Stop Debt Collectors in Virginia

Posts Tagged ‘Misleading’

DEBT SETTLERS ARE BAD FOR YOU.  DEBT MANAGEMENT PROGRAMS ARE DEBT SETTLEMENT IN DISGUISE.

All references to code sections are courtesy of the Legislative Information System of Virginia, and are provided by leg1.state.va.us.

Debt Management and Debt Settlement is regulated by the Virginia Bureau of Financial Institutions.

Recently, the Oregon Attorney General cracked down on Credit Solutions of America, a debt settler based in Texas.  You can read the story here.

In that story, you will find that CSA has been scamming Oregon consumers for some time. They charge substantial upfront fees and encourage people to default on credit cards so they can afford the upfront fees.

This is also illegal in Virginia, however, the Virginia Attorney General has not yet come down on CSA.

Remember that with debt settlement, there is NO GUARANTEE that it will work.  KCLS does not settle debts, though we have been known to settle lawsuits.

Debt settlers promise that they can settled your debts.  There is no way to promise that truthfully.   No one can promise that a debt will be settled with a creditor, collector, or lawfirm.  There are only 2 ways to not pay for sure 1- Bankruptcy, and 2- win the collection lawsuit.

You can win a collections lawsuit because you do not owe the debt- ie: not yours, or billing errors.

You can win a collection lawsuit for technical reasons- ie: statute of limitations, hearsay, or other evidence problems.

You can also lose a collections lawsuit, even with a debt that is beyond the statute of limitations, with testimony that is based on hearsay, filled with billing errors, where the judge does not follow the law, or the rules of procedure or the rules of evidence.  Even good lawyers can lose in these circumstances.

The most important thing to know is that if you do not try to defend, you cannot win.  You must show up.  Most debt settlers try to settle the debt from afar.  They try to settle, while the collector proceeds to obtain judgment.

There are also some creditors and debt collectors that will not negotiate, and worse yet, when they understand that you have hired a debt settler, will sue, almost immediately, for the simple reason that they believe that the first one to sue will be one of the few to collect anything.  The truth is that this is a self-fulfilling prophesy.

In summary, beware of debt settlers, it is very hard for them to comply with all of the provisions of the Virginia Credit Counseling Act (VCCA), Virginia Code Sections 6.1-363.2 through 6.1-363.26.  Violations of the VCCA can be enforced by consumers who have been duped, pursuant to the Virginia Consumer Protection Act (VCPA), as VCCA specifies at Section 6.1-363.26 that any violation of VCCA is a violation of Section 59.1-200 of the VCPA.

If you have been impacted by anything we mentioned here, you can make an appointment to see us.

NO FEE IN YOUR VCCA/VCPA CASE UNLESS WE RECOVER!!

KCLS LIMITS THE GEOGRAPHY IN WHICH WE TAKE CASES.

YOU MUST BE A VIRGINIA RESIDENT.

If you are not a Virginia Resident, click here to find a lawyer near you.

OUR LEGAL FEES:

The rights afforded to you, as a consumer, under the Virginia Credit Counseling Act and the Virginia Consumer Protection Act means that a corporation or party who has violated your rights may ultimately be made to pay for statutory damages, actual damages, and your legal fees. Therefore, if we agree to represent you in any case, you won’t pay any attorney’s fees unless we are successful and we recover on your behalf. We are here to serve and have assisted many consumers TO enforce their legal rights. Let us try and see if we can help you too. That means you pay no fee in your case unless we recover.

Contact us by e-mail or by telephone or fax or US Mail.

You can call us: 804.673.4358

You can fax us: 804.673.4350

You can contact us by US MAIL:

Krumbein Consumer Legal Services, Inc.

1650 Willow Lawn Drive

Suite 300

Richmond, VA 23230

The Fair Credit Reporting Act is designed to protect consumers from inaccurate or outdated information on credit reports.

CONSUMER REPORTING AGENCY REINVESTIGATIONS and The Fair Credit Reporting Act

All references to code sections are courtesy of the Legal Information Institute at Law.Cornell.edu.

The Fair Credit Reporting Act requires the Credit Reporting Agencies, or Consumer Reporting Agencies to conduct a reinvestigation and the procedures around that reinvestigation.

The section that discusses the requirements for reinvestigation of a disputed item is 15 U.S.C. §1681i.

As usual, we start with the statute.  Please note that we will only be reviewing the section on reinvestigations, so the rest of the section will not be reprinted or discussed.

(5) Treatment of inaccurate or unverifiable information

(A) In general

If, after any reinvestigation under paragraph (1) of any information disputed by a consumer, an item of the information is found to be inaccurate or incomplete or cannot be verified, the consumer reporting agency shall—

(i) promptly delete that item of information from the file of the consumer, or modify that item of information, as appropriate, based on the results of the reinvestigation; and

(ii) promptly notify the furnisher of that information that the information has been modified or deleted from the file of the consumer.

