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Office of Disciplinary Administrator

1St Floor

701 Jackson Street

Topeka Ks 66603

This is a complaint against attorney Sean A. McElwain of 1420 NW Vivion Rd. Suite 105
Kansas City, Mo 64118.

Case Number: 2018LM114P Capital One Bank vs. Matthew D.Schwob filed in Crawford
County District Court:

Greetings Disciplinary Committee:

I would like to make a complaint against attorney Sean A. McElwain for failure to follow
ethical rules under the Kansas Rules of Professional Conduct. Mr. McElwain has filed a
frivolous claim against me which is not allowed under KRPCRule 3.1 Meritorious Claims
and Contentions because he has filed a claim against me for Capital One in the amount of
$2,111 when my March of 2018 Experian Credit Report shows this account ending in
88982 has already been (WRITTENOFF). Capital One contacted me by letter dated March
22.2018 even after attorney McElwain had filed this claim against me on 02/15/2018. I y7;,
had previously sent Capital One a CEASEANDDESISTletter and made this as a claim in
statement 5 of my counterclaim against Capital One but yet Capital One is still contacting
me after I have filed an answer/counterclaim on 03/16/2018!!!!

Capital One informed me in the letter dated March 22, 2018 in statement 7 that there is a
IRS Reporting of Debt Forgiveness if Plaintiffs cancel or forgive $600 or more ofprincipal on
a debt and I never received this form from Capital One even though Capital One had dosed
this account and (written off) $2,111 on this account back in November of2016 on this
alleged account and now Capital One is trying to (DOUBLEDIP) and collect $2,111 after
their insurance has already paid this on a profit/loss insurance write off as evidenced by
my Experian Credit Report which says this account has been (WRITTENOFF)!
I have not seen any proof that Capital One has not sold this account with a (BILLOF SALE)
and sold the account for pennies on the dollar to another collection agency after it was
closed in November of 2016 and written off according to Defendant's March 2018 Experian
credit report. I also would like Sean McElwain investigated to see ifhe is (HIDINGAS THE
DEBTCOLLECTORANDHASPURCHASEDTHIS CLAIM)since this account has been
(WRITTENOFF). Capital One has not proved that they are still the LEGALHOLDERIN DUE
COURSEon this account and that no one else has purchased this claim as a (debt collector)
since this account has already been closed and written off back in November of 2016. I
plan to subpoena Capital One's tax information on this account atthe Discovery phase to
find out if Plaintiff did in fact cancel and forgive $600 or more of the principal on the
alleged debt on this account and Capital One forgot to turn in an IRS Reporting of Debt
Forgiveness and forgot to send Defendant a 1099-C tax form.

My Experian Credit report reports in March of 2018 that I was OKon April of 2016 and
shows I was first late in May of 2016 which contradicts the credit reporting of Transunion
which states that my last payment was made on 03/04/2016 and that is why I have
requested a verification of debt under title 15 u.s.c, 1692g with a complete, 100%.
transaction and payment history on this account (certified with an affidavit from the
original creditor, if any) so as to prove that the debt amount Plaintiff wish to collect is
correct. Also, include an itemized list of ALLcharge-off fees. who is the current creditor.
Bill of SaleI Purchaser of Loan assignments. profit/loss insurance information. and any
other interests.

I have three (3) different credit reports from the three (3) major credit reporting
companies which are Experian, Equifax, and Transunion and they have different
information being reported by Plaintiff on this account. (Exhibit A, B,C). Transunion
reports in March of 2018 that there was a maximum delinquency of one hundred twenty
(120) days in 08/2016 and in 09/2016 and that Defendant's last payment was made on
03/04/2016 which would make Defendant one hundred fifty (150) days late in 08/2016
and Defendant disputes the accuracy of this credit reporting. (Exhibit B). Equifax reports in
March of 2018 thatthe date of 1st Delinquency was in OS/2016 which contradicts the
report by Transunion which states the last payment made by Defendant was on
03/04/2016. (Exhibit C)

I have also alleged a violation of the Federal Credit Reporting Act in statement number 4 of
my counterclaim and claimed that Capital One has been reporting the alleged debt against
me without any proof and this is a violation ofFCRA Section 623 and a possible $1,000.00
fine as well. I have also not seen the contract between Capital One and their attorney and
according to "RULE226. KANSASRULESOF PROFESSIONALCONDUCT"RULE1.5 FEES
states that a lawyer's fees should be reasonable and state whether alee is fixed or
cQ,ntingent. I would like to see if the contract between Capital One and thier attorney to see
whether the contract is fixed or contingent in accordance with RULE1.5 FEES(a)(8).

