Hard and Soft Inquiry on Same Date by a CA

pandmel · 12-20-2006, 11:59 AM

I have a CA that did a hard and soft inquiry with Experian on the same date.

I can see a PP for on inquiry but not two on the same date?

My address has not changed in quite sometime. If they were trying to get my location information either type of inquiry would have given them that information.

What could possibly be their reasoning or justification for this?

Pandmel

direred · 12-20-2006, 02:27 PM

Poisoning your credit.

Personally, I'd sue the CA and CRA for the hard pull (as I don't believe they can code it as a hard), but I know there's no case law on that point and other people disagree with me.

JayinGR · 12-20-2006, 02:32 PM

Quote:

Originally Posted by direred

Poisoning your credit.

Personally, I'd sue the CA and CRA for the hard pull (as I don't believe they can code it as a hard), but I know there's no case law on that point and other people disagree with me.

I am using that argument in my current lawsuit!!!

direred · 12-20-2006, 02:43 PM

Quote:

Originally Posted by JayinGR

I am using that argument in my current lawsuit!!!

Yay! Go you!

I blew setting up the one case I had with that cause of action because I was a newbie.

JayinGR · 12-20-2006, 03:07 PM

Quote:

Originally Posted by direred

Yay! Go you!

I blew setting up the one case I had with that cause of action because I was a newbie.

The current suit DW and I are in the OC pulled 3 hards. 1 Before they were even assigned the mortgage 1 during and 1 3 months after her BK was discharged....

direred · 12-20-2006, 03:19 PM

The one before they were assigned the mortgage, could this possibly have been to evaluate it as a portfolio item? There is PP for that, iirc.

pandmel · 12-20-2006, 11:00 PM

Quote:

Originally Posted by direred

Poisoning your credit.

Personally, I'd sue the CA and CRA for the hard pull (as I don't believe they can code it as a hard), but I know there's no case law on that point and other people disagree with me.

That was my thinking as well. I could see a PP for one inquiry but not two on the same day of even the same month. One was deffenatly a hard and the other a soft.

So would you allege no PP under FCRA? They are not even reporting to my file as a collection account and of course it has been 5 days since intial contact and no validation letter. They even stated that they sent their first letters to a previuos address, which I corrected for them. So my intitial contact with them is when I called them to find out about the inquiries, it was a genuine first contact.

What was funny is a least sophisticated collector said that they don't pull credit and I was going to pay this because I knew what it was about. I really am not positive which account they are attempting to collect on as I have sevral account with this original creditor. It was a sales finance charge account and I have four differently branded credit cards with this OC. Two of which have a balance similar to what they are claiming. All they would tell me is it was a sales finance charge account and could not even tell me the brand!! What also really gripes my butt with this OC is that i had 3 accounts go 90-120 past due so they placed all of my accounts with CAs. I was even on a work out plan with the OC on all of them and there justification was that I was 10 days late on the new agreements so they had no choice but to send it to collections, even after I contacted them prior to the late payments.

The reason things got in this shape was that i had a son born 19 months ago with a bi-lateral cleft lip an pallette and we had no insurance at the time and my current policy has a two year waiting period before they will cover him for any related treatments. So i had to pay cash for his first three surgeries to the tune of $43,000 and I could not even get the same rate from the hospitals as Medicaid or Blue Cross would pay. I was penalized for paying cash. I had to make some tough descions pay Credit Cards or pay doctors and thought I had a workout plan with this OC. Sorry to bore you all with the details, but it is to give some insight.

The thing that also kinda had me worried was renewing my mortgage brokers license. They are subject to pull your credit or request you provide them with a tri-merge file which I had to do for my '07 renewal. When i called the department of bankng and finance with my concerns they told me to write an explaination and provide documentation and was asigned to a specific person. When she recieved the info she told me there would be no problems.

I do have recorded conversations with this agency and have now retained an attorney, as of last night, he is a personal frend to persue a settlement with this OC for the outstanding balances and he feels that the more FDCPA violations with the different CA's that they have sent these accounts to will help our cause.
I am having to help he some with the research as he is not charging me because he gets almost 50% of my loan closings. The problem I have persuing this at this time of the year my niche mortgage market, low income, cranks up after Jan 1 as the tax refunds start rolling in, so my time during normal business hours is spent dealing with underwriters, apprasiers etc.. 65% of my income for the year is generated from contact made Janurary to April.

Ok enough personal history.. How would you allege the FRCA violations?

Pandmel

direred · 12-20-2006, 11:11 PM

Quote:

Originally Posted by pandmel

That was my thinking as well. I could see a PP for one inquiry but not two on the same day of even the same month. One was deffenatly a hard and the other a soft.

So would you allege no PP under FCRA?

There is a PP for a collection, sure. That's clear. However, what's also fairly clear to me (but not to a lot of other people) is that inquiries made for account review or collection purposes may not be reported to a third party.