This means that, under the Fair Credit Reporting Act, the consumer credit reporting agency must, after reviewing the credit file and information that you provided in conjunction with your request for reinvestigation, must remove the disputed information, if the information cannot be confirmed.

For example- If you have a credit card or perhaps a line of credit with a bank, and the bank reports that you are late one month.  You have proof that you sent payment, and that they cashed your check on or before the due date.

In order to preserve your rights, you must send your dispute to the consumer credit reporting agencies, and provide them with all the information they need to review this account.  If the consumer credit reporting agency cannot verify that the information is accurate, they are required to either delete the information or alternatively, to modify the reporting of the tradeline in the credit file to show that you were not late, and notify the furnisher of the information (your creditor) that they have removed or modified the information in your credit file.  Under a different provision, they are required to have specific procedures to prevent the inaccurate information from reappearing in your credit file.

If the information is accurate, it is proper for the information to remain, so it is important to remember that just because you dispute, and they deal with your dispute incorrectly, does not mean that you have a right to sue.  The Fair Credit Reporting Act is NOT like the Fair Debt Collection Practices Act.  They must report inaccurate, or accurate but misleading and incomplete, information in order to have a right to sue at all.

If you have been impacted by anything we mentioned here, you can make an appointment to see us.

NO FEE IN YOUR FCRA CASE UNLESS WE RECOVER!!

KCLS LIMITS THE GEOGRAPHY IN WHICH WE TAKE CASES.

YOU MUST BE A VIRGINIA RESIDENT.

If you are not a Virginia Resident, click here to find a lawyer near you.

YOUR LEGAL FEES:

The rights afforded to you, as a consumer, under the FCRA and the FDCPA means that a corporation or party who has violated your rights may ultimately be made to pay for statutory damages, actual damages, and your legal fees. Therefore, if we agree to represent you in any case, you won’t pay any attorney’s fees unless we are successful and we recover on your behalf. We are here to serve and have assisted many consumers TO enforce their legal rights. Let us try and see if we can help you too. That means you pay no fee in your case unless we recover.

Contact us by e-mail or by telephone or fax or US Mail.

You can call us: 804.673.4358

You can fax us: 804.673.4350

You can contact us by US MAIL:

Krumbein Consumer Legal Services, Inc.

1650 Willow Lawn Drive

Suite 300

Richmond, VA 23230

How can you make a debt collector cease communications under the Fair Debt Collection Practices Act?

As usual, we start with the text of the statute.

15 USC §1692c(c) Ceasing communication

If a consumer notifies a debt collector in writing that the consumer refuses to pay a debt or that the consumer wishes the debt collector to cease further communication with the consumer, the debt collector shall not communicate further with the consumer with respect to such debt, except—

(1) to advise the consumer that the debt collector’s further efforts are being terminated;

(2) to notify the consumer that the debt collector or creditor may invoke specified remedies which are ordinarily invoked by such debt collector or creditor; or

(3) where applicable, to notify the consumer that the debt collector or creditor intends to invoke a specified remedy.

If such notice from the consumer is made by mail, notification shall be complete upon receipt.

This means that, under the Fair Debt Collection Practices Act, if you inform a debt collector that you wish for them to stop collecting from you, they are required to do so.  They are then prohibited, by the Fair Debt Collection Practices Act, from MOST other contact.  They can let you know that they are complying with your requests.  They can let you know that they may do certain things that are legal,  that are collection efforts- repossession, foreclosure, lawsuit.  And they can take those actions.

For most collectors, there is very little that they can do in response that complies with the Fair Debt Collection Practices Act, but one must be wary of collections agencies that are lawyers.  Once should be particularly aware of those firms that regularly sue in the local courts where you are located.  Those collectors, one should think carefully before deciding that you wish to tell them to cease collections efforts, as they may decide that they wish to sue to collect.

Because of this distinction, it is very important to contact a consumer protection lawyer, who is familiar with the Fair Debt Collection Practices Act, in your community before taking this kind of action.  If you are in Virginia, we are glad to assist you.  If you are not in Virginia, please visit the National Association of Consumer Advocates Find An Attorney webpage.

If you have been impacted by anything we mentioned here, you can make an appointment to see us.

NO FEE IN YOUR FDCPA CASE UNLESS WE RECOVER!!

KCLS LIMITS THE GEOGRAPHY IN WHICH WE TAKE CASES.

YOU MUST BE A VIRGINIA RESIDENT.

If you are not a Virginia Resident, click here to find a lawyer near you.