According to RULE1.5 FEES(f)(3) A lawyer shall not enter into an arrangement for, charge,
or collect a contingent fee in any other matter in which such a fee is precluded by statute. I
also dispute Capital One's claim that the alleged balance on the account is $2111.14 and
Defendant believes Plaintiff did not comply with K.S.A. 16a-2-401 Finance charge for
consumer loan; loan secured by mortgage or interest in manufactured; prepaid finance
charges. (1) For any consumer loan incurred pursuant to open credit, including, without
limitation, a loan pursuant to a lender credit card, a lender may charge a finance charge at
any rate agreed to by the parties, SUBJECT,HOWEVER,TO THE LIMITITATIONSon prepaid
finance charges set forth in subsection (6). This subsection does not apply to a consumer
loan secured by a first mortgage or a second mortgage.

(a) 36% per annum on the portion of the unpaid balance which exceeds $860 or less, and
(b) 21% per annum on the portion of the unpaid balance which exceeds $860, subject,
however to the limitations on prepaid finance charges set forth in subsection (6).

Capital One also contacted Defendant's mother about this alleged debt and according to
FDCPASection 80S(b) this type of behavior of the Plaintiff is a violation and a possible
$1,000.00 fine as well because a debt collector is not allowed to contact a 3rd party.

Capital One has never validated the alleged debt of $2111.14 to me yet Capital One has
reported the negative information on my credit report which violates FDCPASection
809(b) and carries a possible $1,000 fine.

Capital One has been reporting the alleged debt against me without any proof and this is a
violation of FCRASection 623 and a possible $1,000.00 fine as well.

I had previously sent Capital One a CEASEANDDESISTletter yet they still call, write letters,
and harass me and this is a violation of FDCPASection 806 and a possible $1,000.00 fine as
well.

I have also received phone calls after 9 PM from Capital One trying to collect on the above
claim which violates FDCPASection 805(a)(1) which carries a possible $1,000 fine.

Capital One has also claimed to garnish my income which violates FDCPASection 807 and a
possible $1,000 fine.

I have been harassed and abused by Capital One trying to collect on the above claim of
$2111.14 by contacting my mother on the telephone and by contacting me after 9 PM
which also is a violation of FDCPASection 806 and a possible $1,000 fine.
I feel that Capital One and their attorney filed a frivolous claim under KRPC Rule 3.1
Meritorious Claims and Contentions and K.S.A. 16-1118(a) A debtor or a creditor may not
maintain an action for legal or equitable relief or a defense, based in either case upon a
failure to perform on an alleged credit agreement, unless the material terms and conditions
of the agreement are in writing and signed by the CREDITOR and the debtor because I have
never been provided a copy of any contract that was signed both by myself and Capital One.

I feel that the following KRPC Rules have been violated:

KRPC Rule 1.1 Competence, KRPC Rule 1.2 Scope of Representation, KRPC Rule 1.4
Communication, KRPC Rule 1.5 Fees(8), KRPC Rule 1.16 Declining or Terminating
Representation, KRPC Rule 2.1 Advisor, KRPC Rule 3.2 Meritorious Claims and Contentions,
KRPC Rule 3.4 Fairness To Opposing Party and Counsel, KRPC Rule 3.7 Lawyer as Witness,
KRPC Rule 1.7 conflict of interest, KRPC Rule 1.16(a)(1)(S) Declining or Terminating
Representation, KRPC Rule 4.1 (a) (b) Truthfulness in Statements To Others, KRPC Rule 4.4
Respect for Rights of Third Persons, KRPC Rule 7.1 Communications Concerning a Lawyer's
Services, and KRPC Rule 8.4(a)(c)(d)(g) Misconduct.

