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Wasco_Kid
Joined: 11 Feb 2010
Wasco_Kid's page
Posts: 34
775 Magic Points
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Subject: Intent to litigate critique request
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Fri Feb 26, 2010 4:05 pm
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Here is a rough draft of my letter to send to Midland. I would appreciate imput and some critique on the merits and format.....
February 26, 2010
Consumer
Somwhere
Anytown, USA
Encore Capital Group
Contact Name
P.O. Box 939019
San Diego, CA 92123-9019
RE: Account #’s xxxxxxxxxx, xxxxxxxxx, xxxxxxxxxx, xxxxxxxxxx and xxxxxxxxxx
Dear Contact name,
This shall serve as notice that I am requesting debt validation for the above referenced accounts. This is my second request for validation of the alleged debts that Midland Credit Management (MCM) is reporting to Equifax, Experian and Trans Union (herein referred to as CRA’s).
This request comes in lieu of the fact that MCM has previously ignored my request for debt validation pursuant to 15 U.S.C. 1692g Sec 809(b).
In July 2009, I pulled copies of my credit reports from the CRA’s and notice MCM is reporting 5 different derogatory trade lines as collection accounts. To my knowledge, I do not recall as ever having any business dealings with MCM. Since I had no knowledge of these accounts, I disputed them with the CRA’s. Each CRA reported the results of their investigation claiming that Equifax, Experian and Trans Union were able to verify that these accounts belonged to me. Any additional questions should be directed to MCM; and provided the San Diego, California address and phone number.
In response to this information, I submitted 5 separate debt validation letters (for each of the 5 accounts being unlawfully reported to the CRA’s.). Each letter was sent certified mail with electronic signature confirmation (CMESC), otherwise identified as proof of delivery (POD). Copies of the original letters, certified receipts and POD will be made readily available during litigation proceedings.
I did not receive any replies to the requests made for validation. Since December 2009, I have re-disputed these accounts with the CRA’s numerous times. I have since then initiated complaints to the following (citing violations of my consumer rights, under the FDCPA and FCRA):
Federal Trade Commission – Reference # xxxxxxxx
Better Business Bureau – Reference # xxxxxxx
Attorney General of State of California – Reference # PIU: xxxxxx
Recently, a reply was sent to the A.G. from Unknown name (MCM”s Consumer Relations Supervisor). In the reply letter to the A.G., unknown name conveys the following:
“Consumer writes that he has not received responses to his requests for validation of the debts. As you are aware, the Fair Debt Collection Practices Act (FDCPA) expressly provides certain time limitations for the submission of such a request. Because the request was not timely, the obligation to provide verification under the FDCPA did not apply. To date he has failed to provide to Midland Credit any documentation to substantiate his dispute”.
Under the FDCPA 15 USC 1692g Sec 809(b), the right to dispute a debt is as follows:
“If the consumer notifies the debt collector in writing within the thirty-day period described in subsection (a) of this section that the debt, or any portion thereof, is disputed, or that the consumer requests the name and address of the original creditor, the debt collector shall cease collection of the debt, or any disputed portion thereof, until the debt collector obtains verification of the debt or a copy of such verification or judgment, or name and address of the original creditor, is mailed to the consumer by the debt collector. Collection activities and communications that do not otherwise violate this subchapter may continue during the 30-day period referred to in subsection (a) unless the consumer has notified the debt collector in writing of that debt, or any portion of the debt, is disputed or that the consumer requests the name and address of the original creditor. Any collection activities and communication during the 30-day period may not overshadow or be inconsistent with the disclosure of the consumer’s right to dispute the debt or request the bane and address of the original creditor”.
