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Frequent Contributor
ficojoe
Posts: 308
Registered: ‎07-21-2012

Intent to Sue Letter - Midland Funding, LLC (aka MCM) - feedback requested

Below is my draft intent to sue letter which I plan to mail CMRRR on Monday. Please provide me with any input you might have so I can perfect it before Monday.

 

Notice of Intent to Sue

Midland Funding LLC

c/o CORPORATION SERVICE COMPANY

2338 W ROYAL PALM RD STE J

PHOENIX, AZ 85021

 

August 27, 2012

 

Re: MCM Account [acct #]

 

Midland Funding LLC:

 

Please be aware that I initially requested that you validate this debt per FDCPA §809 and Arizona Administrative Code R20-4-1514 on July 21, 2012. You have received multiple written reminders of this obligation for which were sent registered mail and I hold return receipts for. In these letters I also invoked my right to a direct dispute per FCRA §623(a)(8)(D), 16 CFR 660.4 and Arizona Administrative Code R20-4-1521.

 

My direct dispute attempts have been met with an illegal attempt to shift the burden of proof to me.

 

My attempts to dispute the information via the Credit Reporting Agencies have been met by MCM’s “verification” of false information.

 

My requests for MCM to provide proof that I owe the debt have been met with additional attempts by MCM to collect the debt.

FCRA §623(a)(8)(D), 16 CFR 660.4 and Arizona Administrative Code R20-4-1521 all bar MCM from attempting to collect a debt until proper verification is done. Arizona Administrative Code R20-4-1521 goes further than FCRA §623(a)(8)(D) and 16 CFR 660.4 by requiring you to provide evidence and conduct an investigation before making any further attempt to collect the debt.

 

In violation of FCRA §623(a)(8)(D), 16 CFR 660.4 and Arizona Administrative Code R20-4-1521 MCM has made several attempts to collect the debt since receiving my July 21, 2012 letter. These attempts include updating my credit report, sending debt collection letters, and verifying false information to the credit reporting agencies.

MCM continues to provide several pieces of false information to the major credit reporting agencies. First and foremost, the entire account is invalid and should have been deleted immediately upon MCM’s first notice of this. Further, MCM uses many deceptive practices in their reporting including falsifying the nature of the account by stating the terms are “1 month”, falsely identifying the account as a “factoring account”, falsely labeling the account as an “open” account, providing conflicting and false “date opened” information and providing false “account status”.

 

For these reasons, you can expect a lawsuit to be filed against you in Mohave County, Arizona without further notice for:

1) Violation of the Fair Credit Reporting Act

2) Violation of the Fair Debt Collection Practices Act

3) Defamation of credit

4) Negligence

5) Loss of opportunity

6) Violation of Arizona Administrative Code R20-4-1521

7) Violation of Arizona Administrative Code R20-4-1514

8) Injunction seeking immediate court ordered relief from further credit damage.

 

This list may grow based on input from legal advisors.

 

At this time I am willing to accept a settlement to avoid using the courts to resolve this matter. The terms which I will settle are:

1)      MCM agrees to consider the alleged debt paid in full so that they cannot sell or otherwise transfer the debt to any other collector for later collection activity.

2)      MCM agrees to have the trade line deleted from all three major credit reporting agencies.

3)      MCM agrees to never attempt to collect any debt from me at any time in the future.

4)      MCM pays me $500

5)      I agree not to pursue any further action in the matters discussed in this letter.

 

Please consider this a firm offer to settle. You may accept this offer to settle by sending me your written acceptance letter and the check for $500 within 10 calendar days of receipt of this letter. I hereby bind myself to these terms if I receive your acceptance letter and valid check with a postmark indicating it was sent within 10 calendar days from your receipt of this offer.

 

Signed,

ficojoe

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Shogun
Posts: 12,902
Registered: ‎04-15-2011

Re: Intent to Sue Letter - Midland Funding, LLC (aka MCM) - feedback requested

The paying you $500 is a nice touch.  :smileywink:


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zan987
Posts: 51
Registered: ‎09-27-2011

Re: Intent to Sue Letter - Midland Funding, LLC (aka MCM) - feedback requested

Let us knowhow it goes!


