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 (MCMâ€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 disputeâ€.
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 creditorâ€.
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(8) 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
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.
Intent to litigate critique request
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.
intent to sue
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.
Intent to litigate critique request
Please help identify the threats and provide suggestions.
intent to litigate
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.
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?
Intent to litigate critique request
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.
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?
Intent to litigate critique request
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?
Midland has backed off. this is a credit reporting problem.
What exactly does the AG say about this?
you need to examine CA credit reporting laws, because these were violated you only have a federal claim.
Have you addressed 623 in your DV letters?
Intent to litigate critique request
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.
Midland is not suing you. They are not viewing posting on your credit report as collecting (of course it is). So that is what I mean by Midland has backed off.
What did your AG say?
Intent to litigate critique request
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.
Under 623, you have the right to see records that document the information they are reporting on your record.
Have you disputed this with CRAs?
There is no 30 day limit to request a 623 investigation.
Have you sent copies of your green cards to the CRA?
Intent to litigate critique request
I have submitted a version of a 623 to the CRA. Below in the actual letter. I attached copies of the original dispute letter with CM proof of delivery.
February 16, 2010,
Experian
P.O. Box 9701
Allen, TX 75013
RE: Arrow Financial Services Account XXXXXXXX
To Whom It May Concern,
I am writing to dispute the above referenced tradeline that is being reported on my credit report . I have disputed this tradeline with your company and your investigation results claim you were able to verify that this debt belongs to me.
How is this possible? What method of investigation have you used to verify that this debt is mine? What documentation have you received from the reporting authority that irrefutably shows that this debt is mine?
I have invoked my consumer rights under the FDCPA, 15 USC 1692g Sec 809(b) by disputing their claim to the account and requesting validation of the debt they claim I owe. I was never served notice from Arrow Financial regarding this debt which is a violation of the FDCPA (see statute below):
SECTION 809 -- VALIDATION OF DEBTS
Section 809(a) requires a collector, within 5 days of the first communication, to provide the consumer a written notice (if not provided in that communication) containing (1) the amount of the debt and (2) the name of the creditor, along with a statement that he will (3) assume the debt's validity unless the consumer disputes it within 30 days, (4) send a verification or copy of the judgment if the consumer timely disputes the debt, and (5) identify the original creditor upon written request.
I have invoked my consumer rights under the FDCPA, 15 USC 1692g Sec 809(b)by disputing their claim to the account and requesting validation of the debt they claim I owe (see Statute below):
Section 809(b) requires that, if the consumer disputes the debt or requests identification of the original creditor in writing, the collector must cease collection efforts until he verifies the debt and mails a response. Section 809(c) states that a consumer's failure to dispute the validity of a debt under this section may not be interpreted by a court as an admission of liability.
I have attached copies of the Debt Validation request that was sent to Arrow Financial Services on November 11, 2009; along with copies of the certified mail receipt and proof of delivery via electronic signature confirmation.
To date, Arrow Financial Services has failed to respond to the debt validation request. They continue to report trade line information to a consumer reporting agency which is considered collection activity under the following:
December 23, 1997
Robert G. Cass
Compliance Counsel
Commercial Financial Services, Inc.
2448 E. 81st Street, Suite 5500
Tulsa, OK 74137-4248
Dear Mr. Cass:
IV. "Would the following action by a debt collector constitute continued collection activity under § 1692g(b): reporting a charged-off consumer debt to a consumer reporting agency as disputed in accordance with § 1692e(8), when the debt collector became aware of the dispute when the consumer sent a written dispute to the debt collector during the 30-day validation period, and no verification of the debt has been provided by the debt collector?" Yes. As stated in our answer to Question II, we view reporting to a consumer reporting agency as a collection activity prohibited by § 1692g(b) after a written dispute is received and no verification has been provided. FTC Case Law Opinion Leflevre-Cass (Dec 1997).
The FCRA Section 623 requires that you verify the validity of the item in dispute within 30 days. If the validity cannot be verified, you are obligated by law to remove the invalidated item. This is a clear violation of reporting invalidated information to a consumer reporting agency by Arrow Financial Services. Experian is in violation of FCRA section 611(a)(7); Section 623 and FACTA Section 312 for not validating the disputed information.
In the event that you cannot validate the disputed item pursuant to FCRA, and you continue to list the disputed item on my credit report, I will find it necessary to file civil suit against you for actual damages and declaratory relief under the FCRA. According to this regulation, I may sue in any qualified State or Federal court; including small claims court in my area (Kern County, California).
While I prefer not to litigate, I will use the courts as needed to enforce my rights and to prevent defamation against my character by either you or the reporting source; under the FCRA, FDCPA, FCBA and FACTA.
YOU SHOULD CONSIDER THIS A DEMAND LETTER.
I look forward to an uneventful resolution to this matter.
Consumer
SSN # XXX-XX-XXXX
CC: Federal Trade Commission
Attorney General of the State of California, Edmund G. Brown Jr.
Attorney General of the State of Illinois, Lisa Madigan
POD shows they received the letter and attachments on February 20.
Intent to litigate critique request
Today I received the reply from Experian. It states basically
"We have already investigated this information and the credit grantor has verified its accuracy. Please refer to your credit report for the name, phone number and address of the credit grantor who verified this information. Pursuant to Section 611(a)3)(A) of the Fair Credit Reporting Act, we will not be your investigating your dispute at this time. If you still believe........."
You know the letter.
What next?
Have you sent a MOV to Experian? could you send the DV requests and point that that refuse to respond?
Intent to litigate critique request
OK, I think I am confused.
I sent a 623 letter to Experian, with copies of the DV letters and CNRRR.
Experian declined to investigate because it had already been verified by Midland.
Do I sent the 623 to the CRA or the CA? or both?
DO I need to pursue a 611 MOV with Experian?
Thanks for your help
YOu send 623 letters to your creditors, not CRAs.
1.dispute on credit report
2. 623 investigation request to creditor (tradeline owner)
3. complain to regulating agencies
4. Send MOV to CRA with green cards showing you have tried to contact with no response
You have sent DV letters so You can use those for the MOV
MOV is a letter saying how did you verify this when they won't respond to me. It is needed if you intend to sue
Notice from Arrow received for ITS
Hello All,
See once again they just take their words for it, I think there should be a way to get the information that they provide to the credit reporting agency, what proof did they give to make the credit reporting agency say it was valid.
Sometimes I think the credit reporting agencies just get lazy, we as consumers can not afford to have or should we tolerate this behavior, credit affects so much of out lives, we should be provided the proof when something adverse is submitted.
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