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09-23-2012 07:13 AM
I have 1 remaining collection from an apartment lease from back in 2009 that was placed at Hunter Warfield due to me not given notice even though my lease agreement was up. From research I know they want pfd and are almost impossible to remove so I began thinking of ways to go after the OC. I visited the apartment complex about 5 months ago who basically told me there was nothing they could do. I have been studying my lease agreement and came across the section that refers to security deposits.
The lease states "Any security deposit or advance rent you paid is being held in one of the following three ways as indicated below" 2. In a separate INTEREST bearing account for your benefit in the following bank: Bank of America whose address is Charlotte, NC. It also states If an interest bearing account, you will be entitled to receive and collect interest in an amount of at least 75 percent of the annualized average interest rate payable on such account or interest at the rate of 5 percent per year, simple interest, whichever the landlord elects.
Because I had additional charges for carpet damage and 2 months rent due to insufficient notice, they kept my deposit and applied it towards this balance. I lived at this apartment for 2 years and the deposit they applied did not include interest. My question is am I due interest on my deposit? And would this help me in my fight towards Hunter Warfield as the balance sent to them would be incorrect. Please if someone could give me some advice or do I just need to settle with Hunter Warfield and wait for it to fall off. Thanks
09-23-2012 12:54 PM - edited 09-23-2012 12:56 PM
In my opinion, you have an issue of interpretation of the terms of your account agreement with the OC. You assert an offset of debt based on the interest accrual terms of that contract. They apparently feel different. Who is correct is an intepretation of facts and law, which is the perview of the courts, not the DV process.
The debt collector enters into the picture by being (I assume) the assigned agent of the OC for purposes of collection upon the debt.
When you request debt verification from a debt collector, FDCPA 809(b) requires that they "obtain" verification from the creditor, and provide you a statement of the amount of the debt, which the courts have held entitles you to an itemization of its components.
If they obtained such verification from the OC, be the amount correct or incorrect, they have, in my opinion, discharged their debt verification duties under the statute.
Any issue you have over the legality of the asserted amounts is handled by the courts, based upon a showing of facts by each side. It is not resolved through the administrative DV process.
You might have recourse, if you can show that the amount asserted by the debt collector is clearly not authorized in your original agreement with the OC or otherwise permiited by law, to complaint under FDCPA 808(1), which states that it is a violation of their debt collection practices to attempt to collect any amount that is not specifically authorized under your account agreement with the creditor, or otherwise permitted by law. However, in my opinion, the facts would have to make that clear on their face in order to succeed under section 808(1). If the facts are subject to interpretation, either as to whether authorized under your account agreement or otherwise permitted by law, you would need to get the issue before a judge.
09-23-2012 04:52 PM
Thanks for your reply. Do you think it would do me any good to question the OC in regards to the interest on the deposit? The CA will not pfd so dealing with the OC is my only option at this point to have it removed.
09-24-2012 06:52 AM
First, you only specified one of the three ways they hold deposits. What are the other two ways? Maybe they ended up holding it in an account that doesn't acrue interest. Interest rates are not very good, nor have they been for a while. I don't think that is a fight worth fighting.
There is something you need to look at in your lease though. Does it say that a lease automatically renews at the end of the lease term unless notice is given? I have lived in a lot of different places with a lot of different leases. Some will end at the end of the term unless a new lease is signed to extend it for another year (or even on a month-to-month basis). Some will automatically renew for another year unless notice is given. Some will automaticaly renew on a month-to-month basis unless notice is given. I have been in all three of these kinds of leases. Generally, notice is 30 days, although I have seen 60 days. If your leases states that it will renew unless notice is given stating that you do not want to renew the lease, you do not have any recourse. It is your responsibility to know what your lease says since you have to sign it to move it.
09-24-2012 09:08 AM - edited 09-24-2012 09:09 AM
I specified the option they chose which was to acrue interest. I figured it wasnt worth fighting but I had to ask. In regards to the lease I am fully aware that I was required to give notice. At the time I was not so I am not disputing this. The only question I have was in regards to the interest that i never received back.
09-29-2012 06:11 AM
The interest amount is not the point....It was stated in the contract my deposit incurred interest that I never received after 2 years. Seeing that I was not given the correct deposit back also techinally means the amount they sent to collections is incorrect. I was looking to work this angle to have tradeline deleted as the current CA does not do PFD's but I'm not sure if its worth the fight at this point.
09-30-2012 12:08 AM
Whether or not the amount they are attempting to collect is correct is an unresolved issue. You cant presuppose you are correct, and thus compel deletion as being factually inaccurate.
The DV process gives you the right to request they verify the amount they are attempting to collect is, from their records and honest investigation, accurate.
They have done so.
You can, of course, pursue the same argument by disputing the accuracy of their reporting of what they have verified through the DV process.
Just as with the DV process, they dont have to "prove" accuracy, they have to conduct a good faith investigation, and based on those results, make a finding as to its accuracy. I would thus expect the same finding.
To pursue further, you would need a third party with the right to require both parties to present their case, and make a legal finding as to who is correct.
That party is a judge, not the CRAs, the FCRA dispute process, or the FDCPA DV process.
If, in a legal proceeding, it is discovered that they knew, when verifying under either the FCRA or FDCPA processes, that the information was in fact inaccurate, you then would have an additional cause of action against them for willfully reporting inaccurate information, and making knowingly false verification of accuracy. Possible actual and punitive damages.
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