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walterg55

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

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The text on the cover was in one of the recent Paragon Way threads although I am not finding it right now...it is possible that it may be something I sent via PM instead of putting in the open forum. I tend to be rather protective of my work because it is, generally speaking, something that stands out and (if they took the time to look on the boards) would pinpoint me very quickly and place someone else at risk of having to deal with the claim of having shadow counsel.

 

If y'all can wait until the weekend, I can sanitize the most recent version of the letter...I've got movers coming into the office today to relocate some file cabinets.

 

Here is my draft letter I plan on sending Please feel free to critque

 

March 18, 2007

 

Collect America/CACH

370 17th Street, Suite 5000

Denver, CO 80202

 

VIA: Certified Mail Return Receipt Requested

 

RE: Your Collection Account Listed on My Experian, CSC/Equifax, and Transunion Credit Reports

 

Gentlemen:

 

I recently reviewed the above referenced credit reports and noted that your company had placed a collection account entry on all three credit reports. I have never received any communication written or otherwise from your firm. I am likewise aware that your company is a collection agency. I am not aware of any collection debt I owe to any entity much less your firm and I dispute your alleged debt. I require that you immediately delete all three entries. Please do not call me as phones are inconvenient for me and calls at work are not allowed, written communication only. All phone conversations will be recorded.

 

As I am a Texas resident, I will be using Chapter 392.202 Texas Finance Code to back up my dispute and I suggest you adhere to its provisions. I will not hesitate to act if you disregard my rights or violate the Texas laws you are required to respect.

 

walterg55

xxxx

xxxx, TX 7xxxxx

 

"NOTICE TO AGENT IS NOTICE TO PRINCIPAL -- NOTICE TO PRINCIPAL IS NOTICE TO AGENT. Applicable to all successors and assigns"

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Here is my draft letter I plan on sending Please feel free to critque

 

March 18, 2007

 

Collect America/CACH

370 17th Street, Suite 5000

Denver, CO 80202

 

VIA: Certified Mail Return Receipt Requested

 

RE: Your Collection Account Listed on My Experian, CSC/Equifax, and Transunion Credit Reports

 

Gentlemen:

 

I recently reviewed the above referenced credit reports and noted that your company had placed a collection account entry on all three credit reports. I have never received any communication written or otherwise from your firm. I am likewise aware that your company is a collection agency. I am not aware of any collection debt I owe to any entity much less your firm and I dispute your alleged debt. I require that you immediately delete all three entries. Please do not call me as phones are inconvenient for me and calls at work are not allowed, written communication only. All phone conversations will be recorded.

 

As I am a Texas resident, I will be using Chapter 392.202 Texas Finance Code to back up my dispute and I suggest you adhere to its provisions. I will not hesitate to act if you disregard my rights or violate the Texas laws you are required to respect.

 

walterg55

xxxx

xxxx, TX 7xxxxx

 

"NOTICE TO AGENT IS NOTICE TO PRINCIPAL -- NOTICE TO PRINCIPAL IS NOTICE TO AGENT. Applicable to all successors and assigns"

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I was curious as to how the TFC is supposed to be cited. Are we supposed to go more into depth with identifying DTPA and FTC when writing these letters. Would someone in the know like to give a PsychDoc style chat on it? It would be incredibly helpful.

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Cover letter to the underwriter that has been used in the past...

 

Dear Sir or Madam:

 

Please find the enclosed copy of a letter sent this date to name of third party subject to TFC, in city, state. The Texas Secretary of State has indicated that your offices provide the coverage in the form of a surety bond that is required under the relevant portions of the Texas Finance Code, and that your bond coverage took effect on or about date.

 

Notice is being afforded to your offices so that you may be aware of a potential claim against the bond should the matter move to litigation. The enclosed materials will provide you with a synopsis of the facts at issue, but in a nutshell, name of company is attempting to collect on a matter that has been in dispute with the original creditor (name of OC) as recently as two weeks ago. The underlying amount is so old as to be beyond the statute of limitations in the State of Texas for any person to pursue via litigation. Despite my having exercised my rights under the Texas Finance Code within a timely fashion, name of company has opted to disregard relevant portions of the statute and initiated their attempts to collect on a matter that they should reasonably have known through the due diligence conducted prior to the portfolio purchase was disputed.