OUR LEGAL FEES:

The rights afforded to you, as a consumer, under the FCRA and the FDCPA means that a corporation or party who has violated your rights may ultimately be made to pay for statutory damages, actual damages, and your legal fees. Therefore, if we agree to represent you in any case, you won’t pay any attorney’s fees unless we are successful and we recover on your behalf. We are here to serve and have assisted many consumers TO enforce their legal rights. Let us try and see if we can help you too. That means you pay no fee in your case unless we recover.

Contact us by e-mail or by telephone or fax or US Mail.

You can call us: 804.673.4358

You can fax us: 804.673.4350

You can contact us by US MAIL:

Krumbein Consumer Legal Services, Inc.

1650 Willow Lawn Drive

Suite 300

Richmond, VA 23230

DEBT SETTLERS ARE BAD FOR YOU.  DEBT MANAGEMENT PROGRAMS ARE DEBT SETTLEMENT IN DISGUISE.

All references to code sections are courtesy of the Legislative Information System of Virginia, and are provided by leg1.state.va.us.

Debt Management and Debt Settlement is regulated by the Virginia Bureau of Financial Institutions. Debt settlers often use the tactic of telling you that you can settle your debts for less than you owe.  The new tactic is to claim that the Obama Administration has passed a new law that says that you have the right to settle your debts for less than the full amount owed.

THIS IS FALSE INFORMATION.

You can settle, but you do not have a RIGHT to settle.  Some, but not all, credit card companies will settle for less than the full amount owed because the options for them are a total loss, or a partial settlement.

The Debt Settlers may also tell you that settling your debts through them can improve your credit score.

THIS IS FALSE INFORMATION.

A settled debt is reported as status 7, settled for less than full value.  This is HIGHLY damaging to your credit report.

But what they also don’t tell you is that just being IN a debt settlement plan lowers your score almost as much as filing for Bankruptcy.

The Debt Settlers may also tell you that they can get a creditor or debt collector to leave you alone- stop calling, stop writing, stop suing.

THIS IS FALSE INFORMATION.

Virginia law has very little protections from creditors.

Under Virginia law, a creditor can call during hours prohibited to debt collectors under the Fair Debt Collection Practices Act (8am to 9pm).

Under Virginia law, a creditor can contact third parties, like family, friends, neighbors, and co-workers, and tell them about your debts, even though a debt collector is prohibited under the Fair Debt Collection Practices Act.

Under Virginia law, a creditor can contact you, even though they know you are represented by counsel, even though a debt collector is prohibited by the Fair Debt Collection Practices Act.

Under Virginia law, and the Fair Debt Collection Practices Act, almost nothing can stop a suit from being filed by either a creditor or a debt collector.

Under Virginia law, once the suit is filed, only an attorney can defend a lawsuit, and stand a chance of dealing with a creditor or debt collector in court.

Debt settlers and debt management plans do not have attorneys on staff to deal with violations of law under the Fair Debt Collection Practices Act, to defend consumers who are being sued, and to protect your rights.

ONLY AN ATTORNEY LICENSED IN VIRGINIA CAN STOP THESE ACTIONS IN VIRGINIA.

But when the debt settlers tell you that they can, they may be violating the Virginia Credit Counseling Act (VCCA), Virginia Code Sections 6.1-363.2 through 6.1-363.26.  Violations of the VCCA can be enforced by consumers who have been duped, pursuant to the Virginia Consumer Protection Act (VCPA), as VCCA specifies at Section 6.1-363.26 that any violation of VCCA is a violation of Section 59.1-200 of the VCPA.

If you have been impacted by anything we mentioned here, you can make an appointment to see us.

KCLS LIMITS THE GEOGRAPHY IN WHICH WE TAKE CASES.

YOU MUST BE A VIRGINIA RESIDENT.

If you are not a Virginia Resident, click here to find a lawyer near you.

NO FEE IN YOUR VCCA/VCPA CASE UNLESS WE RECOVER!!

OUR LEGAL FEES:

The rights afforded to you, as a consumer, under the Virginia Credit Counseling Act and the Virginia Consumer Protection Act means that a corporation or party who has violated your rights may ultimately be made to pay for statutory damages, actual damages, and your legal fees. Therefore, if we agree to represent you in any case, you won’t pay any attorney’s fees unless we are successful and we recover on your behalf. We are here to serve and have assisted many consumers TO enforce their legal rights. Let us try and see if we can help you too. That means you pay no fee in your case unless we recover.

Contact us by e-mail or by telephone or fax or US Mail.
You can call us: 804.303.0204
You can fax us: 804.303.0209
You can contact us by US MAIL:
Krumbein Consumer Legal Services, Inc.
5310 Markel Rd.
Suite 102
Richmond, VA 23230

KCLS LIMITS THE GEOGRAPHY IN WHICH WE TAKE CASES.

