Texas law seems to require CA to Delete if They fail to Respond to DV Options

[walterg55]

§392.202. CORRECTION OF THIRD-PARTY DEBT COLLECTOR'S OR CREDIT BUREAU'S FILES. (a) An individual who disputes the accuracy of an item in a third-party debt collector's or credit bureau's file on the individual may notify in writing the third-party debt collector or credit bureau of the inaccuracy. The third-party debt collector or credit bureau shall provide forms for the notice and, when requested, assist an individual in preparing the notice.

( Not later than the 30th day after the date a notice of inaccuracy is received, the third-party debt collector or credit bureau shall send a written statement to the individual:

(1) denying the inaccuracy;

(2) admitting the inaccuracy; or

(3) stating that the third-party debt collector or credit bureau has not had sufficient time to complete an investigation of the inaccuracy.

© If the third-party debt collector or credit bureau admits that the item is inaccurate, the third-party debt collector or credit bureau shall:

(1) not later than the fifth business day after the date of the admission, correct the item in the relevant file; and

(2) immediately on correction of the item send to each person who has previously received a report from the third-party debt collector or credit bureau containing the inaccurate information notice of the inaccuracy and a copy of an accurate report.

(d) If the third-party debt collector or credit bureau states that there has not been sufficient time to complete an investigation, the third-party debt collector or credit bureau shall immediately:

(1) change the item in the relevant file as requested by the individual;

(2) send to each person who previously received the report containing the information a notice that is equivalent to a notice under Subsection © and a copy of the changed report; and

(3) cease collection efforts if the item involves a debt.

(e) On completion by the third-party debt collector or credit bureau of the investigation, the third-party debt collector or credit bureau shall inform the individual of the determination of whether the item is accurate or inaccurate. If the third-party debt collector or credit bureau determines that the information was accurate, the third-party debt collector or credit bureau may again report that information and resume collection efforts


CHAPTER 392. DEBT COLLECTION Texas law requires a CA to take some direct action within certain time frames or be in violation. I read over and over where a Ca has failed to respond to a dv. It seems like this would allow a Texas resident some firepower. Am I wrong here or missing something? Texas is consumer friendly in this regard it seems.

This post has been edited by walterg55: Mar 14 2007, 06:22 PM

[Googie]

[centex]

The two essential keys are invoking the TFC provisions and specifically requesting the matter be deleted if the investigation cannot be completed. Many people in Texas fail to do both.

[r70cb1]

Wow! Is this new? Sorry about the ignorant question - still "newbie". Where do we go from here. I've DV'd several CA's and had no response.

[centex]

Wow! Is this new? Sorry about the ignorant question - still "newbie". Where do we go from here. I've DV'd several CA's and had no response.

No, it has been there for a long time. Too many people lose sight of state laws because they get FDCPA on the brain. In Texas, the state laws provide far more protections than do the federal equivalent. And, if litigation becomes necessary, there is no cap on damages.

[magnolia]

§392.202. CORRECTION OF THIRD-PARTY DEBT COLLECTOR'S OR CREDIT BUREAU'S FILES. (a) An individual who disputes the accuracy of an item in a third-party debt collector's or credit bureau's file on the individual may notify in writing the third-party debt collector or credit bureau of the inaccuracy. The third-party debt collector or credit bureau shall provide forms for the notice and, when requested, assist an individual in preparing the notice.

( Not later than the 30th day after the date a notice of inaccuracy is received, the third-party debt collector or credit bureau shall send a written statement to the individual:

(1) denying the inaccuracy;

(2) admitting the inaccuracy; or

(3) stating that the third-party debt collector or credit bureau has not had sufficient time to complete an investigation of the inaccuracy.

? If the third-party debt collector or credit bureau admits that the item is inaccurate, the third-party debt collector or credit bureau shall:

(1) not later than the fifth business day after the date of the admission, correct the item in the relevant file; and

(2) immediately on correction of the item send to each person who has previously received a report from the third-party debt collector or credit bureau containing the inaccurate information notice of the inaccuracy and a copy of an accurate report.

(d) If the third-party debt collector or credit bureau states that there has not been sufficient time to complete an investigation, the third-party debt collector or credit bureau shall immediately:

(1) change the item in the relevant file as requested by the individual;

(2) send to each person who previously received the report containing the information a notice that is equivalent to a notice under Subsection ? and a copy of the changed report; and

(3) cease collection efforts if the item involves a debt.

(e) On completion by the third-party debt collector or credit bureau of the investigation, the third-party debt collector or credit bureau shall inform the individual of the determination of whether the item is accurate or inaccurate. If the third-party debt collector or credit bureau determines that the information was accurate, the third-party debt collector or credit bureau may again report that information and resume collection efforts


CHAPTER 392. DEBT COLLECTION Texas law requires a CA to take some direct action within certain time frames or be in violation. I read over and over where a Ca has failed to respond to a dv. It seems like this would allow a Texas resident some firepower. Am I wrong here or missing something? Texas is consumer friendly in this regard it seems.

