1692g - Collection Agency Notice Excluded Language Regarding Dispute Period, Verification

[ChristineB]

I’m trying to find out what rights or recourse a consumer has when a debt collector fails to comply with the section of the Fair Debt Collection Practices Act (FDCPA) that involves US Code Section 1692g.  This is the section that requires particular language in the initial collection notice to advise consumers of their right to dispute a debt within 30-days and receive verification of the debt.

I recently received a letter from a collection agency that fails to include any language involving my right to dispute the debt.  The letter does reflect the name of the original creditor and the amount they claim is owed.

According to the FDCPA, 1692g, a debt collector’s initial notice must include language to let a consumer know about their right to dispute the validity of the debt, or any portion thereof, within 30-days from the date the notice was received.  They must also include a statement indicating what steps they will take if the consumer disputes the debt within this time period.

The collection letter I received states they are withholding further collection efforts for ten-days to allow sufficient time for payment arrangements to be made.  If satisfactory arrangements are not made within this time, they said they will consider filing suit against me.  There is no mention of my right to dispute the debt whatsoever.  They are also asking me to call them to avoid additional expenses (attorneys fees, court costs, etc.)

I've found a lot of information about debt collectors' responsibilities under 1692g.  I just haven't been able to find anything about what can/will happen to a debt collector if they do not comply with this section.

Should I go ahead and respond with a traditional dispute letter with a demand for verification of the debt within the allotted 30-days?  I'm a little hesitant in case I do have some recourse and should play my hand a different way.

If anyone is familiar with this, I'd be grateful for your input.

Thank you!

[BV80]

@ChristineB

Are you sure that's the first letter you've received from that CA?

Have you looked into the identity of that CA?

[ChristineB]

Yes.  It's the first and only communication I've received from them.

Their  letter starts by saying they recently acquired the account from the original creditor.

i haven't looked up the debt collector yet  I'll do this tonight.

 

[BV80]

4 hours ago, ChristineB said:

Yes.  It's the first and only communication I've received from them.

Their  letter starts by saying they recently acquired the account from the original creditor.

i haven't looked up the debt collector yet  I'll do this tonight.

 

Yes, make sure the letter is from a "legitimate" debt collector.   I've never heard of a scam collector sending a letter, but you never know.

[ChristineB]

I did look them up and they are legit.

I know I have a balance remaining on the account in question.  However, it's far, far less than they are claiming. This is why I wanted to dispute the debt and ask them for verification.

Does the fact that the debt collector ignored FDCPA requirements help me?  Does it make any difference?

[BV80]

37 minutes ago, ChristineB said:

I did look them up and they are legit.

I know I have a balance remaining on the account in question.  However, it's far, far less than they are claiming. This is why I wanted to dispute the debt and ask them for verification.

Does the fact that the debt collector ignored FDCPA requirements help me?  Does it make any difference?

Is the debt still within the SOL?   Is it a personal debt?  How much is it for (round it out)?

Depending on the above, it could help you.  They could also be in violation of CA's Rosenthal Act.  If it's a junk debt buyer, they could be in violation of CA's  Fair Debt Buying Practices Act.

 

[ChristineB]

It is within the SOL.  The amount they're claiming is $6,500.

[BV80]

3 hours ago, ChristineB said:

It is within the SOL.  The amount they're claiming is $6,500.

Well, an award for a violation of the FDCPA up to $1000.   I'm not sure about the awards for violations of the Rosenthal and Debt Buyers Acts.  You need to see a CA consumer attorney.

Perhaps @calawyer can recommend one.

[calawyer]

Sure (and welcome).

 

Are you in Northern California or Southern?

[ChristineB]

Thank you, calawyer.

I'm actually in South Dakota now.   I did open the account when I lived in California.

One thing I know for certain is the fact  that I'm nowhere near the expiration of the SOL.  My last payment was made during 2016.

Right now I'm not sure if I should dispute the debt within 30-days to protect my rights.  Otherwise, the second option is to play dumb and pretend I had no idea I had to respond within 30-days to dispute the debt and request verification.  I don't know if the second option carries any benefits

[fisthardcheese]

I would suggest going to http://www.consumeradvocates.org/

I would search for an attorney that does FDCPA work in your area and call a few of them.  Explain what they sent you and the lack of notices.  You may find one who would be willing to sue the collector for this FDCPA violation with no up front cost to you.  It could work out well for you if you find an attorney who believes this is a violation worth pursuing.  I would venture to guess the outcome of a lawsuit would be wiping out the debt plus a few hundred dollars in your pocket.  That's just a guess, but you should start by calling several attorneys. Even if the first couple I call don't want to take the case, I keep calling as many as I can find. 