YOU MUST BE A VIRGINIA RESIDENT.

If you are not a Virginia Resident, click here to find a lawyer near you.

The Fair Credit Reporting Act is designed to protect consumers from inaccurate or outdated information on credit reports.

CONSUMER REPORTING AGENCY REINVESTIGATIONS and The Fair Credit Reporting Act

All references to code sections are courtesy of the Legal Information Institute at Law.Cornell.edu.

The Fair Credit Reporting Act requires the Credit Reporting Agencies, or Consumer Reporting Agencies to conduct a reinvestigation and the procedures around that reinvestigation.

The section that discusses the requirements for reinvestigation of a disputed item is 15 U.S.C. §1681i.

As usual, we start with the statute.  Please note that we will only be reviewing the section on reinvestigations, so the rest of the section will not be reprinted or discussed.

(4) Consideration of consumer information

In conducting any reinvestigation under paragraph (1) with respect to disputed information in the file of any consumer, the consumer reporting agency shall review and consider all relevant information submitted by the consumer in the period described in paragraph (1)(A) with respect to such disputed information.

How does this impact you?

The Consumer Credit Reporting Agencies have a duty to consider the information that you provide them.  That means that if you send them a copy of a judgment order that you do not owe the plaintiff money, they are obligated to consider that information.

That also means that when you send a ID Theft Affidavit, or a police report, they must consider that information.  The ID Theft Affidavit and police report are less reliable, as people make mistakes.  They can have old accounts that they do not remember, and thereby be mistaken, so they logically cannot just take your word for it.  They have to CONSIDER your information.  That means that if you provide a affidavit, or some other document with a comparable signature, they should be comparing the signatures.

This obviously comes into play much more with inaccuracies of the “not mine” type.

However, the incorrect status cases also have this issue.  For example, if the credit card company claims that you were late, or did not get a payment during a certain month, then if you provide a copy of the statement from that month (showing the minimum payment due and the due date) and the cleared check, showing that they got at least the minimum payment, on or before the due date.  With that information, the credit reporting agency has all the information necessary to show that the payment was made on time.  If you only provide a copy of the check, they do not have all, but they do have information they must CONSIDER, so they have to actually investigate.

But how does this play out in reality? Do you think that the Consumer Credit Reporting Agencies consider the information that you provide?

Our experience, and the experience of many courts around the country show that the opposite is true.  In Cushman v. Trans Union Corp, a US 3^rd Circuit Court of Appeals opinion from 1997, the court explained that a Consumer Reporting Agency (in that case, TransUnion) could not merely parrot the information of the creditor who was furnishing the data.  In Apodaca v. Discover, a case from the District of New Mexico, the district court held the same against Equifax.  In Whitesides v. Equifax Credit Information Services, Inc., the court in the Western District of Louisiana followed the same line against Experian.  In Crabill v. Trans Union, LLC, 7^th Circuit Court of Appeals, 2001, again, the court found that Trans Union was “parroting”.

While it is possible that the Consumer Credit Reporting Agency has actually looked at your documents, it is unlikely.

HOWEVER WE MUST STRESS THAT THE INFORMATION MUST BE INACCURATE OR THERE IS NO CASE AT ALL.  A technical violation is not a violation.  See, for example, the case of Deandrade v. Trans Union, LLC, 1^st Circuit Court of Appeals, 2008, in which the consumer had sued his mortgage company under a different statute, to undo his mortgage, claiming there were errors. Before that case was resolved, he sued TransUnion as they continued to report that the mortgage was still due.  Because the underlying case had not been resolved, it was unclear that the consumer had no liability for the mortgage, and therefore, it was reasonable for the Consumer Credit Reporting Agency to continue to report that he owed money, albeit with a notation that the account was disputed.

If you have been impacted by anything we mentioned here, you can make an appointment to see us.

NO FEE IN YOUR FCRA CASE UNLESS WE RECOVER!!

OUR LEGAL FEES:

The rights afforded to you, as a consumer, under the FCRA and the FDCPA means that a corporation or party who has violated your rights may ultimately be made to pay for statutory damages, actual damages, and your legal fees. Therefore, if we agree to represent you in any case, you won’t pay any attorney’s fees unless we are successful and we recover on your behalf. We are here to serve and have assisted many consumers TO enforce their legal rights. Let us try and see if we can help you too. That means you pay no fee in your case unless we recover.

Contact us by e-mail or by telephone or fax or US Mail.

You can call us: 804.673.4358

You can fax us: 804.673.4350

You can contact us by US MAIL:

Krumbein Consumer Legal Services, Inc.

1650 Willow Lawn Drive

Suite 300

Richmond, VA 23230

KCLS LIMITS THE GEOGRAPHY IN WHICH WE TAKE CASES.

