Need cites for reporting to CRA is collection activity!

[DUSTY]

Have searched and can't find the cites. Disputed with CA, they never attempted to validate, never contacted OC but listed with CRA. Need cites that this is collection activity. I'm in state of Florida and I believe 11th Fed District.

[DUSTY]

Thought I was right on this or is it just such a no-brainer I should be embarrased to ask?

[Pale Rider]

Lots of cases about that being a "communication", or a violation if it does not show as "disputed". There is an FTC opinion letter that clearly states it is "collection activity", but I can't recall ever seeing a case stating that. Hopefully if there is one, someone will post it.

[VexatiousLitigant]

Collection activity is not defined in the FDCPA, and I can't find anything in the annotated 1692g statutes that discusses reporting after a timely dispute.

[VexatiousLitigant]

The only thing I can really think of, would be to depose the deft. Find out what percentage of collection accounts they report to the CRAs. If they routinely report as part of their normal collection routine, that would seem to me that they use reporting as a collection activity.

However, there is one case cite under 1692g that the CA does not have to take positive action to prevent old activities. So the fact that they reported earlier doesn't mean they have to go back and delete. However if they verified a dispute, that would be a new activity IMO.

Quote:

Provision of the Fair Debt Collection Practices Act (FDCPA) requiring debt collector, upon its receipt of request by consumer for verification of debt, to "cease collection of the debt" merely prohibited debt collector from engaging in any further action to collect debt; it did not require debt collector to take any positive action, even assuming that it was able to do so, to prevent court clerk from recording equitable lien that it had filed with clerk before receiving consumer's request for verification. Shimek v. Weissman, Nowack, Curry & Wilco, P.C., C.A.11 (Ga.) 2004, 374 F.3d 1011, revised.

[DUSTY]

I thought that it might be a letter, I'll look for it there. Just found out furnisher claims that when they initially reported it with all 3 it was reported as disputed. Yet, it didn't appear as disputed on any. Would that mean it's a 3-1 chance they're wrong?

[JayinGR]

DOES ANYONE KNOW WHERE THIS FTC LETTER IS? I NEED IS ASAP for MY AA Case

[jlynn]

http://www.ftc.gov/os/statutes/fdcpa/letters/cass.htm

You do know that FTC opinions are only opinions and may, or may not carry any weight in a courtroom?

[JayinGR]

Quote:

Originally Posted by jlynn http://www.ftc.gov/os/statutes/fdcpa/letters/cass.htm You do know that FTC opinions are only opinions and may, or may not carry any weight in a courtroom?

Jlynn I LOVE YOU MUAHH!!!!!!

I know they are not binding come on now does it look like I just fell off the debtorboard truck?

LOL My atty wanted it discovery responses

[VexatiousLitigant]

FTC opinions on the FDCPA have as much authority in a courtroom as a random thread here.

[JayinGR]

Quote:

Originally Posted by VexatiousLitigant FTC opinions on the FDCPA have as much authority in a courtroom as a random thread here.

I know but since my atty asked for it because I provided a reference to it in a discovery answer I wanted to make sure he had it

[jlynn]

Quote:

Originally Posted by VexatiousLitigant FTC opinions on the FDCPA have as much authority in a courtroom as a random thread here.

Actually, although I can't tell you which ones for sure, some courts have given FTC opinion letters weight. However it IS a crap shoot, and I wouldn't recommend anyone go to court BASED on one.

[roybean]

Quote:

Originally Posted by JayinGR DOES ANYONE KNOW WHERE THIS FTC LETTER IS? I NEED IS ASAP for MY AA Case

I have FTC commentary letters as a sticky.

FCRA Staff opinion letters

FDCPA Staff Opinion Letters

[VexatiousLitigant]

Here's the problem as best as I can comprehend it. 1692g states they shall "cease collection of the debt".

Obviously saying "pay us" is trying to collect the debt.
But is just reporting the account to a CRA trying to collect the debt?

I guess you'd have to make the argument that
a) Their principal (or only) business is that of collecting debts.
b) A LSC who sees his credit file will think that the CA is attempting to collect that debt.
c) Therefore, by updating or reporting a TL to a CRA the CA is basically saying "we are trying to collect this debt, from this consumer, for this amount" unless it states disputed or paid. It would be no different than sending another letter to the debtor stating that you owe $X.

