Firing back with an adhesion contract

[cjtx2]

9 minutes ago, BV80 said:

Also, the reason the information is being reported is because you breached the contract with the creditor.  You're merely trying to avoid the negative ramifications of your action.

There are legal ramifications to a breach of contract, and then there are vindictive actions from sleazy furnishers exploiting loopholes to pressure you to settle.

I am merely trying to enforce my rights. No more, no less. Negative ramifications, fine, as long as they are legal.

1 minute ago, BV80 said:

Finally, I'm not sure any court would agree that the "contract" you suggest is valid.  Contracts contain mutual obligations.  What is obligation on your part?

Contracts must have an offer and consideration to indicate acceptance of the terms. 

In this case my offer is allowing them to commit defamation, as long as they agree to pay for it. 

In an adhesion contract, consideration is not required as in regular contracts, but acceptance of the terms is indicated through other actions, which make the contract enforceable.

In this case, they can stop reporting new activity to reject the terms. Even though it is not specified, they could also respond directly to me denying acceptance. As long as they can show they took effective steps to reject the terms. But simply engaging in behavior subject to the contract without any form of rejection of the terms indicates agreement.

It's exactly like arbitration terms or any other change of terms in a credit card. Most of the times you do not have to call or mail to accept the new terms. You indicate acceptance by continuing to use the card. Otherwise, you have to call, write, etc. to let them know the new terms are not acceptable. You do not go on using the card expecting the new terms will just go away.

[cjtx2]

43 minutes ago, BV80 said:

Is the account charged off?  Yes.  Any reasonable person would understand that the same account is not being charged off every month.  Therefore, the status of "charged off" is correct.

Credit scores are not calculated by a reasonable person. A computer program takes whatever data is in a file, assumes it is correct because otherwise you would have disputed it, and calculates a score based on the data, errors and everything.

The scoring algorithm cannot ignore information just because any reasonable person would know something. It just looks at a lot of very recent derogatory data.

Otherwise, a report allows furnishers to report both status and activity. 

While the charge off status is already being reported in a different field, there is no activity to report, especially not a new charge off.

[Harry Seaward]

1 hour ago, cjtx2 said:

The status is reported as charge-off, which is right, but on the payment activity history, every month there is a new charge off.

It's not a "new" charge-off every month.  It's simply reporting that the account is still in CO status.

 

1 hour ago, cjtx2 said:

There cannot be multiple charge offs (as monthly activity) so my report is inaccurate for reporting this false activity every month.

I'll tell you what....  Cap1 has done this from the dawn of time.  If this is in fact "inaccurate", there should be a pile of caselaw to this effect.  If you can find one piece of caselaw that supports your claim, I'll say you're right.

[BV80]

1 hour ago, cjtx2 said:

There are legal ramifications to a breach of contract, and then there are vindictive actions from sleazy furnishers exploiting loopholes to pressure you to settle.

I am merely trying to enforce my rights. No more, no less. Negative ramifications, fine, as long as they are legal.

If you can prove the creditor's actions are illegal, why do you need the "contract"?   Enforcing your rights does not require that "contract.

 

1 hour ago, cjtx2 said:

Contracts must have an offer and consideration to indicate acceptance of the terms. 

In this case my offer is allowing them to commit defamation, as long as they agree to pay for it. 

In an adhesion contract, consideration is not required as in regular contracts, but acceptance of the terms is indicated through other actions, which make the contract enforceable.

In this case, they can stop reporting new activity to reject the terms. Even though it is not specified, they could also respond directly to me denying acceptance. As long as they can show they took effective steps to reject the terms. But simply engaging in behavior subject to the contract without any form of rejection of the terms indicates agreement. 

Again, if you can prove that the reporting is inaccurate, why do you need the contract?

 

1 hour ago, cjtx2 said:

Credit scores are not calculated by a reasonable person. A computer program takes whatever data is in a file, assumes it is correct because otherwise you would have disputed it, and calculates a score based on the data, errors and everything. 

The scoring algorithm cannot ignore information just because any reasonable person would know something. It just looks at a lot of very recent derogatory data.

Otherwise, a report allows furnishers to report both status and activity. 

While the charge off status is already being reported in a different field, there is no activity to report, especially not a new charge off. 

I was not referring to the person or thing that calculates the scores.  No potential creditor was assume that one account is being charged off each month.  You know that the account is not being charged off each month. 