 

As your staff is very likely aware, Texas law provides that a claim may be made against the bond. No action is required by your offices at this time, although I am certainly amenable to discussions pertaining to settlement in the event that your company opts to intervene on behalf of your client.

 

If you should have any questions, please do not hesitate to contact me at the address reflected below.

 

There are other variations that I have used and there is not one set template. Quite frankly, I am a firm believer in ALWAYS making sure a letter is tailored to the task at hand.

Edited by centex

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Here is a letter used on an acquaintance's file...

 

To Whom it May Concern:

 

Your offices are reporting an outstanding amount to the credit bureaus in the amount of $XXX.00, with the above account number appearing in the credit report prepared by BUREAU. To date, there has been no correspondence received from your offices. I nonetheless maintain the position that there are no amounts due or owing to you or to any other entity in the claimed amount.

 

At no time have I entered into any contractual arrangements with name of third party, nor can this matter be claimed to have been a collection since date 1 yet opened in date 2. Additional reporting infractions occur in that name of third party was aware of a dispute raised electronically through Experian as the steps were taken to have noted the tradeline as being in a state of dispute. However, the tradeline has now been recorded as disputed for more than thirty days, with an update being made to Experian during date 3.

 

That update represents continued collection activity in violation of relevant statutes. For the purposes of litigation, claims will be limited to the prohibited actions addressed by the Texas Finance Code at Section 392. As you have been unable to validate this matter within a thirty day period, there is a requirement that the tradeline be modified as requested by the consumer. In this instance, that modification is a complete deletion as any other reporting is inaccurate on its face.

 

I am reasonably certain that your staff is aware of the current position of many courts that continuing to report a tradeline is viewed as continuing collection activities. I am also reasonably certain that your staff is aware of the requirements of the Texas Finance Code pertaining to the reporting of matters that are disputed. In particular, I would again point you in the direction of Section 392.202 which references the duties of the collector upon notification of the matter being in dispute. There are a number of areas in which the provisions of the Texas Finance Code mirror federal statutes that would govern this issue.

 

In addition to the reporting requirements incumbent upon third-party entities, Texas law also contains a bonding requirement. A search of the list of bonded agencies provided to me by the Legal Support Unit/ Statutory Documents Section of the Secretary of State did support that a bond was in place at the time your office claims to have reported the file. Records reflect that the bond is underwritten by underwriting company (policy number) and involvement of their claims personnel has been held in abeyance pending your compliance with the issues in this letter.

 

Absent a validation of the claim within the thirty days specified in Texas law, any tradelines reported to any credit reporting agency that pertain to this claim are to be deleted. Failure to do so places me at risk of irreparable harm and is violative of the requirements of both state and federal law that reporting of credit be done in an accurate manner. It stands to reason that a matter that cannot be validated cannot also be considered as accurately reported as a tradeline.

 

It is expected that within thirty days from the date of your receipt of this letter, as evidenced by the delivery date on the Return Receipt card, your offices will have either provided the documents required for validation of both the claim or this matter will have been closed and the tradeline deleted.

 

Nothing in this letter authorizes a “hard pull†or a “soft pull†of my credit information. The account number you have reported to a credit bureau is included and should provide you with sufficient information with which to identify me in your existing records. There should be no basis for you to request additional information from me in the validation process. It is not incumbent upon me, as the injured party, to build your files for you, nor should I pay a penalty in the form of a reduced score for your attempts to reconstruct records which you should already have possessed prior to making any claim. If such retrieval is discovered to have occurred, it will be evaluated for action as a non-permissible access of the report as well as retaliatory actions for the exercise of rights provided to the consumer under both state and federal law.

 

Please be cognizant of the fact that venue for any action will be in accordance with the provisions of the prevailing statutes of the State of Texas. There are no federal questions being raised in this matter and any attempt to remove an action to the United States Western District Court will be challenged. Damages will also be sought under the controlling provisions of the Business and Commerce Code, and I would remind you that those damages are subject under Texas law to a trebling upon a showing of gross negligence. Upon a favorable finding in the Travis County courts, claim will be made against the bond.

