Experian and BK Question

[ArmySarge6]

If Experian is listing an account as "Debt included in or discharged through Bankruptcy Chapter 7, 11, or 12", couldn't this be considered inaccurate reporting if a CH 7 was filed? Seems to me that they would be able to distinguish between the 3.

[dixiedrifter]

Vague yes, inaccurate no.

 

The creditor pretty much covers all the bases with that statement.

[kelcol]

Ok, I got one along these lines.... dh's LAST incl in bk acct is says the same "incl in ch 7, 11, or 12 on 2/1999" All fine and dandy EXCEPT dh filed 7/96!!! Experian has verified this acct twice!!

[SassyinAz]

If Experian is listing an account as "Debt included in or discharged through Bankruptcy Chapter 7, 11, or 12", couldn't this be considered inaccurate reporting if a CH 7 was filed?  Seems to me that they would be able to distinguish between the 3.

 

Sarge,

 

That is inaccurate reporting.

 

The standard is complete, accurate, updated and verifiable.

 

There's a huge difference between the three types of BK and there's a huge difference between included in OR discharged as well.

 

My BK was deleted from EXP, go for it!

 

Sassy

[ArmySarge6]

Thanks all for your replies. I know it sounded kind of trivial, but I am only trying to play by their rules. When I disputed a few accounts that were listed as "Debt included in or discharged through Bankruptcy Chapter 7, 11, or 12" they verified all accounts and even changed some without even requesting a verification. I also had an account listed as Chapter 13 and when I requested a verification on that one, they changed it to "Debt included in or discharged through Bankruptcy Chapter 7, 11, or 12" and then like a week later, it showed back up as Ch 13. Sure am glad I have all documentation. I think I will work on getting mine removed to Sassy. BTW...any suggestions on how to get my BK removed. If ya don't mind sharing info that is, or you could email me. Thanks again all.

[SassyinAz]

It depends how they are reporting Sarge.

 

If US BK CT, I never filed a BK in US BK CT -- because you didn't, you filed in a specific Court that should be named, if it were really verified. The information has to be such, as with your other tradelines, you could go to that place and request or verify the information yourself. US BK CT or US District CT is as good as reporting SOME BANK, USA

 

If listed with nothing under liabilities: I never filed a BK with $0 liabilities, please correct. And, you didn't, had you not had liabilities you wouldn't have filed BK at all.

 

Are the filing and discharge dates both listed correctly?

 

Does it say who is responsible, nothing in the space for instance, when it should be joint or individual?

 

Just pick it apart, every piece of information provided or which should be provided but isn't.

 

Is the case number exactly right? Sometimes the CRA's don't include a letter at the end or beginning when there is one. The docket number changes based on your status.

 

The chapter is important because it impacts reporting time as well. C-13's are supposed to come off in 7 years vs 10 for the other chapters. If they can't tell you the Chapter, they aren't verifying the information, start picking it apart!

 

Anything with a NA within the listing is fair game, challenge it!

 

Compare how it is reported on all 3 of your reports and focus on the differences.

 

Just be vague, I never filed a BK with no liabilities, or individual responsibilty, or none. I never filed a BK with case number 123456, please correct. Vague without lying. It's their responsibility to verify not yours and the standard it accurate, complete, updated and verifiable -- 60% doesn't count, 100% or it can't be reported.

 

Target the specific tradelines listed as included as well. Dispute as not mine and if verified start picking it apart as well. It's easier to get the public record removed without the individual tradelines showing -- the CRA's just call an included creditor and want us to believe that's enough to verify.

 

The BK tradeline, if correct, big IF, should have $0 balance, discharged in whatever Chapter, and nothing else negative about them, including the commencement of delinquency date or last activity date. The TL's if correct, should fall off from the first delinquency date, usually substantially before the BK date.

 

Challenge the commencement of delinquency on charge-offs/collections and the like. It is specifically required that it be reported, but none of the CRA's list it. Every single date and piece of information.

 

Beyond disputing with the CRA's, request validation or OC modified validation/audit, whatever you want to call it, under the FCRA provisions for accurate and complete reporting.

 

If they verify it, request the specific procedures followed and the contact information, just because it is a public record doesn't mean that someone isn't responsible for reporting it. The Court's themselves don't, unless it is new enough to be listed on PACER, and pacer isn't a person. Have you checked yourself via PACER? Ask for it to be verified by an officer of the court.

 

Catch the CRA's in a big fat lie, not verifying.

 

The information was provided to them initially by someone and/or it's attached to something. The CRA's won't be going to the Court to verify the information, though they should if they were really verifying. Use that to your advantage.

 

Don't give them your papers, pretend you don't have papers. If you lost all your filing records and had to get them yourself, how would you do that? THAT'S the key to having them removed, the CRA's can't do what they are supposed to do to verify (because it would cost them money the same as it would you!) and the court's won't.

 

Sassy

 

I'm going to search up an old post for you, and I'll post it seperately.

 

Just come up with a plan, pretend you are a victim of ID theft truly, so you don't know anything about anything except what is reported, and based on their information, what you would need to convince yourself if you were tracking down who it truly belonged to, work backwards to the source.

 

Become ONE with the antiquated and overloaded databases that are CRA's computer systems

[SassyinAz]

Here's this, it's old now, but was the strategy I followed, from this thread, I snipped the beginning:

 

http://consumers.creditnet.com/straighttal...?threadid=33397

 

I don't know about thread poaching, I noticed Mannequine in another thread transmitted links via PM. Someone will be along shortly to beat me if not allowed. :shock:

 

Summons Marie and Breeze for additional input as well, they're overflowing resources.

