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Fedallah

Validation outside of 30 days from initial contact

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I'm about to send a validation letter to a CA with whom I've been in contact for more than 30 days. It's a typical letter, including this:

 

If your offices are able to provide the proper documentation as requested in the following Declaration, I will require at least 30 days to investigate this information and during such time all collection activity must cease and desist.

 

Also during this validation period, if any action is taken which could be considered detrimental to any of my credit reports, I will consult with my legal counsel for suit. This includes any listing any information to a credit reporting repository that could be inaccurate or invalidated or verifying an account as accurate when in fact there is no provided proof that it is.

 

If your offices fail to respond to this validation request within 30 days from the date of your receipt, all references to this account must be deleted and completely removed from my credit file and a copy of such deletion request shall be sent to me immediately.

 

I am also requesting that no telephone contact be made by the staff of General Service Bureau to my home or to my place of employment. All future communications with me must be done in writing and sent to the address noted in this letter.

 

This includes several assertations that don't seem to be supported by the FDCPA. The provisions of 15 USC 1692g subsection b are contingent upon validation being requested within the first 30 day period. When outside of this period, during validation there is no restriction upon the CA to stop contacting the consumer or to stop 'collection activities' including but not limited to reporting to CRA's.

 

Under 15 USC 1692c subsection c the consumer can effect a complete cessation of communication (NOT a cessation of 'collection activities', including but not limited to reporting to CRAs') but there is no provision for a 30 day time limit, nor any indication that the consumer can rescind his invocation of 15 USC 1692c subsection c.

 

I understand that many CA's don't necessarily know this, and that often they will do these things anyway, I have no dispute with that. However, I want to be sure that I correctly understand the laws before I try to use them.

 

Is it true that outside of the initial 30 day contact DV'ing a CA does not legally require the CA to stop collection activities (such as CRA reporting), and that while the consumer can cause the cessation of communication from a CA under 15 USC 1692c subsection c, this does not legally stop the CA from reporting debt information to CRA's?

 

Thanks!

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Is it true that outside of the initial 30 day contact DV'ing a CA does not legally require the CA to stop collection activities (such as CRA reporting),

It becomes a different issue. If they cannot provide validation to you, exactly what are they hanging their hats on to verify their reporting? Either they have proof (validation) or they do not.

 

 

and that while the consumer can cause the cessation of communication from a CA under 15 USC 1692c subsection c, this does not legally stop the CA from reporting debt information to CRA's?

No, it doesn't. It merely stops them from communicating with you in a manner "known to be inconvenient".

 

Thanks!

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Is it true that outside of the initial 30 day contact DV'ing a CA does not legally require the CA to stop collection activities (such as CRA reporting),

It becomes a different issue. If they cannot provide validation to you, exactly what are they hanging their hats on to verify their reporting? Either they have proof (validation) or they do not. [/color]

 

Outside the 30 day limit the CA is not legally obligated to stop reporting when asked to DV. This means that they are free to respond to CRA verification requests even if you have asked them to DV. If it turns out that they cannot validate the debt then they have lost nothing by responding to CRA requests for verification as long as they immediately stop collections. Subsequent CRA requests for verification would not be verified.

 

You could sue them for reporting the information on a debt that is not valid, but unless you've got them on some other things I doubt you'd be able to get it to stick, particularly if they started cooperating as soon as they were unable to validate.

 

and that while the consumer can cause the cessation of communication from a CA under 15 USC 1692c subsection c, this does not legally stop the CA from reporting debt information to CRA's?

No, it doesn't. It merely stops them from communicating with you in a manner "known to be inconvenient".

Please correct me if I am wrong, but that does not appear to be the case:

 

15 USC 1692a:

As used in this title --

 

(2) The term "communication" means the conveying of information regarding a debt directly or indirectly to any person through any medium.

 

The 'inconvenient' wording only appears here:

 

15 USC 1692c

a) COMMUNICATION WITH THE CONSUMER GENERALLY. Without the prior consent of the consumer given directly to the debt collector [...], a debt collector may not communicate with a consumer in connection with the collection of any debt --

 

(1) at any unusual time or place or a time or place known or which should be known to be inconvenient to the consumer.