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RobertEG
Posts: 17,456
Registered: ‎03-19-2007

Re: Intent to Sue Letter - Midland Funding, LLC (aka MCM) - feedback requested

I dont know the issues involved in your prior disputes, but am having a problem with your stated violation of the direct dispute process under FCRA 623(a)(8) and their implementing rules at 16 CFR 660.4 based upon their lack of debt verification under FDCPA 809(b).

 

Debt verification under FDCPA 809(b) is separate from verification of accuracy of information in a dispute, either through the CRA or via the direct dispute process.

 

One is a debt collection practices issue that does not mandate debt verification, but rather mandates the cessation of collection activities if and until debt verification is provided.  Debt verification is not required to provid "proof," it requires only that they state that they have obtained verification of its accuracy.

 

The process of disputing, on the other hand, does compel a period for response, but goes to verification of the accuracy of the reported information, not the debt.

 

If you filed a direct dispute, they were not required to provide "proof" in order to verify the accuracy of the information, only a statement that they have investigated and determined that it is accurate.  A charge that they have falsely verified the accuracy of dispute information is a serious charge, and I am unsure of what evidence you have to support knowingly false verification.  If you have such proof, then by all means bring civil action, but nothing dealing with the debt verification process is determinative of a false verification of a dispute.

 

Additionally, there is no provisison of the direct dispute process that invokes any cease collection bar on a debt collector, as you assert in your letter.

 

The apparent tie-in of the FCRA dispute process to the FDCPA debt validation process escapes me. 

I dont see any violation of FCRA 623(a)(8) based on their failure to have yet provided debt  verification under FDCPA 809(b). 

Similary, I see no violation of their cease collection bar based on having fulfilled their statutory requirement to investigate a direct of CRA dispute of their prior reporting.

 

I see no basis for them to consider an unpaid debt as satisfied, delete accurate information from your CR, or pay damages without benefit of having the issues heard in court.

 

 

 

Frequent Contributor
cadavis0609
Posts: 435
Registered: ‎06-17-2007

Re: Intent to Sue Letter - Midland Funding, LLC (aka MCM) - feedback requested

Obviously Robert is more versed in the process than me, but I think it just sounds like a letter of extortion and is more likely to get a laugh than a result. I'd remove the 500 dollar part.  I don't think its going to get you very far.

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Frequent Contributor
ficojoe
Posts: 308
Registered: ‎07-21-2012

Re: Intent to Sue Letter - Midland Funding, LLC (aka MCM) - feedback requested

RobertEG: Thank you for the input. I appreciate it. It sounds like I need to clear the issues up some more. I was trying to be brief, yet still ended up with 2 pages.

 

I first disputed through the CRAs and MCM "verified" the account.

 

My inital letter direct to MCM was a DV. My first letter was short and the entire letter reads: "I pulled my credit bureau report, and I discovered that you claim I owe you a debt. Under Fair Debt Collection Practices Act §809 send me validation of this debt. The debt is identified on my credit report with an account number having the last numbers redacted: [acct #]… The amount listed on the credit report is $[amount]."

 

They responded to me with a letter that said if I am disputing the debt that I must provide proof. It was also a debt collection letter.

 

I responded in writting with the following statement: "Although my initial request was for validation, based on your inability to provide validation, please consider this my first direct dispute of the debt per FCRA §623(a)(8)(D) and 16 CFR 660.4 as well as a reminder that you are under notice to provide validation of the debt per FDCPA §809."

 

After this letter, I recieved another debt collection letter. Then I recieved my response to this letter, which was identical to the first, a debt collection letter that said if I am trying to dispute I must provide proof.

 

The violations that I refer to are their attempts to collect a debt while being barred from doing so.

 

In addition to the letters I already mentioned, I have sent them a non-PP letter which reminded them of their duty to validate before pursuing the debt because they pulled my credit. They are reporting the item every month to the CRAs sort of like an installment loan, and continued to do this after they recieved the DV letter.