 

Sassy

 

********

 

If you want all tradelines to show as included in BK, I think I would focus on disputing what is inaccurate about the tradelines first, have that corrected, some creditors will likely update to show the tradeline was included in BK without your prompting. It seems to be harder to have the specific information within the tradeline corrected once it is tagged as having been included in BK.

 

I disputed everything as not mine first, mostly because I wanted the maximum amount of deletions possible. Once discharged, those debts are non-existant -- I have no personal liability and I personally think that including the public record of a BK WITH the tradelines that were included is a triple-whammy and flies in the face of the BK protections and purpose.

 

For those that were verified, I requested the specific procedures followed to verify from the CRA's (none of them responded specifically).

 

Then the remaining tradelines I sent specific letters to the OC's, certified, once I received the green cards back, I disputed online again.

 

I've never been specific and never said something was included in BK. I either want the tradelines deleted because they are inaccurate or updated to be exactly correct.

 

I'd live with my remaining BK tradelines if they were reporting correctly. It just infuriates me that no one will get it right -- all but 2 of my tradelines have been deleted.

 

I'm saving the "included in bk" dispute as my last resort. If I can't get them deleted any other way, I'll settle for a correct history and the BK tag.

 

I've been disputing the specifics within the tradeline, like the date of last activity is incorrect, this was not a charge-off, I was never 90 days late.

 

The OC's don't have to provide validation, I first send non-specific letters saying I have reviewed my credit reports and have discovered that your company is reporting inaccurate and incomplete information about me. Please provide me with written verification to substantiate your reporting, including a copy of the original contract with my signature establishing any claim and an itemized statement of accounting reflecting the balance you claim and dates reflecting the payment history you claim, or delete the tradeline in accordance with the FCRA provisions for duties and responsibilities of information furnishers.

 

Depending on how they respond, I then start getting more specific. I've not had anyone respond.

 

With each letter I wait until the green card is received and then dispute again. So far, I've not been declared frivilous, though I've used up my allotted number of online disputes. I just send now to the CRA's in writing.

 

I started with 20-something tradelines on all reports, for hubby too, each of our reports now report 2 collections that still aren't showing correctly and one OC that just won't give it up (for me). Hubby has 2 additional OC's that were in his name alone.

 

I have never admitted nor denied C13 to the CRA's nor provided them with my paperwork. One of my reports have had the C13 tradeline altogether deleted.

 

The remaining tradelines were in fact all specifically included in BK and were paid in full, my C13 was 100% repayment, via the terms and subsequently discharged.

 

My focus now is letters to those remaining C13 accounts that still aren't reporting correctly, saying they were included in BK and discharged. Your reporting is in blatant violation of the US BK Code and FCRA. Listing their violations to date, stating they cannot maintain accuracy and completeness when the tradelines are reported differently to each CRA, you have updated to provide further inaccurate information, verified bogus information, ignored my written requests for information and correct reporting, all after having been notified by the Trustee of the BK and subsequent discharge, having accepted payments from the Trustee, and having been notified by myself of your reporting errors and the individual CRA's via the dispute process. Your actions can be considered nothing less than willful and malicious should these tradelines not be deleted in their entirety, I may be compelled to seek legal action against you, including initiating an adversary proceeding for contempt of court charges, FCRA violations, blah blah blah.

 

I copied the Trustee and my BK Attorney on the last round of letters. Should they not be deleted I will file complaints with everyone and their brother, copy the complaints to the remaining companies, and indeed pursue legal action.

 

You might want to post to LisaMc, she sought first to have all of her accounts shown as included in BK and accurately reported. She's been working on hers while still in BK and making payments.

 

I didn't have the foresight or stamina to begin until after I was discharged.

 

If you search on DanceRat, his letters were helpful to me in getting my head around what is required and not get lost in the minutia and in developing a strategy.

 

I have the following sticky notes on my monitor lest I forget my mission -- information reported must be accurate, complete (every piece of it), updated and sometimes the most important -- verifiable.

 

The other is, what I know or don't know is irrelevant, the burden of proof IS NOT MINE.

 

I don't know if it's better to address before or after, I maintain it's never too early, I wish I had started while still in BK -- though your account information is likely more retrievable as payments are still being accepted.

 

Sassy

[sinobueno]

Sassy -- after the initial mass dispute of everything on the report so easy stuff comes off first, why not go directly to lawsuit(s)? The more chances you give the CRA, OC and CA to correct, the likelihood increases that they are eventually going to get it right.

 

Incorrect reporting of debts that were discharged carry more legal ramifications for the offending party than do run-of-the-mill debts, because of the burden placed on the creditor to NOT violate your discharge. By going directly to court (forget threatening to go to court -- because there again, you give them the chance to "get it right") in either an adversary for contempt of court for violation of the permanent discharge injunction, or another venue, wouldn't you be more likely to get deletions?

 

Ideally, you would include the CRA in the proceeding, and clean everything up in one fell swoop.

[SassyinAz]

sinobueno,

 

Sassy -- after the initial mass dispute of everything on the report so easy stuff comes off first, why not go directly to lawsuit(s)? The more chances you give the CRA, OC and CA to correct, the likelihood increases that they are eventually going to get it right.

 

he he he, well I disagree that the more chances you give them to correct it that the likelihood increases they will eventually get it right. My odds of winning the lottery are greater!!!!. The likelihood definately increases that the CRA's will cut off your easiest disputing mechanisms, however, like accepting online disputes.