 

but:

 

15 USC 1692c:

© CEASING COMMUNICATION. If a consumer notifies a debt collector in writing [...] that the consumer wishes the debt collector to cease further communication with the consumer, the debt collector shall not communicate further with the consumer with respect to such debt, except --

 

(1) to advise the consumer that the debt collector's further efforts are being terminated;

 

(2) to notify the consumer that the debt collector or creditor may invoke specified remedies which are ordinarily invoked by such debt collector or creditor; or

 

(3) where applicable, to notify the consumer that the debt collector or creditor intends to invoke a specified remedy.

 

 

Subsection c specifically bars all communication with the consumer with the exception of the three specifically noted items, not just communication where or when it would be inconvenient.

 

So, a CA who knows the law and who is outside the 30 day contact period would be able to respond to a CRA's verification request as used in the 1-2 punch technique.

Edited by Fedallah

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Under 15 USC 1692c subsection c the consumer can effect a complete cessation of communication (NOT a cessation of 'collection activities', including but not limited to reporting to CRAs') but there is no provision for a 30 day time limit, nor any indication that the consumer can rescind his invocation of 15 USC 1692c subsection c.

 

To answer this part of my question, I think that the request for cessation of communicaton for 30 days is covered under 15 USC 1692c subsection a:

 

Without the prior consent of the consumer given directly to the debt collector or the express permission of a court of competent jurisdiction, a debt collector may not communicate with a consumer in connection with the collection of any debt

 

(1) at any unusual time or place or a time or place known or which should be known to be inconvenient to the consumer.[...]

 

So if you make it known that all communication with them is inconvenient, except when it occurs after a certain date and in writing, you'd be covered.

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Apologies for replying to myself again, but I ran across the following thread:

 

Debtor rights AFTER 30 days:

http://creditboards.com/forums/index.php?s...i-miranda&st=25

 

Which says essentially what I expected, after 30 days the CA isn't obligated to validate or restricted from reporting, but if they show up in court them saying 'consumer didn't ask to validate within 30 days, nay-nay' ain't going to fly with many judges.

 

So, effectively, if an account is in SOL (meaning it would be worth their effort to sue) and you ask for validation, they aren't going to get very far if they don't do it, but they can legally respond to CRA verifications, so 1-2 punch won't catch them in a violation. 1-2 is still useful in case they don't know this or don't care.

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ummm...I have to disagree with you...

 

how can they verify something that they haven't investigated (i.e. gotten validation from the OC)? Johnson V MBNA

 

 

if they DO verify, granted, it wouldn't be a violation of FDCPA for continued collection activity, but it WOULD be a violation for misrepresenting the status or nature of a debt, plus furnishing information which they know, or should know, to be inaccurate (i.e. if they didn't get proof of the alleged debt, they should know that there's an issue with the TL) Add that to the fact that 90% of the time they don't bother marking it as in dispute, and don't correct the obvious errors in the TL, and you've got a ready made suit

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If you use the one two punch and the CA verifies an item listed on your CR without providing the consumer evidence of its reporting, they can still be guilty of FCRA violations. If a CA has evidence of initial communication, the consumer must ask for validation within 30 days for applicable FDCPA violations. If you notice a collection on your reports, you may initiate a DV and follow up with a dispute with the CRA and the CA would still have to validate with the consumer before verifying the listing as they have not initiated communication with the consumer. In other words, even if a CA is relieved from their obligations under the FDCPA, they are still liable under the FCRA if a consumer initiates a dispute with the CA regarding a listing on their CR.

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how can they verify something that they haven't investigated (i.e. gotten validation from the OC)?

Johnson V MBNA

 

I'm looking for code or case law that requires the CA to go back to the OC when validating a request from a CRA. I didn't see anything relevant in Johnson V MBNA, what am I missing?

 

If a CA will reply to a DV from the consumer with improper validation, I'd expect that they would do the same for a validation request from a CRA, if they bother to do anything more than just check their computer records.