So again, if you can prove what you claim, why aren't you suing? 

Is the still within the SOL for collection?  If it is, how do you know they won't turn around and sue you?

 

[cjtx2]

1 hour ago, Harry Seaward said:

I'll tell you what....  Cap1 has done this from the dawn of time.  If this is in fact "inaccurate", there should be a pile of caselaw to this effect.  If you can find one piece of caselaw that supports your claim, I'll say you're right.

I need to look it up. But I know for a fact that for a very long time Cap1 did not report credit limits alleging they were proprietary or something ridiculous like that. They were sued many, many times until eventually they were forced to report credit limits. So I would not be surprised if they are just a lawsuit away from proven wrong.

I have disputed this same issue several times for several furnishers and some CRAs delete the history or the whole trade line, so no need for a lawsuit.

[cjtx2]

1 hour ago, BV80 said:

So again, if you can prove what you claim, why aren't you suing? 

Is the still within the SOL for collection?  If it is, how do you know they won't turn around and sue you?

 

As I mentioned I just started the credit repair process, so I am still sending disputes to the OCs before using the 1-2 punch and disputing with the CRAs.

Some accounts are still within SOL so it is a possibility that they would sue, but I am trying to establish some leverage and based on the number of false data, the frequency of malicious updates, number of people who have received the false info, etc. suing will not be in their best interest.

[Clydesmom]

2 hours ago, cjtx2 said:

As I mentioned I just started the credit repair process, so I am still sending disputes to the OCs before using the 1-2 punch and disputing with the CRAs.

There is no magic method to credit repair.  Tactics like the 1-2 punch and jack attack that worked during the recession no longer work.  Now that creditors have gone 100% digital they have all the documents to prove their reporting.  All you will do is push creditors that still can sue to head to the courts.

2 hours ago, cjtx2 said:

Some accounts are still within SOL so it is a possibility that they would sue, but I am trying to establish some leverage and based on the number of false data, the frequency of malicious updates, number of people who have received the false info, etc. suing will not be in their best interest.

Based on all the rhetoric you have posted in this thread I think you have followed some website with bad information that will end up causing you way more trouble than you realize.  Your credit reports are hearsay and cannot be used as evidence.  Many creditors now are deleting their trade lines before suing consumers to remove any leverage or counter claims.  I would abandon this plan if I were you but you most likely will continue on at your own peril.

[Harry Seaward]

2 hours ago, cjtx2 said:

They were sued many, many times until eventually they were forced to report credit limits

Sued many many times means that many many consumers were wrong.

2 hours ago, cjtx2 said:

I have disputed this same issue several times for several furnishers and some CRAs delete the history or the whole trade line, so no need for a lawsuit.

Then why are you wasting your time with this discussion? It sounds like you already know the secret formula. 

[cjtx2]

1 hour ago, Clydesmom said:

There is no magic method to credit repair.  Tactics like the 1-2 punch and jack attack that worked during the recession no longer work.  Now that creditors have gone 100% digital they have all the documents to prove their reporting.  All you will do is push creditors that still can sue to head to the courts.

Based on all the rhetoric you have posted in this thread I think you have followed some website with bad information that will end up causing you way more trouble than you realize.  Your credit reports are hearsay and cannot be used as evidence.  Many creditors now are deleting their trade lines before suing consumers to remove any leverage or counter claims.  I would abandon this plan if I were you but you most likely will continue on at your own peril.

I appreciate your comments and advice and I am here to learn.

It has been a while since I have done any research on this, but as you say, many things that used to work, do not work any more. So I have to learn what works now.

[cjtx2]

1 hour ago, Harry Seaward said:

Then why are you wasting your time with this discussion? It sounds like you already know the secret formula. 

I am trying to learn. Found some comments that align with what I thought, but as you suggested, in the end what counts is caselaw. I really appreciate your comments.

I know there is no secret formula, and I acknowledge it will take a lot of research to come up with a working strategy.

[cjtx2]

On 8/18/2018 at 7:51 PM, Harry Seaward said:

Show me where in the FCRA the Credit Reporting Resource Guide is referenced.