 

I had the best results with dispute, validate, dispute again. Seems things are routinely verified with a first dispute but the validation letter gives way to either not responding to the CRA's on a second request = deletion or a realization that it's not worth the bother to correct or research something discharged. Continued reporting of discharged TL's only serve to damage credit by the information furnisher, says me, they aren't getting anything out of it. The BK itself is already reported so it's not like God and everyone else doesn't know you filed.

 

For me, the main reason is, correct and accurate BK reporting (assuming verifiable), as it is accepted anyway and without a court case to the contrary, is the inclusion of a public record entry as well as the individual TL's that were included, showing discharged in BK, on your reports.

 

I happen to think that's a triple whammy. Zapped for the public record, zapped for each tradeline included, zapped again for the negative information on the TL that was included. And BK is supposed to be a fresh start, my bum!

 

After discharge, I noted that every TL was wrong and of the 20-something listed TL's reported in their varied negative fashions, very few (2 on 1 report if my memory isn't failing me) of them had the included in BK notation, and the information within the TL was still wrong.

 

My motivation for taking the longer road (and only my own), but I think it leads to a better place in the end, including never having disputed as something was included nor admitting to the BK at all, was a goal of having removed each of the individual tradelines attached to the BK.

 

For me (and again this is just me), I wasn't in danger of being sued, having anything repossessed or being foreclosed upon. Everything was old and had never been challenged. All my creditors had to be paid off at 100% via the terms of my C-13 so I wouldn't lose my additional properties and I had no current or open TL's -- no existing credit, save 2 mortgages that were current.

 

In my brain, I didn't owe anyone one penny and those I had previously owed had been paid in full, without question, and that without question was my biggest mistake prior to having filed. Ok, SOME lost their CONTINUED outrageous interest accumulations and fees, big whoop, most however had been making a loan-sharkers dream of a profit off of me and I paid them all without question as a result of my having filed. I was pissed, not only because I had been so stupid but because by continuing to report their very wrong tradelines, they were still screwing me -- I wanted them gone! Reporting correctly would have been ok, I would have lived with it, but the more I pursued, the more wrong they got.

 

So, that was my goal, deletion of all negative tradelines, deletion of the public record if possible, while rebuilding new credit and establishing a new positive history.

 

Incorrect reporting of debts that were discharged carry more legal ramifications for the offending party than do run-of-the-mill debts, because of the burden placed on the creditor to NOT violate your discharge. By going directly to court (forget threatening to go to court -- because there again, you give them the chance to "get it right") in either an adversary for contempt of court for violation of the permanent discharge injunction, or another venue, wouldn't you be more likely to get deletions?

 

Indeed they do carry more legal ramifications, I don't disagree with you at all. However, I didn't have the money to hire an attorney and pursue legal action and I wouldn't want to pursue those kinds of charges and in a BK court without one. I'm not sure that it would get deletions or more deletions anyway, with impending legal action, it could serve to motivate them to actually do their jobs, review the account, and report how they are supposed to in the first place.

 

What likely would be the ultimate ruling from the Judge and especially after only 1 dispute or without some effort on my part in developing a papertrail to show I had tried to get this corrected? In my mind, without overt collection attempts, it would be THOU shalt not ignore the discharge of this fine court and THOU shalt accurately report to the credit bureaus, have a nice day, nexxxxxxxxt! That accurate reporting would have been all of the attached tradelines showing as having been discharged in C-13 WITH the public record listing -- all still hurting me! Just what I didn't want, if I had my rathers, as explained above.

 

BK courts don't, by my research anyway, without overt collection attempts, impose findings of contempt of court or violation of the discharge for the reporting alone. It's more like a golly shucks your honor, we're sorry, we'll update that to discharged right away, thanks for bringing it to our attention. Ok, see ya next week.

 

Ideally, you would include the CRA in the proceeding, and clean everything up in one fell swoop.

 

Nodding, again I don't disagree. However, as I understand it, there are procedural and filing difficulties in including the CRA's -- the CRA's don't answer to the BK Courts, the jurisdiction is different for violations of the BK Code and violations of the FCRA. Pursuing violations would take 2 different courts and judges.

 

On a similar note with a twist, I'm a great fan of the Lizardking methodology, which is short, sweet and straight to the point:

 

1) Demand validation.

2) Send estoppel letter.

3) Demand that CRAs delete because of lack of adequate proof from alleged creditors.

4) File in small claims court when the CRAs do not delete.

 

If you are still in BK anticipating discharge or recently discharged, I think your proposal and even your timeframes would be or could be very successful and especially if working to improve/repair your credit while under a C-13 plan and following those associated tradelines and their reporting prior to discharge. For me, I never saw my own credit report nor even knew that I could, nor that there were reporting laws, until finding CN and doing lots of homework, all of which was some time after my discharge.

 

Losing the public record listing of a BK isn't significant as far as gaining points, my own have been less than 5 points and that seems to be verified by others who too have had them deleted. It's the individual TL's and reporting and especially current reportings and rebuilding, how current the last negatives are seem to be a huge scoring factor.

 

Part of the journey is the learning, being responsible and facing your creditors or previous creditors; knowing and using the laws that govern them -- standing up for yourself and your financial life. It's empowering, fulfilling, and life-changing, especially after being down-trodden with a BK proceeding and the life events that lead to a filing.

 

Your point is well taken, thank you, I'm thinking the most important thing is deciding what you want to do, looking at short and long term financial goals, coming up with a plan, and working it. If that is pursuing contempt of court charges and sanctions, and it will get you to where you want to be, go for it!

 

Sassy

[sinobueno]

Sassy says:

“My motivation for taking the longer road (and only my own), but I think it leads to a better place in the end, including never having disputed as something was included nor admitting to the BK at all, was a goal of having removed each of the individual tradelines attached to the BK.”