 

I have also sent them a letter under AZ law that requires them to produce documentation proving the debt before making furuther attempts to collect. Yet, no documentation has been provided and they continue to pursue the debt. The proof I mention is required by Arizona law:

 

R20-4-1521. Duty of Investigation

A collection agency shall give copies of its evidence of the debt to the debtor or the debtor's attorney on request. After providing the evidence, but before continuing its collection efforts against the debtor, the collection agency shall investigate any claim by the debtor or the debtor's attorney that:

1. The debtor has been misidentified,

2. The debt has been paid,

3. The debt has been discharged in bankruptcy, or

4. Based on any other reasonable claim, the debt is not owed.

 

R20-4-1514. Disclosure of Information to Debtor

A. Within five days after the initial communication with the debtor, a collection agency shall obtain, and be able to inform the debtor of:

1. The name of the creditor;

2. The time and place of the creation of the debt;

3. The merchandise, services, or other value provided in exchange for the debt; and

4. The date when the account was turned over to the collection agency by the creditor.

B. A collection agency shall give the debtor access to any of the collection agency's records that contain the information listed in subsection (A).

C. At the debtor's request, the collection agency shall give the debtor, free of charge, a copy of any document from its records that contains the information listed in subsection (A).

 

The violation of the DD process is because they refuse to investigate unless I provide "proof" which I do not believe the law requires of me.

 

The violation of the DV process (and AZ law) is that they continue to try to collect even though they have not validated the debt.

 

Then there are all the issues with how they report. I believe the entire debt is false and needs to be deleted. I called the OC and they say they have no record of this debt being incurred. However, there are issues that are blentently false. They attempt to represent the debt as on ongoing open account and update it every month and list terms of 1 month. Yet at the same time they claim this is a collection that they bought from an OC. The way they report is entirely inconsistant with the type of company they are and the type of debt they claim I owe. It is obvious they are reporting in a manor most damaing to my credit as a collection technique without regard to truth in reporting.

 

I will work on my letter to make things more clear. If you have any specific suggestions to get my point across more clearly, please let me know.

 

Thanks!

 

-ficojoe

Mega Contributor
RobertEG
Posts: 17,456
Registered: ‎03-19-2007

Re: Intent to Sue Letter - Midland Funding, LLC (aka MCM) - feedback requested

With regard to the direct dispute issue, a consumer is not required to provide "proof" of the asserted inaccuracy.  Proof is something reserved for the courts.

However, that does not mean that a consumer need not document a basis for their dispute.dispute

 

The direct dispute rules, at 16 CFR 660.4(d), set forth what a Notice of Direct Dispute must contain.

In a nutshell, it must specifically identity the information being disputed, and provide "all supporting documentation or other information reasonably required by the furnisher to substantiate the basis for the dispute."  Thus, a furnisher can assert lack of sufficient information required to substantiate a direct dispute.

 

The problem I see in your situation is that they did not handle their refusal to investigate in the proper manner.  16 CFR 660.4(f) addresses direct disputes wherein they determine that "the consumer did not provide sufficient information to investigate the disputed information."  They cannot put the diirect dispute in limbo, and simply require information.

During the period required for their investigation (normally 30 days), they can dismiss the dispute as "frivolous or irrelevant" based on lack of sufficient information to conduct an investigation. 

 

If they take that position, they must send you timely notice of determination that they are dismissing it as "frivoulous or irrelevant."  Until they have done such, the dispute is not dismissed, and they are in violation of the 30-day period to investigate and report their results.

 

They are not necessariy in violation for not conducting an investigation, but rather in violation of the correct procedure for doing so.

Frequent Contributor
ficojoe
Posts: 308
Registered: ‎07-21-2012

Re: Intent to Sue Letter - Midland Funding, LLC (aka MCM) - feedback requested

I went another direction with the letter. Thanks for the input. Here is what was sent today CMRRR:

 

Notice of Intent to Sue

Midland Funding LLC

c/o CORPORATION SERVICE COMPANY

2338 W ROYAL PALM RD STE J

PHOENIX, AZ 85021

 

August 27, 2012

Re: MCM Account [acct #]

Midland Funding LLC:

We've been in a dispute process over what you purport is a debt to T Mobile that I supposedly owe.  You state that your firm needs more information over this FDCPA and FCRA dispute, and I have told you that I don't owe this debt.

 

I have since contacted T-Moblie regarding my old account, and they have stated they have no record of this debt being incurred. The last time I had any dealings with T Mobile was more than 7 years ago. So even if this is some old debt of mine that I never knew about, or was never notified of, it is past the Reporting limits pursuant to the FCRA.

