topic Re: Never received dunning notice...now what? in Rebuilding Your Credit

Never received dunning notice...now what?

Anonymous — Tue, 16 Jun 2020 21:30:56 GMT

I had a collection placed on my credit file on November 2019 for $290. I contacted the orignial creditor since I canceled the services and was still charged. They said once I pay i, the account would be cleared. I emailed the creditor and no response. So I filed a complaint with CFPB. They responded saying that they sent the dunning notice to an address that I havent lived in over 7 years, and they wont removed the account. As a result CFPB closed the complaint.

I dont mind paying the money. I just want the collection removed from my credit.

Does anyone have any other suggestions on what to do next?

Thank you in advance

Re: Never received dunning notice...now what?

bass_playr — Tue, 16 Jun 2020 22:31:28 GMT

Unfortunately, there's not much power in claiming an FDCPA violation took place unless:

1--you take legal action against them

2--you do it within 1 year of the event that violated the FDCPA

3--you have substantial admissible evidence of their violation

4--they cannot show it was bona fide error

This is generally speaking, of course, but there is sometimes an avenue you can use in a case like this. If your credit report lists more recent address info than the one you havent lived at for over 7 years, then they really don't have much to say. Once they access your credit report, they have access to the most recent address info listed in there. If at the time they put this on your report, your current address was listed in your personal info section of the report, then you stand a good chance IMO of being able to lean on them.

Also, you have at least two potential violation issues that I see. First, there's a good chance depending on who the debt collector is that they never sent you anything and they know it. But not all states consider credit reporting to be debt collection activity. So, you would want to check your state courts and the federal courts in your state as well for any cases where the court tried to answer the question of whether or not it's collection activity when they place a debt on your credit. If your courts have ruled that it is indeed collection activity, then you're in a better spot than if they ruled that it is not.

Second issue, not all courts have ruled that reporting on a credit report constitutes communication, even though it literally does when you read the definition within the FDCPA. Here's the basic argument you would have to make, as I see it.

1--they failed to provide you with the initial dunning letter, which is a required declaration of your rights as a consumer, within 5 days of initial communication. In your case, the communication is reporting on your credit

2--since they claimed for your CFPB complaint that they did send it to you, at a wrong address, you need to show that they were aware, or had reasonable ability to be aware, of your current address based on your credit file.

3--Their actions violate the FDCPA in two ways. First, by reporting an unverified debt to your credit (communication) without informing you of your rights under the law. Second, by using deceptive practices--I would argue that sending a dunning letter to an old address when their access to your credit showed a current address constitutes a willful attempt to sidestep the requirement of informing you of your rights. These companies have skip tracers on staff. They needed to look to your credit---where debt collectors look for a consumer's info as a routine matter.

Dealing with PRA in a similar manner as we speak. They claimed over the phone to me that they never contacted me or attempted to contact me for about 2 years aside from my credit report. I disputed in writing, back a couple years ago, and they ignored it. I have them on tape telling me over the phone that they never tried to contact me about the debt until March 2020....but when I filed a CFPB complaint, all of a sudden they produced a "copy of the original dunning letter".....which they now claim they sent to me one month before they actually claim to have purchased the debt. This thing didn't even exist at the date written on it. That was enough for CFPB to close the complaint...even though it's a blatant lie.

Re: Never received dunning notice...now what?

Anonymous — Tue, 16 Jun 2020 22:38:58 GMT

I checked all the soft pulls from the credit bureau and nothing from this company. Also, this isnt even the address I used with the original creditor. Ive tried to get in touch with them via phone and email and didnt get a response which is why I filed the complaint. Even today I tried calling and got a voicemail.

Ive been trying to get it straighten out since Nov. I will work on the letter today.

Re: Never received dunning notice...now what?

bass_playr — Tue, 16 Jun 2020 22:50:32 GMT

Thje address they claim to have sent it to---is that the most recent address on your credit reports? That's going to tell you a lot.

Re: Never received dunning notice...now what?

Anonymous — Tue, 16 Jun 2020 23:20:21 GMT

no. it shows date last reported as 2013. there are two other address reported since that one..one being my current address showing reported since 2015.

i feel like it was done on purpose.

the original creditor said the account would clear and be removed. However, there are saying they dont remove the account. The creditor is PayLiance

Re: Never received dunning notice...now what?

vntrsc — Wed, 17 Jun 2020 01:55:28 GMT

@Anonymous

The courts that have ruled on the issue have ruled that credit reporting is not an initial communication that triggers the validation section of the FDCPA. That section says that an initial communication must be with the consumer. Credit reporting is not a communication directly with the consumer.

