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jimbo831
Posts: 977
Registered: ‎02-08-2012
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Filed a lawsuit against a CA

Just today I filed in small claims against a CA that recently left a hard inquiry on my file.  In trying to gain their reason for doing so, they have ignored the FDCPA at every turn.  The CA completely ignored my pre-suit demand letter, so I'm not sure if they will show up to defend themselves or not.  I just wanted to post this for now, but I will update with more information as it comes.  They said I will likely have my hearing scheduled for mid May.

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RobertEG
Posts: 17,683
Registered: ‎03-19-2007
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Re: Filed a lawsuit against a CA

Was your basis a violation of FCRA 804, asserting that a debt collector has no permissible purpose for accessing your credit report?

Or is it just that it was coded as a so-called "hard-pull?"

Might be a bit tough to crack the "hard-pull" nut, as the FCRA makes no legal distinction between so-called "hard" and "soft" inquiries.

They either had a permissible purpose, or they did not.

You can expect them to assert FCRA 604(a)(3)(A) as their permissible purpose, which grants access for "review or collection of an account of the consumer."

Established Contributor
jimbo831
Posts: 977
Registered: ‎02-08-2012
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Re: Filed a lawsuit against a CA


RobertEG wrote:

Was your basis a violation of FCRA 804, asserting that a debt collector has no permissible purpose for accessing your credit report?

Or is it just that it was coded as a so-called "hard-pull?"

Might be a bit tough to crack the "hard-pull" nut, as the FCRA makes no legal distinction between so-called "hard" and "soft" inquiries.

They either had a permissible purpose, or they did not.

You can expect them to assert FCRA 604(a)(3)(A) as their permissible purpose, which grants access for "review or collection of an account of the consumer."


Well, the credit inquiry lead to their future FDCPA violations which are cut and dry.  I am also contending that they did not have a permissible purpose to obtain my credit.  Not because CAs can't do this, but instead because I don't owe them any money.  The company they say is the OC is no longer in existence.  I have never heard of this company and never did business with them.  They were purchased, then that company was purchased, ultimately by BoA.  Nobody I have spoken to has any record of me ever having an account with them.  The CA has refused to provide any information about the account they say I owe for.  Claiming somebody owes you money isn't a permissible purpose, at least that is my argument.  But regardless, the FDCPA violations are clear.

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RobertEG
Posts: 17,683
Registered: ‎03-19-2007
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Re: Filed a lawsuit against a CA

If the debt collector has asserted that the debt is valid, and you disagree, you have an issue of fact.

I would predict that, with no holding of invalidity of the debt, the court will be unable to rule that the inquiry was impermissible based on lack of debt.

Does your suit also include the matter of validity of the debt, or does it relate only to the permissible purpose of their inquiry?

 

I dont see how the court can rule their inquiry as lacking permissible purpose unless their is a prior or concurrent holding of invalidity of the debt.

 

Best of luck!

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jimbo831
Posts: 977
Registered: ‎02-08-2012
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Re: Filed a lawsuit against a CA


RobertEG wrote:

If the debt collector has asserted that the debt is valid, and you disagree, you have an issue of fact.

I would predict that, with no holding of invalidity of the debt, the court will be unable to rule that the inquiry was impermissible based on lack of debt.

Does your suit also include the matter of validity of the debt, or does it relate only to the permissible purpose of their inquiry?

 

I dont see how the court can rule their inquiry as lacking permissible purpose unless their is a prior or concurrent holding of invalidity of the debt.

 

Best of luck!


It is my argument that I cannot possibly prove a negative.  Specifically because at this point, they have refused to provide me with any specific information about the debt such as what it was for, when it was, what the balance they claim I owe is, or really anything.  All they have given me is the name of the OC, who was purchased by a company, that was purchased by BoA.  I have called every department at BoA and nobody has been able to find any accounts of mine.  It is not possible for me to prove a negative.  Otherwise, I could now claim that you owe me a debt and start collecting on it, and you could never disprove that.  I don't know if this account is for someone that shares my name (it is very common) or fraud, or what, but until they give me any information about the account,  which they have refused to do, there isn't much I can do.  In the mean time, I am not going to stand for them ruining my credit that I have worked so hard to rehab.

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Jstic
Posts: 43
Registered: ‎01-28-2009
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Re: Filed a lawsuit against a CA

If they put up a defense, it is likely to try and pass the buck to whomever they purchased the debt from. I assume you have sent a debt validation letter and gone through all the procedures necessary to settle this between you and the CA?