 

Except as pertains to the production of documents responsive to the validation, there is no reason for your office to contact me. Under no circumstances is communication to occur via telephone, to include my place of employment, as such telephonic contact is inconvenient. All communications shall be in writing and directed to the address of record as it appears on the preceding page.

 

Your prompt attention to this matter will be appreciated.

 

In this particular case, we did not tip the hand that my office would handle the litigation. The matter was resolved within 48 hours of the other party having received the letter.

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Here is a letter used on an acquaintance's file...

 

To Whom it May Concern:

 

Your offices are reporting an outstanding amount to the credit bureaus in the amount of $XXX.00, with the above account number appearing in the credit report prepared by BUREAU. To date, there has been no correspondence received from your offices. I nonetheless maintain the position that there are no amounts due or owing to you or to any other entity in the claimed amount.

 

At no time have I entered into any contractual arrangements with name of third party, nor can this matter be claimed to have been a collection since date 1 yet opened in date 2. Additional reporting infractions occur in that name of third party was aware of a dispute raised electronically through Experian as the steps were taken to have noted the tradeline as being in a state of dispute. However, the tradeline has now been recorded as disputed for more than thirty days, with an update being made to Experian during date 3.

 

That update represents continued collection activity in violation of relevant statutes. For the purposes of litigation, claims will be limited to the prohibited actions addressed by the Texas Finance Code at Section 392. As you have been unable to validate this matter within a thirty day period, there is a requirement that the tradeline be modified as requested by the consumer. In this instance, that modification is a complete deletion as any other reporting is inaccurate on its face.

 

I am reasonably certain that your staff is aware of the current position of many courts that continuing to report a tradeline is viewed as continuing collection activities. I am also reasonably certain that your staff is aware of the requirements of the Texas Finance Code pertaining to the reporting of matters that are disputed. In particular, I would again point you in the direction of Section 392.202 which references the duties of the collector upon notification of the matter being in dispute. There are a number of areas in which the provisions of the Texas Finance Code mirror federal statutes that would govern this issue.

 

In addition to the reporting requirements incumbent upon third-party entities, Texas law also contains a bonding requirement. A search of the list of bonded agencies provided to me by the Legal Support Unit/ Statutory Documents Section of the Secretary of State did support that a bond was in place at the time your office claims to have reported the file. Records reflect that the bond is underwritten by underwriting company (policy number) and involvement of their claims personnel has been held in abeyance pending your compliance with the issues in this letter.

 

Absent a validation of the claim within the thirty days specified in Texas law, any tradelines reported to any credit reporting agency that pertain to this claim are to be deleted. Failure to do so places me at risk of irreparable harm and is violative of the requirements of both state and federal law that reporting of credit be done in an accurate manner. It stands to reason that a matter that cannot be validated cannot also be considered as accurately reported as a tradeline.

 

It is expected that within thirty days from the date of your receipt of this letter, as evidenced by the delivery date on the Return Receipt card, your offices will have either provided the documents required for validation of both the claim or this matter will have been closed and the tradeline deleted.

 

Nothing in this letter authorizes a “hard pull†or a “soft pull†of my credit information. The account number you have reported to a credit bureau is included and should provide you with sufficient information with which to identify me in your existing records. There should be no basis for you to request additional information from me in the validation process. It is not incumbent upon me, as the injured party, to build your files for you, nor should I pay a penalty in the form of a reduced score for your attempts to reconstruct records which you should already have possessed prior to making any claim. If such retrieval is discovered to have occurred, it will be evaluated for action as a non-permissible access of the report as well as retaliatory actions for the exercise of rights provided to the consumer under both state and federal law.

 

Please be cognizant of the fact that venue for any action will be in accordance with the provisions of the prevailing statutes of the State of Texas. There are no federal questions being raised in this matter and any attempt to remove an action to the United States Western District Court will be challenged. Damages will also be sought under the controlling provisions of the Business and Commerce Code, and I would remind you that those damages are subject under Texas law to a trebling upon a showing of gross negligence. Upon a favorable finding in the Travis County courts, claim will be made against the bond.