Thank you! This is what I've been looking for.

[magnolia]

The two essential keys are invoking the TFC provisions and specifically requesting the matter be deleted if the investigation cannot be completed. Many people in Texas fail to do both.

Would you mind explaining what you mean by "invoking the TFC provisions"? I would really appreciate it.

[walterg55]

Subchapter E. Defense, Criminal Penalty, and Civil Remedies
§392.401. BONA FIDE ERROR. A person does not violate this chapter if the action complained of resulted from a bona fide error that occurred notwithstanding the use of reasonable procedures adopted to avoid the error.

§392.402. CRIMINAL PENALTY. (a) A person commits an offense if the person violates this chapter.

( An offense under this section is a misdemeanor punishable by a fine of not less than $100 or more than $500 for each violation.

© A misdemeanor charge under this section must be filed not later than the first anniversary of the date of the alleged violation.

§392.403. CIVIL REMEDIES. (a) A person may sue for:

(1) injunctive relief to prevent or restrain a violation of this chapter; and

(2) actual damages sustained as a result of a violation of this chapter.

( A person who successfully maintains an action under Subsection (a) is entitled to attorney's fees reasonably related to the amount of work performed and costs.

© On a finding by a court that an action under this section was brought in bad faith or for purposes of harassment, the court shall award the defendant attorney's fees reasonably related to the work performed and costs.

(d) If the attorney general reasonably believes that a person is violating or is about to violate this chapter, the attorney general may bring an action in the name of this state against the person to restrain or enjoin the person from violating this chapter.

(e) A person who successfully maintains an action under this section for violation of Section 392.101, 392.202, or 392.301(a)(3) is entitled to not less than $100 for each violation of this chapter.

§392.404. REMEDIES UNDER OTHER LAW. (a) A violation of this chapter is a deceptive trade practice under Subchapter E, Chapter 17, Business & Commerce Code, and is actionable under that subchapter.

( This chapter does not affect or alter a remedy at law or in equity otherwise available to a debtor, creditor, governmental entity, or other legal entity.

Footnote
1House Bill 7 passed during the 78th Legislature, Third Called Session, and amended paragraph (5) which was amended during the 78th Legislature, Regular Session, in Senate Bill 533. The amendment to Senate Bill 533 read as follows:

(5) failing to disclose, except in a formal pleading made in connection with a legal action:

(A) that the debt collector is attempting to collect a debt and that any information obtained will be used for that purpose, if the communication is the initial written or oral communication with the debtor; or

( that the communication is from a debt collector, if the communication is a subsequent written or oral communication with the debtor;

I thought I would post this as further information for remedies since there can be both civil and criminal penalties and unlike the federal law I believe Texas allows for injunctive relief.

[walterg55]

Centex; I think you are dead on. Texas law is much more consumer friendly than the federal version and you would anticipate a better reception in a Texas court fighting those nasty ol out of state CA's trying to oppress the fine citizens of Texas.

[centex]

The two essential keys are invoking the TFC provisions and specifically requesting the matter be deleted if the investigation cannot be completed. Many people in Texas fail to do both.

Would you mind explaining what you mean by "invoking the TFC provisions"? I would really appreciate it.

It means specifically seeking action in accordance with the Texas Finance Code. In other words, the letter requests certain actions in accordance with Texas law, not federal law.

[texasbred71]

Apparently I have been going about this all worng then

[UTDebtFree]

When I send out my DV letters, I ask for validation and that if they are unable to verify or need further information, that I request they delete the record from any credit bureau per applicable statues.

Do I need to specifically cite the TFC or shuoldnt they know since I am in Texas, they have to follow Texas law?

[Trailrated92]

With regared to Texas Law , this particular topic has come up a bunch , and I dont remember anyone saying for sure if the Statutes could be enforced by people that arent citizens of Texas themselves . I can think of one particular troublesome CA operating out of Texas that I'd LOVE to kick to the curb !!! Can I enforce the Texas Statutue or at least invoke them , even though I live on the East Coast ???!???

[UTDebtFree]

I would think that if they are operating in TExas, they are subject to the laws of both states.

[walterg55]

I doubt seriously that another state court would enforce a Texas law but you might be able to act in a Texas court with a Texas based company.

[Trailrated92]

I wasnt talking about the Courts in MY State enforcing Texas Law HERE , I meant , if push comes to shove with these clowns , i dont want a potential ITS to blow up in my face , because they will KNOW Im bluffing from Jump St , because I wouldnt be able to enforce Texas Law on them because Im not a Citizen of Texas . That would not only show them that Im not to bright , but would be embarrasing as well .

[walterg55]

As to Texas, the TXRCP would indicate that a Texas based company can be sued in the appropriate Texas court by an out of state plaintiff. I defer to those who might be attorneys but that is how I read things.

[walterg55]

bump

[chriswufgator]

I'd assume Trailrated is referring to the bastards from Carrollton that I just filed a BBB complaint on...