YOU MUST BE A VIRGINIA RESIDENT.

If you are not a Virginia Resident, click here to find a lawyer near you.

How can a debt collector communicate with a third party under the Fair Debt Collection Practices Act?

As usual, we start with the text of the statute.

15 USC §1692c(b) Communication with third parties

Except as provided in section 1692b of this title, without the prior consent of the consumer given directly to the debt collector, or the express permission of a court of competent jurisdiction, or as reasonably necessary to effectuate a postjudgment judicial remedy, a debt collector may not communicate, in connection with the collection of any debt, with any person other than the consumer, his attorney, a consumer reporting agency if otherwise permitted by law, the creditor, the attorney of the creditor, or the attorney of the debt collector.

How is this important to you?

This one is actually very simple.  A Debt Collector may not communicate with any third party about your debt, except for the purposes of location information.

A Debt Collector is not permitted to contact your family or friends or neighbors to discuss your debts.  That would violate at least two provisions of the Fair Debt Collection Practices Act.

A Debt Collector is not permitted to contact your family, friends or neighbors, once they know where you are.  Contacts like that violate the Fair Debt Collection Practices Act.

A Debt Collector is not permitted to “verify employment” with your employer.  This also may violate more than one provision of the Fair Debt Collection Practices Act.

As you can see, this is a remarkably simple provision that provides a fair amount of protections.

In times past, contact like this might have been the tort of invasion of privacy, but Virginia has done away with this tort for most purposes.  At least in Virginia, you have no right to privacy, only a right not to have your likeness used for commercial purposes without your consent.

If you have been impacted by anything we mentioned here, you can make an appointment to see us.

NO FEE IN YOUR FDCPA CASE UNLESS WE RECOVER!!

OUR LEGAL FEES:

The rights afforded to you, as a consumer, under the FCRA and the FDCPA means that a corporation or party who has violated your rights may ultimately be made to pay for statutory damages, actual damages, and your legal fees. Therefore, if we agree to represent you in any case, you won’t pay any attorney’s fees unless we are successful and we recover on your behalf. We are here to serve and have assisted many consumers TO enforce their legal rights. Let us try and see if we can help you too. That means you pay no fee in your case unless we recover.

Contact us by e-mail or by telephone or fax or US Mail.

You can call us: 804.673.4358

You can fax us: 804.673.4350

You can contact us by US MAIL:

Krumbein Consumer Legal Services, Inc.

1650 Willow Lawn Drive

Suite 300

Richmond, VA 23230

KCLS LIMITS THE GEOGRAPHY IN WHICH WE TAKE CASES.

YOU MUST BE A VIRGINIA RESIDENT.

If you are not a Virginia Resident, click here to find a lawyer near you.

The Fair Credit Reporting Act is designed to protect consumers from inaccurate or outdated information on credit reports.

CONSUMER REPORTING AGENCY REINVESTIGATIONS and The Fair Credit Reporting Act

All references to code sections are courtesy of the Legal Information Institute at Law.Cornell.edu.

The Fair Credit Reporting Act requires the Credit Reporting Agencies, or Consumer Reporting Agencies to conduct a reinvestigation and the procedures around that reinvestigation.

The section that discusses the requirements for reinvestigation of a disputed item is 15 U.S.C. §1681i.

As usual, we start with the statute.  Please note that we will only be reviewing the section on reinvestigations, so the rest of the section will not be reprinted or discussed.

(a) Reinvestigations of disputed information

(1) Reinvestigation required

(A) In general

Subject to subsection (f) of this section, if the completeness or accuracy of any item of information contained in a consumer’s file at a consumer reporting agency is disputed by the consumer and the consumer notifies the agency directly, or indirectly through a reseller, of such dispute, the agency shall, free of charge, conduct a reasonable reinvestigation to determine whether the disputed information is inaccurate and record the current status of the disputed information, or delete the item from the file in accordance with paragraph (5), before the end of the 30-day period beginning on the date on which the agency receives the notice of the dispute from the consumer or reseller.

(B) Extension of period to reinvestigate

Except as provided in subparagraph (C), the 30-day period described in subparagraph (A) may be extended for not more than 15 additional days if the consumer reporting agency receives information from the consumer during that 30-day period that is relevant to the reinvestigation.

(C) Limitations on extension of period to reinvestigate

Subparagraph (B) shall not apply to any reinvestigation in which, during the 30-day period described in subparagraph (A), the information that is the subject of the reinvestigation is found to be inaccurate or incomplete or the consumer reporting agency determines that the information cannot be verified.

This section requires a Consumer Credit Reporting Agency to conduct a reinvestigation of their own if a consumer disputes the completeness or accuracy of an item in a credit file.