I would want to talk to these attorneys before it gets close to your 30 day deadline to respond.  I have worked with attorneys who wanted me to respond in certain ways, so I would not want to send a dispute letter to them until I speak with some attorneys. If you find one that takes the case, they will tell you if or how you may want to respond within the 30 day dispute period.

 

[Notalawyermi]

It certainly sounds like your debt was acquired by a debt buyer.  

Usually, they have lots debts in a portfolio, and not all the information. So definitely request debt validation.  There are alot of places to find letters to suit your needs.

Like debtorboards dot com not so much here.

A recent ruling called SPOKEO says you have to have damages to sue,  so look into that before even calling a consumer lawyer, they don't take a case unless its really clear cut,

can't afford to waste time on a potential loser.

Credit your credit report, the Fair Credit Reporting Act does no require damages.  So if they put it on your report, WITHOUT providing you notice, violation.

You must dispute with the credit reporting agency's first, free reports on line, www.annualcreditreport.com.  Do not use the online method to dispute, you give up certain rights

like to sue. So send letters, always worth the investment to send Certified Mail Return Receipt Requested, then no question they got. DEBT BUYERS are collection agency's in many instances per the law, so they are required to follow laws governing them in your state.

You should research your particular debt buyer, a google search will show alot on if they are constantly sued or been fined by the Consumer Financial Protection Bureau.

They appear to make the same mistakes over and over, as its more cost efficient to seattle a few law suits with knowledgeable consumers then go the extra lengths for full compliance, which works to your benefit.  Some even do the same crap after they were fined.

The violations on the FCRA are 1000 per occurrence or each error.  So if the amount is wrong, and other details, and you dispute them, and they verify the incorrect info.

Well it adds up fast. like this, three errors on three reports, failure to conduct a reasonable investigation, is 4 violations x 3 reports x 1K or 12,000.

More then your debt??  Be sure in any agreement you get them to remove all trade lines from your credit files.  Good Luck

[BV80]

@Notalawyermi

 Which statutes say that a notice is required before reporting to credit reporting agencies and that an online dispute takes away the right to sue? 

[ChristineB]

I chose to wait a few days beyond the thirty-day mark to send the debt collector a letter by certified mail.  My letter didn't include typical language for a dispute letter.  I just asked if they would please send me copies of documentation involving the loan and the amount they claim is owed.

If I want to use their failure to include the FDCPA-required language regarding the dispute/verification period to my advantage, I figured I shouldn't respond as though I already knew what my rights are.   I want to see if they will go so far as to deny me my right to dispute the account and request verification.

I'll let you know what happens.

 

 

 

[Clydesmom]

2 hours ago, Notalawyermi said:

Usually, they have lots debts in a portfolio, and not all the information. So definitely request debt validation.  There are alot of places to find letters to suit your needs.

Like debtorboards dot com not so much here.

ALL of those letters are RIDDLED with errors and should not be used.

2 hours ago, Notalawyermi said:

You must dispute with the credit reporting agency's first, free reports on line, www.annualcreditreport.com.  Do not use the online method to dispute, you give up certain rights like to sue.

NO!  Using the online dispute does not give up rights it just makes it harder to prove you disputed as there is no record of it.

2 hours ago, Notalawyermi said:

The violations on the FCRA are 1000 per occurrence or each error.  So if the amount is wrong, and other details, and you dispute them, and they verify the incorrect info.

Well it adds up fast. like this, three errors on three reports, failure to conduct a reasonable investigation, is 4 violations x 3 reports x 1K or 12,000.

NO!  The FDCPA has a POSSIBLE fine of up to $1000 per violation however when the violations are all related to one account they are not added together monetarily they are grouped as one violation.  The FCRA requires that you have actual damages that have a monetary amount i.e. you were charged a higher interest rate for 2 years or denied credit based on an wrong information on your credit report that the creditor KNEW was false.  Bona fide error still can be in play.

2 hours ago, Notalawyermi said:

So if they put it on your report, WITHOUT providing you notice, violation.

No it isn't a violation.  You really should be more versed in what these laws actually say before you give advice.  NO state or federal law requires they give notice to the consumer before posting the trade line to a credit report.

