Validation Question

[Juss11]

Ok so my wife has a CA after her for $1,500 over a flute we rented back on 2-2005.I know its past SOL.We returned this flute in 2007 not long before this music store went out of business.The perosn who owend the store, claimed we never returned it & sent it to collentions for $900.So I sent a DV letter to the CA(which is a local CA)and they responded with a pay up notice.They have never contacted us b4.They would not fill out the form I sent with the DV letter asking to verify there claim.They did send me a contract from the music store.This contract has my wifes full name,SSI & DL number.Its not wrote in her hand writing and where it says Renter Signature its blank.Then it says Agent and its signed by a peron named Halley.We have no clue who she is?So Since she never signed the contract what proof do they have we owe this claim?What will the CRA do when they look into this?Could they have other stuff they didnt send us?Or do they have to share everthing they have with us aswell?
Thanks for any info given.

[Lian]

First thing.... you need to separate debt validation from dispute of the accuracy of the information. The first is a debt collection practices issue under the FDCPA, and the later relates to the dispute of accuracy of information reported to your credit file, and is governed by the FCRA.

First, the debt collection practices issues. To make you aware when any debt collector begins their collection activities, FDCPA 809(a) requires them to provide you written notification of their collection within 5-days of any initial communication with you regarding the debt. The collection notice, commonly called a dunning notice, must advise you of the amount of the alleged debt, the name of the original creditor, and how to request debt validation. Initial communication includes reporting to a CRA.

So, if the debt collector did not send you a timely dunning notice within 5 days of their reporting their collection to a CRA, they are in violation of FDCPA 809(a), a debt collection practices act that can be handled by way of complaint to the FTC, your state AG, a BBB, or by bringing legal action for FDCPA violation. Lack of timely dunning notice is NOT a disputable item under the FCRA, as it does not go to the accuracy of reported information.

Once you become aware that a debt collector is involved in the collection of an alleged debt, either with or without proper dunning notice, you have the right under FDCPA 809(b) to request them to validate the debt. This DV letter, if timely sent by the consumer (i.e., within 30-days of their timely dunning notice), requires the debt collector to cease any further collection activities until such time as they provide debt validation. Unless you live in Texas, the debt collector is not required to provide any debt validation, but is barred from conducting any further collection on the debt until such time as validation is provided. So failure or refusal to provide debt validation is not itself a violation of the federal FDCPA, and unless you live in Texas, is not a violation of any state debt collection practices requirements.
A violation would occur through the act of therafter conducting any debt collection activies without first providing debt validation. Again, these are not disputable items under the FCRA, but rather are debt collection practices violations under the FDCPA, with their own redress procedures.

If you sent a timely DV, and the debt collector thereafter sent any communications to you prior to providing debt validation, even if only to say they wont validate, or to request payment, or to say anything related to the collection of the debt, that is a violation of FDCPA 809(b), pure and simple. You can file complaints with the FTC, other consumer groups, your state AG, or even bring civil action against them, but the CRAs are simply NOT involved in those issues. They wont intervene, and unless you dispute the actual accuracy of information in your CR based on the collection, are not a party to your debt collection practices issues.

If, apart from their debt collection practices issues under the FDCPA, you also dispute the actual accuracy of the debt, and either the OC or the CRA has reported it to a CRA, then you can file a dispute over its accuracy under the FCRA. If the OC has reported to your CR, then you can, and should, dispute the account with them, as they are the party who is asserting the debt in the first instance, and has the records associated with that issue. You can also dispute with the debt collector if they have reported to the CRA, and would be your only dispute option if the OC never reported. However, these disputes are much harder to get resolved, as the debt collector does not have access to the OC account records to establish the accuracy of the debt. While they should attempt to do so, many times they dont, and simply provide a statement that the accuracy of their collection is verified.

Since response to a dispute of accuracy does not require the party to provide documentation to substatiate their verification of its accuracy, this can leave you in the pinch. If they verified without proper investigation of the accuracy of the information, you can sue them if you can provide proof. But that is really outside of the actual dispute process, and would most likely require civil litigation.

Mind you, your DV letter was not technically a dispute under the FCRA, so they did not have to "verify" anything. If they did not provide debt validation, they you would have a possible FDCPA violation for communicating with you without first validating.

So, to address the accuracy of their reporting, you must file an actual dispute under the FCRA. I suggest that you send the debt collector a direct dispute under FCRA 623(a)(8), along with all your documentation, and force them to state that they have verified the accuracy of the debt. Unlike a DV letter, a dispute under the FCRA has a compulsory period for response. They must complete their investigation within 30-days of your dispute, and send you written notice of their results within 5 days thereafter.