Unknown's statement is frivolously made; in that I was never provided a NOTICE OF DEBT. Midland failed to comply with the FDCPA by failing to send written notice. As you are aware, 15 USC 1692g Sec 809(a) states the following:
(a) Notice of debt; contents
Within five days after the initial communication with a consumer in connection with the collection of any debt, a debt collector shall, unless the following information is contained in the initial communication or the consumer has paid the debt, send the consumer a written notice containing—
(1) The amount of the debt;
(2) The name of the creditor to whom the debt is owed;
(3) A statement that unless the consumer, within thirty days after receipt of the notice, disputes the validity of the debt, or any portion thereof, the debt will be assumed to be valid by the debt collector;
(4) A statement that if the consumer notifies the debt collector in writing within the thirty-day period that the debt, or any portion thereof, is disputed, the debt collector will obtain verification of the debt or a copy of a judgment against the consumer and a copy of such verification or judgment will be mailed to the consumer by the debt collector; and
(5) A statement that, upon the consumer’s written request within the thirty-day period, the debt collector will provide the consumer with the name and address of the original collector, if different from the current creditor.
Under interpretation of law, it is apparent that MCM has willfully violated my consumer rights under the aforementioned statutes. I remind you that this accounts for 10 violations of the FDCPA. As you are aware, I may litigate these violations under a civil action. Each penalty carries a maximum fine of $1,000 per violation.
Additionally, since my consumer rights have been violated under 15 USC 1692g section 809(a)(b), MCM continues to report invalidated account information to the CRA’s (as the information furnisher). This action constitutes another violation of my consumer rights under FCRA. Under the FTC opinion of Cass-LeFevre (which is accepted in a court of law):
II. ‘‘Is it permissible under the FDCPA for a debt collector to report,
or continue to report, a consumer’s charged-off debt to a consumer
reporting agency after the debt collector has received, but
not responded to, a consumer’s written dispute during the 30-day
validation period detailed in § 1692g?’’ As you know, Section
1692g(b) requires the debt collector to cease collection of the debt
at issue if a written dispute is received within the 30-day validation
period until verification is obtained. Because we believe that reporting
a charged-off debt to a consumer reporting agency, particularly
at this stage of the collection process, constitutes ‘‘collection
activity’’ on the part of the collector, our answer to your
question is No. Although the FDCPA is unclear on this point, we
believe the reality is that debt collectors use the reporting mechanism
as a tool to persuade consumers to pay, just like dunning
letters and telephone calls. Of course, if a dispute is received after
a debt has been reported to a consumer reporting agency, the debt
collector is obligated by Section 1692e( to inform the consumer
reporting agency of the dispute.
Furthermore, Unknown's statement to the AG claims that I have not provided any documents to substantiate my dispute. As you recall, in the process of debt validation, the burden of proof falls under the debt collector. The consumer disputes the trade line information and the debt collector must provide irrefutable evidence that a legal obligation exists between the collection agency and the consumer. Failure to fulfill that burden, in the dispute process, constitutes will non-compliance and prevents the collection agency from continued collection activities; which include reporting invalidated account information to the CRA.
In closing, I seek a remedy this issue amicably. I see no choice but to initiate legal proceedings for flagrant violations of my consumer rights for a total of 15 separate violations. You have no legal basis to support your collection activities. I propose a compromise as follows:
1. Settlement offer in the sum of no more than $15,000 for above referenced violations 5 accounts times 3 violations times $1000 each);
2. Damages for declaratory and compensatory relief to be determined by jury;
3. Damages for defamation in the amount to be determined by jury.
4. Permanent removal of all trade lines from the CRA with documentation.
I hope you will consider this request and look forward to working out a reasonable compromise. If I must pursue litigation, I will not hesitate to do so in a court of law.
Please consider this NOTICE that you have 15 days to reply to my requests.
Best Regards,
Jolted Consumer |
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cinnamngrl
Joined: 01 Nov 2008
cinnamngrl's page
Posts: 1455
6339 Magic Points
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Sat Feb 27, 2010 1:00 am
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Ok, Wasco please tell me where you are going to file this lawsuit?
