Author Topic: FDCPA violation?  (Read 1759 times)

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jt77

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FDCPA violation?
« on: February 19, 2016 01:57:02 PM »
Long story short - I switched cell phone carriers around six months back.  Service <Removed> and I made change.  They told me at that time that I would owe them 250 dollars to get out of 2 year contract.  I had been with them for over 5 years and had not entered into any verbal or written agreement to extend contract.  One of my kids phones was broken around a year ago and we had it replaced and they claim that represents contract renewal even though it wasn't conveyed to me at that time.  I laughed at them and cancelled service. 
January rolls around and I get letter from their CA.  I immediately DV them via CMRRR (verified receipt in late January).  They send me reply stating that they have received my DV letter and will cease collection practices and give the OC 90 days to verify the alleged debt.  No contact from them since that time.  I have credit monitoring and I got an alert exactly one week ago that there was a change to my credit report.  I checked and the CA added an UNPAID line item for the alleged debt.  This was after they confirmed receipt of my DV and stated that they would cease collection practices.  Can I go after them in any way?  At the very least I will dispute it with the CRA and it will be removed but this <Removed> me off.


:tos:



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« Last Edit: February 19, 2016 05:11:28 PM by Admin0248 »

Bruno the JDB Killer

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Re: FDCPA violation?
« Reply #1 on: February 19, 2016 02:13:58 PM »
First, the LeFevre - Cass opinion letter states:
 
II. "Is it permissible under the FDCPA for a debt collector to report, or continue to report, a consumer's charged-off debt to a consumer reporting agency after the debt collector has received, but not responded to, a consumer's written dispute during the 30-day validation period detailed in § 1692g?"

 As you know, Section 1692g(b) requires the debt collector to cease collection of the debt at issue if a written dispute is received within the 30-day validation period until verification is obtained. Because we believe that reporting a charged-off debt to a consumer reporting agency, particularly at this stage of the collection process, constitutes "collection activity" on the part of the collector, our answer to your question is No.

 Although the FDCPA is unclear on this point, we believe the reality is that debt collectors use the reporting mechanism as a tool to persuade consumers to pay, just like dunning letters and telephone calls. Of course, if a dispute is received after a debt has been reported to a consumer reporting agency, the debt collector is obligated by Section 1692e(8) to inform the consumer reporting agency of the dispute.
 
 
http://www.ftc.gov/os/statutes/fdcpa/letters/cass.htm
 
Then in Edeh V Midland the court said:
 
An informal opinion letter from a regulatory agency is not entitled to Chevron deference, but it is nevertheless “‘entitled to respect’” to the extent that it has the “‘power to persuade.’” Christensen v. Harris Cnty., 529 U.S. 576, 587 (2000) (quoting Skidmore v. Swift & Co., 323U.S. 134, 140 (1944)). This Court finds the FTC’s reasoning persuasive. The Court has learned, through its work on countless FDCPA cases, that threatening to report and reporting debts to CRAs is one of the most commonly-used arrows in the debt collector’s quiver. Consistent with the views of the FTC — and consistent with the views expressed in Purnell, Quale, and Semper — the Court finds that Midland was engaged in “collection of the debt” in violation of § 1692g(b) when it reported Edeh’s disputed debt to the CRAs before sending verification of that debt to Edeh.
 
 
http://buckleysandler.com/uploads/36/doc/Edeh_v_Midland_Credit_Management_Inc_.pdf
 
I am not an attorney. Any information I post is strictly my opinion and should be treated as such.

coltfan1972

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Re: FDCPA violation?
« Reply #2 on: February 19, 2016 04:10:18 PM »
Yes, you have a violation.
LexisNexis® Legal Newsroom- 05-17-2013 | 10:11 AM --

JONESBORO, Ark. - A federal judge in Arkansas on May 15 ruled that dismissal of a consumer's lawsuit against a debt collector is not proper because although the consumer posted messages on a website "in an odious manner," valid First Amendment concerns exist (Brandon Scroggin v. Credit Bureau of Jonesboro Inc., No. 12-0128, E.D. Ark.; 2013 U.S. Dist. Lexis 69070).

BellEbutton

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Re: FDCPA violation?
« Reply #3 on: February 19, 2016 06:01:58 PM »
 The distinction between voluntary and required communication with consumer reporting agencies is significant. McIvor v. Credit Control Servs., 773 F.3d 909, 915 (8th Cir. 2014). The difference between these two actions was that Midland did not have to report the debt, but it was required by the FCRA to verify the debt. Id.
« Last Edit: February 19, 2016 06:18:42 PM by BellEbutton »

jt77

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Re: FDCPA violation?
« Reply #4 on: February 19, 2016 07:30:07 PM »
I apologize, I didn't know that any one would find that phrase offensive.  Will keep it clean from now on.

Bruno the JDB Killer

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Re: FDCPA violation?
« Reply #5 on: February 19, 2016 08:05:27 PM »
Never say anything here that you would not say in front of a judge. That will keep you in good standing. If you read other threads, you will see that regular posters argue VERY harshly with each other over theory, etc., but we do it with respect. Except for the dirtiest player in the game, and he knows who he is. LOL
I am not an attorney. Any information I post is strictly my opinion and should be treated as such.

Flyingifr

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Re: FDCPA violation?
« Reply #6 on: February 19, 2016 09:06:25 PM »
Bottom line - you may not have a FDCPA violation for the continued collection action with a valid and timely VOD in place, but if they didn't report the debt as disputed you CERTAINLY have a FCRA action for that as well as a FDCPA action for misrepresenting the legal character of the debt (that it is disputed). The signed green cards are excellent evidence that they knowingly and deliberately misreported the debt.

Do I see a lawsuit coming?
BTW-the Flyingifr Method does work. (quoted from Hannah on Infinite Credit, September 19, 2006)

I think of a telephone as a Debt Collector's crowbar. With such a device it is possible to pry one's mouth open wide enough to allow the insertion of a foot or two.

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