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h8spleadingpaper

Can I Nail Midland on an FDCPA Violation?

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Because this is beyond SOL for your state and because this is Midland, I will tell you what I would do.  I would enjoy this one because there isn't anything they can do back to you without adding more FDCPA vioations because of the SOL status.

 

First, I would NOT send a C&D.  In fact, I want Midland sending letters and calling me as much as possible.  I would welcome them with open arms because I want to documents all the ways they will violate FDCPA and TCPA.

 

Second, I would send a simple dispute letter to the CRAs.  My letter would say something like this "I am writing to dispute an account appearing on my credit report as Midland Funding Account #xxxxx.  This account has been re-aged and is reporting an incorrect amount. Please remove."

 

I will wait to see what the results of this dispute are before deciding what to do next.

 

I would also want to see if I had an old credit report or statements from the OC to see what Citi was reporting as the balance at or around the time of charge off.  I would want to see if Midland is reporting a different amount on my CR.  If they are, there is potential for violations there too.

 

If you are up for suing, you may have the potential for getting a little bonus check out of the headache they have caused you on top of getting rid of them from your credit reports. 

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Hi, 'Cheese.

 

 

Thanks so much for your input.  I had a few questions, if you wouldn't mind?

 

 

First, I would NOT send a C&D.  In fact, I want Midland sending letters and calling me as much as possible.  I would welcome them with open arms because I want to documents all the ways they will violate FDCPA and TCPA.

 

If I haven't actually sent a C&D letter and Midland hasn't sued on an alleged debt that would be beyond the SOL, how are they committing FDCPA and TCPA violations by contacting me?

 

Second, I would send a simple dispute letter to the CRAs.  My letter would say something like this "I am writing to dispute an account appearing on my credit report as Midland Funding Account #xxxxx.  This account has been re-aged and is reporting an incorrect amount. Please remove."

 

Can you explain a little more about how their reporting is considered re-aging an alleged debt?  Also, if I state that they are reporting an incorrect amount, doesn't that make it look as though I'm admitting that the alleged debt is, in principal, valid? I know that if they (or another JDB) were to try to sue, I'd have a stellar defense in the form of the SOL.  But I still don't really like the idea of having something on record stating that I acknowledge the alleged account as being mine.

 

I would also want to see if I had an old credit report or statements from the OC to see what Citi was reporting as the balance at or around the time of charge off.  I would want to see if Midland is reporting a different amount on my CR.  If they are, there is potential for violations there too.

 

I pulled an old CR from when the OC was still reporting.  There is a discrepancy of about a dollar between the amount Citi listed and the amount Midland lists.  Seems like they could easily argue that they're just rounding the balance up to the nearest dollar amount, while Citi rounded down.

 

If you are up for suing, you may have the potential for getting a little bonus check out of the headache they have caused you on top of getting rid of them from your credit reports. 

 

I kind of like this idea and hope that my questions above don't seem argumentative.  Just want to make sure that I have things right.  Thanks!

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@h8spleadingpaper  The act of contacting you is not the violation.  I said collect the violations they WILL make.  It's Midland, so my opinion is that it is just a matter of time before they do something illegal.  You just have to know where and what to look for.  That is why I want them contacting me as much as possible.  The more they talk, the most chances they will violate.

 

Now, if you never gave Citi your cell number and MIdland calls your cell phone, then just by calling that WOULD be a TCPA violation.

 

Even if the difference is only $1, I would still include incorrect amount in my dispute to the CRA.  This is super technical and I would not sue based on this, as a judge will really look down on it, but for a dispute with the CRA, as far as I am concerned, the wrong amount is the wrong amount - even if it is a penny off.  I would do this just to attempt to get the TL deleted from my credit reports.

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Thanks again, 'Cheese.

 

I don't think I have any traction with the phone number, as I would have had my current number around the time that Citi alleged (in older CRs) that I had an account with them.  Any other examples of what Midland could do that would be violations?  

 

Good info about the amount listed on my CR as being off even by a penny.  I'll definitely give it some thought, though again, I'm a little nervous about having something on record that could be interpreted as an admission of the alleged debt (disputing only the amount).

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@h8spleadingpaper It doesn't matter if you admit the account is yours.  It's past SOL.  What are they gonna do?  Heck, you can call Midland up and say "yeah, i just wanted to let you guys know that this is definitely my account that you have but I don't want to pay it, ok?".  They can't sue you without violating federal law.

 

Aside from that, almost everyone including myself, has disputed accounts that were well within SOL and it doesn't mean you are admitting to any debt.  In fact, a dispute is the opposite of an admission.  I have had attorneys tell me to dispute an account that I was being currently SUED on just so we can shore up some evidence of their violations.  You dispute the amount, but so what if they say that means you admit the account is yours?  What good is owning an account if the balance is supposed to be $0?  I can say, sure this is my account, but it's paid and you are reporting the wrong amount.   I would not worry about disputing.  Disputes are good (to a point).

