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FCRA / FDCPA violations

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I have two questions re: FCRA / FDCPA violations.

 

I know one of them provides for a total of $1,000 in damages, and the other provides for $1,000 per violation. I can't remember which is which. Can someone tell me?

 

The other question pertains to notice to a consumer after a CA has reported information to the CRAs. If I recall correctly, they must notify the consumer that adverse information is being reported to CRAs within 30 days of first reporting that information to CRAs. But I can't recall if that is a FDCPA or FCRA guidline. Can someone direct me to the proper code?

 

Thanks!

 

I'm fixin' to stick it to CA in federal court. :)

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ShootingSelfInFoot.png

 

Feel free to move along if you have nothing useful to contribute.

 

But thanks for the bump. <_<

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It's my understanding that the FCRA is 1000 per violation, while the FDCPA is 1000 total.

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It's my understanding that the FCRA is 1000 per violation, while the FDCPA is 1000 total.

This is correct.

There is no provision for a CA to notify the consumer they are placing an entry on a credit report.

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It's my understanding that the FCRA is 1000 per violation, while the FDCPA is 1000 total.

 

Thanks!

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It's my understanding that the FCRA is 1000 per violation, while the FDCPA is 1000 total.

This is correct.

There is no provision for a CA to notify the consumer they are placing an entry on a credit report.

 

Thanks, Gweedoh.

 

Hmmm. I could have sworn I at some time read that furnishers are required to notify a consumer if they report to CRAs. Perhaps I'm confusing this with something else.

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It's my understanding that the FCRA is 1000 per violation, while the FDCPA is 1000 total.

This is correct.

There is no provision for a CA to notify the consumer they are placing an entry on a credit report.

 

Thanks, Gweedoh.

 

Hmmm. I could have sworn I at some time read that furnishers are required to notify a consumer if they report to CRAs. Perhaps I'm confusing this with something else.

 

You did read something like that. If a CRA deletes an account then they have to notify the consumer if they reinsert the same account.

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It's my understanding that the FCRA is 1000 per violation, while the FDCPA is 1000 total.

This is correct.

There is no provision for a CA to notify the consumer they are placing an entry on a credit report.

 

Thanks, Gweedoh.

 

Hmmm. I could have sworn I at some time read that furnishers are required to notify a consumer if they report to CRAs. Perhaps I'm confusing this with something else.

 

You did read something like that. If a CRA deletes an account then they have to notify the consumer if they reinsert the same account.

They have 5 days to notify you in this case, not 30.

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Okay, so I can't get them for failure to notify. But I've got them hands down on enough other violations to still make it worth while:

 

Willfully misrepresenting the character of the debt by placing a collection account in open accounts section, stating repayment terms of 1 month, and 120 days past due.

 

Continuing collection activity after by renewing reporting of adverse information to CRAs after receiving consumers complaint and not responding to complaint or providing debt validation.

 

Failing to indicate in its reporting to CRAs that the information being reported is disputed by consumer.

 

Unless I'm mistaken, that's at least 9 FCRA violations (3 FCRA violations x 3 bureaus it was reported to), and perhaps a FDCPA violation on top of it.

 

Question regarding the misrepresentation of information to CRAs: Would I count each misrepresentation separately, or just one misrepresentation for each CRA. In other words, let's say they reported to TU that they are a factoring company, that my wife has an open account with them, that the repayment term is one month, and that she is more than 120 days late... would I count that as four separate misrepresentations, and therefore four separate causes for action, or would I just count that as one instance of misrepresentation, as the misrepresentations occurred together in one reporting?

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Okay, so I can't get them for failure to notify. But I've got them hands down on enough other violations to still make it worth while:

 

Willfully misrepresenting the character of the debt by placing a collection account in open accounts section, stating repayment terms of 1 month, and 120 days past due.

 

Continuing collection activity after by renewing reporting of adverse information to CRAs after receiving consumers complaint and not responding to complaint or providing debt validation.

 

Failing to indicate in its reporting to CRAs that the information being reported is disputed by consumer.

 

Unless I'm mistaken, that's at least 9 FCRA violations (3 FCRA violations x 3 bureaus it was reported to), and perhaps a FDCPA violation on top of it.

 

Question regarding the misrepresentation of information to CRAs: Would I count each misrepresentation separately, or just one misrepresentation for each CRA. In other words, let's say they reported to TU that they are a factoring company, that my wife has an open account with them, that the repayment term is one month, and that she is more than 120 days late... would I count that as four separate misrepresentations, and therefore four separate causes for action, or would I just count that as one instance of misrepresentation, as the misrepresentations occurred together in one reporting?