 

Our goal is the same...guess I was just looking for a shorter route. Filing an adversary petition in bk court isn’t hard. Bankruptcy courts, more than any other (except small claims), are used to people who can’t afford an attorney. And the usual bk-mill type attorneys hate getting involved in litigation because they’re almost always working for people who can’t pay them (so who can blame them?).

 

Recent case law gives debtors no choice but to resort to an adversary lawsuit in bk court. In the 9th Circuit (Walls v. Wells Fargo), the court said a debtor has no private right of action under the FDCPA for violation of the discharge injunction, and that a contempt action is the debtor’s only remedy.

 

Sassy says:

“...as I understand it, there are procedural and filing difficulties in including the CRA's -- the CRA's don't answer to the BK Courts, the jurisdiction is different for violations of the BK Code and violations of the FCRA. Pursuing violations would take 2 different courts and judges.”

 

Are you sure there would be jurisdiction problems? BK court is a federal court. You should be able to include any violation of federal law in your complaint, and even include violation of state statutes. I saw a case in South Carolina where this was done. The plaintiff-debtor first made quite an effort to resolve the problem prior to resorting to a lawsuit. It looks as if it settled before trial, which proves your point about having a good paper trail. He also had provable damages.

 

I don’t know which is the best way to go. Maybe a combination of both, since your way, if for some reason it didn’t result in deletion, would certainly result in a lot of ammo for the complaint by being able to cite a litany of offenses.

 

Sassy, thanks very much for the tremendous effort you put into this and all of your posts. A treasure you are!

[piggycat]

The BK tradeline, if correct, big IF, should have $0 balance, discharged in whatever Chapter, and nothing else negative about them, including the commencement of delinquency date or last activity date. The TL's if correct, should fall off from the first delinquency date, usually substantially before the BK date.  

 

 

are you saying the in the section of ouor credit reports that the Bk should not have any dates beside it? listed with it?

 

thanks piggycat 8)

[SassyinAz]

Our goal is the same...guess I was just looking for a shorter route. Filing an adversary petition in bk court isn’t hard. Bankruptcy courts, more than any other (except small claims), are used to people who can’t afford an attorney. And the usual bk-mill type attorneys hate getting involved in litigation because they’re almost always working for people who can’t pay them (so who can blame them?).

 

Recent case law gives debtors no choice but to resort to an adversary lawsuit in bk court. In the 9th Circuit (Walls v. Wells Fargo), the court said a debtor has no private right of action under the FDCPA for violation of the discharge injunction, and that a contempt action is the debtor’s only remedy.

 

Nodding, this case: http://www.ca9.uscourts.gov/ca9/newopinion...pdf?openelement 2002

 

The 9th Circuit, Sino, they are loons!!!!! BUT, you can make that ruling work for you too, that they nix any other options! I think fave Butch growling dude just today posted on another thread, validation, that 27 out of 29 of their cases have been overturned. Nonetheless, I pay attention to them because I live within the District.

 

I think they're wrong and don't make sense, even Walls arguments didn't make sense, saying the FDCPA was to prevent BK, but I'm nodding that it says that is the only recourse for violations of the injunction.

 

What's not working for me though is that the BK Court could only order the creditors to report correctly. Then they'd update it to discharged in BK. The problem I have with that is they should do it already once notified and it seems to be too hard for them!

 

EXCEPT that, reporting is a collection activity, so in my brain, once something is discharged, it's gone, no debt exists, therefore it shouldn't be reported. That would be for the individual tradelines. The reports would be accurate with the BK under public records.

 

You are thinking that it's more likely those creditors would delete when faced with an upcoming contempt date instead of facing the Judge?

 

Maybe, probably even. I've never had anything of mine updated to discharged in BK, they've just been deleted -- that works for me because I say it shouldn't be there at all once discharged.

 

There is this, makes more sense to me than the 9th Circuit decision: http://www.westbuslaw.com/cases/consumer/0...onsumer_01.html

 

Attempting to Collect Debt Discharged in Bankruptcy May Violate FDCPA

 

Description Court refused to dismiss a suit brought by a debtor whose debts had been discharged in bankruptcy. A bank bought a discharged debt and attempted to collect the debt. That may be a violation of both the Fair Debt Collection Practices Act and the Bankruptcy Code.

 

Topic Consumer Protection

 

Key Words Fair Debt Collection Practices Act; Bankruptcy; Discharged Debt

 

C A S E S U M M A R Y

 

Facts Wagner filed Chapter 7 bankruptcy and received a discharge of her debts in 1997. Among the debts discharged was a note secured by a mortgage of real property. After the discharge, the note and mortgage were assigned to Ocwen, which is in the business of buying and collecting defaulted debts. Ocwen attempted to collect the discharged debt from Wagner. She sued, claiming violation of the Fair Debt Collection Practices Act for attempting to collect money from her that she did not owe. Ocwen moved to have the claim dismissed, contending that her only remedy would be under the Bankruptcy Code.

 

Decision Motion denied. Since Wagner's debts had been discharged, she was not a debtor to Ocwen, who attempted to collect money from her. Ocwen's claim that only the Bankruptcy Code, but not the Fair Debt Collection Practices Act, could apply is incorrect. Both laws can be violated at the same time. Ocwen could be found in contempt of the Bankruptcy Code and in violation of the FDCPA. "Wagner's FDCPA claim, at its foundation, is no different from that of any other debtor who is dunned by a creditor who in fact is not owed any money; the fact that her debt was discharged in bankruptcy does not logically differentiate her case from that of a debtor whose debt was discharged in some other way."