If a consumer disputes an item (called a tradeline) on a credit file (most people call it a credit report), they have to do certain things.  One of the things they must do is an investigation of their own.  They are not allowed to just believe the information that is passed to them by the furnisher of the information.  This is called parroting, and courts around the country have said that this is prohibited.  See, eg: Cushman v. TransUnion, 3^rd Cir, 1997.  They must look for themselves.

REMEMBER- The Fair Credit Reporting Act is about ACCURACY.  If the item you are disputing is accurate and complete, there is no right to sue. This law is NOT strict liability- this means that you must show that they did something wrong, and that as a result of the fact that it is inaccurate and their reinvestigation did not solve the problem, that you suffered actual damages.

If you have been impacted by anything we mentioned here, you can make an appointment to see us.

NO FEE IN YOUR FCRA CASE UNLESS WE RECOVER!!

OUR LEGAL FEES:

The rights afforded to you, as a consumer, under the FCRA and the FDCPA means that a corporation or party who has violated your rights may ultimately be made to pay for statutory damages, actual damages, and your legal fees. Therefore, if we agree to represent you in any case, you won’t pay any attorney’s fees unless we are successful and we recover on your behalf. We are here to serve and have assisted many consumers TO enforce their legal rights. Let us try and see if we can help you too. That means you pay no fee in your case unless we recover.

Contact us by e-mail or by telephone or fax or US Mail.

You can call us: 804.673.4358

You can fax us: 804.673.4350

You can contact us by US MAIL:

Krumbein Consumer Legal Services, Inc.

1650 Willow Lawn Drive

Suite 300

Richmond, VA 23230

KCLS LIMITS THE GEOGRAPHY IN WHICH WE TAKE CASES.

YOU MUST BE A VIRGINIA RESIDENT.

If you are not a Virginia Resident, click here to find a lawyer near you.

The Fair Debt Collection Practices Act is designed to protect consumers from abusive or harassing conduct, false or misleading statements or unfair act by Debt Collectors.

What is “unfair or unconscionable” under the Fair Debt Collection Practices Act?

As usual, we start with the statutory definition.  Thanks to LII.

15 U.S.C. §1692f says

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:

(1) The collection of any amount (including any interest, fee, charge, or expense incidental to the principal obligation) unless such amount is expressly authorized by the agreement creating the debt or permitted by law.

(2) The acceptance by a debt collector from any person of a check or other payment instrument postdated by more than five days unless such person is notified in writing of the debt collector’s intent to deposit such check or instrument not more than ten nor less than three business days prior to such deposit.

(3) The solicitation by a debt collector of any postdated check or other postdated payment instrument for the purpose of threatening or instituting criminal prosecution.

(4) Depositing or threatening to deposit any postdated check or other postdated payment instrument prior to the date on such check or instrument.

(5) Causing charges to be made to any person for communications by concealment of the true purpose of the communication. Such charges include, but are not limited to, collect telephone calls and telegram fees.

(6) Taking or threatening to take any nonjudicial action to effect dispossession or disablement of property if—

(A) there is no present right to possession of the property claimed as collateral through an enforceable security interest;

(B) there is no present intention to take possession of the property; or

(C) the property is exempt by law from such dispossession or disablement.

(7) Communicating with a consumer regarding a debt by post card.

(8) Using any language or symbol, other than the debt collector’s address, on any envelope when communicating with a consumer by use of the mails or by telegram, except that a debt collector may use his business name if such name does not indicate that he is in the debt collection business.

15 US Code section 1692f.

So, a collector is not permitted to ask for any money unless it is an amount allowed for by law or by agreement.  Examples of this are collection fees, or more commonly, fees for how you pay.  For example, if you pay by phone, some collectors charge a fee for pay by phone. This is an illegal charge under the Fair Debt Collection Practices Act.

Post dated checks are another problem under the Fair Debt Collection Practices Act.  If the collector accepts a post-dated check, they must not deposit the check until the date you specify.  If that date is more than 5 days away, they must notify you in writing that they are going to deposit the money before they do so.

They also are not permitted to solicit a post-dated check, if the purpose of this is to charge you with a crime if the money is not there.

They cannot hide the charges, for example, by doing a collect phone call.  This is prohibited under the Fair Debt Collection Practices Act. Other examples are calls to cell phones where you have a per-minute charge (I know this is relatively rare in these days of unlimited minutes, but it was more common), or if they communicate by text message, and you are charged a fee for receiving text messages.  Text messages are a whole problem unto themselves, and we will dedicate a blog to that another time.

Postcards an markings on envelopes that identify the business are improper, also, under the Fair Debt Collection Practices Act.