 

 

[Clydesmom]

12 minutes ago, ChristineB said:

I chose to wait a few days beyond the thirty-day mark to send the debt collector a letter by certified mail. 

BIG mistake.  You gave up quite a few rights by doing this and may have compromised any case you have against them by doing this.  ALWAYS stay within the requirements of the law(s) for consumers.

14 minutes ago, ChristineB said:

I want to see if they will go so far as to deny me my right to dispute the account and request verification.

Unfortunately by waiting beyond the 30 days to dispute it they now do not have to respond to you or cease collection efforts until they do.  The FDCPA clearly states that if you dispute within 30 days of the initial dunning notice they must cease collection efforts until they do validate.  By waiting beyond the 30 days that no longer applies.  Unless you are in one of the handful of states that gives their citizens additional rights to dispute at any time (like CA or TX) then they are free to ignore your DV letter and continue collection efforts without risk of further violation on that part of the FDCPA.

[ChristineB]

The debt collector didn't include the required FDCPA language in their notice to advise me of my right to dispute the debt within 30-days and receive verification of the debt.   This is why I sent the letter a little late.  I still gave myself a little wiggle room if I need to claim I responded to their notice within 30-days from the date I received it.

 

 

 

 

[fisthardcheese]

1 hour ago, Clydesmom said:

The FCRA requires that you have actual damages that have a monetary amount i.e. you were charged a higher interest rate for 2 years or denied credit based on an wrong information on your credit report that the creditor KNEW was false.

Couldn't be more inaccurate.

 

1 hour ago, ChristineB said:

The debt collector didn't include the required FDCPA language in their notice to advise me of my right to dispute the debt within 30-days and receive verification of the debt.

This is already a violation whether you respond or not.  Either way, your rights don't change based on if they notify you or not, therefore not exercising your rights properly has no bearing on anything.

[Clydesmom]

3 hours ago, ChristineB said:

The debt collector didn't include the required FDCPA language in their notice to advise me of my right to dispute the debt within 30-days and receive verification of the debt.

Their not including that statement does not give you longer than the 30 days provided for by FDCPA law.   Regardless of that statement being there or not you only get 30 days to DV them.

[Notalawyermi]

 

         Equifax Terms of Use for on line disputes.  Actually no. 4 from the website.

 

1. AGREEMENT TO RESOLVE ALL DISPUTES BY BINDING INDIVIDUAL ARBITRATION. PLEASE READ THIS ENTIRE SECTION CAREFULLY BECAUSE IT AFFECTS YOUR LEGAL RIGHTS BY REQUIRING ARBITRATION OF DISPUTES (EXCEPT AS SET FORTH BELOW) AND A WAIVER OF THE ABILITY TO BRING OR PARTICIPATE IN A CLASS ACTION, CLASS ARBITRATION, OR OTHER REPRESENTATIVE ACTION. ARBITRATION PROVIDES A QUICK AND COST EFFECTIVE MECHANISM FOR RESOLVING DISPUTES, BUT YOU SHOULD BE AWARE THAT IT ALSO LIMITS YOUR RIGHTS TO DISCOVERY AND APPEAL.
   
   Binding Arbitration. Any Claim (as defined below) raised by either You or Equifax against the other shall be subject to mandatory, binding arbitration. As used in this arbitration provision, the term "Claim" or "Claims" means any claim, dispute, or controversy between You and Us relating in any way to Your relationship with Equifax, including but not limited to any Claim arising from or relating to this Agreement, the Products or this Site, or any information You receive from Us, whether based on contract, statute, common law, regulation, ordinance, tort, or any other legal or equitable theory, regardless of what remedy is sought. This arbitration obligation extends to claims You may assert against Equifax’s parents, subsidiaries, affiliates, successors, assigns, employees, and agents. The term "Claim" shall have the broadest possible construction, except that it does not include any claim, dispute or controversy in which You contend that EIS violated the FCRA.  Any claim, dispute, or controversy in which You contend that EIS violated the FCRA is not subject to this provision and shall not be resolved by arbitration.
   
   No Class or Representative Arbitrations. The arbitration will be conducted as an individual arbitration. Neither You nor We consent or agree to any arbitration on a class or representative basis, and the arbitrator shall have no authority to proceed with arbitration on a class or representative basis. No arbitration will be consolidated with any other arbitration proceeding without the consent of all parties. This arbitration provision applies to and includes any Claims made and remedies sought as part of any class action, private attorney general action, or other representative action. By consenting to submit Your Claims to arbitration, You will be forfeiting Your right to bring or participate in any class action (whether as a named plaintiff or a class member) or to share in any class action awards, including class claims where a class has not yet been certified, even if the facts and circumstances upon which the Claims are based already occurred or existed.
   