I despise them.

Anyway, they are subject to TX law since they are housed there. If you did sue, you have the right to file where the business is located...in fact usually you're required to, so that TFC would definitely apply.

Thanks to the poster, you just gave me more ammo to use on them.

[walterg55]

I live very close to Carrollton; who are you refering to? Also I hope you noted that a CA can incur liability under the deceptive trade practices chapter of Texas law and although I am not sure, I believe it can be very painful for them.

[chriswufgator]

I live very close to Carrollton; who are you refering to? Also I hope you noted that a CA can incur liability under the deceptive trade practices chapter of Texas law and although I am not sure, I believe it can be very painful for them.

Stupid assed CMI...located in Carrollton

$118 reporting for a 5yr old Comcast account from an address I never lived at...

I have tried everything, and CMI just ignores it.

[walterg55]

I live very close to Carrollton; who are you refering to? Also I hope you noted that a CA can incur liability under the deceptive trade practices chapter of Texas law and although I am not sure, I believe it can be very painful for them.

Stupid assed CMI...located in Carrollton

$118 reporting for a 5yr old Comcast account from an address I never lived at...

I have tried everything, and CMI just ignores it.

Well according to TFC they can't just ignore it, they gotta take action. It is a better tool IMHO than the Fed violations since it is Texas based and with a lot of teeth.

[centex]

I live very close to Carrollton; who are you refering to? Also I hope you noted that a CA can incur liability under the deceptive trade practices chapter of Texas law and although I am not sure, I believe it can be very painful for them.

DTPA is where the potential trebling of damages component enters the picture. More specific information may be located in Chapter 17 of the Business and Commerce Code.

The other leverage offered is the bonding requirement...underwriters can be very persuasive at encouraging their client to close interest in a matter.

[aeronsmom]

I live very close to Carrollton; who are you refering to? Also I hope you noted that a CA can incur liability under the deceptive trade practices chapter of Texas law and although I am not sure, I believe it can be very painful for them.

Stupid assed CMI...located in Carrollton

$118 reporting for a 5yr old Comcast account from an address I never lived at...

I have tried everything, and CMI just ignores it.

Thank you all for your posts!! I'm fighting CMI too and have requested validation and received NOTHING. I'll send another DV letter with this new info and if that doesn't work, then I'll file a complaint with the Texas AG's office and the FTC (this is the route I should take, right?)

[chriswufgator]

I live very close to Carrollton; who are you refering to? Also I hope you noted that a CA can incur liability under the deceptive trade practices chapter of Texas law and although I am not sure, I believe it can be very painful for them.

DTPA is where the potential trebling of damages component enters the picture. More specific information may be located in Chapter 17 of the Business and Commerce Code.

The other leverage offered is the bonding requirement...underwriters can be very persuasive at encouraging their client to close interest in a matter.

Thank you, I had not thought of that.

The history is as follows:

Noticed an account for CMI out of Carrollton TX for $118.00 on my reports...

Disputed as "not mine" on all three, and it was removed immediately from EX and with a bit of hassle from EQ.

TU seems to actually conduct a verification, and CMI always verifies it.

I sent a DV. They responded with a short letter on CMI stationary showing my name and the amount owed. They claimed this was proper validation. I laughed.

I then sent another letter, enclosing a copy of theirs, pointing out that what they sent wasn't even close to what they are required to provide, and that I expected that they could show me a contract with my signature on it, an original invoice with my signature on it, or some other type of proof that shows there

A: Was in fact an obligation,

and

B: That I am the one obligated to pay it.

I closed by saying that, if they couldn't show this, then I expected them to delete immediately.

In response, I got a slightly fancier piece of paper from CMI that was formatted like an invoice, showing my name, SSN, the amount, and an address I never lived at. They again claimed proper validation.

I responded by saying I had never lived at that address, and that it was obvious that they had pulled the SSN directly off my credit report...which they pulled 2 days after they got my second DV....and even provided the date of their pull in my letter, along with a non-PP warning.

I again demanded that they either show me a contractual obligation to pay, or delete the TL.

Since then, nothing. They ignore my letters, and continue to verify.

I am getting to the point where I have to put up or shut up, and am probably going to have to sue over this crummy $118 collection.

My last step, taken this week, was a BBB complaint in which I listed the above and demanded they either validate or delete. I wish I had known about what you've suggested before, as I would have put their violations of the TFC etc in my BBB complaint statement. Oh well, live and learn.

They are now in the 22-day response period they are allotted. If this doesn't work, I may try the TX Attorney General.

That's the last stop before I have to litigate.

These people have been impossible.

[centex]

y'all NEED to be looking at the underwriters in this stuff. Complaints to the AG or the FTC *might* get a response, but the underwriters are the ones that provide the quickest leverage PROVIDED that the letter outlined the potential liability under the TFC and BCC *AND* invoked the specific provisions of the TFC.

Use letters that are tailored to the subject.