 

if they DO verify, ... it WOULD be a violation for misrepresenting the status or nature of a debt, plus furnishing information which they know, or should know, to be inaccurate

 

I think you are refering to 15 USC 1692e, subsection 807, which says "A debt collector may not use any false, deceptive, or misleading representation"

 

Black's Law Dictionary says that:

To maintain an action for damages for "false representation,"

the plaintiff, in substance, must allege and prove by a

preponderance of the evidence the following elements: (1)

that the representation was made; (2) that it was false; (3)

that the defendant knew it was false, or else made it without

knowledge as a positive statement of a known fact; ...

 

I'm not sure what context that is taken from, but it sounds like a pretty reasonable definition of the general term.

 

If the CA has what they consider to be valid information about the account, then 3 above would not be satisified and it would be difficult to get them under subsection 807. Being wrong doesn't put them in violation, but lying does. Also, if after verifing the CRA's request they find that they cannot validate they 'do the right thing' and the derog comes off your report, you wouldn't have much of a case.

 

This is contingent upon there being no legal requirement for the CA to query the OC before validating a request from the CRA.

 

It still looks to me like an informed CA has every reason to validate a CRA's request if they are outside the 30 day limit with the consumer.

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Ok, after reading through this post and archives of the board it looks like the 1-2 punch approach is pointless if a CA is paid and past the 30 day mark, is that correct? Does this just leave a hopeful dispute with the CRA, or catching the CA in violations and taking it to court?

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Ok, after reading through this post and archives of the board it looks like the 1-2 punch approach is pointless if a CA is paid and past the 30 day mark, is that correct? Does this just leave a hopeful dispute with the CRA, or catching the CA in violations and taking it to court?

 

No, it's not hopeless by any means. TIMING is one reason why the 1-2 punch often works anyway. You never know when you might run into a CA with crappy recordkeeping or slow staff. The DV might cause them to drag their feet on responding to the CRA dispute. If the CA fails to verify to the CRA within the specified period, the CRA has to delete the TL. It's worth a try.

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how can they verify something that they haven't investigated (i.e. gotten validation from the OC)?

Johnson V MBNA

 

I'm looking for code or case law that requires the CA to go back to the OC when validating a request from a CRA. I didn't see anything relevant in Johnson V MBNA, what am I missing?

 

If a CA will reply to a DV from the consumer with improper validation, I'd expect that they would do the same for a validation request from a CRA, if they bother to do anything more than just check their computer records.

 

if they DO verify, ... it WOULD be a violation for misrepresenting the status or nature of a debt, plus furnishing information which they know, or should know, to be inaccurate

 

I think you are refering to 15 USC 1692e, subsection 807, which says "A debt collector may not use any false, deceptive, or misleading representation"

 

Black's Law Dictionary says that:

To maintain an action for damages for "false representation,"

the plaintiff, in substance, must allege and prove by a

preponderance of the evidence the following elements: (1)

that the representation was made; (2) that it was false; (3)

that the defendant knew it was false, or else made it without

knowledge as a positive statement of a known fact; ...

 

I'm not sure what context that is taken from, but it sounds like a pretty reasonable definition of the general term.

 

If the CA has what they consider to be valid information about the account, then 3 above would not be satisified and it would be difficult to get them under subsection 807. Being wrong doesn't put them in violation, but lying does. Also, if after verifing the CRA's request they find that they cannot validate they 'do the right thing' and the derog comes off your report, you wouldn't have much of a case.

 

This is contingent upon there being no legal requirement for the CA to query the OC before validating a request from the CRA.

 

It still looks to me like an informed CA has every reason to validate a CRA's request if they are outside the 30 day limit with the consumer.

 

 

but they have reason to believe that it IS false, and that's enough in many courts.

 

On what do they base their belief that the information is valid? What investigation have they done?

 

If they verify, then subsequently delete, that doesn't mitigate the FACT that they violated your rights by verifying.

 

let's look at 623 (a)

 

(B) Reporting information after notice and confirmation of errors. A person shall not furnish information relating to a consumer to any consumer reporting agency if

 

(i) the person has been notified by the consumer, at the address specified by the person for such notices, that specific information is inaccurate; and

 

(ii) the information is, in fact, inaccurate.