 

Citation Wagner v. Ocwen Federal Bank, FSB, 2000 WL 1382222 (N.D. Ill., 2000)

 

Are you sure there would be jurisdiction problems? BK court is a federal court. You should be able to include any violation of federal law in your complaint, and even include violation of state statutes. I saw a case in South Carolina where this was done. The plaintiff-debtor first made quite an effort to resolve the problem prior to resorting to a lawsuit. It looks as if it settled before trial, which proves your point about having a good paper trail. He also had provable damages.

 

Cool beans! is that case online, I'd love to read it!

 

I was going by the same 9th Circuit case that you cited, it poo-poos FCRA/FDCPA violations because it found that it would provide an independent cause of action that the BK Code doesn't allow for (that's the sassy summary) -- saying it was a backdoor approach when you couldn't get in the front. Loons, I say!

 

But then, there's the case summarized above which contradicts the looney ones. I'd love to find that case online too!

 

I don’t know which is the best way to go. Maybe a combination of both, since your way, if for some reason it didn’t result in deletion, would certainly result in a lot of ammo for the complaint by being able to cite a litany of offenses.

 

Well, what is the worst that can happen?

 

I think if you contact the creditors included, tell them they are violating the discharge injunction (especially since they verified with the en mass initial disputing attempt, so they can't say they don't know about it), delete the TL by whenever or I'll have to seek resolution through the BK Court, they'll either delete or wait for you to move.

 

If you get a hearing scheduled, just having the date alone should push them to delete without a quibble. If you just skip to filing, they won't know that you want deletion instead of updating -- though you could do that too, they'll sit up straight. It just seems to be, just like the FCRA, you have to give an opportunity to correct, after that, all bets are off. I do think they are more worried and motivated by BK sanctions than FCRA/FDCPA violations.

 

The worst that can happen is you'll end up with TL's showing discharged in BK, and well, you could still argue that they shouldn't be there at all since there is nothing to collect. That's still a lot better of a place than where we were before filing, eh? Establish new tradelines, pay on time, and you're on your way!

 

They don't need nor deserve more than 1 chance to correct or delete, I say, I'm liking it! Is this the direction you are heading or anticipating? Are you discharged yet?

 

Sassy, thanks very much for the tremendous effort you put into this and all of your posts. A treasure you are!

 

A treasure!!!!!!!! wowOwowwwwwwww, thank you!

 

Sassy

[SassyinAz]

The BK tradeline, if correct, big IF, should have $0 balance, discharged in whatever Chapter, and nothing else negative about them, including the commencement of delinquency date or last activity date. The TL's if correct, should fall off from the first delinquency date, usually substantially before the BK date.

 

 

are you saying the in the section of ouor credit reports that the Bk should not have any dates beside it? listed with it?

 

thanks piggycat 8)

 

No piggycat,

 

I'm sorry if I was confusing, my keyboard overfloweth on this thread

 

The BK listing, under the public records section, should have 2 dates listed with it. The filing date and the discharged date/resolved date.

 

Sassy

[sinobueno]

“What's not working for me though is that the BK Court could only order the creditors to report correctly.”

 

A bk judge can grant injunctive relief, actual damages, punitive damages and attorneys fees. What you really wind up with may depend on whether you have a 'creditor judge' or a 'debtor judge'. It is true, though, that the judges are used to pro se litigants. For example, almost every student loan dischargeability case, and there are many, has been filed pro-se.

 

“You are thinking that it's more likely those creditors would delete when faced with an upcoming contempt date instead of facing the Judge?”

 

I’m only guessing they would. Especially since, as you pointed out, they aren't going to collect on the debt anyway, and you have nothing to lose. But I've also seen a critique of the Walls case that was written by a collection attorney, who felt that case was a win for creditors since all they would get is slapped with sanctions for contempt of court. Like it was no biggie. But when you realize that the 9th Circuit wiped out the consumer's most accessible remedy -- bringing an action in small claims court -- I guess you can see why creditors would see Walls as a victory. How many debtors are going to re-open their bankrputcy, then go forward with an adversary petition, when standing in front of a bankruptcy judge is the last place on earth most debtors want to spend their time?

 

When you read the Walls case, did you think it applied to both FCRA and FDCPA cases? For some reason, I thought they were addressing only FDCPA violations. I’m going to have to go back and re-read.

 

The Wagner case makes A LOT more sense than the Walls case. Thank you. I hadn’t seen that one. It also bolsters your case about the tradelines. If there is no debt, there should be no tradeline. I quite agree that the listing of the bk itself in the public records section is whammy enough.

 

The case I found wasn’t a published case. I found it several months ago by searching Pacer: United States Bankruptcy Court for the District of South Carolina, filed May 30, 2000, Case No. 00-80098, Michael L. Wetzel v. Wachovia Bank, Universal Bank, TransUnion, Equifax, Experian.

 

I don’t know which way I’m heading -- I’m nothing, if not a vacillator. It does seem, though, that some of the best case law often comes through bankruptcy litigation, and we have a dearth of case law when it comes to this kind of reporting. The cavalier attitudes of the CRA's, OC's and CA's may begin to change, though, as they sort through the settlement in that big class action (Clark v. Experian, TU, EQ).

 

Thank you, Sassy, for posting those cases for everyone to see. The method you outlined in your previous post is a much more realistic, systematic and sound approach. Best of all -- you've proven it works.

[SassyinAz]

A bk judge can grant injunctive relief, actual damages, punitive damages and attorneys fees. What you really wind up with may depend on whether you have a 'creditor judge' or a 'debtor judge'. It is true, though, that the judges are used to pro se litigants. For example, almost every student loan dischargeability case, and there are many, has been filed pro-se.

