You Have No Recourse if a Creditor declines ID Theft. And of course they will!

[RobinMontrose]

If identity theft is reported and the creditor disputes "declines" it what can a consumer do? Of course, they are going to dispute it. It's in their financial best interest to dispute it. Is there anything in the law that I'm missing? What about FL law? It seems there's no remedy once they dispute the identity theft. Am I missing something? How can they make it so easy for the creditor to get out of this? And what about the CRA? They won't remove it if the creditor declines it. It seems the only remedy is to sue?

 

 

§ 605B. Block of information resulting from identity theft [15 U.S.C. §1681c-2]

 

 

(c) Authority to Decline or Rescind

 

        (1) In general. A consumer reporting agency may decline to block, or may rescind any

        block, of information relating to a consumer under this section, if the consumer

        reporting agency reasonably determines that –

 

                (A) the information was blocked in error or a block was requested by the consumer

                in error;

 

                (B) the information was blocked, or a block was requested by the consumer, on

                the basis of a material misrepresentation of fact by the consumer relevant to

                the request to block; or

 

                (C) the consumer obtained possession of goods, services, or money as a result of

                the blocked transaction or transactions.

 

        (2) Notification to consumer. If a block of information is declined or rescinded under this

        subsection, the affected consumer shall be notified promptly, in the same manner as

        consumers are notified of the reinsertion of information under section 611(a)(5)(B).

 

        (3) Significance of block. For purposes of this subsection, if a consumer reporting

        agency rescinds a block, the presence of information in the file of a consumer prior to

        the blocking of such information is not evidence of whether the consumer knew or

        should have known that the consumer obtained possession of any goods, services, or

        money as a result of the block.

 

[BV80]

23 minutes ago, RobinMontrose said:

If identity theft is reported and the creditor disputes "declines" it what can a consumer do? Of course, they are going to dispute it. It's in their financial best interest to dispute it. Is there anything in the law that I'm missing? What about FL law? It seems there's no remedy once they dispute the identity theft. Am I missing something? How can they make it so easy for the creditor to get out of this? And what about the CRA? They won't remove it if the creditor declines it. It seems the only remedy is to sue?

 

 

§ 605B. Block of information resulting from identity theft [15 U.S.C. §1681c-2]

 

 

(c) Authority to Decline or Rescind

 

        (1) In general. A consumer reporting agency may decline to block, or may rescind any

        block, of information relating to a consumer under this section, if the consumer

        reporting agency reasonably determines that –

 

                (A) the information was blocked in error or a block was requested by the consumer

                in error;

 

                (B) the information was blocked, or a block was requested by the consumer, on

                the basis of a material misrepresentation of fact by the consumer relevant to

                the request to block; or

 

                (C) the consumer obtained possession of goods, services, or money as a result of

                the blocked transaction or transactions.

 

        (2) Notification to consumer. If a block of information is declined or rescinded under this

        subsection, the affected consumer shall be notified promptly, in the same manner as

        consumers are notified of the reinsertion of information under section 611(a)(5)(B).

 

        (3) Significance of block. For purposes of this subsection, if a consumer reporting

        agency rescinds a block, the presence of information in the file of a consumer prior to

        the blocking of such information is not evidence of whether the consumer knew or

        should have known that the consumer obtained possession of any goods, services, or

        money as a result of the block.

 

Are you referring to an ID theft claim that you made?  If so, did you file a police report and fill out the FTC ID theft affidavit?

[Clydesmom]

5 hours ago, RobinMontrose said:

Am I missing something?

Maybe.  I believe what this section you quoted is referring to is when a consumer uses the vague "not mine" to dispute trade line(s) insinuating there is ID theft.  A consumer who files a FACTA ID theft report with the FTC and a police report will not have their claim labeled frivolous.

There was a time when consumers could simply say "not mine" and trade lines were deleted.  Then the bureaus and creditors wised up to it.  Another issue is real ID theft when a family member does this to a child/sibling/parent etc. and knows that the victim won't pursue it to prevent family discord.  If a consumer is going to claim ID theft you have to stand firm and follow through.  Otherwise given a relationship to the person who opened the account(s) the creditors and bureaus will presume complicity when the consumer fails to pursue all avenues of recovery.

5 hours ago, RobinMontrose said:

How can they make it so easy for the creditor to get out of this? And what about the CRA? They won't remove it if the creditor declines it. It seems the only remedy is to sue?

It boils down to HOW the consumer claims ID theft.  Simply sending a letter stating not my account I didn't open it isn't enough.  Filing FACTA and police reports is a major step because to do so when there is no identity theft is FRAUD and very illegal.  Consumers who follow the laws on reporting the ID theft crime and keep with it don't face being blocked.  However, it should be noted that the more skilled the thief the more work the consumer has to do to prove they were a victim with the creditors.