Re: Never received dunning notice...now what?

bass_playr — Wed, 17 Jun 2020 03:31:17 GMT

Not quite the case.

Courts in different states have ruled differently on the matter.

If you read the FDCPA, the actual stated definition of "communication" within the statute is as follows:

"1692a(2)

The term “communication” means the conveying of information regarding a debt directly or indirectly to any person through any medium."

When you read that, reporting on a credit report most definitely meets the written definition.

Not all courts have ruled that credit reporting isn't communication. See below:

https://www.courtlistener.com/opinion/2415605/davis-v-trans-union-llc/

"The undersigned finds no indication that furnishing credit information to credit reporting agencies is not a form of "communication" under § 1692a(2), and notes that debt collectors are ordinarily permitted to "communicate" with reporting agencies."

Re: Never received dunning notice...now what?

vntrsc — Wed, 17 Jun 2020 04:32:11 GMT

You are referring to courts that have ruled that credit reporting is a communication. They have not ruled that it is an initial communication that triggers one's validation rights. The ruling in Davis v. TransUnion (your link) did not address initial communications.

1692g(a) states "Within five days after the initial communication with a consumer..."

1692a(3) defines “consumer” as "any natural person obligated or allegedly obligated to pay any debt." The definition of "communication" includes "any person", not just the consumer. If the definition of the term "communication" in 1692a(2) was meant to apply to the term in 1692g(a), then "with a consumer" would not have specified. The fact that it is specified shows that the initial communication cannot be made to "any person". It can only be made with the consumer.

Here are just a few of the rulings that address credit reporting and initial communications.

Robinson v. TSYS Total Debt Management, Inc. Dist. Court, D. Maryland, 2006

"The above allegations identify two candidates for the 'initial communication' that is required to trigger 15 U.S.C. § 1692g.[6] The first candidate—'when Defendant communicated the debt to Plaintiffs credit report'—cannot support a claim under the FDCPA because it is not a communication with a consumer. See 15 U.S.C. § 1692g(a) (identifying 'initial communication" as "with a consumer in connection with the collection of any debt')."

Edeh v. Aargon Collection Agency, LLC U.S. District Court, Minnesota, 2011

“Here, Plaintiff alleges that Defendant reported the debt to the credit reporting agencies and that this constituted an ‘initial communication’ under the statute. But . . . the credit reporting agencies are not natural persons. 15 U.S.C. § 1692g(a)(3). Nor are they obligors or alleged obligors of the debt. Thus, the reporting companies are not ‘consumers’ under the FDCPA, and Aargon's reporting of the debt to these agencies did not trigger any notification obligations under § 1692g(a).”

Friend v. Financial Recoveries Limited, Dist. Court, MD Pennsylvania, 2017

“Here, as noted above, Plaintiff's 1692g(a) claim appears to hinge upon Financial Recoveries' alleged reporting of information concerning Plaintiff to Credit Reporting Agencies. (Doc. 5, pp. 4, 6-7). However, a plain reading of sections 1692a and 1692g reveal a number of deficiencies with Plaintiff's section 1692g(a) claim. For example, a Credit Reporting Agency is not a ‘consumer’ under the FDCPA because, in part, it is not a ‘natural person.’ 15 U.S.C. §§ 1692a, g. Thus, an alleged communication with a Credit Reporting Agency fails to activate the notice requirements found in section 1692g(a) which serve as the basis for Plaintiff's section 1692g claim.”

Re: Never received dunning notice...now what?

bass_playr — Wed, 17 Jun 2020 12:39:56 GMT

"You are referring to courts that have ruled that credit reporting is a communication. They have not ruled that it is an initial communication that triggers one's validation rights. The ruling in Davis v. TransUnion (your link) did not address initial communications. "

The question was never if it qualifies as an initial communication, so that's not necessary to quantify. Even your first case you listed illustrates this point. The question was always whether or not it is a communication--and as I showed you the definition contained within the FDCPA, it absolutely is a communication.

1692g(a) states "Within five days after the initial communication with a consumer..."