   Right to Opt-Out of this Arbitration Provision. IF YOU DO NOT WISH TO BE BOUND BY THE ARBITRATION PROVISION, YOU HAVE THE RIGHT TO EXCLUDE YOURSELF. Opting out of the arbitration provision will have no adverse effect on your relationship with Equifax or the delivery of Products to You by Equifax. In order to exclude Yourself from the arbitration provision, You must notify Equifax in writing within 30 days of the date that You first accept this Agreement on the Site (for Products purchased from Equifax on the Site). If You purchased Your Product other than on the Site, and thus this Agreement was mailed, emailed or otherwise delivered to You, then You must notify Equifax in writing within 30 days of the date that You receive this Agreement. To be effective, timely written notice of opt out must be delivered to Equifax Consumer Services LLC, Attn.: Arbitration Opt-Out, P.O. Box 105496, Atlanta, GA 30348, and must include Your name, address, and Equifax User ID, as well as a clear statement that You do not wish to resolve disputes with Equifax through arbitration. If You have previously notified Equifax that You wish to opt-out of arbitration, You are not required to do so again. Any opt-out request postmarked after the opt-out deadline or that fails to satisfy the other requirements above will not be valid, and You must pursue your Claim in arbitration or small claims court.
   
   Initiation of Arbitration. Arbitration shall be administered by the American Arbitration Association ("AAA") under its Consumer Arbitration Rules in effect at the time the arbitration is filed unless any portion of those rules is inconsistent with any specific terms of this arbitration provision or this Agreement, in which case the terms of this arbitration provision and this Agreement will govern. The AAA’s rules may be obtained at www.adr.org, or by calling the AAA at 1-88-778-7879. To commence an arbitration, you must file a copy of your written arbitration demand with the AAA (either online at www.adr.org or by mail addressed to AAA, Case Filing Services, 1101 Laurel Oak Road, Suite 100, Voorhees, NJ 08043). The arbitration shall be before a single arbitrator. The arbitrator will have the power to award a party any relief or remedy that the party could have received in court in accordance with the law or laws that apply to the dispute, subject to any limitations of liability or damages that exist under this Agreement. This agreement to arbitrate involves interstate commerce and is made pursuant to the Federal Arbitration Act, 9 U.S.C. sections 1-16 (the "FAA"). Any claim or dispute as to the enforceability of this arbitration provision's restrictions on your right to participate in or pursue a class action or class wide arbitration shall be decided by a court and not an arbitrator.
   
   Payment of Arbitration Fees and Costs. In the event You file a Claim in arbitration in accordance with these provisions, We will advance all arbitration filing fees if You ask that We do so, in writing, prior to the commencement of the arbitration. The payment of any such fees will be made directly by Us to the AAA. Such requests should be mailed to Equifax Consumer Services LLC, Attn: Request for Payment of Arbitration Filing Fees, P.O. Box 105496, Atlanta, GA 30348. We will also pay all arbitrator fees. If Equifax prevails in the arbitration, then the arbitrator shall have the authority to require that You reimburse Equifax for the filing fees advanced, but only to the extent such fees would be recoverable by Us in a judicial action. You are responsible for all other fees and costs You incur in the arbitration, including attorney's fees and expert witness fees, except that the arbitrator shall have the authority to award attorney's fees and costs to the prevailing party; (i) based on applicable law; (ii) under the rules of the arbitration administrator; or (iii) if the arbitrator rules in Your favor and the arbitrator expressly determines that there is a good reason for requiring Us to pay those fees and costs.
   
   Continuation. This arbitration provision shall survive: (i) termination or changes in this Agreement or the relationship between You and Us, including but not limited to the purchase of a new or additional Product by You; and (ii) termination or changes in Our providing any Product(s) to You.
   
   Small claims court. Notwithstanding anything in this Section, either You or Equifax may bring an individual action in small claims court as long as (i) the claim is not aggregated with the claim of any other person, and (ii) the small claims court is located in the same county and state as Your address that You most recently provided to Equifax according to Equifax’s records in connection with this Agreement.