 

WOW!!

I think it's one violation per CRA, I also think it's a voilation per month they reported inaccurate info

 

Keep posting as to the outcome, I am verrrrry interested

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Under FCRA it's a violation for each time they report to the CRA's. So if they update monthly, thats 1 violation per month per CRA.

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Okay, so I can't get them for failure to notify. But I've got them hands down on enough other violations to still make it worth while:

 

Willfully misrepresenting the character of the debt by placing a collection account in open accounts section, stating repayment terms of 1 month, and 120 days past due.

 

Continuing collection activity after by renewing reporting of adverse information to CRAs after receiving consumers complaint and not responding to complaint or providing debt validation.

 

Failing to indicate in its reporting to CRAs that the information being reported is disputed by consumer.

 

Unless I'm mistaken, that's at least 9 FCRA violations (3 FCRA violations x 3 bureaus it was reported to), and perhaps a FDCPA violation on top of it.

 

Question regarding the misrepresentation of information to CRAs: Would I count each misrepresentation separately, or just one misrepresentation for each CRA. In other words, let's say they reported to TU that they are a factoring company, that my wife has an open account with them, that the repayment term is one month, and that she is more than 120 days late... would I count that as four separate misrepresentations, and therefore four separate causes for action, or would I just count that as one instance of misrepresentation, as the misrepresentations occurred together in one reporting?

 

WOW!!

I think it's one violation per CRA, I also think it's a voilation per month they reported inaccurate info

 

Keep posting as to the outcome, I am verrrrry interested

 

The nice part is, it's not even very difficult for me to draft this complaint. Last summer when I was working on cleaning up my reports, I had a couple of the worst JDBs sticking like glue and violating left and right in the process. I couldn't find an attorney that was willing to take the case on contingency, and I didn't have the money to pay an attorney out of pocket, so I decided I would have to handle the legal process by myself. I'm actually pretty comfortable representing myself in a court room. I had to go back to court with my ex so many times over custody disputes that I eventually became very familiar with the rules of the court, construction of pleadings, and litigation. But this was a little different. First, it was credit issues, which I was not as familiar with. But I also realized that, to be truly effective, I would need to file in federal court rather than small claims or district, since the federal judges are going to be much better versed in the federal codes.

 

So last summer I spent about 6 weeks researching the rules of the federal court, pleadings and such, and created a federal complaint. An attorney on the boards looked it over for me a couple of times, and made sure my pleadings and format were correct. I then mailed an ITS and a copy of the complaint I would be filing to those last couple of JDBs unless they removed their reporting from the bureaus within 10 days. I've never seen baddies fly off my report so fast.

 

So now I already have these pleadings. And, ironically, one of the same JDBs I sent these pleadings to before is trying to put the screws to my wife. So all I have to do is modify the previous complaint a bit and fire it off to them along with an ITS. The things is, though, I've got them so dead to rights on violations that I'd almost rather follow through with the suit. The problem is, my wife would have to represent herself in the federal court, as I would not be allowed to represent her. And she's not nearly as comfortable in a court room as I am. So I suppose I'll just back off again as long as they delete.

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Continuing collection activity after by renewing reporting of adverse information to CRAs after receiving consumers complaint and not responding to complaint or providing debt validation.

 

Did you notify them within 30 days if their first communication with you?

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Continuing collection activity after by renewing reporting of adverse information to CRAs after receiving consumers complaint and not responding to complaint or providing debt validation.

 

Did you notify them within 30 days if their first communication with you?

 

They never communicated. It just popped up on her report one day. I pull hers daily. So I noticed it in December and waited a couple of weeks for something to show up in the mail. Nothing ever did. I'm guessing that it is perhaps because they are not licensed to collect in my state, and my state's AG will jump on CAs pretty good for attempting to collect in the state without a license. So at the end of December, I DV'd them, CMRR. They just renewed the same information on her reports this month, and they failed to indicate that she had disputed the reporting. So I preserved a copy of the violations and now I'm creating a pleading and firing it off with an ITS.

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Just as a heads up to everyone... It would be well to review the FCRA. I know, it's a pain to read thru.. The FDCPA is much easier. But it would really help a consumers case if they wanna put the nail in the coffin, as it were.

 

Sections 616, Civil liability for willful non-compliance and 617, Cilvil liability for negligent non-compliance.

 

What is the difference? A ton.

 

Please bear with me. :clapping:

 

If a CA lists their account on your credit report(s) and notes it is a factoring company account... This is a violation.

 

But, what section would it fall under?

 

617. Negligent non-compliance.

 

How much can you sue for?

 

$0.