So reporting is an attempt to collect the debt.

[jlynn]

Exactly...and somewhere on the internet, I believe you will find collectors that will attest that reporting to cr's is one of their strongest collection tools.

[DUSTY]

These guy's are scumbags

"Frequently Asked Questions?
1.) Do you report all debtors to the credit bureau?
The answer is most, not all. Unlike most agencies who report every debtor to the credit bureau, we take a different approach and use it as an"ace in the hole" to induce debtors to pay."

http://www.merchantsinterstate.com/faqs.asp

(let's see if it disappears!)

[Pale Rider]

Quote:

Originally Posted by jlynn Actually, although I can't tell you which ones for sure, some courts have given FTC opinion letters weight. However it IS a crap shoot, and I wouldn't recommend anyone go to court BASED on one.

I do have some cites that back that up. FTC opinions are given weight in many courtrooms.

[roybean]

I keep telling people; YOU HAVE TO BE ABLE TO ARGUE YOUR CASE or at least pencil whip them in the complaint. We would not have any case law or precedent if someone had not have argued their behinds off convincingly and the judge said "You know, they do have a point." Staff opinion letters won't make your case, but YOU can use the staff letter to make your argument even stronger.

[hannah]

Wasn't there a TowerRat thread on AoC about this??

[roybean]

Quote:

Originally Posted by hannah Wasn't there a TowerRat thread on AoC about this??

I believe so.

[jlynn]

Quote:

Originally Posted by roybean I keep telling people; YOU HAVE TO BE ABLE TO ARGUE YOUR CASE or at least pencil whip them in the complaint. We would not have any case law or precedent if someone had not have argued their behinds off convincingly and the judge said "You know, they do have a point." Staff opinion letters won't make your case, but YOU can use the staff letter to make your argument even stronger.

Oh I agree Roy...somebody has to plow the field.

My post was just a warning so somebody doesn't think they have a slam dunk case because of an FTC Opinion letter.

[hannah]

Quote:

Originally Posted by jlynn My post was just a warning so somebody doesn't think they have a slam dunk case because of an FTC Opinion letter.

In my District, FTC letters have already been adjudged to be worth as much as the paper less the ink...

[VexatiousLitigant]

Quote:

Originally Posted by VexatiousLitigant Here's the problem as best as I can comprehend it. 1692g states they shall "cease collection of the debt". Obviously saying "pay us" is trying to collect the debt. But is just reporting the account to a CRA trying to collect the debt? I guess you'd have to make the argument that a) Their principal (or only) business is that of collecting debts. b) A LSC who sees his credit file will think that the CA is attempting to collect that debt. c) Therefore, by updating or reporting a TL to a CRA the CA is basically saying "we are trying to collect this debt, from this consumer, for this amount" unless it states disputed or paid. It would be no different than sending another letter to the debtor stating that you owe $X. So reporting is an attempt to collect the debt.

Some additional and important pieces to this argument...

It costs money to report accounts to the CRAs.
It costs money to maintain the hardware and software that is used to report accounts to the CRAs.
As a for profit business, they are trying to make money collecting on accounts.
They would not be spending all that money to report if they themselves didn't consider it to be a valuable tool for collecting on debts.

[direred]

Quote:

Originally Posted by VexatiousLitigant Some additional and important pieces to this argument... It costs money to report accounts to the CRAs. It costs money to maintain the hardware and software that is used to report accounts to the CRAs. As a for profit business, they are trying to make money collecting on accounts. They would not be spending all that money to report if they themselves didn't consider it to be a valuable tool for collecting on debts.

This is an interesting insight. Thank you.

[DUSTY]

Finally found cites in the NCLC but, haven't read them.

Sullivan v Equifax, Inc. 2002 WL 799856 (E.D. Pa. Apr. 19, 2002);
Rivera v Bank One, 145 F.R.D. 614, 1993 WL 30681 (D. P.R. 1993); accord Matter of Sommersdorf, 139 B.R. 800 701 (Bankr S.D. Ohio 1991).

Apparently there's alot of case cites that even a threat to affect your credit rating is a violation of 1692e Wow I didn't know that!