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Thanks, 'Cheese.  

 

What do you think of the idea of me first disputing the Midland tradeline as "do not recognize this account / not my debt / have no business relationship with Midland," followed by a "method of verification" letter to the CRAs (if the dispute comes back as "verified"), then a dispute over the amount as a last resort?

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Thanks, 'Cheese.  

 

What do you think of the idea of me first disputing the Midland tradeline as "do not recognize this account / not my debt / have no business relationship with Midland," followed by a "method of verification" letter to the CRAs (if the dispute comes back as "verified"), then a dispute over the amount as a last resort?

I don't see anything wrong with that tactic.

Had Midland previously sent you any collection letters?

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I don't see anything wrong with that tactic.

Had Midland previously sent you any collection letters?

Indeed they had.  Many, in fact.  But I never responded in any way.

 

Interestingly, what appears to maybe be an off-shoot of their law firm (Resurgence Financial, LLC?) appears to have pulled my credit report early in 2015 and Absolute appears to have done so just a few days ago as well.  Not sure what that might imply.

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Hey, folks.

 

Sorry to belabor this topic, but I did have another question.  I’m considering sending Midland a Cease & Desist letter, in an attempt to get them to drop things, since the alleged account is well past SOL in California.  My only concern is regarding the fact that I will likely be moving out of state in a few months.  If Midland were to decide to file a Complaint after receiving my C&D letter in California (an FDCPA violation, due to SOL), would I be able to have it dismissed quickly due to the SOL, or would I have to go through the whole process of filing an Answer and waiting for a court date to argue the case?  I ask because cases are currently being scheduled for a year or more out in my area and I don’t want to have to fly all the way back to California a year from now, just to fight a suit that never should have been filed in the first place.

 

Thanks for any insights you may be able to provide.  If I haven’t explained my question well enough, just let me know and I’ll try to clarify.

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If they file suit you will have to respond. Maybe with a MTD for wrong venue if you move. The court won't dismiss just because a defendant claims SOL. The court will allow due process for the plaintiff and litigation and trial could be a part of that.

Send them a refusal to pay letter and let them know it is past SOL and an FDCPA violation if they sue.

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@Anon Amos  Least sophisticated consumer, letter from collection agency, not including verbiage....FDPCA was my thought process.  That might cause them to run away and leave you alone.

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I think this debt was purchased before the new laws went into effect.

Thanks for the tip on the Refusal to Pay letter, letting them know it is past SOL, Anon.  Seems like a good idea.  I’ll have to see if I can find an exemplar letter on here somewhere...  

 

When you mention the new laws above, are you referring to what CommoSGT said about dunning letters?  I’d love to know more about this, as I’ve never received any such letters.  Midland claims they purchased this alleged debt in late summer of 2014.  Though the supposed OC is not currently reporting on my CR, I dug up an old one that indicated that the last alleged payment on the purported account was February 2011.  I’m hoping to get this thing moved into the dustbin of history before I move somehow.  Thanks.

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@h8spleadingpaper  Quoting @BV80 from another message here... 

 

I believe you're referring to "Fair Debt Buying".   It's CA Civil Code 1788.50.

 

Note that it only applies to "consumer debt sold or resold on or after January 1, 2014."  (1788.50(1)(d)

 

If the debt was sold by the OC after 1/01/2014 OR if  bought it after that date, I'd be contacting a CA consumer attorney.  Not only could Cach (Midland) be violating CA law, but there might also be a potential FDCPA violation.

 

Also, look at the CFPB's 9 Sept 2015 Order against Encore (Midland's Parent).  Looks to me like you may be able to shake them off pretty easily.

Edited by CommoSGT
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Oh wow, CommoSGT!  Do you happen to have the thread that the above quote was taken from?  I looked up CA Civil Code 1788.50, but it essentially just gives definitions for what a “Debt Buyer” is and what is considered “Charged Off Consumer Debt” from January 1st, 2014 on.  But I’m VERY interested in the idea of hitting Midland with violations, as it definitely looks like there have been some violations here.  Does it usually end up being worth the cost of using a CA consumer attorney (I’m guessing this was recommended because it’s too much for the average pro per to handle)?  

 

By the way, I looked up the CFPB entry on this and boy, is it a doozie.  It’s also interesting that it involved Portfolio, who I fought earlier this summer.  The link, which also provides some great info on the kinds of abusive practices JDBs routinely engage in can be found here, for those who are interested:  

 

http://www.consumerfinance.gov/newsroom/cfpb-takes-action-against-the-two-largest-debt-buyers-for-using-deceptive-tactics-to-collect-bad-debts/

 

If I’m reading it right, the CFPB ruling also bars Encore (and I’d assume Midland) from reselling this alleged debt.  If that is the case and I can chase them off by going after them for violations, this purported account may go bye-bye.