[Juss11]

Originally Posted by Lian

First thing.... you need to separate debt validation from dispute of the accuracy of the information. The first is a debt collection practices issue under the FDCPA, and the later relates to the dispute of accuracy of information reported to your credit file, and is governed by the FCRA.

First, the debt collection practices issues. To make you aware when any debt collector begins their collection activities, FDCPA 809(a) requires them to provide you written notification of their collection within 5-days of any initial communication with you regarding the debt. The collection notice, commonly called a dunning notice, must advise you of the amount of the alleged debt, the name of the original creditor, and how to request debt validation. Initial communication includes reporting to a CRA.

So, if the debt collector did not send you a timely dunning notice within 5 days of their reporting their collection to a CRA, they are in violation of FDCPA 809(a), a debt collection practices act that can be handled by way of complaint to the FTC, your state AG, a BBB, or by bringing legal action for FDCPA violation. Lack of timely dunning notice is NOT a disputable item under the FCRA, as it does not go to the accuracy of reported information.

Once you become aware that a debt collector is involved in the collection of an alleged debt, either with or without proper dunning notice, you have the right under FDCPA 809(b) to request them to validate the debt. This DV letter, if timely sent by the consumer (i.e., within 30-days of their timely dunning notice), requires the debt collector to cease any further collection activities until such time as they provide debt validation. Unless you live in Texas, the debt collector is not required to provide any debt validation, but is barred from conducting any further collection on the debt until such time as validation is provided. So failure or refusal to provide debt validation is not itself a violation of the federal FDCPA, and unless you live in Texas, is not a violation of any state debt collection practices requirements.
A violation would occur through the act of therafter conducting any debt collection activies without first providing debt validation. Again, these are not disputable items under the FCRA, but rather are debt collection practices violations under the FDCPA, with their own redress procedures.

If you sent a timely DV, and the debt collector thereafter sent any communications to you prior to providing debt validation, even if only to say they wont validate, or to request payment, or to say anything related to the collection of the debt, that is a violation of FDCPA 809(b), pure and simple. You can file complaints with the FTC, other consumer groups, your state AG, or even bring civil action against them, but the CRAs are simply NOT involved in those issues. They wont intervene, and unless you dispute the actual accuracy of information in your CR based on the collection, are not a party to your debt collection practices issues.

If, apart from their debt collection practices issues under the FDCPA, you also dispute the actual accuracy of the debt, and either the OC or the CRA has reported it to a CRA, then you can file a dispute over its accuracy under the FCRA. If the OC has reported to your CR, then you can, and should, dispute the account with them, as they are the party who is asserting the debt in the first instance, and has the records associated with that issue. You can also dispute with the debt collector if they have reported to the CRA, and would be your only dispute option if the OC never reported. However, these disputes are much harder to get resolved, as the debt collector does not have access to the OC account records to establish the accuracy of the debt. While they should attempt to do so, many times they dont, and simply provide a statement that the accuracy of their collection is verified.

Since response to a dispute of accuracy does not require the party to provide documentation to substatiate their verification of its accuracy, this can leave you in the pinch. If they verified without proper investigation of the accuracy of the information, you can sue them if you can provide proof. But that is really outside of the actual dispute process, and would most likely require civil litigation.

Mind you, your DV letter was not technically a dispute under the FCRA, so they did not have to "verify" anything. If they did not provide debt validation, they you would have a possible FDCPA violation for communicating with you without first validating.

So, to address the accuracy of their reporting, you must file an actual dispute under the FCRA. I suggest that you send the debt collector a direct dispute under FCRA 623(a)(8), along with all your documentation, and force them to state that they have verified the accuracy of the debt. Unlike a DV letter, a dispute under the FCRA has a compulsory period for response. They must complete their investigation within 30-days of your dispute, and send you written notice of their results within 5 days thereafter.

I filled a dispute with the CRAs saying inaccuracies on my report.Sorry im new to this, and still learning.I hope I ddint make a mistake?My wife wanted to just pay it, if they would do a PFD.But I know for a fact this flute was returned when we were done with it,b/c I took it back myself.I just dont see how they have a leg to stand on without her signature?

[Lian]

What specifically was the information disputed, and who did you file the dispute with? If it was the fact that the item was returned, their verification should have included an investigation of the matter by contact with the OC. If you disputed through the CRA, you might want to send a "method of verification" letter under FCRA 611(a)(6)(B)(iii) and ask for a "description of the procedure used to determine the accuracy and completeness of the information." It appears that their investigation process may have been flawed, so I suggest that you use the MOV process to determine exactly how they arrived at their "verification."

