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NEW COLLECTION AGENCY AFTER DISMISSAL


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OK...here we go again.  One moth after I had a case dismissed by LRLO, Calvary is now reporting the account on my credit report.  This is the second time I had this account dismissed with LRLO.

 

I havent received any letters from Calvary.  I thought they had to make contact before reporting on Credit Report?  Any ideas?

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Whats also interesting about this, is that on my credit report it states that this account was opened on 7/1/2013.  I was still in the middle of a law suit with Equable Ascent and LRLO.  My case was dismissed in October.  How can they own the account if Im still in the middle of a law suit with another CA?

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OK...here we go again.  One moth after I had a case dismissed by LRLO, Calvary is now reporting the account on my credit report.  This is the second time I had this account dismissed with LRLO.

 

I havent received any letters from Calvary.  I thought they had to make contact before reporting on Credit Report?  Any ideas?

 

Having a lawsuit dismissed does not mean they can't report the debt on your CR.  Two entirely different issues.

 

Nope.  There is no requirement that they send a letter before reporting.  The downside is all they would have to show is proof OF a letter not that you received it.

 

Whats also interesting about this, is that on my credit report it states that this account was opened on 7/1/2013.  I was still in the middle of a law suit with Equable Ascent and LRLO.  My case was dismissed in October.  How can they own the account if Im still in the middle of a law suit with another CA?

 

That is the date the account was transferred to the new CA or JDB and probably why the case was dismissed since that plaintiff no longer had standing to sue you.

 

The date "opened" is the date THEY got the account.  It does not reset the SOL for reporting.  

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I would dispute it to the CRA'S, then if it comes back verified dispute it with cLvaray. They may choose to ignore you but I would do it anyway. If they verify with you, send them a copy of both dismissals and demand they remove their entry. They may choose not to, but at least they would know it has resulted in a dismissal twice before and may choose to cease their efforts. How close is the sol?

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Having a lawsuit dismissed does not mean they can't report the debt on your CR.  Two entirely different issues.

 

Nope.  There is no requirement that they send a letter before reporting.  The downside is all they would have to show is proof OF a letter not that you received it.

 

 

That is the date the account was transferred to the new CA or JDB and probably why the case was dismissed since that plaintiff no longer had standing to sue you.

 

The date "opened" is the date THEY got the account.  It does not reset the SOL for reporting.  

CCP 1785.26 states,

 

1785.26.  (a) As used in this section:

   (1) "Creditor" includes an agent or assignee of a creditor,

including an agent engaged in administering or collecting the

creditor's accounts.

   (2) "Negative credit information" means information concerning the

credit history of a consumer that, because of the consumer's past

delinquencies, late or irregular payment history, insolvency, or any

form of default, would reasonably be expected to affect adversely the

consumer's ability to obtain or maintain credit. "Negative credit

information" does not include information or credit histories arising

from a nonconsumer transaction or any other credit transaction

outside the scope of this title, nor does it include inquiries about

a consumer's credit record.

   (B) A creditor may submit negative credit information concerning a

consumer to a consumer credit reporting agency, only if the creditor

notifies the consumer affected. After providing this notice, a

creditor may submit additional information to a credit reporting

agency respecting the same transaction or extension of credit that

gave rise to the original negative credit information without

providing additional notice.

   © The notice shall be in writing and shall be delivered in

person or mailed first class, postage prepaid, to the party's last

known address, prior to or within 30 days after the transmission of

the negative credit information.

   (1) The notice may be part of any notice of default, billing

statement, or other correspondence, and may be included as preprinted

or standard form language in any of these from the creditor to the

consumer.

   (2) The notice is sufficient if it is in substantially the

following form:

   "As required by law, you are hereby notified that a negative

credit report reflecting on your credit record may be submitted to a

credit reporting agency if you fail to fulfill the terms of your

credit obligations."

   (3) The notice may, in the creditor's discretion, be more specific

than the form given in paragraph (2). The notice may include, but

shall not be limited to, particular information regarding an account

or information respecting the approximate date on which the creditor

submitted or intends to submit a negative credit report.