I was looking into Toliver v. Experian Information Solutions,  Inc.

scholar.google.com/scholar_case?case=7476317046905611411&q=metro2&hl=en&as_sdt=3,44

The case mentions other decisions where a violation of CRRG per se is not enough, but it is a factor.  Also in this particular case, they denied some of the plaintiff's allegations based on the definitions in the CRRG. She was alleging that LVNV is not a factoring company, and that a JDB cannot report a defaulted account as open. She presented some evidence, but based solely on the CRRG definitions, the court concluded that it is accurate for a JDB to report an open account as a factoring company, even if the account was charged off.

[Harry Seaward]

So wait a minute.... this is a JDB account that we've been taking about this whole time? 

[millyann]

On 8/19/2018 at 8:21 PM, Clydesmom said:

There is no magic method to credit repair.  Tactics like the 1-2 punch and jack attack that worked during the recession no longer work.  Now that creditors have gone 100% digital they have all the documents to prove their reporting.  All you will do is push creditors that still can sue to head to the courts.

You are right @Clydesmom what has worked in the past may not work today.

You have to be assertive and appear litigious from the onset if not a little off center. That was our style 12 years ago and it still works today.

Form letters and "HIPPA Methods" are a joke. They have seen them to many times.

I just had the last negative removed from my credit file by the aggressive JDB that never does PFD and they sue a lot. They deleted without payment and gave us a signed release that they will cease collection nor ever transfer the alleged debt. Just because...

I had a collection agency respond with threats of suits and attorney letter sent because of my style. In the end they wrote a check.. (Release signed last week)

FDCPA Cash is Still Available and Aggressive Credit Repair still works..

[cjtx2]

7 hours ago, Harry Seaward said:

So wait a minute.... this is a JDB account that we've been taking about this whole time? 

no, sorry. My question is about dealing with OCs.

[BV80]

23 hours ago, cjtx2 said:

no, sorry. My question is about dealing with OCs.

The contract your friend suggested is not a contract of adhesion.  A contract of adhesion is one in which one party has more power than the other.  That's not the case in your situation.

In addition, an offer not to sue is usually referred to as "forbearance to sue" or "forbearance of suit".   You'd need to find out whether or not signatures would be required. 

[cjtx2]

1 hour ago, BV80 said:

The contract your friend suggested is not a contract of adhesion.  A contract of adhesion is one in which one party has more power than the other.  That's not the case in your situation.

In addition, an offer not to sue is usually referred to as "forbearance to sue" or "forbearance of suit".   You'd need to find out whether or not signatures would be required. 

Forbearance to sue is a new term for me and I will look it up. Thanks.

I found a definition of adhesion contract

https://www.law.cornell.edu/wex/adhesion_contract_(contract_of_adhesion)

Quote

 

An adhesion contract (also called a "standard form contract" or a "boilerplate contract")  is a contract drafted by one party (usually a business with stronger bargaining power) and signed by another party (usually one with weaker bargaining power, usually a consumer in need of goods or services). The second party typically does not have the power to negotiate or modify the terms of the contract. Adhesion contracts are commonly used for matters involving insurance, leases, deeds, mortgages, automobile purchases, and other forms of consumer credit.

Courts carefully scrutinize adhesion contracts and sometimes void certain provisions because of the possibility of unequal bargaining power, unfairness, and unconscionability. Factoring into such decisions include the nature of the agreement, the possibility of unfair surprise, lack of notice, unequal bargaining power, and substantive unfairness. Courts often use the “doctrine of reasonable expectations” as a justification for invalidating parts or all of an adhesion contract: the weaker party will not be held to adhere to contract terms that are beyond what the weaker party would have reasonably expected from the contract, even if what he or she reasonably expected was outside the strict letter of agreement.

 

Usually creditors use it, but there is no legal requirement for this. Any party can create it. The contract is either take it as is, or reject it, but they cannot change it. As you pointed out before, a court will likely scrutinize it to look for unconscionable clauses that cannot be enforced. 

The contract basically charges for the right to commit libel, true. But the way it is worded, it imposes liquidated damages when they perform the action. Any suit to enforce the contract is not a suit for defamation, but to collect liquidated damages to which they agreed by their actions/failure to take effective steps to reject the contract.

[BV80]

38 minutes ago, cjtx2 said:

Forbearance to sue is a new term for me and I will look it up. Thanks.

I found a definition of adhesion contract

https://www.law.cornell.edu/wex/adhesion_contract_(contract_of_adhesion)

Usually creditors use it, but there is no legal requirement for this. Any party can create it. The contract is either take it as is, or reject it, but they cannot change it. As you pointed out before, a court will likely scrutinize it to look for unconscionable clauses that cannot be enforced. 