 

(Or actual damages, but most people here aren't speaking in those terms)

 

Now, if you dispute that information with a CRA, and the CA verifies that yes, it is a factoring company account, which we know it is not, at that point they are under section 616 - willful non-compliance.

 

How much can you sue for?

 

$1,000 per violation, per CRA.

 

 

Which would you prefer? :yahoo:

 

 

Just something to keep in mind.

 

 

-R

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Just as a heads up to everyone... It would be well to review the FCRA. I know, it's a pain to read thru.. The FDCPA is much easier. But it would really help a consumers case if they wanna put the nail in the coffin, as it were.

 

Sections 616, Civil liability for willful non-compliance and 617, Cilvil liability for negligent non-compliance.

 

What is the difference? A ton.

 

Please bear with me. :clapping:

 

If a CA lists their account on your credit report(s) and notes it is a factoring company account... This is a violation.

 

But, what section would it fall under?

 

617. Negligent non-compliance.

 

How much can you sue for?

 

$0.

 

(Or actual damages, but most people here aren't speaking in those terms)

 

Now, if you dispute that information with a CRA, and the CA verifies that yes, it is a factoring company account, which we know it is not, at that point they are under section 616 - willful non-compliance.

 

How much can you sue for?

 

$1,000 per violation, per CRA.

 

 

Which would you prefer? :yahoo:

 

 

Just something to keep in mind.

 

 

-R

 

But as I understand it, if a consumer notifies a CA that they are inaccurately reporting information to the CRAs, and after receiving that consumer's complaint the CA continues to report that information to the CRAs, their non-compliance becomes willful. Correct?

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No.. the dispute must be made with the CRA for them to be willfully non-compliant.

 

616(a) and 617(a) state:

 

In general. Any person who willfully fails / who is negligent in failing.. to comply with any requirement imposed under this title with respect to any consumer is liable to that consumer in an amount equal to the sum of....

 

Section 611 deals with how a consumer is to dispute incorrect information... via the CRAs.

 

I guess you could always argue that you wrote to the CA and told them the information was incorrect (but you would have to be specific just like you would with a CRA dispute) and they failed to change it, but I don't know how it would fly with a court.

 

-R

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No.. the dispute must be made with the CRA for them to be willfully non-compliant.

 

616(a) and 617(a) state:

 

In general. Any person who willfully fails / who is negligent in failing.. to comply with any requirement imposed under this title with respect to any consumer is liable to that consumer in an amount equal to the sum of....

 

Section 611 deals with how a consumer is to dispute incorrect information... via the CRAs.

 

I guess you could always argue that you wrote to the CA and told them the information was incorrect (but you would have to be specific just like you would with a CRA dispute) and they failed to change it, but I don't know how it would fly with a court.

 

-R

 

Okay, check this out:

 

§ 623. Responsibilities of furnishers of information to consumer reporting agencies

[15 U.S.C. § 1681s-2](a) Duty of Furnishers of Information to Provide Accurate Information

(1) Prohibition

(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 has reasonable cause to believe that the

information is inaccurate. (so a CA who knowingly represents to a CRA that its collection account is an "open" account that is more than 120 days past due should be violating this provision)

(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. (so this seems to clearly indicate that the consumer can directly notify the CA, and if the CA continues to provide information that is inaccurate after being notified by the consumer they are violating this provision)

© No address requirement. A person who clearly and conspicuously specifies

to the consumer an address for notices referred to in subparagraph (B)

shall not be subject to subparagraph (A); however, nothing in subparagraph

(B) shall require a person to specify such an address.

(D) Definition. For purposes of subparagraph (A), the term “reasonable cause to

believe that the information is inaccurate†means having specific knowledge,

other than solely allegations by the consumer, that would cause a reasonable

person to have substantial doubts about the accuracy of the information.

(2) Duty to correct and update information. A person who

July 30, 2004 69

(A) regularly and in the ordinary course of business furnishes information to

one or more consumer reporting agencies about the person's transactions

or experiences with any consumer; and

(B) has furnished to a consumer reporting agency information that the person

determines is not complete or accurate, shall promptly notify the consumer

reporting agency of that determination and provide to the agency any

corrections to that information, or any additional information, that is

necessary to make the information provided by the person to the agency

complete and accurate, and shall not thereafter furnish to the agency any

of the information that remains not complete or accurate.