You missed the point in the statute's definition, where it says that a communication is the conveying of information "directly or indirectly" and "through any medium". The credit bureaus do not have to be consumers---because they are not the recipient....they are the MEDIUM. That's the difference. Let's look at your first case:

"Robinson v. TSYS Total Debt Management, Inc. Dist. Court, D. Maryland, 2006"

Please explain to me exactly how reporting on your credit is "not a communication with the consumer"? I'll wait. Again, directly or indirectly, and through any medium. Please tell us, who has access to your credit reports? You do. For anyone else, unless they have permissible purpose, they cannot access your credit. So it is simple common sense that anything reported to your credit bureaus will make it back to you when you pull your credit reports. Again, "through any medium", and indirectly does meet the requirement of law. Every case you posted looks at the situation as if the credit bureau was the end user in the communication chain--and determined that the CRA is not the consumer. This thought process completely ignores the fact of the written definition included within the law.

Your other two cases take the same position....and it is flawed for the same exact reason. None of the cases you posted state that it is not an "initial communication"---they all claimed it is not a communication at all. But clearly it is--according again to the written definition within the law. Remember when I told you the courts were conflicted on this, and that different courts ruled differently on the matter? All you did was substantiate what I already said. None of these court rulings changes what I said or shows it to be false. I already accounted for this fact. Also, none of the cases you posted do anything to invalidate the case I posted. It's just like I said--the courts are conflicted on the matter and don't agree with each other in different places. You also need to understand that judges are people--and they are only able to be swayed by the arguments presented to them. If you're before that court, and you don't argue specifically about that definition, the court cannot even consider it. So, court rulings are not the end-all of an issue, that's why we have higher courts. Case in point, a couple years ago I was on the losing end of a foreclosure summary judgment. I knew the court had made a ton of mistakes. But nonetheless, I had a judgment entered against me. I did this pro se, and had been fighting fraud since at least 2010. So I had a judgment against me. If I had not continued to argue, that would have been the end of it. But I appealed. Pro se. In a foreclosure situation. If you're familiar, you know that most homeowners get steamrolled in foreclosure cases, even when they have valid arguments. The court of appeals literally tossed every single thing the trial court had done, because they found that the trial court had acted in a completely inappropriate manner. Appeals courts usually will reverse and remand a case back to the trial court for further proceedings. In my case, they reversed and rendered their own judgment--dismissing the foreclosure in its entirety. They did not give the trial court a chance to do more harm. We fought this ourselves for years. The trial court's actions violated several laws. They even had private conversations with the plaintiff's attorneys, discussing motions I had filed in the case, which is a big no-no. I was forced to recuse a judge over that. Currently, there are two investigations in progress, one against the judge and one against the law firm I went up against.

But if you look at case law in my state for foreclosure cases, you will see a ton of people who didn't argue the things I argued on appeal....and they lost. So it's important to note that a court ruling is not the end-all in a situation, because you must consider exactly what the parties in that case argued, among other things.

As far as the "initial communication" issue, that's a rather easy jump. First, you have to argue that it is indeed a "communication" according to the specific definition within the law. That definition is quite plainly worded, and the courts--when you argue it-- must fall back to the wording of the law, and in fact, are not supposed to offer their own interpretations of laws when the wording is clear. Then, all that's left is to demonstrate that you received no other communication from the debt collector prior to their reporting on your credit. The "communication" is the bigger issue. Once you've established that, it should be easy to show that it was indeed the initial one.

Re: Never received dunning notice...now what?

vntrsc — Wed, 17 Jun 2020 13:32:22 GMT

Please explain to me why 1692g(a) did not stop at "within 5 days after the initial communication." Why did it expressly include "with a consumer". Again, if Congress had intended for the "communication" in 1692 g(a) to include "any person" and "any medium", it would have not been necessary to specify "with a consumer".

As the United States Supreme Court has stated on more than one occasion, "We have stated time and again that courts must presume that a legislature says in a statute what it means and means in a statute what it says there."

For Congress to include "with a consumer" indicates that "any person" is not necessarily "a consumer". Based upon your reasoning, a cease communication demand sent under 1692c(c) would prevent collection agencies from reporting to credit reporting agencies. No court has made such a ruling. And again, 1692c(c) includes "with the consumer".