[RobinMontrose]

The FTC sworn report was filed two years ago. Since then I filed three disputes with three different CA's and CRA's. Of course I keep including the report. I guess I could try filing a police report in the middle of a pandemic for a two year old crime. Or reaffirming the FTC report and again sending the FTC letter. (see attachment) This worked for everyone the first round except for Equifax. With them it's been a two year battle.

credit_FTC_Most ID theft victims don’t need a police report _ Consumer Information.pdf

[BV80]

18 minutes ago, RobinMontrose said:

The FTC sworn report was filed two years ago. Since then I filed three disputes with three different CA's and CRA's. Of course I keep including the report. I guess I could try filing a police report in the middle of a pandemic for a two year old crime. Or reaffirming the FTC report and again sending the FTC letter. (see attachment) This worked for everyone the first round except for Equifax. With them it's been a two year battle.

credit_FTC_Most ID theft victims don’t need a police report _ Consumer Information.pdf 239.08 kB · 3 downloads

It should work.  So, I would set up a consultation with a consumer attorney.  He may or may not recommend filing a police report.  

[JDCHATER]

23 hours ago, BV80 said:

If identity theft is reported and the creditor disputes "declines" it what can a consumer do? Of course, they are going to dispute it. It's in their financial best interest to dispute it

My trial was postpone because the JDC witness count make it to court  and I stated that the debt is not mine ( I do not recall excuse ever applying for the card) and the judge told me: ..."you couldn't settle with the plaintiff? are you going to claim identity theft?"

I  checked my 3 credit reports and the account was NEVER EVER reported. Account was active in 2015 according to JDC bank statements. The address and date of birth provided on a spreadsheet during discovery does not belong to me.

IS THE JUDGE GOING TO REQUEST ME TO FILE AN IDENTITY THEFT CLAIM OR SOMETHING LIKE THAT?

[BV80]

2 minutes ago, JDCHATER said:

My trial was postpone because the JDC witness count make it to court  and I stated that the debt is not mine ( I do not recall excuse ever applying for the card) and the judge told me: ..."you couldn't settle with the plaintiff? are you going to claim identity theft?"

I  checked my 3 credit reports and the account was NEVER EVER reported. Account was active in 2015 according to JDC bank statements. The address and date of birth provided on a spreadsheet during discovery does not belong to me.

IS THE JUDGE GOING TO REQUEST ME TO FILE AN IDENTITY THEFT CLAIM OR SOMETHING LIKE THAT?

Has the JDB provided any credit card statements?  If so, do they show your name and the address at which you lived on the date of the statements?

[JDCHATER]

22 hours ago, BV80 said:

Has the JDB provided any credit card statements?  If so, do they show your name and the address at which you lived on the date of the statements?

Yes. Card statements matched my name and home address.

Since all the documents presented by the JDC were printed from an electronic file (according to the bill of sale), Can I claim lack of trustworthiness/Authentication  since the documents have wrong information ?(info allegedly provided by the OC bank. If the address and date of birth are "wrong", why should I trust any other information provided by the OC?

Do I have any chance to convince the judge that the documents might not be accurate? Defaulted accounts are sold to portfolios on AS IS BASIS with no warranties of the accounts been accurate right?

[BV80]

5 minutes ago, JDCHATER said:

Yes. Card statements matched my name and home address.

Since all the documents presented by the JDC were printed from an electronic file (according to the bill of sale), Can I claim lack of trustworthiness/Authentication  since the documents have wrong information ?(info allegedly provided by the OC bank. If the address and date of birth are "wrong", why should I trust any other information provided by the OC?

Do I have any change to convince the judge that the documents might not be accurate? Defaulted accounts are sold to portfolios on AS IS BASIS with no warranties of the accounts been accurate right?

You need to see how your courts have ruled on authentication, etc.  I’ll search and see if I can find some rulings that will offer some information.

BTW, have you checked your bank records to see if you made payments on the account while it was with the OC?  I ask this because if you determine you opened the account, it is against the law to file a false ID theft police report.

Also, did you look into CCP 98?

[JDCHATER]

6 minutes ago, BV80 said:

BTW, have you checked your bank records to see if you made payments on the account while it was with the OC?  

I have never made any payments to the card.

One payment made to the card for $140 when the minimum payment required was $5000 and the statement reads": Payment received Thank you", it does not stated how was that payment made (check, bank transfer, online, Paypal or whatever)

[BV80]

3 minutes ago, JDCHATER said:

I have never made any payments to the card.

If you know for a fact that this is not your card, you might file a police report and an ID theft affidavit (FTC website).  Hopefuly, @RyanEXwill chime in.

Here are 2 rulings for you to read.  Midland v. Romero also addresses CCP 98.  In regard to authentication of records, the 2 court came to differing decisions.  Read them carefully.

https://scholar.google.com/scholar_case?case=2832131160597114382&q=“Unifund+CCR+llc+v.+dear”&hl=en&as_sdt=4,5
 

https://scholar.google.com/scholar_case?case=10121956123054400546&q=“midland+funding+llc+v.+romero”&hl=en&as_sdt=4,5

[JDCHATER]

3 hours ago, BV80 said:

Also, did you look into CCP 98?