 

 

when you DV, you're notifying the FOD that the information is inaccurate..so that's taken care of

 

I have VERY RARELY seen a CA account that is actually accurate. How many have you seen that were 100% accurate? I can think of maybe 5 TOTAL out of the hundreds that I've seen.

 

 

now...623 (B)

(B) Duties of furnishers of information upon notice of dispute.

 

(1) In general. After receiving notice pursuant to section 611(a)(2) [§ 1681i] of a dispute with regard to the completeness or accuracy of any information provided by a person to a consumer reporting agency, the person shall

 

(A) conduct an investigation with respect to the disputed information;

 

(B) review all relevant information provided by the consumer reporting agency pursuant to section 611(a)(2) [§ 1681i];

 

© report the results of the investigation to the consumer reporting agency; and

 

(D) if the investigation finds that the information is incomplete or inaccurate, report those results to all other consumer reporting agencies to which the person furnished the information and that compile and maintain files on consumers on a nationwide basis.

 

what is an "investigation"? Parroting information already in their files? The courts say no...so what's left? Tossing a dart at a dartboard?

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Ok, after reading through this post and archives of the board it looks like the 1-2 punch approach is pointless if a CA is paid and past the 30 day mark, is that correct? Does this just leave a hopeful dispute with the CRA, or catching the CA in violations and taking it to court?

 

If this is right (I'm a computer programmer, not a lawyer) this all hinges on a very important bit: that the CA understands that there isn't a restriction on verifiying to a CRA when they have received a DV outside the 30 day window.

 

The 1-2 punch works, and there is no reason I can think of NOT to give it a try. However, if you try it outside the 30 day limit and the CA verifies to the CRA before they DV to you, it does not appear to me that that is a violation. For people who are collecting violations against a CA with intent to sue, this detail could be important.

 

I would avoid wording DV's to CA's in a away that asserts that they must not continue reporting information. Asking them not to in a way that implies that requirement would be fine, but I wouldn't assert something that doesn't have any legal teeth.

 

but they have reason to believe that it IS false, and that's enough in many courts.

 

You could certainly argue it that way, but I think that it wouldn't be difficult for a CA to make a case that a DV from a consumer isn't necessarily reason to believe that the information is false.

 

On what do they base their belief that the information is valid? What investigation have they done?

 

On the strength of the information provided by whomever hired them to collect the debt. A lot of CA activity is simply fishing for people to bully, however, some is based on accurate data from their clients (that is to say, not all CA's are peopled entirely with low-life scum with questionable business practices. Know your enemy). If they can show that a client has a history of providing solid, accurate data, then they could make a pretty good case that a DV from the consumer does not give them reason to believe that the information is false, and therefore the information they supplied to the CRA was not 'false representation'.

 

If they verify, then subsequently delete, that doesn't mitigate the FACT that they violated your rights by verifying.

 

That depends. They can verify as long as they mark the data as disputed. Either way, it doesn't give you a very strong case to argue in front of a judge. Many other places on CB make a point of telling the consumer to give the CA several chances to do the right thing before you sue them for violations. The whole point of that is to avoid getting into court and finding that the judge throws it out because the CA did the right thing as soon as they learned their information was wrong. The same thing applies here.

 

when you DV, you're notifying the FOD that the information is inaccurate..so that's taken care of

 

 

The consumers say-so doesn't make the information inaccurate. A DV is simply a notice to the CA that you dispute the debt. It does not change the CA's belief in the accuracy of the information. All they have to do is make sure that when they validate the request from the CRA they get it marked as disputed:

 

FDCPA
807: A debt collector may not use any false [...] representation [such as] Communicating [...] to any person credit information which is known [...] to be false, including the failure to communicate that a disputed debt is disputed.

 

Failing to communicate that the information is in dispute would put them in violation, but nothing stops them from noting that you have DV'd them, starting that process, then validating the CRA's request with the stipulation that the information is in dispute. If the DV turns up that the CA's info is wrong they have the CRA remove the account and all's well. If they don't mark the CRA's info as disputed, or they don't DV properly, then you'll have something on them.