 

hmmmmmm, ok, for some reason I had in my head that a BK Judge couldn't go this far in it's rulings and that they didn't have any authority over the CRA's themselves. TY, this is good to know!

 

I’m only guessing they would. Especially since, as you pointed out, they aren't going to collect on the debt anyway, and you have nothing to lose. But I've also seen a critique of the Walls case that was written by a collection attorney, who felt that case was a win for creditors since all they would get is slapped with sanctions for contempt of court. Like it was no biggie. But when you realize that the 9th Circuit wiped out the consumer's most accessible remedy -- bringing an action in small claims court -- I guess you can see why creditors would see Walls as a victory. How many debtors are going to re-open their bankrputcy, then go forward with an adversary petition, when standing in front of a bankruptcy judge is the last place on earth most debtors want to spend their time?

 

Oh wow, that is interesting indeed. No doubt they had a few drinks saluting each other at happy hour!

 

You are spot on with how I personally feel about appearing before a BK Judge; however, I'd do it just because I was scared. Gotta walk through those fires I say, and that is just how I see them. What's the worse that can happen if you are pursuing in good faith?

 

When you read the Walls case, did you think it applied to both FCRA and FDCPA cases? For some reason, I thought they were addressing only FDCPA violations. I’m going to have to go back and re-read.

 

I re-read, THANK YOU, there is no FCRA reference!

 

So, if an OC (that was included and discharged in BK) were reporting in error, you could pursue the FCRA violations under the responsibilities of furnishers of information section through a more accessible court, like small claims.

 

The Walls ruling may have cut off accessibility for FDCPA violations, at least for those in this District, but not necessarily FCRA violations, yes? is that how you read it as well?

 

I hadn't considered that as a viable option at all until you questioned the inclusion of the FCRA. That's a good plan for you and others in similar shoes.

 

The Wagner case makes A LOT more sense than the Walls case. Thank you. I hadn’t seen that one. It also bolsters your case about the tradelines. If there is no debt, there should be no tradeline. I quite agree that the listing of the bk itself in the public records section is whammy enough.

 

Nodding, I'm definately flying with ya!

 

LOL, I'm glad you agree, sometimes I think I am the only one that can't make the way BK tradelines now are accepted as accurately reported make any sense. The whole point of BK is supposed to be a second chance with a clean slate. I understand the public records listing but the rest just doesn't work.

 

Noooooooooooooo more whammies, enough already!

 

The case I found wasn’t a published case. I found it several months ago by searching Pacer: United States Bankruptcy Court for the District of South Carolina, filed May 30, 2000, Case No. 00-80098, Michael L. Wetzel v. Wachovia Bank, Universal Bank, TransUnion, Equifax, Experian.

 

TY TY, I'll look that up via Pacer.

 

I don’t know which way I’m heading -- I’m nothing, if not a vacillator. It does seem, though, that some of the best case law often comes through bankruptcy litigation, and we have a dearth of case law when it comes to this kind of reporting. The cavalier attitudes of the CRA's, OC's and CA's may begin to change, though, as they sort through the settlement in that big class action (Clark v. Experian, TU, EQ).

 

Well hey, there's definately worse things than vacillating and especially when you're trying to plot a strategy that's realistic and workable for your own situation and goals.

 

Nelson v Chase Manhattan, and the corresponding position of the FTC, on an individual's cause of action against furnishers of information, has and continues to make a difference in those attitudes and business practices. Most were believing and carrying on their business as if they really were untouchables -- No longer!

 

Thank you, Sassy, for posting those cases for everyone to see. The method you outlined in your previous post is a much more realistic, systematic and sound approach. Best of all -- you've proven it works.

 

Your welcome, sino, good luck to you in your strategic plottings.

 

Keep on keepin' on!!! You'll get there, persistence is the key!

 

Sassy

[sinobueno]

"So, if an OC (that was included and discharged in BK) were reporting in error, you could pursue the FCRA violations under the responsibilities of furnishers of information section through a more accessible court, like small claims. "

 

YES! Exactly. The OC, collection agency, and the CRA, all under the FCRA (and/or your state's version of the FCRA). Since there is no debt, there is no real need to rely on the FDCPA when addressing the misreporting of discharged debts. Anyway, the FCRA-type violations are plentiful, and would get the job done.

 

Thanks very much for your encouragement.

[SassyinAz]

he he he, sino,

 

I do like how you think!!!!!!!!!!! That is the key to getting around that ruling then.

 

 

Sassy

[sinobueno]

More on FDCPA and bk litigation.

 

http://www.narca.org/Newsletter/2001/1stqu...arter/FDCPA.asp

 

Thanks to keepmine for finding the link to the NARCA newsletters (see keepmine's thread, "Know thine enemy". The following article appeared in their 'First Quarter 2001' newsletter. Since it fits with our discussion in this thread, I'm posting it here its entirety just in case the link disappears again.

 

It's even more apparent after reading this that collectors do, in fact, applaud cases like Walls v. Wells Fargo.

 

The newsletter...

 

Staying the FDCPA: The Remedial Exclusivity of Bankruptcy Proceedings

by Nichlas P. Spallas, Bass & Associates, P.C.- Tucson, Arizona

 

The imagination of the consumer bar has led some courts a long way from the original intent and understanding of the Fair Debt Collection Practices Act (FDCPA). Emboldened by success, consumer attorneys argue in a growing number of cases that the application of the FDCPA should be extended to govern acts clearly within the context of bankruptcy proceedings. But this is one area that the courts are reluctant to go. You may find yourself the subject of an FDCPA allegation during the bankruptcy, or the prey of a more stealth post-discharge claim with no mention of the bankruptcy proceeding. There are at least two reasons why the Bankruptcy Code supplants the FDCPA. First, the FDCPA conflicts with the Bankruptcy Code both explicitly and in purpose. Second, the comprehensive and differing remedies of the Bankruptcy Code suggest remedial exclusivity. Since we are dealing with two federal statutes, the court’s approach to this issue is not to be confused with the doctrine of preemption.