[Juss11]

Originally Posted by Lian

What specifically was the information disputed, and who did you file the dispute with? If it was the fact that the item was returned, their verification should have included an investigation of the matter by contact with the OC. If you disputed through the CRA, you might want to send a "method of verification" letter under FCRA 611(a)(6)(B)(iii) and ask for a "description of the procedure used to determine the accuracy and completeness of the information." It appears that their investigation process may have been flawed, so I suggest that you use the MOV process to determine exactly how they arrived at their "verification."

Well I filled with all 3 CRA last week online. I know I probably should of mailed. I used other and put "inaccurate information". From what I read online that's what other said to use,so the CRA have to look for it. This was before I had gotten the validation letter back from them with no signature on the contract. So what I'm wondering if the CRA get the same contract that we got will they delete it b/c its not signed,or should I let them know about it? I don't see how they could have a case without a signed contract? Thanks a lot for all your help.

[Lian]

When a CRA refers a dispute to the reporter of the information for their verification, it does not require the party to provide factual documentation back to the CRA to substantiate their finding that the information is accurate. So the verification supplied back to the CRA is not incomplete due solely to the lack of supporting proof. The party is compelled to do an investigation, and base their verification on the findings of that investigation, but is not required to prove it.

The CRA does have the ability to verify on their own, with the verification provided by the party being only part of their "reinvestigation." An example would be the dispute over the accuracy of a judgment reported to your CR. The CRA could either get verification from the party who reported the judgment to them, or they could contact the court clerk and verify on their own. So it is possible to get the CRA to evaluate your evidence and hold the information to be unverified, but in a practical sense, I am not aware of many circumstances where the CRA has superseding a verification by the reporter of the information, and held it to be inaccurate through their own investigation. The CRAs aren't investigators. But they do have the statutory authority to re-investigate the accuracy of the information on their own.

Give it a try, but don't expect them to become a policing agent. Proof of facts alleged in support of a finding is the preview of the courts, and not the CRA.

[Juss11]

So your saying the CA can lie to the CRAs and they will take their word for it? Wow then whats the point in all of this? The fact that they have a contract wrote in another persons handwriting, and NO SIGNATURE! I just don't see the CRAs letting them get away with that. I'm no expert but I would think they would have to send,fax some proof.So anyways Equifax did deleted this from my wife's CR today. It said did not satisfy dept.So now waiting on trans & ex.

[Lian]

I wont accuse anyone of lying. But suppose, for purposes of discussion, that the debt collector knowingly provided verification that was inaccurate. That is illegal, and might subject them to prosecution, and might, if in civil litigation, cause them to lose their case due to bad faith in their action. So no, I am not saying that they can lie, I am only saying that they don't have to provide factual evidence in the administrative dispute process to justify their finding.

FCRA 623(b)(1) governs their duties upon receiving a dispute. They must (A) conduct an investigation with respect to the disputed information, (B) review all relevant information provided by the consumer reporting agency, and (C) report the results of the investigation to the consumer reporting agency.

The statutory requirement is that they must "report the results," not provide documentary evidence of their findings. So, yeah, they can lie if disposed to do so and willing to pay the consequences.

When their results get back to the CRA, then the CRA obligations are set forth in section 611(a)(6). The CRA must, within 5 days after concluding their reinvestigation, provide a statement to the consumer that the reinvestigation is completed, and if the information has been verified as correct, state that result. Again, no requirement for legal proofs. They are not a court of law.

The rub is that the results reported to the consumer are those of their (the CRA's) reinvestigation of the dispute, based on the information available to them. FCRA 611(a)(1)(A). They can, if they choose, base the results of their reinvestigation on more than the response received back from the party who furnished the disputed information. If the evidence is as strong as you suggest, then they had the authority under the statute to have held the information to have been reported inaccurately, and thus delete it from your CR. They choose not to pursue that path. Do they just summarily accept any verification received from the furnisher of the information? Maybe so, but they don't have to.

If you feel that their reinvestigation was procedurally incomplete due to their failure to have re-investigated the dispute, and based on the facts, held the information to have been accurate, notwithstanding the furnisher's "verification," then you can file a request for reconsideration with them, and include within that request a secondary request that they provide to you a "description of the procedures used to determine the accuracy and completeness of the information" (FCRA 611(a)(6)(B)(iii)), with emphasis on whether they addressed your factual issues as part of their reinvestigation of your dispute.

I think that is about as far as you can go in the administrative dispute process using the sole authority of the FCRA. To get a legal consideration of all of the facts, and thus the accuracy of their reporting by a party with the authority to make their own findings of fact, you would, in my opinion, have to resort to filing a civil action against them. That would open the door to the legal discovery process afforded by the court, and get all of the facts considered.