Have you consulted an attorney? Do you understand how much the filing fee is? If you have a civil claim of $15000 then you should let a pro handle it.
Drop the threats, you can ensure them that you will seek the max federal civil penalty allowed by the FDCPA but keep it vague.
to be honest I don't see 15 violations. five letters requesting validation is still one unsatisfied request for validation.
I'm on your side, Midland is bunch of scumbags.
_________________
CMRRR Templates
How to PFD, OPT-out, Complain, etc
All credit articles at EHOW |
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Wasco_Kid
Joined: 11 Feb 2010
Wasco_Kid's page
Posts: 34
775 Magic Points
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Subject: Intent to litigate critique request
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Sat Feb 27, 2010 1:45 am
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Cinnamngrl,
Please provide suggestions. Recommendations in problem areas of the letter would help me to understand where the weak points and areas are at in the letter. I can then make adjustments and review it again. |
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Aaron
Joined: 08 Feb 2010
Aaron's page
Posts: 2675
48566 Magic Points
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Subject: intent to sue
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Sat Feb 27, 2010 5:17 am
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Hi Wasco,
Your letter is perfect, except the threats. Cinnamngrl is right in advising you to remove the threats. You should be mild but firm on your claims.
One thing that I would like to tell is that, you are required to send a debt validation letter to the creditor or the collection agency (CA) within 30 days of their first notice to you. It is not required by the creditor or the CA to send you validation of the debt within 30 days of your validation request.
So, be sure about what you are claiming and doing. However, before filing any lawsuit you can go to the State Attorney General for advise.
Hope this helps.
Thanks,
Aaron.
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Wasco_Kid
Joined: 11 Feb 2010
Wasco_Kid's page
Posts: 34
775 Magic Points
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Subject: Intent to litigate critique request
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Sat Feb 27, 2010 6:30 am
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| Please help identify the threats and provide suggestions. |
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Aaron
Joined: 08 Feb 2010
Aaron's page
Posts: 2675
48566 Magic Points
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Subject: intent to litigate
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Sat Feb 27, 2010 9:23 am
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Hi Wasco,
From "Unknown's statement is frivolously made; in that I was never provided a NOTICE OF DEBT" onwards, you can change the style of your writing. You need to change the language. For example rather than writing "I was never provided a Notice", you can write that you did not receive any such notice.
Hope this helps.
Regards,
Aaron.
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cinnamngrl
Joined: 01 Nov 2008
cinnamngrl's page
Posts: 1455
6339 Magic Points
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Sat Feb 27, 2010 12:20 pm
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My non specific suggestion is that this letter is way too long. with all the law quotes it screams rookie.
I believe that is costs $350 to file a federal claim.
All of the appeals rulings i have read seem to include the CA filing a lawsuit against the creditor without responding to a DV or 623.
forgive me if I asked you this before but who is the OC?
_________________
CMRRR Templates
How to PFD, OPT-out, Complain, etc
All credit articles at EHOW |
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Wasco_Kid
Joined: 11 Feb 2010
Wasco_Kid's page
Posts: 34
775 Magic Points
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Subject: Intent to litigate critique request
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Sat Feb 27, 2010 3:32 pm
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I have a familiarity with case law from past experience in research; but never initiated any civil action.
First, if in fact there are only 3 conclusive violations then the maixmum penalty would be $3000 and that would require a civil action in small claims court.
What appeal rulings are you referring too. Since when does a CA file a lawsuit against the creditor? What are you referring too, here?
The Original creditors are First Consumer's National Bank, Bank of Marin, Household, Direct Merchants Banbcard and Emerge Mastercard.
Additional, I have learned that each of the accounts Midland has were charged on in Late 2004 and early 2005. Which would place the accounts outside of the SOL for California.
If Midland knows this (and I am sure they do) this may explain why they have not pursued litigation.
Additionally, I was trying to push Midland into make a decision on the direction they intend to go with this letter.