 

I don't know if each and every CA has to validate the debt on their own during the collection process. I can certainly see why you are upset though. Good luck.

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jimbo831
Posts: 977
Registered: ‎02-08-2012
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Re: Filed a lawsuit against a CA

[ Edited ]

Jstic wrote:

If they put up a defense, it is likely to try and pass the buck to whomever they purchased the debt from. I assume you have sent a debt validation letter and gone through all the procedures necessary to settle this between you and the CA?

 

I don't know if each and every CA has to validate the debt on their own during the collection process. I can certainly see why you are upset though. Good luck.


I have never heard from any other company in the past about this debt.  I did send a DV to this CA and they never responded.  I know they don't have to, because they have not done anything since to continue collection actions, but the hard inquiry still sits on my credit report.  If they try to pass the buck to another company, IMO that is their problem not mine.  They can recoup whatever losses they have from that company.  Again, what is to stop me from claiming any random people owe me money and selling those debts to somebody else?  They are the ones collecting, it is on them to follow the rules.

 

Regardless, the FCRA violations are a bit more of a stretch.  To be honest, based on their actions so far in ignoring me, I expect them to ignore my summons and not show.  If they do show though, I have a very strong case on FDCPA violations as they sent me an initial communication regarding the debt and no dunning notice within 5 days as required (or ever for that matter).  That one to me is pretty clear.

 

ETA: I don't want to go through and settle with them.  If they are unwilling or unable to tell me what the balance is, when it was from, what type of account it is from (Credit Card, bill, or whatever) or anything else about the debt they claim I owe, I am not paying them a dime.

Gardening with: PSECU Combo $1k, Chase Freedom $3.5k, Discover It $1.7k, Amex Costco True Earnings $2k, Capital One Platinum $500, Best Buy Store Card $2.7k

Starting Score: FICO: 587 EX, 594 EQ, 632 TU, 2/15/12; USAA FAKO: 525 EX, 541 EQ, 525 TU, 2/15/12
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jimbo831
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Re: Filed a lawsuit against a CA

Just a quick update to my case.  My hearing was scheduled for next Tuesday May 15.  I got a call today from the court saying that the business never picked up the certified mail service.  It is obvious they are trying to avoid the service at this point.  Today, I called the business and got two separate addresses from them.  I went back to the court and provided both.  They have set a new court date and will send service to both addresses.  Hopefully one of them will be successfully delivered.  I was actually surprised the first one was not.  I have recently sent two certified letters to this company and both were delivered without an issue.  I am wondering if they are working with the post office to not receive delivery of the letters from a court or something?

Gardening with: PSECU Combo $1k, Chase Freedom $3.5k, Discover It $1.7k, Amex Costco True Earnings $2k, Capital One Platinum $500, Best Buy Store Card $2.7k

Starting Score: FICO: 587 EX, 594 EQ, 632 TU, 2/15/12; USAA FAKO: 525 EX, 541 EQ, 525 TU, 2/15/12
Current Score: FICO: 678 EX, 629 EQ, 658 TU, 3/27/12; USAA FAKO: 721 EX, 721 EQ, 576 TU, 3/9/12
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payingoffdebt001
Posts: 406
Registered: ‎04-15-2011
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Re: Filed a lawsuit against a CA

[ Edited ]

Good luck to you with this! 

 

One CA I have sent letters to always come back "return to sender". I send them certifed RR and it seems they never accept them. 

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pizzadude
Posts: 9,674
Registered: ‎01-28-2010
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Re: Filed a lawsuit against a CA


jimbo831 wrote:

Just a quick update to my case.  My hearing was scheduled for next Tuesday May 15.  I got a call today from the court saying that the business never picked up the certified mail service.  It is obvious they are trying to avoid the service at this point.  Today, I called the business and got two separate addresses from them.  I went back to the court and provided both.  They have set a new court date and will send service to both addresses.  Hopefully one of them will be successfully delivered.  I was actually surprised the first one was not.  I have recently sent two certified letters to this company and both were delivered without an issue.  I am wondering if they are working with the post office to not receive delivery of the letters from a court or something?


Isn't "regular" postal mail considered adequate for small claims ?   Maybe your jurisdiction is different but I thought that that small claims courts send regular snail mail.....

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