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CA tells me that "as required by law" that I am notified of possible negative credit reporting

tag
Downto0
Regular Contributor

Re: CA tells me that "as required by law" that I am notified of possible negative credit r

It is still a false statement to say that it is required by law when it clearly is not.  We must remember that the FDCPA is a strict liability statute.  If a collector violates any part - no matter how small the violation - it is still a violation and very actionable.

 

However, I did ascertain that it is not a violation in my case because this is the first time I have been notified of possible negative reporting.  In my case, it is required by law so it is not a violation.  If, by chance, I get a return letter from the collector and they still tell me they are required by law, then I will sue.  It is only required by law the first time.  There after it is a false statement.  I'll let you know what happens.

 

I have moved on to the overshadowing violation located in the same paragraph as the credit reporting notice.  The collector demanded payment withing 30 days else they may report negative information on my cr.  I have tons of case law to support this violation. 

Message 11 of 16
Anonymous
Not applicable

Re: CA tells me that "as required by law" that I am notified of possible negative credit r

You say "it clearly is not" when its quite obvious that clearly it *is* when its the first notification. You seem to want to have it both ways here. I just don't think a judge is going to buy such an argument. A reasonable person may conclude that they have no sure way of knowing if you have ever recieved prior notice, and the statement may or may not apply in any given instance. That hardly consitutes falsehood. Thats more a case of CYA. 

 

Secondly, thats not really what 'strict liability' means. Strict liability simply means that liability is not limited to the party being 'at fault' or negligent. See here. At worst it *might* be considered a minor technical violation, but without other concurrent violations, by itself it would most likely be considered frivolous as any harm to the debtor would be virtually impossible to show. But if you're willing to test the argument out in court, I'd love to hear the results.

 

I'm not sure how the last item is a violation? Could you link to some of the case law that supports it?

Message 12 of 16
Downto0
Regular Contributor

Re: CA tells me that "as required by law" that I am notified of possible negative credit r

I posted the facta section in an earlier post.  Point (i) states that the data furnisher must notify the consumer of negative reporting.  Point (ii) states that thereafter the data furnisher may report without notification to the consumer. However, this is only if negative reporting is actually done, not merely threatened.  A data frunisher is not "required by law" to inform the consumer that they "may" report negative info. 

 

It would be a problem for most of us to establish that we were given notice.  I generally keep everything until I cannot think of a reason to keep it so I may have it in my file, or I may not.  I think that most OCs purge their delinquent files when they are sold so it would be unlikely that they would have anything, much less the notice of negative credit reporting.

 

However, when the collector states that they are required by law to inform the consumer that they "may" report negative info then this statement is false regardless to whether anyone else reported aforehand.  They are only required "after" they have already reported.

 

There are a lot of cases concerning the FDCPA being a strict liability statute.  It covers negligence, as you say, but it goes much further then that.  If the collector violates - no matter the level of violation - they are liable to the consumer for statutory damages.  That's why the judge may give nothing for an award (if they think the violation is insignificant) or up to $1,000 (if the judge thinks the violation is huge).

 

I can attach several cases about overshadowing but I don't know how at this forum.  You can find them yourself by doing a Google Scholar search on FDCPA + overshadow.  The typical overshadowing violation is when a collector sends a demand for money in the same letter with their validation notification to the consumer.  The violation happens when they demand the money within 30 days which contradicts the fact that the consumer has 30 days to validate.  As it stands now, the collector can demand payment withing the 30 days but they must also have transitional language which states that the 30 days for payment does not in any way deny them the right to ask for dv.  

 

Message 13 of 16
Anonymous
Not applicable

Re: CA tells me that "as required by law" that I am notified of possible negative credit r


@Downto0 wrote:

I posted the facta section in an earlier post.  Point (i) states that the data furnisher must notify the consumer of negative reporting.  Point (ii) states that thereafter the data furnisher may report without notification to the consumer. However, this is only if negative reporting is actually done, not merely threatened.  A data frunisher is not "required by law" to inform the consumer that they "may" report negative info. 

 

It would be a problem for most of us to establish that we were given notice.  I generally keep everything until I cannot think of a reason to keep it so I may have it in my file, or I may not.  I think that most OCs purge their delinquent files when they are sold so it would be unlikely that they would have anything, much less the notice of negative credit reporting.

 

However, when the collector states that they are required by law to inform the consumer that they "may" report negative info then this statement is false regardless to whether anyone else reported aforehand.  They are only required "after" they have already reported.

 

There are a lot of cases concerning the FDCPA being a strict liability statute.  It covers negligence, as you say, but it goes much further then that.  If the collector violates - no matter the level of violation - they are liable to the consumer for statutory damages.  That's why the judge may give nothing for an award (if they think the violation is insignificant) or up to $1,000 (if the judge thinks the violation is huge).

 

I can attach several cases about overshadowing but I don't know how at this forum.  You can find them yourself by doing a Google Scholar search on FDCPA + overshadow.  The typical overshadowing violation is when a collector sends a demand for money in the same letter with their validation notification to the consumer.  The violation happens when they demand the money within 30 days which contradicts the fact that the consumer has 30 days to validate.  As it stands now, the collector can demand payment withing the 30 days but they must also have transitional language which states that the 30 days for payment does not in any way deny them the right to ask for dv.  

 


Again, I understand your reasoning on the first point - but I think its a lot like arguing "what the meaning of 'is' is". In this case you're arguing what the meaning of "may" is. If a judge buys that argument, more power to ya. I just don't hold out much hope there. If you do end up litigating that point I do want to find out how it goes.

OK, thanks for the clarification on the overshadowing - I wasn't sure what the issue was with that statement. Makes sense now.

Message 14 of 16
Downto0
Regular Contributor

Re: CA tells me that "as required by law" that I am notified of possible negative credit r

It's interesting that you bring "may" up as courts generally take "may" the same as "will".  In my case, then, the collector saying that they "may" report negative info is the same as saying they "will" report negative info.   "will" is a more imminent threat because they purportedly "are" going to report  but "may" carries the same level of threat but could happen today, tomorrow, next month, next year or not at all...got ya danglin' in the wind.

 

So, I doubt if there will be much debate as to what "may" is.  

 

The main point would be "why did they say 'as required by law'"?   A simple statement that they may report if I don't pay up would be effective and legal.  However, there's not much bite in that statement.  How do you make a simple statement more intimidating?  You bring the law into mess.  It's the same tactic as having an attorney, with attorney letter heading, send you a collection notice.  It kind of gives most consumers the idea that a lawsuit will be filed if they don't pay up.

 

In my case, it is a false statement to say that it is required by law that they inform me that they "may" report negative info.  They used this false statement in their collection of the debt.  The threat of law would cause some consumers to pay the debt regardless to whether they owed it, or not.  It's embarassing to have the sheriff come to your door.  What would the neighbors think?

Message 15 of 16
Anonymous
Not applicable

Re: CA tells me that "as required by law" that I am notified of possible negative credit r

Like I said - I get where you're coming from - but whether a judge will agree is another thing. Like I saw one guy say - "the law is what a judge says it is on any given day".

Be sure to let us know how it goes. I do hope you prevail.

Message 16 of 16
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