 

Conflicting Statutes

When reconciling two federal statutes, the court considers the principles of statutory construction and interpretation, goals, functions, and congressional intent. (Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 608, 99 S.Ct. 1905, 1911 (1979)). Applying this standard, it is clear that the FDCPA by its nature conflicts with the Bankruptcy Code.

 

While the stated purpose of the FDCPA is “to eliminate abusive debt collection practices by debt collectors” its aim is not to stop lawful recovery practices, including those practices in compliance with the bankruptcy code. (15 U.S.C. § 1692(e)). In enacting the FDCPA, Congress found that “[a]busive debt collection practices contribute to the number of personal bankruptcies, to marital instability, to the loss of jobs, and to invasions of individual privacy.” (15 U.S.C. § 1692(a)). Conversely, the long held central purpose of the Bankruptcy Code, “is to place the property of the bankrupt, wherever found, under the control of the court, for equal distribution among creditors.” (Straton v. New, 283 U.S. 318, 320-321, 51 S.Ct. 465, 466 (1931)). The FDCPA governs the conduct of debt collectors in their efforts to collect debts, while the Bankruptcy Code provides a comprehensive framework for adjudicating, among other things, the rights and competing claims of both creditors and debtors in the bankruptcy process.

 

It is illogical on its face to weave the mandates of the FDCPA with those of the Bankruptcy Code. If, for example, the FDCPA requires us to give the warning “…this is an attempt to collect a debt…” when corresponding with bankrupt debtors, such a notice flies in the face of the automatic stay, which clearly prohibits such activity. Indeed, Congress never intended to place debt collectors in the precarious position of choosing which federal law to violate.

 

Yet a common approach is to cobble stay violation allegations as FDCPA claims. The FDCPA, however, “was not enacted to enforce the Bankruptcy Code’s automatic stay provisions; it was enacted to eliminate abusive debt collection practices. Automatic stays are adequately enforced by the contempt power of bankruptcy courts and specific provisions of the Bankruptcy Code.” (Hubbard v. National Bond & Collection Associates, 126 B.R. 422, 428-429 (D.Del. 1991). aff’d, 947 F.2d 935 (3rd Cir. 1991)).

 

The FDCPA was enacted as an amendment to the Consumer Credit Protection Act. When reconciling the wage garnishment provisions of the Consumer Protection laws and the preexisting Bankruptcy Code, the United States Supreme Court concluded:

 

[A]n examination of the legislative history of the Consumer Protection Act makes it clear that, while it was enacted against the background of the Bankruptcy Act, it was not intended to alter the clear purpose of the latter Act to assemble, once a bankruptcy petition is filed, all of the debtor’s assets for the benefit of its creditors. Indeed, Congress concern was not the administration of the bankrupt estate but the prevention of bankruptcy in the first place. . . .

(Kokoszka v. Belford, 417 U.S. 642, 650, 94 S.Ct. 243, 246 (1974)).

 

“In short, the Consumer Credit Protection Act sought to prevent consumers from entering bankruptcy in the first place. However, if despite its protection, bankruptcy did occur, the debtor’s protection and remedy remain under the Bankruptcy Act.” (Id. at 651). While there are few cases directly on point, some courts have embraced the reasoning of Kokoszka when dealing with FDCPA claims.

 

In Baldwin v. McCalla, Raymer, Padrick, Cobb, Nichols & Clark, L.L.C., 1999 U.S. Dist. LEXIS 6933 (N.D. Ill. April 19, 1999), the plaintiff asserted a violation of the FDCPA claiming the creditor had misstated the nature and amount of the debt when it filed its proof of claim. The court found that there is a potential conflict when a plaintiff brings external challenge, such as an FDCPA claim, to alleged wrongdoing that occurs in the context of a bankruptcy. (Baldwin, at 7).

 

Relying on Kokoszka, the Baldwin court reasoned that:

 

Like with the wage and garnishment provisions of the Consumer Credit Protection Act, a key function of the FDCPA provisions of the Consumer Credit Protection Act was to eliminate practices that ‘contribute to the number of personal bankruptcies. Neither set of provisions demonstrates even the slightest intent on the part of Congress to interfere with the intricate workings of the bankruptcy system. (Id., at 8).

 

The Baldwin court found at least three other reasons why the FDCPA should not apply to conduct that occur during a bankruptcy proceeding. Namely, the adequate remedies available under the Bankruptcy Code, its purpose, and its inherent conflict with the FDCPA. (Id. at 9-11). (citing Maloy v. Phillips, 197 B.R. 721 (M.D. Ga. 1996) and Hubbard, supra, at 428-29.

 

In Maloy v. Phillips, the debt collector mailed a letter to the debtor post petition but, because of the automatic stay under 11 U.S.C. § 362, did not include the notices required under 15 U.S.C. § 1692. (Maloy, 197 B.R. at 722). In granting summary judgment for the debt collector, the district court held that § 362(a)(6) prohibits a collector from sending the notice required by § 1692g. Id. at 723. The court best summed up the inherent conflict between the FDCPA and the Bankruptcy Code in remarking that the “[d]efendant’s situation was a catch-22. One statute told him to go left, the other right. . . . In the court’s best judgment, defendant made the right choice by honoring the automatic stay.” Id.