The contract basically charges for the right to commit libel, true. But the way it is worded, it imposes liquidated damages when they perform the action. Any suit to enforce the contract is not a suit for defamation, but to collect liquidated damages to which they agreed by their actions/failure to take effective steps to reject the contract.

While any party might have the ability to create such contract, read the definition you posted.   In your case, the creditor has the power to sue you. Therefore, you do not have the stronger bargaining power.  So again, yours is not a contract of adhesion. 

If it were as easy as you claim, anyone could write such a contract for anything against anyone. I think we know that’s not the case. 

If it is easy as you claim, why do consumer attorneys not do the very same thing for their clients? 

In regard to liquidated damages,  it must be determined if signatures are required. 

In all honesty, the contract you want to offer seems more like a settlement. Settlements require signatures. 

 

[Goody_Ouchless]

18 minutes ago, BV80 said:

If it is easy as you claim...

Tinfoil hats?

 

[fisthardcheese]

Why would anyone want to attempt to opt-out of arbitration?  Especially after a default, arbitration is your best friend.

Arbitration is the only leverage you have these days for any kind of aggressive credit repair.

[millyann]

16 minutes ago, fisthardcheese said:

Arbitration is the only leverage you have these days for any kind of aggressive credit repair

Litigious nutcase works too.

[BV80]

4 hours ago, millyann said:

Litigious nutcase works too.

Some former members can attest to the fact that “litigious nutcase” doesn’t always work and can have negative consequences. 

[cjtx2]

19 hours ago, BV80 said:

If it were as easy as you claim, anyone could write such a contract for anything against anyone. I think we know that’s not the case. 

If it is easy as you claim, why do consumer attorneys not do the very same thing for their clients? 

My friend used a contract like that with a stubburn CRA who refused to remove his phone number. He tried everything and the CRA refused big time even alleging that personal info was not subject to verification challenges and so it refused to investigate.  Then he told the CRA that he, as a consultant, charged $X for each call he received and that the CRA would be entering into a contract in which it would be liable for any calls made by its employees or its clients who obviously were told by the CRA it was ok to call him despite his explicit revoking of any implicit or explicit previous consent. That continued publication and any calls received from the CRA or its clients would indicate acceptance of the terms and that if they were to reject the terms of the contract all they had to do was remove the number.

The number was immediately removed  and has not been reinserted. There were no signatures.

Not all consumer attorneys are created equal. So I don't presume to know why they don't do it more. Maybe it's bad for business?

[millyann]

9 hours ago, BV80 said:

Some former members can attest to the fact that “litigious nutcase” doesn’t always work and can have negative consequences. 

I did not say whiny litigious victim, nor did I say pompous a$$.

I can assure you that if done properly it works fine.

I have had a CA threaten to sue me then write checks to me to stay out of court.

When you let them know you, you know that you baited them then you are a moron.

When you give depositions like a braggart you deserve what you get.

If you don't appear to be competent enough to follow through you will fail.

If you cower because they buck back you will fail.

If you use your personal finances as a negotiation tool you will fail.

Assertive, direct, unemotional and imaginative is what wins the day.

 

 

[BV80]

1 hour ago, millyann said:

I did not say whiny litigious victim, nor did I say pompous a$$.

I can assure you that if done properly it works fine.

I have had a CA threaten to sue me then write checks to me to stay out of court.

When you let them know you, you know that you baited them then you are a moron.

When you give depositions like a braggart you deserve what you get.

If you don't appear to be competent enough to follow through you will fail.

If you cower because they buck back you will fail.

If you use your personal finances as a negotiation tool you will fail.

Assertive, direct, unemotional and imaginative is what wins the day.

 

 

I’m glad you elaborated, because “litigious nut-job” implies more than what you’ve described.

Current members on this site, including myself, have had debt collection lawsuits dismissed and checks written to them without resorting to nut-job tactics. A matter-of-fact, business-like attitude can achieve the desired results when one has the facts, evidence, and law on his side. 

[BV80]

1 hour ago, cjtx2 said:

Not all consumer attorneys are created equal. So I don't presume to know why they don't do it more. Maybe it's bad for business?

Or perhaps your friend just got lucky?   Simply because his tactic worked does not mean the “contract” was legal and/or would hold up in a court of law.  He has no idea what would have happened if it had been put to the test in court.