I also would like Mr. McElwain investigated for KRPC Rule 1.7 Conflict of Interest and KRPC
Rule 3.7 (a) Lawyer as a Witness because I plan to subpoena him to testify in this case to see
ifhe is in fact the [DEBT COLLECTOR HIDING) on this account that has been (WRITTEN OFF]
and turned in as a profit/loss insurance claim which I feel would create a conflict of interest
and an imputed disqualification under KRPC Rule 1.10 Imputed Disqualification. I have
already offered a (SETTLEMENT) to drop my counterclaim if Capital One drops there
frivolous claim against me but attorney McElwain declined.

The Kansas Court of Appeals has adopted the following factors that must be considered
when weighing a motion to disqualify an attorney based upon the opposing party asserting
the attorney is a material witness: "(1) Whether it had been shown that the attorney will give
evidence material to the determination qfthe issues being litigated: (2) whether the evidence
could not be obtained elsewhere: and, (31 whether the testimony would have been prejudicial
or potentially prejudicial to the testifying attorney's client." National Bank of Andover, N.A.,
30 Kan. App.2d at 792.

Cottonwood Estates v. Paradise Builders, 128 Ariz 99, lOS, 624 P2d 296, 302 (1981), in
which the court stated that '[when an attorney is to be called as a witness other than on
behalf of his client, a motion for disqualification must be supported by a showing that the
attorney will give evidence material to the determination of the issues being litigated, that
the evidence is unobtainable elsewhere, and that the testimony is or may be prejudicial to
the testifying attorney's client. 'See also J.P. Foley & Co. v. Vanderbilt, 523 F2d 1357 (CA2
1975); Freeman v. Kulicke&Sojfa Industries, 449 FSupp. 974 (EDPa 1978); Connellv.
Clairol, 440 FSupp 17, 18 n. 1 (NDGa 1977); Miller Electrical Construction v. Devine Lighting
Co., 421 FSupp 1020 (WDPa 1976); Brown v. DeRugeris, 92 CalApp3d 895, 155 CalRptr 301
(1979)."

POSSIBLECASELAWANDARGUMENTSOFAUTHORITY

In 2004, Judge Rome ruled that the Bretz law firm must be disqualified from representing
Venters in this case because of Rice's employment at the Bretz firm after his mover from
the Gilliland firm. This disqualification of the Bretz law firm is known as "imputed
disqualification." See, e.g., Monroe v. City of Topeka, 267 Kan. 440, 446, 988 P.2d 228
(1999).

This court has noted that "KRPC3.7 prohibits a lawyer from being an advocate at a trial in
which the lawyer is a material witness on a contested issue." (Emphasis added.) Dimaplas,
267 Kan. at 71 (citing In re Harris, 261 Kan. 1063,934 P.2d 965 [1997].

KRPC3.7 provides that an attorney's testimony must not only be possible or likely but
necessary. (2009 Kan. Ct. R.Annot. 562); see LeaseAmerica Corp., 19 Kan, App. 2d at 747
(noting that the language in KRPC3.7 "requires an even more specific showing of
necessity").Comment 4 to KRPC3.7 explains that a judge should apply a balancing test
rather than automatically disqualify. (2009) Kan.Ct. R.Annot. 563); see Lansing-Delaware
Water District, 248 Kan. at 571.

"Our court in In re Estate of Koch, 18 Kan. App.2d 188,215,849 P.2d 977, rev. denied 253
Kan. __ Dune 18, 1993), held the determination of whether an attorney suffers under a
conflict of interest is a question of law, citing Miller and Haynes v. First Nat'l State Bk. Of
N.J.,87N.J.163,432 A.2d 890 (1981).

Please investigate attorney Sean McElwain as a (DEBTCOLLECTORSFORVIOLATIONSOF


THE FAIRDEBTCOLLECTIONPRACTICESACT)and the following codes:

1. Misrepresentations by the collector about themselves of the debt are actionable


regardless of intent Protection under the FDCPAGearing v. Check Brokerage Corporation
233 F.3d 469 (7th Cir. 2000) and a fine of $1,000. Debt collector Sean McElwain has also
misrepresented the balance on the account since the $2,111 he is trying to sue for has
already been (WRITTENOFF) and this violates protection under the FDCPA. The balance
on my Capital One has remained at $2111 even after this account was closed and
(WRITTENOFF) in November of 2016. I feel this is a misrepresentation by Capital One and
debt collector Sean McElwain about this account that has been turned in as an insurance
profit/loss write off and this is actionable regardless of intent and a $1,000 fine according
to protection under the FDCPA"Gearing v. Check Brokerage Corp 233 F.3d 469 (7th Cir.
2000). 15 U.S.Code title 15 Section 1692e- false or misleading representations, Section
807

