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09-26-2013 12:36 PM
So if I have proof of the real dofd from bank statements and they don't change the dofd, that would show that they didn't investigate. I could have provided that proof with my request of dd to them but I was afraid they would just take MY documentation and update the account instead of obtaining it themselves, then I would have shown my only card and have no proof. I want a deletion as the first option since they are so grossly misrepresenting this account in so many ways. My second choice would be they using the acutal and real dofd so it goes off on time instead of a year and half late.
09-26-2013 12:44 PM
Thanks guys. I respect guiness' and RobertEG's opionions, and certainly RobertEG has studied the FCRA very closely. But there is a problem with this suggestion, which I won't get into.
If they refuse to correct or investigate the only option is to sue.
09-27-2013 03:25 PM
If they refuse to correct or investigate the only option is to sue.
Incorrect. Does anyone know why this is incorrect?
09-28-2013 05:45 AM
09-28-2013 08:25 AM
Because under the FCRA you CANNOT sue a furnisher (such as LVNV) if a furnisher fails to correct inaccuracies after a direct dispute with the furnisher.
You can only sue the furnisher in that scenario IF you filed a dispute with the CRA, the CRA gave notice to the furnisher of the dispute, and the furnisher thereafter fails to correct the inaccuracies.
This is the difference between FCRA 623(a) and 623(b). You can sue the furnisher under 623(b). But 623(a) is ONLY enforced by state and federal authorities. Thus, you cannot sue a furnisher under FCRA 623(a)(8) (discussed above). You can file a direct dispute with them, but if they don't do the right thing in response, you can't sue them for it.
As one court put it:
Defendant correctly asserts, however, that there is “no private right of action” [a right to sue] under 15 U.S.C. § 1681s–2(a) [FCRA 623(a)], as “[t]he duties imposed under this section are only enforceable by a governmental agency or official.” Because plaintiff lacks standing to pursue a claim against defendant under Section 1681s–2(a), that claim is dismissed. See Gaft, 2009 WL 3148764 at *7 (finding plaintiff could not pursue a claim under Section 1681s–2(a) “because the plain language of the statute limits enforcement of this subsection to government agencies and officials”); Prakash, 2006 WL 2570900 at *2 (same); Caltabiano, 387 F.Supp.2d at 140 (same).
09-28-2013 08:29 AM
09-28-2013 08:43 AM
Look, there's only so much explaining I'm going to do. Under FCRA 623(a) you can directly dispute with the furnisher, but if they fail to correct inaccuracies based on the direct dispute, you CANNOT sue them for it. Which is what I was getting at with all of my posts in this thread. So, the original poster cannot sue LVNV based on a direct dispute with them. (Or, if she does, that claim will be dismissed.)
09-28-2013 08:46 AM - edited 09-28-2013 08:47 AM
09-28-2013 11:16 AM
Legal action for failure to comply with the requirement of section 623(a)(8) is NOT an action that necessarily goes to a violation of section 623(a)(1), which involves the issue of whether their reporting was wilfully or negligently inaccurate. It could be any issue that requires their investigation, to which they dont respond.
Failure to comply with the requireents of section 623(a)(8) would not involve the substance of the issue being disputed, such as a violation of section 623(a)(1).
Yes, in order to bring action under section 623(a)(1), the consumer must first obtain an injunction from the FTC/CFPB. FCRA 621(a)(3).
Congress wanted the record supplemnted at trial on that serious charge by a first showing of prior administrative action having been determined by the FTC/CFPB.
That does not prevent a consumer from then bringing their own action.... it is a precondition if and only if the issue at trial is specficially the violation of section 623(a)(1), for willful or negligent reporting of inaccurate information.
Civil action for failure to comply with the direct dispute requirements is an action for noncompliance with section 623(a)(8), not section 623(a)(1)
The issue under dispute is not the issue before the court.
Apples and oranges.
09-28-2013 08:38 PM
No apples and oranges. There is no right to sue under ANY subsection of FCRA 623(a), including 623(a)(8). Here's another quote, from the Second Circuit:
Although we have not previously addressed whether the Fair Credit Reporting Act provides a private cause of action for violations of § 1681s–2(a) [623(a)] the statute plainly restricts enforcement of that provision to federal and state authorities.
As for the rest of your post, I have no idea where you're getting that information. The FCRA is a federal statute. It is interpreted and applied by federal courts. Show me federal cases that backup what you're saying, because I will show you 100 cases from all over the country that say you're wrong.
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