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I'll reply in detail tomorrow...but your last statement really jumped out at me

 

 

Are you saying that, let's say Sherman...they report that you have an open account, factored, 120 days late...and they mark it as disputed...that's all they need to do, even though they know, or should know, that the information is inaccurate? That's ridiculous...

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I'll reply in detail tomorrow

 

Looking forward to it, I appreciate your time helping me figure this stuff out :rolleyes:

 

Are you saying that, let's say Sherman...they report that you have an open account, factored, 120 days late...and they mark it as disputed...that's all they need to do, even though they know, or should know, that the information is inaccurate? That's ridiculous...

 

Look at it from the CA's point of view. You have a regular client, a hospital for example, who gets lots of accounts that are documented but unpaid. They assign you lots of accounts, and from experience you know that when you ask for more details from the hospitals billing department, they can usually provide them.

 

So you in contact with a consumer about their account and are outside of the 30 day limit when the consumer suddenly discover CreditBoards and send you a CRRR DV letter. Ok, fine, you call up the hospital and ask them to check the details and send the consumer the info (they can't send it to you because its medical info). Then you get a verify request from the CRA's you've reported the account to.

 

At this point do you have a belief that the account information is inaccurate? Does the fact that this joker you're dealing with claims he doesn't know anything about the account give you reason to believe that the account information is inaccurate? I don't think so (but see 'the other hand', below).

 

Since you are already investigating the account, and you don't currently have any reason to believe that the account is inaccurate (other than an unsubstantiated claim from the guy who owes the money), all you have to do is tell the CRA that yes, I reported that information, yes I believe its accurate, however, it is in dispute, so please mark it as such.

 

Now, on the other hand, if, in addition to a DV, this consumer also sent along copies of the original bill and the cancelled check he paid with. Now you're no longer dealing with some joker, you've got some credible evidence and reason to believe that the account information was inaccurate. In this case you would not want to validate the information to the CRA until you had the results of the DV from your client.

 

Of course, if you're a bottomfeeder who makes a living bullying poor saps who don't know better with cruddy, unverifiable information you probably won't bother trying to DV or respond to the CRA, you'll just drop it and find someone who's easier to bully.

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Marking this thread...

 

Pryan, Fedallah, good discussion. I am very interested because a lot of my CAs are outside of the first 30 days. I am curious to know if there's been any precedent set with any court cases.

 

Regards

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I'll reply in detail tomorrow

 

Looking forward to it, I appreciate your time helping me figure this stuff out :P

 

Are you saying that, let's say Sherman...they report that you have an open account, factored, 120 days late...and they mark it as disputed...that's all they need to do, even though they know, or should know, that the information is inaccurate? That's ridiculous...

 

Look at it from the CA's point of view. You have a regular client, a hospital for example, who gets lots of accounts that are documented but unpaid. They assign you lots of accounts, and from experience you know that when you ask for more details from the hospitals billing department, they can usually provide them.

 

So you in contact with a consumer about their account and are outside of the 30 day limit when the consumer suddenly discover CreditBoards and send you a CRRR DV letter. Ok, fine, you call up the hospital and ask them to check the details and send the consumer the info (they can't send it to you because its medical info). Then you get a verify request from the CRA's you've reported the account to.

 

At this point do you have a belief that the account information is inaccurate? Does the fact that this joker you're dealing with claims he doesn't know anything about the account give you reason to believe that the account information is inaccurate? I don't think so (but see 'the other hand', below).

 

Since you are already investigating the account, and you don't currently have any reason to believe that the account is inaccurate (other than an unsubstantiated claim from the guy who owes the money), all you have to do is tell the CRA that yes, I reported that information, yes I believe its accurate, however, it is in dispute, so please mark it as such.

 

Now, on the other hand, if, in addition to a DV, this consumer also sent along copies of the original bill and the cancelled check he paid with. Now you're no longer dealing with some joker, you've got some credible evidence and reason to believe that the account information was inaccurate. In this case you would not want to validate the information to the CRA until you had the results of the DV from your client.