Your suggestion that credit reporting constitutes an initial communication could actually be unfair to consumers. Not every consumer accesses his credit report on a yearly basis. If a collection agency were to place a derogatory account on a consumer's credit report and fails to send a validation notice, but the consumer does not access his credit report and find the derogatory account until more than a year later, he would be unable to sue for a violation of 1692g.

It would be helpful if you would post the rulings that support your definition of "initial communication with a consumer".

Re: Never received dunning notice...now what?

Remedios — Wed, 17 Jun 2020 16:24:38 GMT

Posts that did not adhere to community standards have been removed.

No matter what your opinions are, or your legal interpretations of the statutes in question, FSR is not optional.

Thank you.

Re: Never received dunning notice...now what?

bass_playr — Wed, 17 Jun 2020 18:17:10 GMT

What is FSR?

Re: Never received dunning notice...now what?

K-in-Boston — Wed, 17 Jun 2020 18:19:17 GMT

@bass_playr wrote:
What is FSR?

Friendly, Supportive, and Respectful

Re: Never received dunning notice...now what?

bass_playr — Wed, 17 Jun 2020 18:39:47 GMT

OK, that's fine...so why did my second post get deleted?

Re: Never received dunning notice...now what?

K-in-Boston — Wed, 17 Jun 2020 18:44:43 GMT

@bass_playr wrote:
OK, that's fine...so why did my second post get deleted?

Friendly, Supportive, and Respectful

Re: Never received dunning notice...now what?

bass_playr — Wed, 17 Jun 2020 18:47:26 GMT

There was not a single issue with my post. So why was it deleted?

Re: Never received dunning notice...now what?

Anonymous — Thu, 02 Jul 2020 10:08:38 GMT

Just my two cents. Per clearly established law, the more specific always takes presidence over the more general.

Consequently, the addition of the phrase “with the consumer” made it more specific.

Also the collector would still lawfully be able to place it in the credit report because that’s provided for by law, unless this provision was deemed more specific and prevented it. If it is a communication, then they are no longer allowed to "communicate" until they validate the debt, if DV is timely requested, IIRC.

And even if placing it on the credit report were an initial communication, they still have to send a dunning notice within five days. That’s a procedural requirement, and I’m not sure how you think that would be disregarded because a year passed?

If the consumer was unaware, they were not given notice, unless placing it in the credit report is ruled to constitute notice regardless of whether or not the consumer was aware.

Last if you pay the original creditor OP (assuming it was assigned not sold), then they can recall the debt from the collector and the collector would then be required to delete the collection or you can dispute it off at that point.

Re: Never received dunning notice...now what?

Anonymous — Thu, 02 Jul 2020 05:45:07 GMT

Update:

I was going to send a threatening letter to the collection agency. However, I contacted the original creditor and told her what they did. She agreed that once paid she would have the collection agency remove the account. I paid the balance last week and the collection had been removed from my credit.
thank everyone for your input.

Re: Never received dunning notice...now what?

NotaFicoFan — Fri, 04 Jun 2021 19:02:16 GMT

In order to take legal action you must ave standing. Basically it means show harm or imminent harm. Harm doesn't have to be financial, but it can be.

Sequium does not make bona fide errors. Look at the better business bureau complaints. It's gross negligene at best. There are over 800 complaints in 3 years. Look at both the complaints and reviews.

I'm in the process of suing Sequium A****** Solutions right now. My harm is immenint. Uannounced they attached a fraudulent collection to my account. Dropped my score from 820 to 690 overnight. The Comcast bill was for another person in another state with my same name. There are many Comcast customers with my name. i asked them why they chose me and they refused to tell me why. When I pressed it they said I was a victim of fraud. I asked for proof and they refuse to provide that. The immenent harm is that they or another collection agency may do the same thing and I cannot mitigate. If I am a victim of fraud I need proof or I can't be sure I am protecting myself with maximum efficacy.
I filed the case in small claims court. They lawyered up and had the case removed to federal court. We may try to get it remanded back to small claims court, but they'll probably settle. My lawyer talked to their lawyer and told e that their lawyers don't seem to know the facts and seemed like they just want to settle quickly. We'll see. They nothat if the judge rukes that there is no standing he could either dismiss or remand it back. He could also hoose to hear the case, but discovery would probably turn up a graveyard of skeletons.

I'm using a lawyer from the Digital Justice Foundation, but if you think you might have standing you can contact the Digital Justice Foundation or just google Sequium Asset Solutons Lawyers <your state>.