FCRA CLASS ACTIONS: A Plaintiff*s Approach

Report
JAMES A. FRANCIS
Francis & Mailman, PC
Land Title Building, 19th Floor
100 South Broad Street
Philadelphia, PA 19110
Phone: 215-735-8600
Fax: 215-940-8000
E-mail: [email protected]
www.consumerlawfirm.com
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Why seniors may be subjected to unlawful
debt collection and credit reporting practices
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Rampant Abuse in Collection Industry
FTC receives more complaints about debt collectors
than any other industry, 140,036 in 2010
Bad Debt Buying Industry has exploded
Seniors perceived as vulnerable and having access to
income, even though may be fixed;
Often credit inactive
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Federal laws which prohibit unfairness, deception and
harmful tactics by debt collectors and credit reporting
industry
Mandatory attorney’s fees provide for free/no cost
representation by private lawyers;
Can recover $1000 statutory damages under FDCPA,
plus any actual damages, FCRA actual damages
FDCPA “strict liability”statute/FCRA very specific as
well
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o
FTC and its website;
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Consumer Financial Protection Bureau (CFPB)
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Senior Law Center
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Private lawyers/consumer advocates who will usually work
on a contingency;
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www.creditreportproblems.com
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Common Unlawful Collection Practices
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Repeated, harassing and abusive phone calls;
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Contacting family, neighbors and 3rd parties to
embarrass consumer into paying debt;
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Lies/deceptions/misrepresentations—too many to list
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Reporting debts on credit report that are prohibited
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FDCPA prohibits harassing and abusive
communications generally
No calls before 8AM or after 9PM
Right to demand verification/validation of a debt
Right to impose “cease and desist” on
communications
The Telephone Consumer Protection Act, its
applicability, cell phones and the Do Not Call List
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Date
Your Name
Your Address
Your city, state, zip code
Name of Collection Agency
Address
City, state, zip code
Dear Sir/Madam:
After being contacted on numerous occasions by employees of your agency, I am writing to demand that you
cease and desist contacting myself or anyone else regarding this debt and in the future only contact me through
US Mail. I also request that you send written verification that I owe this debt to your company.
Sincerely,
(sign here)
Your name
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o
FDCPA prohibits debt collectors from speaking with 3rd
parties about a debt except for “location information”
o
FDCPA prohibits calls to the workplace/employer if
debt collector knows consumer cannot take calls there
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Common Lies and Misrepresentations
Punishable Under FDCPA
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Consumer will be arrested or go to jail
Threatening to sue or suing on old debts
Social Security income is attachable
“Sheriff is coming” to take house, cars or other property
Senior liable for debts of children/family
members
 Client Seena Rosenberry case and the CBS
story
Children/family liable for debts of senior
Senior liable for medical billing/Medicare submission errors
Debt will be reported on credit report even though old
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Misreporting Debts/Account Information
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Reporting false or otherwise prohibited information on
consumer’s credit report
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Both FDCPA and FCRA prohibit false credit reporting
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Increasingly utilized tactic because of the “leverage”
and pressure it creates and growing consumer
awareness
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o
Reporting negative information after 7 years/Debt
Reaging
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Reporting account without noting that it has been
disputed by the consumer
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Reporting prohibited information about medical
bills/procedures (including reimbursement
submissions)
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o
Debt Collector buys delinquent or past due account that
is older than 7 years
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Age of debt relates to “date of first delinquency”
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Debt Collector assigns the date of collection as the date
of first delinquency, reaging debt another 7 years;
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FDCPA section 1692g
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FDCPA section 1692e(8)
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FCRA section 1681i and 1681 s-2(b)
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DC must advise consumer of right, and specifics of the debt
(clearly outline the debt and creditor to whom owed)
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Within 30 days of first communication from a debt
collector, and within writing
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Gives consumer right to demand that debt collector provide
verification or “proof” of the debt
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Debt Collector must cease collecting during verification
period
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Prohibits debt collector from reporting the debt to
anyone, including a credit reporting agency without
noting its disputed status
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Dispute can be orally or in writing
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Failing to note the disputed status an automatic
violation;
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Apply to credit reporting agencies and creditors, not just debt
collectors
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Require both to conduct an investigation of the consumer’s
dispute, and failing to do so allows consumer to sue for
damages
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Dispute MUST be made to the CRA
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Even if the investigation results in verification of the
debt/account, must still report disputed status
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Date
Your name
Your address
Your city, state, zip code
Name of CRA and/or furnisher [Equifax, Experian, Trans Union]
Address
City, state, zip code
Dear Sir/Madam:
After reviewing my credit report, I am writing to dispute the following inaccurate information. I am listing each item along with the way it should be corrected:
[Account name] [Account number] [How it should report/Why it’s inaccurate*]
Supporting documents have been enclosed. Pursuant to the FCRA, please forward them to the credit furnishers. If you are not going to forward them, please inform me so I
may do so myself.
Sincerely,
(sign here)
Your name
Your Social Security Number
Your Date of Birth
Enclosures: (list what you are enclosing – examples: police report, fraud affidavit, proof of payment, etc)
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o
Use of someone’s name and personal identifying information
to buy goods, obtain money and use credit
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Seniors sometimes targeted because often not credit active
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o
Secret Credit Card Swiping
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ATM Fraud
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Mail left at old addresses
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Order Credit Report Regularly
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FACTA/FCRA now permits free report once a year
from each of the CRAS
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Look at credit history AND inquiries for creditors you
don’t recognize
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Fraud Alerts
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Invoking FDCPA right to demand
verification/validation
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Fair Credit Billing Act for Charges
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Right to Disputes to Big 3 CRA’s and debt collectors
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