FCRA 604(c)(3) [§ 1681b] defines a hard inquiry:

Quote:

Information regarding inquiries. Except as provided in section 609(a)(5) [§ 1681g], a consumer reporting agency shall not furnish to any person a record of inquiries in connection with a credit or insurance transaction that is not initiated by a consumer.

FCRA 609(a)(5) defines a soft inquiry:

Quote:

A record of all inquiries received by the agency during the 1-year period preceding the request that identified the consumer in connection with a credit or insurance transaction that was not initiated by the consumer.

See my point?

Also, if this collection is for an account that's outside the time limit for reporting, another possible cause of action accrues.

pandmel · 12-20-2006, 11:43 PM

From how I am reading it I would have a COA against the CA because they created an inquiry(hard) that I did not initiate. I would assume there is not case law around this is because either CAs don't want to lose for this on an appeal and set a precedence because once that precedence is established it would take away a huge tool that they have in their arsenal.

Also can somebody point me to a copy of the FCRA in html or htm format?

Pandmel

pandmel · 12-20-2006, 11:50 PM

Quote:

Originally Posted by direred

The one before they were assigned the mortgage, could this possibly have been to evaluate it as a portfolio item? There is PP for that, iirc.

But based on the same argument you gave it would not have been initiated by the consumer. EFX codes portfolio review as soft. However, if you read your mortgage contract and all of the disclosure(currently 3" stack for a HUD or FHA loan) consent may have been given at that time. I am in the mortgage business and have never read a complete mortgage package in almost 10 years I have been in the business, including my own.

Pandmel

Pale Rider · 12-21-2006, 12:17 AM

Quote:

Originally Posted by pandmel

From how I am reading it I would have a COA against the CA because they created an inquiry(hard) that I did not initiate. I would assume there is not case law around this is because either CAs don't want to lose for this on an appeal and set a precedence because once that precedence is established it would take away a huge tool that they have in their arsenal.

I hope you don't go that route, at least based on 604 (c), because it does not apply. 604(c) deals with prescreening inquiries and absolutely nothing else. There is absolutely nothing in the FCRA to prohibit a CA inquiry from being hard. There is no caselaw, because it is not a violation.

Pale Rider · 12-21-2006, 12:28 AM

Another interesting note:

A timely DV does not bar PP.

pandmel · 12-21-2006, 12:49 AM

Quote:

Originally Posted by Pale Rider

I hope you don't go that route, at least based on 604 (c), because it does not apply. 604(c) deals with prescreening inquiries and absolutely nothing else. There is absolutely nothing in the FCRA to prohibit a CA inquiry from being hard. There is no caselaw, because it is not a violation.

Really I think the appropriate COA for two inquiries on the same day would fall under:

§ 808. Unfair practices [15 USC 1692f]

A debt collector may not use unfair or unconscionable means to collect or attempt to collect any debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section:

808 on its face can be a COA because they would receive no more relevant information from a hard vs soft other than to attempt to poison a credit file.

The fact that they told me that they sent the validation notice to a former address instead of my current address, which is the same address that I would of had when any of the accounts with this specific OC was opened seems to be an attempt to circumvent the FDCPA in not properly delivering the validation notice and another COA.

The former address they sent their letter to I have not had in over 8 years but a bank that I have had a long relationship keeps reporting it as a previous address as it was the address at the time the relationship was established. I have sent letters asking them to stop but they keep doing it.

Pandmel

Pale Rider · 12-21-2006, 12:55 AM

You would have better luck, IMO, with the 808 violation than the 604 (c). But, since 1 of the inquiries was soft, no one will see it, so there really isn't any poisoning of the report. They do have PP, and it can be hard, and it is not stopped by DV, so I'm thinking that is kinda weak also. See if you can bluff them into settling without filing, because there is California District case law that supports the dv not barring PP and a pull by a collector not being harassing.

pandmel · 12-21-2006, 01:00 AM

Quote:

Originally Posted by Pale Rider

You would have better luck, IMO, with the 808 violation than the 604 (c). But, since 1 of the inquiries was soft, no one will see it, so there really isn't any poisoning of the report. They do have PP, and it can be hard, and it is not stopped by DV, so I'm thinking that is kinda weak also. See if you can bluff them into settling without filing, because there is California District case law that supports the dv not barring PP and a pull by a collector not being harassing.

What could possibly be the justification for making a hard and soft on the same day if not other than to poison a credit file? I am not asking this in an argumentative tone but to possibly see what their justification could be.

Thanks for your help

Pandmel

spinn · 12-21-2006, 01:04 AM

I just dont think the courts see that as a problem. I dont agree but it doesnt matter what I think.

I once had three hard pulls in the same day, two of these were done from the same CRA......I guess the CA thought I moved during lunch, changed my address and notified the CRA before dinner.

Pale Rider · 12-21-2006, 01:05 AM

I agree that it was stupid. I'm simply pointing out what the counter-arguements will be. I can't imagine why they would pull one of each. I just want to see you have a proper COA if you do go all the way to court. It would be a waste of time to use 604 (c) (3) because the amendment that added that section and several others to the FCRA dealt with prescreening only. A CA could not possibly have PP for prescreening.