08-28-2012 09:40 AM
I may be in a situation where I am able to sue a CA for reporting a debt that is not mine. I have already tried a general dispute, which was "verified", but now I have taken the initiative to come of up with my own proof that this is not my debt. I am sending a letter and all of my proof to them this week, and I plan to state in this letter that if they fail to remove the debt from my reports and ceasing collection activities against me after receiving this proof from me, that I am prepared to pursue litigation. However, I want to reference the proper section of the FCRA in my letter regarding the potential penalties they may face if they ignore my proof. I thought I remember something about there being a $1,000 fine per debt that would be payable to me, but I can't seem to find the relevant section of the FCRA for this.
Is it possible that I am actually thinking of something in the FDCPA rather than the FCRA? I can't seem to find it in the FDCPA either, though. I can only find reference to "punitive damages up to $1,000", but I always thought there was some sort of automatic fine.
08-28-2012 03:35 PM
In my opinion, you can pursue legal action, but that will be protracted, and is not the primary course I would follow at this point. You dont need a resolution of "proof" to get the information deleted now. Dont wait for resolution of legal action.
The FCRA was amended back in 1998 to address situations such as the one you now find yourself facing. A party is reporting negative information on an account that you assert is not yours. Recognizing that having to first "prove" a negative in order to get such reporting removed from your CR is an unfair burden, congress added numerous identity theft provisions to the FCRA to assist removal without final determination of the facts.
I would focus on FCRA 605B, which permits a consumer to file a police report as a sworn statement of their assertions that reported information was not authorized by you, and thus the account was opened by another. That does not compel ultimate resolution of the facts, only your sworn statement that it was not yours.
The CRA is then required, once presented that sworn assertion, to "block the reporting of any information in the file of the consumer that the consumer identifies as infomation that resulted from alleged identity theft."
Legal action against them for reporting information that is knowingly inaccurate does subject them to civil liability under FCRA 616, including both actual and punitive damages. However, the "knowingly" part must be determined by a judge. Your assertion that you have "proved" the inaccuracy is subject to contest in court, as is your assertion that they reported with actual prior knowledge of its inaccuracy.
Pursue that if you feel you have a case, but dont forgo your immediate ability to get it blocked from your credit report NOW.