[Notalawyermi]

Duties of Financial Institutions When Reporting Negative Information Financial institutions that furnish information to “nationwide” consumer reporting agencies, as defined in Section 603(p), must notify consumers in writing if they may furnish or have furnished negative information to a CRA. Section 623(a)(7). The Consumer Financial Protection Bureau has prescribed model disclosures, 12 CFR Part 1022, App. B.

[Notalawyermi]

On 2/28/2017 at 3:38 PM, Clydesmom said:

ALL of those letters are RIDDLED with errors and should not be used.

NO!  Using the online dispute does not give up rights it just makes it harder to prove you disputed as there is no record of it.

NO!  The FDCPA has a POSSIBLE fine of up to $1000 per violation however when the violations are all related to one account they are not added together monetarily they are grouped as one violation.  The FCRA requires that you have actual damages that have a monetary amount i.e. you were charged a higher interest rate for 2 years or denied credit based on an wrong information on your credit report that the creditor KNEW was false.  Bona fide error still can be in play.

No it isn't a violation.  You really should be more versed in what these laws actually say before you give advice.  NO state or federal law requires they give notice to the consumer before posting the trade line to a credit report.

 

 

As you can see from above the on line dispute limits you to binding arbitration or small claims court, unless you opt out.

and for Financial Institutions they must provide notice.

I accept your apology..

 

 

[Clydesmom]

1 hour ago, Notalawyermi said:

I accept your apology..

 I never offered one and you can pass out holding your breath waiting.

[BV80]

4 hours ago, Notalawyermi said:

Duties of Financial Institutions When Reporting Negative Information Financial institutions that furnish information to “nationwide” consumer reporting agencies, as defined in Section 603(p), must notify consumers in writing if they may furnish or have furnished negative information to a CRA. Section 623(a)(7). The Consumer Financial Protection Bureau has prescribed model disclosures, 12 CFR Part 1022, App. B.

A collection agency or debt buyer is not a "financial institution" as defined by the FCRA.

The section you cited 623(a)(7) is also1681s-2(a)(7) of the U.S. Code.   There is no private right of action under subsection s-2(a).

15 U.S. Code 1681s-2(c):

(c) Limitation on liability Except as provided in section 1681s(c)(1)(B) of this title, sections 1681n and 1681o of this title do not apply to any violation of—

(1) subsection (a) of this section, including any regulations issued thereunder;

There can be no doubt that the duties imposed by 15 U.S.C. § 1681s-2(a) can only be enforced by government agencies and officials. See 15 U.S.C. § 1681s-2(c)(1)-(d) (such violations "shall be enforced exclusively as provided under section 1681s of this title by the Federal agencies and officials and the State officials identified in section 1681s of this title"). Therefore, no private right of action exists under subsection (a). Yaldu v. Bank of Am. Corp., 700 F. Supp. 2d 832, 842 (E.D. Mich. 2010).

 

3 hours ago, Notalawyermi said:

As you can see from above the on line dispute limits you to binding arbitration or small claims court, unless you opt out.

and for Financial Institutions they must provide notice.

I accept your apology..

 

 

The Equifax arbitration provision that you cited only applies to Equifax and does not apply to businesses that furnish information to Equifax.   It would not apply to creditors, collection agencies, or JDBs.

From that arbitration provision (under the heading "Binding Arbitration")

The term "Claim" shall have the broadest possible construction, except that it does not include any claim, dispute or controversy in which You contend that EIS violated the FCRA.  Any claim, dispute, or controversy in which You contend that EIS violated the FCRA is not subject to this provision and shall not be resolved by arbitration.

FCRA claims against Equifax are not subject to arbitration.

[kraftykrab]

16 hours ago, Notalawyermi said:

As you can see from above the on line dispute limits you to binding arbitration or small claims court, unless you opt out.

and for Financial Institutions they must provide notice.

I accept your apology..

 

 

Another problem with this thought process....when you first take out the credit card, or open the account, there are disclosures made.  In other words, it's already been stated to you in probably every single case that the creditor may report on your credit reports.  When a debt buyer buys the account, they "step into the shoes" of that original creditor, so they are already covered and you were already informed that this account may be reported to your credit reports.  So, even if the debt buyer were classified as a financial institution for the purpose of that law, the consumer was already notified in advance and there is no requirement for any further notification.  Stepping into the OC's shoes means that the new creditor has all the same rights, is governed by the same contract and agreement, and is covered by the same disclosures as the OC was.  You cannot take one statute of law and apply it as though it's in a vacuum, there are lots of other laws that all fit together and work together, and you are not accounting for that.