 

Except as pertains to the production of documents responsive to the validation, there is no reason for your office to contact me. Under no circumstances is communication to occur via telephone, to include my place of employment, as such telephonic contact is inconvenient. All communications shall be in writing and directed to the address of record as it appears on the preceding page.

 

Your prompt attention to this matter will be appreciated.

 

In this particular case, we did not tip the hand that my office would handle the litigation. The matter was resolved within 48 hours of the other party having received the letter.

 

Simply a superbly crafted letter and combined with the underwriter letter (an approach I have never seen or heard of before your mention) a lethal 1-2 combination. Thank you

Edited by walterg55

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I also like this Texas statute:

 

§392.306. USE OF INDEPENDENT DEBT COLLECTOR. A creditor may not use an independent debt collector if the creditor has actual knowledge that the independent debt collector repeatedly or continuously engages in acts or practices that are prohibited by this chapter.

 

http://www.occc.state.tx.us/pages/Legal/La...2005/toc05.html

 

Is there a list of CA's that have been levied federal or state penalties? I'm hoping to inform my OC that their attack dog has no teeth.

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I also like this Texas statute:

 

§392.306. USE OF INDEPENDENT DEBT COLLECTOR. A creditor may not use an independent debt collector if the creditor has actual knowledge that the independent debt collector repeatedly or continuously engages in acts or practices that are prohibited by this chapter.

 

http://www.occc.state.tx.us/pages/Legal/La...2005/toc05.html

 

Is there a list of CA's that have been levied federal or state penalties? I'm hoping to inform my OC that their attack dog has no teeth.

 

 

Excellent idea, I hope someone will post a methodology to find this info. I think the practical result would be that the OC would use another collector but it certainly would sting a CA.

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I also like this Texas statute:

 

§392.306. USE OF INDEPENDENT DEBT COLLECTOR. A creditor may not use an independent debt collector if the creditor has actual knowledge that the independent debt collector repeatedly or continuously engages in acts or practices that are prohibited by this chapter.

 

http://www.occc.state.tx.us/pages/Legal/La...2005/toc05.html

 

Is there a list of CA's that have been levied federal or state penalties? I'm hoping to inform my OC that their attack dog has no teeth.

 

 

Excellent idea, I hope someone will post a methodology to find this info. I think the practical result would be that the OC would use another collector but it certainly would sting a CA.

 

It does occur to me that this would be an excellent tool to pursue action against an OC and we know they don't like to be sued. Do I hear settlement and delete?

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i've have quoted the TFC in one of my last letters and it worked successfully.........................

 

got a question though, would the 1-2 punch still be effective here if you quote TFC in a DV?

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I DV'd West Asset and they didnt respond in the 30 days. I contacted a lawyer filed lawsuit and won $2500 for a $100 debt.

 

Texas laws are awesome.

 

good luck

 

Can you provide more detail or letter/suit copies?

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I DV'd West Asset and they didnt respond in the 30 days. I contacted a lawyer filed lawsuit and won $2500 for a $100 debt.

 

Texas laws are awesome.

 

good luck

 

Can you provide more detail or letter/suit copies?

 

Yeah, would be helpful info, I am also in Texas and have West A$$et on my CRx2. I have disputed online twice and they verified, not only verified but reported it to the other CRA's.

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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.

 

huh? :dntknw:

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I DV'd West Asset and they didnt respond in the 30 days. I contacted a lawyer filed lawsuit and won $2500 for a $100 debt.

 

Texas laws are awesome.

 

good luck

I sure would like that lawyers name & contact info. It seems like all of my local lawyers are not interested. Maybe we can both get rich on this.

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thanks for the letter centex! i had found the statutes before but wasn't quite sure how to word the letter. Excellent job! Bumping for ya walter..

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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.

 

 

Update on this: I received a letter back from the underwriter saying they didn't know this company but when I called them directly and gave them the bond number, they said that CMI is bonded w/them. Also, CMI has not budged.

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