 

Remedial Exclusivity

Admittedly, there are few cases regarding the application of the FDCPA in bankruptcy matters that hinge on remedial exclusivity. There is, however, a forceful argument to be made by analogy. In Periera v. Chapman, 92 B.R. 903 (C.D.Cal. 1988), the court considered the issue of whether an action under 42 U.S.C.A. § 1983 can be premised by a violation of the stay under 11 U.S.C. § 362(h). The plaintiff alleged that the defendants had violated the automatic stay provision of the Bankruptcy Code, thereby violating his civil rights in violation of 42 U.S.C. § 1983. (Id. at 904).

 

The defendants contended that the plaintiff’s remedy should be based on 11 U.S.C. § 362(h), which provides actual damages, including costs and attorneys’ fees, and punitive damages, to any individual injured by a willful violation of the stay. (Periera, supra, 92 B.R. at 905). The defendants further argued that this remedy is exclusive.

 

To that end, the court focused on the comprehensiveness of the remedial scheme, and any inconsistent remedies between the two statutes. Id. at 907. In dismissing the complaint, the court stated:

 

In this case, there can be no doubt that the statutory scheme provided by the Bankruptcy Code reflects a ‘balance, completeness, and structural integrity’ that suggests remedial exclusivity. The Bankruptcy Code embodies an ‘unusually elaborate’ system for resolving bankruptcy matters, complete with its own separate adjudicative framework. (Id. at 908).

 

The court continued:

 

[T]he inconsistency of remedy between section 362(h) and section 1983 is suggestive of an intended remedial exclusivity. Although both statutes allow a prevailing party to recover actual damages, attorneys fees, and, if appropriate, punitive damages, a plaintiff has no right to a jury trial in a section 362(h) action. This Court finds this difference to be a significant indication that Congress did not intend to allow a plaintiff to base a section 1983 action on a violation of the automatic stay. Id.

 

In short, the Periera court found significant that a plaintiff’s right to a jury trial depended solely on his choice between two federal forums. Likewise, the FDCPA provides the remedy of a jury trial, while no such right exists under § 362(h) of the Bankruptcy Code.

 

Some cases have touched on the remedial exclusivity of the Bankruptcy Code even if the acts occurred after the discharge. For example, consumer attorneys argue that when a debt collector accepts payments on what the consumer alleges is a discharged debt such conduct violates the FDCPA. In Kibler v. WFS Financial, Inc., 2000 U.S. Dist. LEXIS 19131 (C.D. Cal., September 12, 2000), suit was filed in part under the FDCPA when the defendant failed to obtain a reaffirmation agreement during the bankruptcy, but mailed statements and received payment in full on the secured debt post-discharge. (Id. at 3-4). In relying on Baldwin, supra, the court dismissed all of the counts including the FDCPA claim. The court reasoned that if debtors were permitted to assert FDCPA claims for violations of 11 U.S.C. § 524, they would deliberately bypass the contempt remedy in the Bankruptcy Code. (Id. at 31).

 

Generally, the FDCPA is misapplied in this manner in pursuit of class actions, larger damages, and to increase leverage for higher settlements. At best, consumer attorneys making these claims are sincerely mistaken in attempting to fit the square peg of bankruptcy matters into the black hole of claims under the FDCPA. At worst, they engage in abject “damage shopping.” Thankfully, courts appear to be drawing a defining line between two conflicting statutes.

[sinobueno]

Okay,now that's just wierd. I have no idea why the cool smilie decided to plop down in the middle of the text. Are they alive? Do they do whatever they want? Are they out of control? Pam?

[Witz]

The line ended in an eight followed by a close paren like

8 )

[sinobueno]

8)

 

Ahhhh. Now I see! Thanks, Witz. I was worried there for a minute. I had visions of a pacmanish "twisted evil" emoticon, gobbling up sweet "very happy".

[SassyinAz]

whoaaaaaaaaaaa sino,

 

THAT'S a keeper! TY TY TY TY

 

"...or the prey of a more stealth post-discharge claim with no mention of the bankruptcy proceeding..."

 

The line above made me snort and spit my coffee, such a pretty picture eh? :wink:

 

I'm printing this now!

 

Sassy

[crofttk]

Damn, Sassy and sino, you folks just blow my socks off ! I had no idea of the depth of discussion available here !

 

Sorry to tread in your thread here ArmySarge.

 

I've already done my ignoramus approach of sending BK docs to all three CRAs for included in BK updates so that's spilled milk for me.

 

However, one of DW's IIB accounts on TU has no closure date and says updated as of 2/03. This is really screwing her TU FICO score. Even though we just paid down all CC's to 5% util., the simulator at myFICO.com says DW will have a tough time breaking 700 due to late pmts. in last 3 months. In reality, we are spotless since BK7 discharge 7/97 !

 

I will do a separate post with a truly "anal" graph and all that.

 

I expect you guys to show up !!! :wink:

[SassyinAz]

Check this out:

 

:shock: http://207.41.16.152/opinions/AJD280O1.PDF

 

Buried in the database out front, TY georgiaboy!!!!!!!!!

 

It goes into a more depth explanation of the rulings and rationale behind them, including the FDCPA indeed to prevent BK.

 

Interesting indeed.

 

Sassy

 

EDITED to include this homework link, it's a keeper!!!!!!!!!!!!!!! ALL credit goes to brilliant sino for finding it, bowing to you, sino!

 

It's a MUST-READ:

 

http://www.abiworld.org/abidata/online/law...ter02/Moss.html

[crofttk]

<BUMP> to expose crofttk's continued procrastination on heeding Sassy's advice.