(3) Duty to provide notice of dispute. If the completeness or accuracy of any information

furnished by any person to any consumer reporting agency is disputed to such

person by a consumer, the person may not furnish the information to any consumer

reporting agency without notice that such information is disputed by the consumer. (so a CA that has received a dispute from a consumer which does not mark the consumer's CRA file as disputed is in violation of this provision)

 

(7) Negative Information

(A) Notice to Consumer Required

(i) In general. If any financial institution that extends credit and regularly

and in the ordinary course of business furnishes information to a consumer

reporting agency described in section 603(p) furnishes negative

information to such an agency regarding credit extended to a customer,

the financial institution shall provide a notice of such furnishing of

negative information, in writing, to the customer. (Okay, so this section would seem to apply to creditors rather than CAs, right? But couldn't this provision possibly screw the CA either way? I mean, they are representing themselves to be a creditor, by stating that the consumer has repayment terms of 1 month that they are more than 120 days late on, right? So they are claiming themselves to be a creditor? Of course, the CA would argue, "We're not a creditor, we're a collection agency." But I could then argue, "If you're a CA and not a creditor, why are you representing yourself as a creditor on my credit report?")

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Ah, but here's the rub...

 

(I'm typing all this in - so you can refer to an online version or whatever... in other words - I'm not copy and pasting so spelling errors are mine. lol)

 

623© LIMITATION ON LIABILITY- Except as provided in section 621©(1)(:cry2:, sections 616 and 617 do not apply to any violation of:

(1) subsection (a) of this section

(2) subsection (e) ...

(3) subsection (e) of section 615

 

624(d) Limitation on Enforcement....... shall be enforced exclusively as provided under section 621 by the Federal Agencies and officials and State officials.....

 

So consumers can not enforce those sections whereas they can sue under willful noncompliance.

 

 

-R

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Ah, but here's the rub...

 

(I'm typing all this in - so you can refer to an online version or whatever... in other words - I'm not copy and pasting so spelling errors are mine. lol)

 

623© LIMITATION ON LIABILITY- Except as provided in section 621©(1)(:grin:, sections 616 and 617 do not apply to any violation of:

(1) subsection (a) of this section

(2) subsection (e) ...

(3) subsection (e) of section 615

 

624(d) Limitation on Enforcement....... shall be enforced exclusively as provided under section 621 by the Federal Agencies and officials and State officials.....

 

So consumers can not enforce those sections whereas they can sue under willful noncompliance.

 

 

-R

 

Decipher what you think this means:

 

§ 616. Civil liability for willful noncompliance [15 U.S.C. § 1681n]

(a) In general. Any person who willfully fails to comply with any requirement imposed

under this title with respect to any consumer is liable to that consumer in an amount

equal to the sum of...

 

To me, that is saying that ANY person, whether it be CRA or CA, that willfully (knowingly) fails to comply with the provisions set forth in the FCRA WITH RESPECT TO THE CONSUMER is liable to that consumer in an amount equal to....

 

So what do you assert is meant by "with respect to the consumer"?

 

I understand that the provisions in the section outlining responsibilities of furnishers is enforced by the FTC or AGs...they are the ones who would have to initiate ACTION and seek DAMAGES for violations of that section. But the consumer can still initiate action for willful noncompliance in reporting inaccurate information, can't they? And even if the consumer can't inititate action for certain violations, I don't see how that prevents them from referencing other violations of the FCRA in their complaint, if those violations might be supportive of establishing intent for willful non-compliance. Since the judge has discretion to assign punitive damages, it would seem advantageous to show the judge how blatantly the CA is acting in its regard to the provisions of the FCRA.

 

Am I getting this correctly? It's been a few months now since I last did this, and I'm a little fuzzy on a couple of things.

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It's my understanding that the FCRA is 1000 per violation, while the FDCPA is 1000 total.

This is correct.

There is no provision for a CA to notify the consumer they are placing an entry on a credit report.

There is, as a furnisher, FCRA section 623 (a)(7), you would have been notified by the OC and it carries over.

 

The misconception is frequently that they have to notify you as a kind of last resort, pay and pay on time or then we'll report, the disclosure is standard and usually more like we may report generically if at all and enclosed as part of all those microprint inserts that come monthly or annually.

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You can sue under section 623 (:D as a consumer, for failure to follow reasonable procedures to ensure maximum possible accuracy.

 

But you can't skip disputing with the CRA's as part of the process otherwise you have no cause of action. That should make sense because under the FCRA the CRA's are the ones ultimately responsible for the accuracy of what is being reported.

 

The furnisher is responsible for what is furnished (provided to the CRA for reporting) and the CRA has the larger umbrella responsibility of what is reported), the can't just parrot information as furnished, once is has been disputed.

 

So it's a process of creating a papertrail showing what you did to resolve the problem, what was supposed to happen and didn't, first with the furnisher and then with the CRA.

Edited by skydiver

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