But, all you have is unsubstantiated claims from the billing department of the hospital to "prove" that the debt is valid...

 

FCRA requires an investigation upon notice of dispute...the CA in the example you're giving is NOT investigating, rather, they're just parroting information already in their files. They don't KNOW that the information reporting is accurate, but they're claiming that it is...no investigation has taken place yet...therefore, FCRA violations.

 

Now, your example is assuming it's the one case where the CA is listing the account accurately...as we all know, the VAST VAST majority of CA TLs are INACCURATE on the face. EVERY ONE of the TLs that I've seen from Sherman, asset, midland, RMA, Allied, AFNI, NCO, etc have been GROSSLY inaccurate...KNOWINGLY being reported wrong...

 

 

 

Of course, if you're a bottomfeeder who makes a living bullying poor saps who don't know better with cruddy, unverifiable information you probably won't bother trying to DV or respond to the CRA, you'll just drop it and find someone who's easier to bully.

 

 

The above is the most prevelant case...

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Ok, after reading through this post and archives of the board it looks like the 1-2 punch approach is pointless if a CA is paid and past the 30 day mark, is that correct? Does this just leave a hopeful dispute with the CRA, or catching the CA in violations and taking it to court?

 

If this is right (I'm a computer programmer, not a lawyer) this all hinges on a very important bit: that the CA understands that there isn't a restriction on verifiying to a CRA when they have received a DV outside the 30 day window.

This is assuming two things.

 

1. that the CA has some form of intelligence and respect for the law

 

2. that you're correct that the CA can verify information which they have reason to believe is inaccurate, or that has not been investigated as required under FCRA

 

The 1-2 punch works, and there is no reason I can think of NOT to give it a try. However, if you try it outside the 30 day limit and the CA verifies to the CRA before they DV to you, it does not appear to me that that is a violation. For people who are collecting violations against a CA with intent to sue, this detail could be important.

I strongly disagree...FCRA is very clear about the requirement for the CA to investigate and that they can't report information which is unverifiable

 

I would avoid wording DV's to CA's in a away that asserts that they must not continue reporting information. Asking them not to in a way that implies that requirement would be fine, but I wouldn't assert something that doesn't have any legal teeth.

 

I agree with this...no reason to tell the CA what they should already know number one, and why give them a heads up as to your knowledge of your rights?

 

 

but they have reason to believe that it IS false, and that's enough in many courts.

 

You could certainly argue it that way, but I think that it wouldn't be difficult for a CA to make a case that a DV from a consumer isn't necessarily reason to believe that the information is false.

 

What reason do they have to believe it's accurate? Because someone's paying them to collect on it?

 

Besides, as I state in my post above this, they failed to investigate

 

On what do they base their belief that the information is valid? What investigation have they done?

 

On the strength of the information provided by whomever hired them to collect the debt. A lot of CA activity is simply fishing for people to bully, however, some is based on accurate data from their clients (that is to say, not all CA's are peopled entirely with low-life scum with questionable business practices. Know your enemy). If they can show that a client has a history of providing solid, accurate data, then they could make a pretty good case that a DV from the consumer does not give them reason to believe that the information is false, and therefore the information they supplied to the CRA was not 'false representation'.

 

I agree that some CAs may have some people with a modicum of ethics...I just haven't met any yet *lol*

 

 

once again, FCRA REQUIRES an investigation...in the examples in this thread, NO investigation has been done.

 

Let's say they DO have a client that's provided accurate data before...let's say 5% of the time a consumer asks for information...and the OC provides it...let's say 90% of the time...

 

 

that means (my math may be off...it's early *grin*) that 4.5% of the accounts have been proven accurate by the OC

 

 

Hardly a statistical universe...

 

 

If they verify, then subsequently delete, that doesn't mitigate the FACT that they violated your rights by verifying.

 

That depends. They can verify as long as they mark the data as disputed. Either way, it doesn't give you a very strong case to argue in front of a judge. Many other places on CB make a point of telling the consumer to give the CA several chances to do the right thing before you sue them for violations. The whole point of that is to avoid getting into court and finding that the judge throws it out because the CA did the right thing as soon as they learned their information was wrong. The same thing applies here.