I was hoping that by citing the violations (although, technical, in nature) and statutes....they would realize they were not going to get a dime from me; unless the pursue some sort of litigation.
Furthermore, if they realize they truley have no position maybe they would cave and give me the deletions I am asking for for the se accounts.
I really think this letter should be aggressive. When the letter is sent, it will go to the Senior VP and General counsel for Encore.
Otherwise, I just wait 18 more months for the accounts to drop off; which I don't want to do. |
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cinnamngrl
Joined: 01 Nov 2008
cinnamngrl's page
Posts: 1455
6339 Magic Points
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Sat Feb 27, 2010 4:47 pm
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FDCPA violations are federal and there is no small claims in federal court. Some states have good credit laws, I am not familiar with Cali.
you could contact the OTS about the Marin Bank, but it seems to be the CA that is violating. Have you complained to the CA AG?
_________________
CMRRR Templates
How to PFD, OPT-out, Complain, etc
All credit articles at EHOW |
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Wasco_Kid
Joined: 11 Feb 2010
Wasco_Kid's page
Posts: 34
775 Magic Points
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Subject: Intent to litigate critique request
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Sat Feb 27, 2010 5:20 pm
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The CA AG is here in California. A poprtion of my ITS includes excerpts provided from Midland to the AG inquiry letter.
Midland claims that the DV request was not timely and their obligation to honor did not apply. (This is quoted in the ITS).
Should I change from small claims action to a federal venue?
How would you proceed.
I just learned that the SOL for these accounts may have been 2009.
I think it is mandataed that the letter pressure Midland to decide to litigate or back off. The strength of the letter (mind you) will be sent to the Sr. V.P. and General Counsel for Encore.
I do not believe sending a follow up letter to San Diego with warrant anything but additional ignorance.
Any suggestions.
How would you write the letter to Encore? |
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cinnamngrl
Joined: 01 Nov 2008
cinnamngrl's page
Posts: 1455
6339 Magic Points
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Wasco_Kid
Joined: 11 Feb 2010
Wasco_Kid's page
Posts: 34
775 Magic Points
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Subject: Intent to litigate critique request
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Sat Feb 27, 2010 6:18 pm
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How can you be sure Midland has backed off?
The reply from the AG in California basically says that the Public inquiry unit has received a reply from Midland in response to my complaint and enclosed copies of the letter faxed by Midland.
I will review the reporting laws. Do you mean California? If I have a federal claim, would I litigate in statecourt in hopes to have it moved to Federal jurisdiction?
I have not yet addressed 623 in my DV letters. I still do not understand how 623 will apply to OC, CA and CRA's. |
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cinnamngrl
Joined: 01 Nov 2008
cinnamngrl's page
Posts: 1455
6339 Magic Points
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Wasco_Kid
Joined: 11 Feb 2010
Wasco_Kid's page
Posts: 34
775 Magic Points
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Subject: Intent to litigate critique request
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Sun Feb 28, 2010 1:16 am
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Here is the AG reply:
"RE: MIdland Credit Management
Dear Mr. Consumer,
The Public Inquiry Unit of the Office of the Attorney General Edmund G. Brown Jr., recently notified you that your complaint had been forwarded to the above-named company (Midland Credit Management). A copy of their reply is enclosed.
We appreciate you contact the Attorney General's Office about this matter. We will retain your complaint in our files and may contact you again should it appear that further investigation would be in the public intrest."
**********
Now if Midland is not suing and they are not viewing posting on my credit report.....What the heck is their issue? Maybe they realize the accounts are past the SOL.
How can I get these removed. None of the OC tradelines are still being reported. I had disputed the OC accounts and they all have come off except for FNB....which is scheduled to come off next month.
However, I still have the Midland tradelines to deal with?
Please help guide m. |
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cinnamngrl
Joined: 01 Nov 2008
cinnamngrl's page
Posts: 1455
6339 Magic Points
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