 

I have suffered a denial of credit and embarrassment in front of a loan officer due to your failure to perform a reasonable reinvestigation.

 

Please contact your supervisor or legal department and ask for a copy of Murphy V. Midland Credit Management, Casas v. Midland funding or Brim v. Midland Credit Management. Also, Daley v Aand S Collection Assoc. – re-aging and reporting a debt past the statute of limitations is a violation of the FCRA and the FDCPA. All these are going to be required reading for you after your firm is sued because you failed to investigate this properly.

 

You either have the wrong person, this is ID theft, or you are just plain lazy and won't perform a records check.

 

If this account is not deleted from all credit reporting agencies within 10 days you can expect a lawsuit to be filed against you without further notice, on the following violations:

FCRA:

§ 616 Civil liability for willful noncompliance

§ 617 Civil liability for negligent noncompliance

§ 623 Responsibilities of furnishers of information to consumer reporting agencies

Failure to perform a reasonable reinvestigation

FDCPA:

§ 807 False or misleading representations

§ 808 Unfair practices

§ 809 Validation of debts

 

Regards,

ficojoe

Mega Contributor
RobertEG
Posts: 17,456
Registered: ‎03-19-2007

Re: Intent to Sue Letter - Midland Funding, LLC (aka MCM) - feedback requested

[ Edited ]

In danger of beating the horse to death, some additional comments...

 

In para 3, change "reinvestigation" to "investigation."  Furnishers of information conduct an investigation.  A reinvestigation is done only by a CRA.

 

Reporting to a CRA on a debt past its statute of limitations is not a violation of either the FDCPA or the FCRA.  Expiration of SOL has nothing to do with credit reporting.

If what was meant by being past the statue of limitations was that it was past the CR exclusion period, that is a separate issue.

However, I also see no violation of statute by THEIR reporting itself.  The prohibitions under FCRA 605(a) are upon the CRA for continuing to include information in credit reports they issue after the CR exclusion date, not upon the furnisher of the information for reporting to a CRA.  In my opinion, you are asserting a violation that does not exist.

 

Additionally, legal reaging occurs when they report a DOFD that is later than the actual DOFD.  Since I see no issue of reporting of a DOFD, I would not accuse them of illegal reaging.

 

I would advise caution in lecturing on the law unless your statements are supported.

 

IF you are willing to pursue the account as an identity theft issue, as alluded to, you can immediately get their reporting blocked from your CR simply by putting your assertion into the form of a sworn police report, and sending it to the CRA.  They would then be required to block the information from your credit report under the provisions of FCRA 605B.

I would not raise issues of potential identity theft unless you are willing to initiate the process provided for under the FCRA.

Valued Contributor
GregB
Posts: 1,670
Registered: ‎05-24-2007

Re: Intent to Sue Letter - Midland Funding, LLC (aka MCM) - feedback requested


RobertEG wrote:

In danger of beating the horse to death, some additional comments...

 

In para 3, change "reinvestigation" to "investigation."  Furnishers of information conduct an investigation.  A reinvestigation is done only by a CRA.

 

Reporting to a CRA on a debt past its statute of limitations is not a violation of either the FDCPA or the FCRA.  Expiration of SOL has nothing to do with credit reporting.

If what was meant by being past the statue of limitations was that it was past the CR exclusion period, that is a separate issue.

However, I also see no violation of statute by THEIR reporting itself.  The prohibitions under FCRA 605(a) are upon the CRA for continuing to include information in credit reports they issue after the CR exclusion date, not upon the furnisher of the information for reporting to a CRA.  In my opinion, you are asserting a violation that does not exist.

 

Additionally, legal reaging occurs when they report a DOFD that is later than the actual DOFD.  Since I see no issue of reporting of a DOFD, I would not accuse them of illegal reaging.

 

I would advise caution in lecturing on the law unless your statements are supported.

 

IF you are willing to pursue the account as an identity theft issue, as alluded to, you can immediately get their reporting blocked from your CR simply by putting your assertion into the form of a sworn police report, and sending it to the CRA.  They would then be required to block the information from your credit report under the provisions of FCRA 605B.

I would not raise issues of potential identity theft unless you are willing to initiate the process provided for under the FCRA.


The section in red should be a sticky!

 


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