   (4) The giving of notice by a creditor as provided in this

subdivision does not create any requirement for the creditor to

actually submit negative credit information to a consumer credit

reporting agency. However, this section shall not be construed to

authorize the use of notice as provided in this subdivision in

violation of the federal Fair Debt Collection Practices Act (15

U.S.C., Sec. 1592 et seq.).

   (d) A creditor is liable for failure to provide notice pursuant to

this section, unless the creditor establishes, by a preponderance of

the evidence, that at the time of that failure to give notice the

creditor maintained reasonable procedures to comply with this

section.

 

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I would dispute it to the CRA'S, then if it comes back verified dispute it with cLvaray. They may choose to ignore you but I would do it anyway. If they verify with you, send them a copy of both dismissals and demand they remove their entry. They may choose not to, but at least they would know it has resulted in a dismissal twice before and may choose to cease their efforts. How close is the sol?

 

Im pretty sure SOL has expired

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A creditor may submit negative credit information concerning a

consumer to a consumer credit reporting agency, only if the creditor

notifies the consumer affected. After providing this notice, a

creditor may submit additional information to a credit reporting

agency respecting the same transaction or extension of credit that

gave rise to the original negative credit information without

providing additional notice.

   © The notice shall be in writing and shall be delivered in

person or mailed first class, postage prepaid, to the party's last

known address, prior to or within 30 days after the transmission of

the negative credit information.

 

 (d) A creditor is liable for failure to provide notice pursuant to

this section, unless the creditor establishes, by a preponderance of

the evidence, that at the time of that failure to give notice the

creditor maintained reasonable procedures to comply with this

section.

 

 

You are splitting hairs and missing the point.  ALL they have to produce for the CRAs or court is a COPY of the letter.  They do NOT have to prove you ever received it.  So you say they didn't give you notice and they print off one of their form letters with your information on it and a date 30 days prior to the CR date and it is done.  

 

The entire reason consumers mail letters CMRR is to have a paper trail that the letter was received.  NOTHING in the FCDPA requires a creditor to do that when contacting a consumer.  They only need a copy of a letter and I would not put it past any of the bottom feeders to simply report it and manufacture a letter if the consumer disputes.

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Whats also interesting about this, is that on my credit report it states that this account was opened on 7/1/2013.  I was still in the middle of a law suit with Equable Ascent and LRLO.  My case was dismissed in October.  How can they own the account if Im still in the middle of a law suit with another CA?

 

I would get legal advice to see if what Equalble and LRLO did was illegal. You may have an FDCPA Claim against them if they were still pursing you while not even owning the account.

 

What would have happened if you had given in and paid? My guess is that they would have kept the money and Calvary would still be after you. An experienced FDCPA Attorney will be able to tell you for sure and most offer a free first visit. If you have a claim its also possible for them to buy the debt back from Calvary and cancel it for good. I'm not sure about any case law on this, but I do know is possible.

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I think last payment was 8/2009.

 

The problem you have is that once the filed suit the first time that stayed the SOL until the time it was dismissed.  So if there was 1 year left on the SOL at the time they filed and it sat in the courts for 6 months until dismissal there is still one year left from the date of the dismissal on the SOL.  The same would happen with the second suit.  

 

You also don't say what state this is in or if a borrowing statute applies.  There are some states that have SOLs as long as 6 years and at least two states have 10 year SOLs.  You have to be absolutely certain of when the SOL is not "I think" to raise that as a defense.

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I would get legal advice to see if what Equalble and LRLO did was illegal. You may have an FDCPA Claim against them if they were still pursing you while not even owning the account.

 

What would have happened if you had given in and paid? My guess is that they would have kept the money and Calvary would still be after you. An experienced FDCPA Attorney will be able to tell you for sure and most offer a free first visit. If you have a claim its also possible for them to buy the debt back from Calvary and cancel it for good. I'm not sure about any case law on this, but I do know is possible.

 

 

i like this angle..im going to look into this

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The problem you have is that once the filed suit the first time that stayed the SOL until the time it was dismissed.  So if there was 1 year left on the SOL at the time they filed and it sat in the courts for 6 months until dismissal there is still one year left from the date of the dismissal on the SOL.  The same would happen with the second suit.  