JDB Answered the CCP98 by saying they "could bring" to court 2 expert witnesses , #1 a (VP John Doe from the OC , and #2 Jonny Cash , a (Litigation Specialist from them). I learned in this forum how to deal with the business records exception rule so I will fight it.

If a witness from the OC shows up, what if he/she doen't know anything about the account beyond the documents presented by the JBD? How could he/she authenticate any records presented in court without comparing them to the records found in the OC business records?

[BV80]

51 minutes ago, JDCHATER said:

JDB Answered the CCP98 by saying they "could bring" to court 2 expert witnesses , #1 a (VP John Doe from the OC , and #2 Jonny Cash , a (Litigation Specialist from them). I learned in this forum how to deal with the business records exception rule so I will fight it.

If a witness from the OC shows up, what if he/she doen't know anything about the account beyond the documents presented by the JBD? How could he/she authenticate any records presented in court without comparing them to the records found in the OC business records?

Usually, a witness from the OC should testify as to the preparation of the documents and how copies are sent to JDBs.  Whether a judge would consider that to be sufficient to authenticate is anyone’s guess.

Have you sent a subpoena to the witnesses yet?  Remember, they must be at address within 150 miles from the court in order to be served the subpoena.  

[JDCHATER]

50 minutes ago, BV80 said:

Have you sent a subpoena to the witnesses yet?  Remember, they must be at address within 150 miles from the court in order to be served the subpoena.  

The OC affidavit didn't comply with 2015.5 (no mention of ..." under the laws of the State of California").

The JDB answered with the names of the witness that they might bring to court. Their addresses were either in the East Coast or (Attn. the Attorney's law firm address) here in So Cal.

 

[BV80]

41 minutes ago, JDCHATER said:

The OC affidavit didn't comply with 2015.5 (no mention of ..." under the laws of the State of California").

The JDB answered with the names of the witness that they might bring to court. Their addresses were either in the East Coast or (Attn. the Attorney's law firm address) here in So Cal.

 

From what I understand the witnesses must be present to accept service of the subpoena.  If @RyanEX doesn’t show up, contact a consumer attorney in your state to ask about the address to send the subpoena.   Also, look up posts by calawyer, RyanEX and Anon Amos.

I would definitely bring up the insufficiency of the affidavit.

Have you read Meza v. Portfolio?

https://scholar.google.com/scholar_case?case=10912338867560789346&q=“CCP+98”&hl=en&scisbd=2&as_sdt=4,104

[JDCHATER]

15 hours ago, BV80 said:

I would definitely bring up the insufficiency of the affidavit.

This is from  your previous link John C Dear vs UNIFUND:

"The court sustained the objection to the affidavit signed by Baker from Citibank because it was not executed under the laws of the state of California".

My case is a clone from this case but I never admitted I ever opened an account with the bank. (John C. Dear did).

Thanks for Meza v. Portfolio link, I will go over ASAP.

I am still a bit confused about subpoena someone. If the JDB doesn't bring a solid witness from the OC the case falls apart under lack of authentication and hearsay. Why do I need to "force" (subpoena) somebody to show up?

[BV80]

1 hour ago, JDCHATER said:

This is from  your previous link John C Dear vs UNIFUND:

"The court sustained the objection to the affidavit signed by Baker from Citibank because it was not executed under the laws of the state of California".

My case is a clone from this case but I never admitted I ever opened an account with the bank. (John C. Dear did).

Thanks for Meza v. Portfolio link, I will go over ASAP.

I am still a bit confused about subpoena someone. If the JDB doesn't bring a solid witness from the OC the case falls apart under lack of authentication and hearsay. Why do I need to "force" (subpoena) somebody to show up?

Definitely use the case law from Dear.  Not admitting that you opened the account will help if the statements are inadmissible.

In regard to the subpoena, the information you need should be in the rules.  There may be a subpoena form you can fill out on your court website.

Study Meza carefully.  Be sure to read the posts by the members whose names I provided.  In fact, you can do a Google search that will help you quickly locate specific threads.  For instance, Google “CCP 98” AND “calawyer”.  Be sure to include quotation marks and a capital AND, just like I wrote it.  Then you can do the same for RyanEX and Anon Amos.  Those posts will include information about CCP 98 and subpoenas.

[RyanEX]

On 8/17/2021 at 8:17 AM, JDCHATER said:

This is from  your previous link John C Dear vs UNIFUND:

"The court sustained the objection to the affidavit signed by Baker from Citibank because it was not executed under the laws of the state of California".

My case is a clone from this case but I never admitted I ever opened an account with the bank. (John C. Dear did).

Thanks for Meza v. Portfolio link, I will go over ASAP.

I am still a bit confused about subpoena someone. If the JDB doesn't bring a solid witness from the OC the case falls apart under lack of authentication and hearsay. Why do I need to "force" (subpoena) somebody to show up?

Sorry I haven't been around. Any update on this JDChater?

[JDCHATER]

On 9/15/2021 at 8:15 PM, RyanEX said:

Sorry I haven't been around. Any update on this JDChater?

Trial postpone again.