a defendant can be liable to the plaintiff if there was a false misrepresentation in reference to a material fact in which a plaintiff relied upon that representation.

 

I hope you understand how you take that letter and turn it into a quasi contract and constructive fraud.

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