 

You also don't say what state this is in or if a borrowing statute applies.  There are some states that have SOLs as long as 6 years and at least two states have 10 year SOLs.  You have to be absolutely certain of when the SOL is not "I think" to raise that as a defense.

 

 

Its in California and yes its a borrowing state.  My concern isnt so much if Calvary brings forth a lawsuit.  I am confident I can defend myself.. Ive been successful defeating 3 of these lawsuits.  Also SOL wasnt tolled.

 

My concern is that they claim to have the account on July 1 2013,  When I was still in the middle of a lawsuit with Equable for the same account.  I would like to think that Eqauble might be in violation.  "i think" will not be my defense.  So I thank you for your input but it doesnt really address my concerns

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Re whether Equable Assent and LRLO were violating the law for continuing to pursue the lawsuit after Equable transferred possession of the debt, it might constitute the basis for legal claim under the Rosenthal Act or FDCPA.  "Every action must be prosecuted in the name of the real party in interest, except as otherwise provided by statute" (California Code Civ. Procedure § 367). 

 

If LRLO and Equable were continuing to pursue that debt after Equable was no longer the "real party in interest" they might well be in violation of consumer protection statutes.  For example, if LRLO sent any lawsuit documents to you during the questionable period, this could be a violation of the §807 of FDCPA prohibition on making misrepresentations (15 USC § 1692e), because by "prosecuting" the lawsuit they are implying they have a legal right to do so. 

 

Even if they sent an ordinary non-litigation dunning letter during this period, it might be "unfair" under § 808 of the FDCPA (15 USC 1692f) because you might have incorrectly throught you were negotiating while under the threat of a judgment, when in fact they no longer had the right to prosecute the pending lawsuit. 

 

As to whether failing to dismiss the case simultaneously with transferring the debt (or earlier) is in itself a violation, I think you get into more of an grey area that might be difficult to win on in court.  The question would probably boil down to whether that was "unfair" and whether it was debt collection activity at all, since you are talking about the failure to act.  There is also the question of what defenses they might raise. No doubt, LRLO would argue it was a "bona fide error" because their client did not inform them of the change in ownership.  This is a potential defense against an FDCPA or Rosenthal claim.

 

If you were not damaged by the one-month lag, for example if this was a month during which nothing much happened in connection with the case, there are a lot of judges who might employ the unofficial "no harm no foul" line of reasoning, so that is always worth considering before jumping into another lawsuit.

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Whats also interesting about this, is that on my credit report it states that this account was opened on 7/1/2013.  I was still in the middle of a law suit with Equable Ascent and LRLO.  My case was dismissed in October.  How can they own the account if Im still in the middle of a law suit with another CA?

Because LRLO Equable Assent and Calvary all belong to the Sherman group, they have just passed it back and forth. They knew they would loose so they sent it to calvary....you need to bring up this issue at trial,,,,res judicata.

 

Was the dismissal without prejudice? if so they can refile. You need to file a motion to reopen the case and make a motion for with prejudice for the simple fact that the Sherman Group own around 12 collection companies and they can just keep passing it back and forth, and due to privity there needs to be and end to this case. They continue to file suits with lack of evidence so they pass it to the next in line until they hope they can get it right. They are causing you undue hardship because you have to keep fighting the same exact case time and again.

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Fraud,,,,,because they continued to prosecute the case when in fact they transferred it to another one of their companies, they had no legal claim after they transferred it. I would file a motion to reopen the case and ask the judge to make it with prejudice, because the Sherman group has so many different companies within their group they can keep passing it around and suing you over the same exact debt. RES JUDICATA,

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I just looked at the discovery that was sent to me by equable . It's dated 7/9/2013. Calvary shows to have this on July 1!!!

If Calvary obtained it on July 1, then the other party does not own the debt nor the rights to collect on it,,,this could be fraud on their part. You would have to prove they knew the debt was sold and continued to litigate the case. Even mere silence is considered fraud.

U.S. v. Prudden, 424 F.2d. 1021; U.S. v. Tweel, 550 F. 2d. 297, 299, 300 (1977): Silence can only be equated with fraud when there is a legal and moral duty to speak or when an inquiry left unanswered would be intentionally misleading.

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