AFTER an investigation, sure...but there's no evidence that an investigation has been done...and it likely hasn't been

 

 

I agree that you need a strong paper trail, and show your effort to correct the errors of the CA...and this is part of it...the CA failing to investigate, verifying information which they don't KNOW to be accurate, etc

 

when you DV, you're notifying the FOD that the information is inaccurate..so that's taken care of

 

 

The consumers say-so doesn't make the information inaccurate. A DV is simply a notice to the CA that you dispute the debt. It does not change the CA's belief in the accuracy of the information. All they have to do is make sure that when they validate the request from the CRA they get it marked as disputed:

 

FDCPA
807: A debt collector may not use any false [...] representation [such as] Communicating [...] to any person credit information which is known [...] to be false, including the failure to communicate that a disputed debt is disputed.

 

Failing to communicate that the information is in dispute would put them in violation, but nothing stops them from noting that you have DV'd them, starting that process, then validating the CRA's request with the stipulation that the information is in dispute. If the DV turns up that the CA's info is wrong they have the CRA remove the account and all's well. If they don't mark the CRA's info as disputed, or they don't DV properly, then you'll have something on them.

 

 

once again...how can they verify information when they don't know that it's accurate?

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This all hinges on a very important bit: that the CA understands that there isn't a restriction on verifiying to a CRA when they have received a DV outside the 30 day window.

This is assuming two things.

 

1. that the CA has some form of intelligence and respect for the law

Absoutely. I'd definately give them plenty of rope with which to hang themselves.

 

2. that you're correct that the CA can verify information which they have reason to believe is inaccurate,

 

:blink:

 

Stop right there, you're putting words in my.. er, keyboard. :rofl:

 

If the CA has reason to believe that their information is inaccurate, then they can't legally report it.

 

However, as I detailed earlier, I don't think a dispute notice is bulletproof as reason for the CA to believe the information is inaccurate.

 

if you 1-2 punch outside the 30 day limit and the CA verifies to the CRA before they DV to you, it does not appear to me that that is a violation.

I strongly disagree...FCRA is very clear about the requirement for the CA to investigate

 

No disagreement there. They may have already started an investigation as a result of the consumers first punch (DV), although they are not required to under either the FCRA or FDCPA (because they are outside the 30 day limit).

 

and that they can't report information which is unverifiable

 

15 U.S.C. § 1681s-2(a) Reporting information with actual knowledge of errors.

 

A person shall not furnish any information relating to a consumer to any consumer reporting agency if the person
knows
or
consciously avoids knowing
that the information is inaccurate.

 

The CA does not know the information has errors. The CA is not consciously avoiding knowing because they are performing an investigation, the results of which are not yet known. So this one doesn't apply

 

15 U.S.C. § 1681s-2(
B)
Reporting information after notice and confirmation of errors.

 

A person shall not furnish information relating to a consumer to any consumer reporting agency if

(i) the person has been notified by the consumer [...] that specific information is inaccurate; and

(ii) the information is, in fact, inaccurate.

 

This one applies, but the way it is worded is interesting. It doesn't prohibit the CA from reporting the disputed information after the consumer has disputed it, but if their investigation confirms that the info is inaccurate, then they are in violation.

 

This is the point I'm trying to make. Reporting the disputed info out of the 30 days does not automaticly put them in violation. The information has to be invalid. If it is, great, violation. But it's not automatic.

 

On what do they base their belief that the information is valid?

On the strength of the information provided by whomever hired them to collect the debt.

Once again, FCRA REQUIRES an investigation... [in the event of a dispute]

 

Yes, it does, but it does not prohibit reporting of disputed information nor does a legal obligation to perform an investigation require the CA to believe that the information is inaccurate.

 

Let's say they DO have a client that's provided accurate data before...let's say 5% of the time a consumer asks for information...and the OC provides it...let's say 90% of the time...