The only provision of the Fair Debt Collection Practices Act that applies to repossession agents is the section on repossessing or foreclosing on something that they do not have the right to do so.  15 USC 1692f[6].  A repossession agent is not permitted to repossess a car if there is no present right to repossess the car.  They cannot foreclose if they are not permitted to do so.  When are they not permitted to do so?  If there is no loan on your car or house.  If you are current on your car or house payments, this would also potentially violation the Fair Debt Collection Practices Act.  There will be a longer post on that another time.

If you have been impacted by anything we mentioned here, you can make an appointment to see us.

NO FEE IN YOUR FDCPA CASE UNLESS WE RECOVER!!

OUR LEGAL FEES:

The rights afforded to you, as a consumer, under the FCRA and the FDCPA means that a corporation or party who has violated your rights may ultimately be made to pay for statutory damages, actual damages, and your legal fees. Therefore, if we agree to represent you in any case, you won’t pay any attorney’s fees unless we are successful and we recover on your behalf. We are here to serve and have assisted many consumers TO enforce their legal rights. Let us try and see if we can help you too. That means you pay no fee in your case unless we recover.

Contact us by e-mail or by telephone or fax or US Mail.

You can call us: 804.673.4358

You can fax us: 804.673.4350

You can contact us by US MAIL:

Krumbein Consumer Legal Services, Inc.

1650 Willow Lawn Drive

Suite 300

Richmond, VA 23230

KCLS LIMITS THE GEOGRAPHY IN WHICH WE TAKE CASES.

YOU MUST BE A VIRGINIA RESIDENT.

If you are not a Virginia Resident, click here to find a lawyer near you.

The Fair Credit Reporting Act is designed to protect consumers from inaccurate or outdated information on credit reports.

MAXIMUM POSSIBLE ACCURACY and The Fair Credit Reporting Act

All references to code sections are courtesy of the Legal Information Institute at Law.Cornell.edu.

The Fair Credit Reporting Act requires the Credit Reporting Agencies, or Consumer Reporting Agencies to have a procedure to assure “maximum possible accuracy”.

The section that discusses the requirements for maintain a credit file is 15 U.S.C. §1681e subsection [b].

As usual, we start with the statute.  Please note that we will only be reviewing the section on maximum possible accuracy, so the rest of the section will not be reprinted or discussed.

(b) Accuracy of report

Whenever a consumer reporting agency prepares a consumer report it shall follow reasonable procedures to assure maximum possible accuracy of the information concerning the individual about whom the report relates.

The key term here is that the Fair Credit Reporting Act regulates information that is about you by making it illegal to report inaccurate or outdated information.

So, what is inaccurate?

1. Not your account (you never opened or used the account, etc.)
2. Illegal use of your account (someone charged something to your account but it was not you)
3. Wrong status (Bankrupt, they changed the age of the account, you were never late, etc.)

NOT YOUR ACCOUNT

This comes in 2 major varieties, with some minor variations.

1. Identity theft
2. Mixed credit file

Identity theft is where someone other than you opens an account in your name, using your name, your social security number, your date of birth, but you never see the account, the card, or the money.

Mixed credit file is where your name is similar to someone or your social security number is similar to someone.  In this circumstance, the credit bureaus cannot tell the difference between the 2 of you, so what is on 1 is on both.

ILLEGAL USE OF THE ACCOUNT

This is where you have a credit card with a company, but someone steals your card, and uses that card to purchase things for themselves.  This is classic credit card theft.

Another example is where you have the account, but someone steals the card number, and uses that card number to purchase things for themselves or others.  This is the newer version of credit card theft.

WRONG STATUS

This is the situation of a paid off account that shows that you owe money.

This can also be an account that shows that you were late when you never were.  There are a number of credit card companies that play games, and they might receive the money on the 10^th, when the payment is due, but they don’t process the check until after the 20^th when it is late.  Then they report that you were late, and charge you a late fee.  A secret about me —First Tennessee Bank did this to me in the 80s and 90s, and this is one of the reasons I went into consumer law.  Another example is mortgage companies that do the same thing.

Bankrupt accounts reporting as still due and owing, or charged off.  This is a common problem.

Accounts that are delinquent often go to Debt Collectors.  Sometimes they change the date the account first became delinquent, which is the key date the Credit Reporting Agencies use to determine when the account comes off your credit report.  Most delinquent accounts can only be reported for 7 years, but some can be reported for 10 (for example Bankruptcy) and others can be reported for as long as they are outstanding (for example tax liens). There is no time limit for a good account to be reported.

If you have been damaged by any of these actions, you could be entitled to recover actual damages, attorney fees and costs, and in the right circumstances, punitive damages are available.  Getting to punitive damages is very hard, so we usually tell clients that punitive damages are likely to be limited, if available, in their case.

In each of these cases, the key thing is that the information is inaccurate.  Remember, the Fair Credit Reporting Act can only help fix problems of false, inaccurate information.  If the information is true, you cannot remove that information, no matter how much you might try.