 

I’d love to find something like this on Absolute Resolutions V, LLC, since I’m going against them in court in a few weeks.

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@h8spleadingpaper

 

CA Civil Code 1788.52(d)(2) & (3):

 

(d) (1) A debt buyer shall include with its first written
communication with the debtor in no smaller than 12-point type, a
separate prominent notice that provides:

 

(2) When collecting on a time-barred debt where the debt is not
past the date for obsolescence provided for in Section 605(a) of the
federal Fair Credit Reporting Act (15 U.S.C. Sec. 1681c):

   "The law limits how long you can be sued on a debt. Because of the
age of your debt, we will not sue you for it. If you do not pay the
debt, [insert name of debt buyer] may [continue to] report it to the
credit reporting agencies as unpaid for as long as the law permits
this reporting."

   (3) When collecting on a time-barred debt where the debt is past
the date for obsolescence provided for in Section 605(a) of the
federal Fair Credit Reporting Act (15 U.S.C. Sec. 1681c):

   "The law limits how long you can be sued on a debt. Because of the
age of your debt, we will not sue you for it, and we will not report
it to any credit reporting agency."

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Thanks for the tip on the Refusal to Pay letter, letting them know it is past SOL, Anon.  Seems like a good idea.  I’ll have to see if I can find an exemplar letter on here somewhere...  

 

When you mention the new laws above, are you referring to what CommoSGT said about dunning letters?  I’d love to know more about this, as I’ve never received any such letters.  Midland claims they purchased this alleged debt in late summer of 2014.  Though the supposed OC is not currently reporting on my CR, I dug up an old one that indicated that the last alleged payment on the purported account was February 2011.  I’m hoping to get this thing moved into the dustbin of history before I move somehow.  Thanks.

 

Yes the laws BV80 and Commo are talking about here is the one I was referring to, and it looks like they did buy it in the time frame of this law. So, as mentioned, they should have sent you a dunning letter, and it would also be an FDCPA violation if they sue.

I think it's unlikely they will sue on this, especially if you send the refusal to pay letter and mention the laws and the and the SOL.  I guess  you already have a violation from them for not sending the dunning letter with the SOL language.

As you mentioned you could chase them off with the leverage you have with these violations. Maybe you can even get a lawyer to take it,

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@Anon Amos

 

The law doesn't say they have to send a dunning letter.  The law just applies if they do send one.

 

Yah I guess so. It doesn't say they have to send it.

However, it does say they have to have proof of assignment and debt etc, before filing a suit, and that the debtor can request this. There's actually quite a bit documentation they have to have.

H8 you could also request that they send you these docs (they are all listed in the fair debt buyer act). 

Also, what communication have they made? If they made an initial communication, then they do need to disclose certain language in a dunning letter.

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Hmmm...  I thought I had something here, but maybe not.  It appears as though the alleged account was supposedly sold to Midland by the purported OC in late August, 2014 (roughly a month before the SOL in California) and immediately began reporting on my CR.  So nothing I can burn them on there.  But then there’s this:

 

"FDCPA 809(a):

 

Validation of debts

 

a) Within five days after the initial communication with a consumer in connection with the collection of any debt, a debt collector shall, unless the following information is contained in the initial communication or the consumer has paid the debt, send the consumer a written notice containing --

 

(1) the amount of the debt;

(2) the name of the creditor to whom the debt is owed;

(3) a statement that unless the consumer, within thirty days after receipt of the notice, disputes the validity of the debt, or any portion thereof, the debt will be assumed to be valid by the debt collector;

(4) a statement that if the consumer notifies the debt collector in writing within the thirty-day period that the debt, or any portion thereof, is disputed, the debt collector will obtain verification of the debt or a copy of a judgment against the consumer and a copy of such verification or judgment will be mailed to the consumer by the debt collector; and

(5) a statement that, upon the consumer's written request within the thirty-day period, the debt collector will provide the consumer with the name and address of the original creditor, if different from the current creditor."

 

I assume that the above is referring to a “dunning letter.”  The first communication I received states only the alleged balance owed, the alleged OC, and a settlement offer.  There is no mention whatsoever of the 30 day period for disputing the debt (which I think would be a violation of FDCPA).  Further, the letter (dated 09/10/2014) states that Midland bought the alleged debt from Citibank on 08/29/14 (the same date they began reporting on my CR).  Now I’m no math genius, but this letter would seem to demonstrate, by their own admission, that they waited more than 5 days after first contact (the tradeline entry) before sending this letter.  So I had a few questions:

 

1.  Am I correct in thinking that the tradeline would be considered the first communication? Or would it be this letter?

 

2.  Regardless, a proper dunning letter was never sent after this correspondence either.  But how I could prove this, since I would imagine that they would just generate a fake one, along with a false POS and backdate both if sued?  

 

Thanks for any insights.  I’d love to hurt these guys, if it’s possible.

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