 

that means (my math may be off...it's early *grin*) that 4.5% of the accounts have been proven accurate by the OC

 

And it also says that a bare 0.5% of the accounts are proven inaccurate. The remaining 95% are not relevant because they were not investigated. If the results are favorable they may even claim that all their paid accounts can be included in the 'proven' count without an investigation because the consumer paid it without disputing.

 

You know what they say about statistics.

 

In court the CA would report that 90% of all consumer disputes are BS, so when they get one they are justified in not considering it to be credible evidence that their information is inaccurate.

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http://www.myfaircredit.com/forum/viewtopic.php?t=594

 

Semper v. JBC Legal Group

Slip Copy, 2005 WestLaw 2172377

W.D.Wash., Sep 06, 2005

 

Relevant quote:

 

"In Bruce, the Court employed two factors to determine whether a furnisher of information engaged in adequate investigation of a disputed debt: "(1) whether the consumer has alerted the agency that the initial source of the information may be unreliable or if the agency knows or should know that the source is unreliable, and (2) the cost of verifying the accuracy of the source versus the possible harm of reporting inaccurate information." Bruce, 103 F. Supp 2d at 1143."

 

So yes, under the FCRA, the consumer's word counts when dealing with an investigation by the furnisher.

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I also think we might be missing a bit of the original point -- and if I'm wrong here, tell me.

 

It seemed like the original post was about using the 1-2 punch on a tradeilne that is reporting correctly to get it off of your CR.

 

If the information is inaccurate and the furnisher verifies it, outside of a 1-2 punch or not, they've violated 1681s(2)b if a reasonable investigation should have uncovered the fact it was inaccurate or could not be verified.

 

Since no investigtation is required under the FCRA on a tradeline that is in fact accurate, the 1-2 punch outside of the 30 day period creates a way to legitimately dispute a tradeline that you have no proof is inaccurate -- by making it inaccurate since it is not reporting as disputed. When you dispute with the furnisher, then follow up a dispute with the CRA, they must mark it as disputed when they verify (or else they violate FCRA *and* FDCPA if it's a CA). There are TLs that I do not know if they are inaccurate or not. The CA may not have provided validation, or may not have ever dunned me . By doing a 1-2 punch, when I tell the CRA they are inaccurate I am not lying or mistaken.

 

Regardless of if they believe the consumer or not, they must mark the tradeline as disputed.

 

Regardless of if they believe the customer or not, apparently from case law the consumer's statement that the informatiom may be unreliable is enough to establish the burden of investigation.

 

A lot of my reasoning for this is drawn from the fact that case law establishes that the burden on a furnisher during reinvestigation is a similar one tothe burden a CRA has.

 

http://www.myfaircredit.com/forum/viewtopic.php?t=2086

 

United States Court of Appeals,Seventh Circuit.

Cheryl BAGBY, Plaintiff-Appellant,

v.

EXPERIAN INFORMATION SOLUTIONS, INC., Defendant-Appellee.

No. 04-2593.

 

Given Bagby's failure to present evidence that Sears or Discover were unreliable sources, this is not a circumstance where a more in-depth investigation by Experian was warranted. But see Cushman v. Trans Union Corp., 115 F.3d 220 (3d Cir.1997) (finding that additional investigation by credit reporting agency was warranted after consumer alerted agency to unreliability of source); Stevenson v. TRW Inc., 987 F.2d 288 (5th Cir.1993) (same).

 

---------

 

Reason Bagby lost that case is that they did not attempt a second or third dispute, did not notify the furnishers that they thought it was fraud, etc. In other words, judge was mad that the person used court as their first remedy, rather than giving each party several chances to make things right.

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Here's a question for you then Fedallah

 

If FCRA requires an investigation...

 

and the investigation isn't completed (i.e. when a CRA contacts a CA and the CA just verifies it before going back to the OC as would be required under FDCPA within the 30 days), how can they verify that the information is, in fact, 100% accurate, complete, and verifiable?

 

How did they verify the information which they're reporting? From their own records? That's hardly an investigation...

 

If I ask you what your temperature is right now...can you answer with 100% accuracy without grabbing a thermometer? Of course not...neither can a CA verify that the information which they're reporting is 100% accurate without going back to the OC

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