If you have been impacted by anything we mentioned here, you can make an appointment to see us.

NO FEE IN YOUR FCRA CASE UNLESS WE RECOVER!!

OUR LEGAL FEES:

The rights afforded to you, as a consumer, under the FCRA and the FDCPA means that a corporation or party who has violated your rights may ultimately be made to pay for statutory damages, actual damages, and your legal fees. Therefore, if we agree to represent you in any case, you won’t pay any attorney’s fees unless we are successful and we recover on your behalf. We are here to serve and have assisted many consumers TO enforce their legal rights. Let us try and see if we can help you too. That means you pay no fee in your case unless we recover.

Contact us by e-mail or by telephone or fax or US Mail.

You can call us: 804.673.4358

You can fax us: 804.673.4350

You can contact us by US MAIL:

Krumbein Consumer Legal Services, Inc.

1650 Willow Lawn Drive

Suite 300

Richmond, VA 23230

KCLS LIMITS THE GEOGRAPHY IN WHICH WE TAKE CASES.

YOU MUST BE A VIRGINIA RESIDENT.

If you are not a Virginia Resident, click here to find a lawyer near you.

The Fair Debt Collection Practices Act is designed to protect consumers from abusive or harassing conduct, false or misleading statements or unfair act by Debt Collectors.

The second question that is key to ask, is What is a debt that is covered by the act?

Not all debts are “debt” for purposes of the Fair Debt Collection Practices Act.

We always start with the statutory definition.

16 USC 1692a[5] says “debt” means any obligation or alleged obligation of a consumer to pay money arising out of a transaction in which the money, property, insurance, or services which are the subject of the transaction are primarily for personal, family, or household purposes, whether or not such obligation has been reduced to judgment.

What this means is that if the debt was incurred to pay for something for you, or your houshold, it is a consumer debt.  Examples include credit cards used to pay for family vacations, groceries or gas.  It includes your store brand credit cards, if you use them for your self.  Your car, if its for your personal use.

It does NOT include debts that are for business, or debts that are not from a transaction.

Lets go over some examples of not-transactions

Taxes, fines, levies, and other tort damages, like car wrecks or assault or shoplifting debts.  These are debts that you owe, but there was no bargained for transaction.  You did not do something, like negotiate for how much you would pay in taxes, and get something in  return (well, maybe you did get something, but police protection, fire departments and roads are not something you negotiate for, you get them because you live there).

A car wreck is another perfect example. You did not agree to get into a car wreck and cause $5,000.00 in damages.  You had an accident.  This is a tort, called negligence.

So what IS covered?

Basically, anything that is a contract.

Your car loan, for the car that you use to take the kids to soccer, go to the grocery store, and drive to your place of employment, is a contract, for a purchase that you made for your personal use, and for the good of your household. But if you use that car for work- for example, a delivery driver, that car may not be a “personal” use car.  It may be a business use.

How about store cards?  Lets use a home improvement/hardware store card, as our example, because we can have that for many different purposes.

Lets says you have a credit card with the store, and you want to build a deck on your home.  So, you charge the materials, and the brand new circular saw, and the saw horses, and the hammers, and all the other stuff.  You are building a deck on your home.  This is a debt for personal, family or household purposes.

Lets say you are a contractor, building a deck on a customer’s house. So, you charge the materials, and the brand new circular saw, and the saw horses, and the hammers, and all the other stuff.  You are building a deck on your customer’s house.  You make a living (we assume) doing construction, so the debt to the store is for a business debt, not a consumer debt. This debt would NOT be covered by the Fair Debt Collection Practices Act.

How about a check to the local grocery store?

The same analysis applies.

Did you buy groceries for you and your family?  That is a consumer debt, and is covered by the Fair Debt Collection Practices Act.

Did you buy groceries because you are a caterer, and need supplies for your next job?  That is NOT a consumer debt, that is a business debt, and not covered by the Fair Debt Collection Practices Act.

Why is this important?

Because when a debt collector does something that is abusive, false or misleading or unfair, to collect on a CONSUMER debt, they violate the Fair Debt Collection Practices Act.  A violation of the Fair Debt Collection Practices Act allows you to sue a debt collector for actual damages, an additional $1,000.00, plus attorneys fees and costs.  Please note that the $1,000.00 is NOT per violation, but for all violations that occur.

Read more about what we can do to assist you in protecting yourself from collection harassment or abuse, false or misleading statements or unfair and deceptive acts in the main section of our website.

Contact us by e-mail or by telephone or fax or US Mail.

You can call us: 804.673.4358

You can fax us: 804.673.4350

You can contact us by US MAIL:

Krumbein Consumer Legal Services, Inc.

1650 Willow Lawn Drive

Suite 300

Richmond, VA 23230