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midland as original lender?


samsun
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ive just looked at my fico report, where in which a collection held by midland is being reporrted for EQ original lender : midland

 

isnt this illegal

 

 

midland purchased this from another jdb last year and even has the date of major deliq as last year where as the CO was from 2008....

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Midland will point the finger at the CRA claiming it is their error and the CRA(s) will blame Midland.

This is why you name both as co-defendants in the lawsuit.

 

In the end the court would claim no harm no foul and the trade line will update to an accurate negative entry.

The court ruling 'no harm no foul' would be in illegitimate ruling.  FCRA is strict liability.  A data furnisher doesn't even have to intend to report incorrect info.  If they do it intentionally or unintentionally, it's a violation just the same.

 

The court could issue judgment award of $0, but if a plaintiff proves a violation and a defendant cannot establish bona fide error, statutorily the court has no choice but to find for the plaintiff.

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@Harry Seaward

 

No.  CRAs are not always held liable for negligence if they can show that they followed reasonable procedures to ensure accuracy.  Also, one can only obtain actual damages for negligence.  There's no statutory award for negligence.

 

The FDCPA, on the other hand, provides for a statutory award even if a violation was unintentional.

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@BV80

@Harry Seaward
 
No.  CRAs are not always held liable for negligence if they can show that they followed reasonable procedures to ensure accuracy.  Also, one can only obtain actual damages for negligence.  There's no statutory award for negligence.
 
The FDCPA, on the other hand, provides for a statutory award even if a violation was unintentional.


The FDCPA allows for "bona fide error".  Call me thick, but I'm not seeing the difference.

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@Harry Seaward

 

A debt collector may not be held liable in any action brought under this subchapter if the debt collector shows by a preponderance of evidence that the violation was not intentional and resulted from a bona fide error notwithstanding the maintenance of procedures reasonably adapted to avoid any such error. Clark v. Capital Credit & Collection Serv., Inc., 460 F.3d 1162, 1178 (9th Cir. 2006).

Because the Act imposes strict liability, a consumer need not show intentional conduct by the debt collector to be entitled to damages. However, a debt collector may escape liability if it can demonstrate by a preponderance of the evidence that its "violation [of the Act] was not intentional and resulted from a bona fide error notwithstanding the maintenance of procedures reasonably adapted to avoid any such error." § 1692k©. Russell v. Equifax A.R.S., 74 F.3d 30, 33-34 (2d Cir. 1996).

 Accordingly, and as we explained in the prior appeal of this case, an FDCPA defendant seeking the protection of the bona fide error defense carries the burden of proving that the violation was 1) unintentional, 2) a bona fide error, and 3) made despite the maintenance of procedures reasonably adapted to avoid the error. Johnson v. Riddle, 443 F.3d 723, 727-28 (10th Cir. 2006).

 

It's about intent.  To be awarded statutory damages under the FCRA, the consumer has the burden of proof of showing the CRA or furnisher willfully violated the ACt.   A CRA or furnisher only has to show that they have reasonable measures to avoid mistakes.

 

However, to be awarded statutory damages under the FDCPA, a consumer does not have to prove the intent of the debt collector.  In order to claim a bona fide error, a debt collector has to prove by a preponderance of the evidence that DESPITE reasonable measures, a violation was unintentional.  The burden of proving bona fide error is on the debt collector.

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@Harry Seaward

 

No problem!  :-)  Believe me, I had to do some reading to understand it because it is confusing. 

 

Just a note, while the statutory damages do distinguish in the 2 Acts, the "intent" is the actual difference.   You DON'T have to prove intent to receive a statutory award under the FDCPA.  You DO have to prove intent to receive a statutory award under the FCRA.

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