2. Collection agency can NOTbe BOTHpurchaser and assignee it's one or the other
protection under the FDCPAGearing v. Check Brokerage Corporation 233 F.3d 469 (7th Cir.
2000) and a fine of $1,000. Sean McElwain has not disclosed the (BILLOF SALE)for the
charged off insurance profit/loss write off and he has not shown his contract under K.R.P.C.
Rule 1.5 Fees (a)(3)(4)(5)(8)(b)(d)(f) to represent Capital One as an attorney to show ifhis
fee is fixed or contingent or if he is hiding as the (DEBTCOLLECTOR).

3. Creditors or collection agencies, and credit bureaus if they try and "re-age" your account
by updating the date of last activity on your credit report in the hopes of keeping negative
information on your account longer Consumer protection afforded by the FCRA,FCRA
Section 605( c) running of the reporting period and $1,000 fine. Experian has already
reported this account as (WRITTENOFF) in November of 2016 yet Experian, Equifax, and
Transunion are still showing a balance of $2,111 being reported by Capital One after it was
closed and (WRITTENOFF) in November of 2016. This account has been re-aged and by
Capital One reporting a balance of$2,111 that is (WRITTENOFF). Section 808. Unfair
practices (15 USC1692f)

4. This also seems to violate FCRASection 623 because the creditor failed to report the
debt as "DELETED"in accordance with title 15 U.S.c.1681(i) on Experian and Transunion
like Equifax previously "DELETED",

5. Sean McElwain also violated FDCPASection 807(8) which is another $1000 fine by
failing to DELETEthe accounts off of Experian, Equifax, and Transunion. I feel that debt
collector Sean McElwain also violated FDCPASection 809(b) which says "collection
agencies if they do not validate your debt yet continue to pursue collection activity (file for
judgments, call or write you). He and Capital One have also violated FDCPASection 805( c)
because I sent them a cease and desist letter and they are still contacting me on March 22,
2018 about this alleged account that was (WRITTENOFF) off of Experian in November of
2016. This also seems to be a violation ofFDCPA Section 807 which says "collector cannot
claim to garnish your wages, seize property or have you arrested" which by filing a lawsuit
they are trying to garnish my wages even though they have already (WRITTENOFF) this
account off of Experian. This also seems to be a violation ofFDCPA Section 805(b) which
says "the collection agency can not use any kind of harassment or abuse" and all three of
these violations are a $1,000 fine.

6. Sean McElwain and Capital One have also violated 15 U.S.c.1692e(8) which states that a
debt collector is liable when they communicate with a CRAand report information that
know to be false!
This account has also already previously been turned in as an "INSURANCE PROFIT/LOSS
WRITE OFF"in the tax year of 20 16 after it was closed on November of 2016 and Capital
One's insurance has already paid this debt as a "CHARGEDOFFINSURANCE CLAIM': Capital
One is trying to double/dip which is illegal and still collect on a debt that their insurance
agent already paid for and Sean McElwain is hiding as the debt collector!!! THIS IS
INSURANCE FRAUD AND THE IRS NEEDS TO BE CONTACTED TO MAKE SURE Capital One
REPORTED THIS WRITE OFF ON THERE TAXES AND THEREFORE THEY CAN NOT
COLLECT!!!!

This claim was only for $2,111 and if anything Capital One should have filed this in (SMALL
CLAIMS COURT) for amounts $4,000 and under where attorneys are not allowed under
K.S.A.61-2707(a). I am also considering filing a lawsuit against Sean McElwain in Small
Claims Court for the unnecessary money he has made me waste on computer ink, paper,
envelopes, and stamps for having to defend a (friviolous claim) that has already been
(WRITTEN OFF) in November of 2016.

Please investigate Sean McElwain for all of the violations of the Kansas Rules of
Professional Conduct that he has committed in this case and please put a (STOP) to Capital
One and there wrongful credit reporting and violations of the FCRA and FDCPA!!! I have
also included an article written on July 22,2014 titled (SIXTH CIRCUIT BROADENS FDCPA
VERIFICATION REQUIREMENTS FOR DEBT COLLECTORS) which shows that in Haddad v.
Alexander. Zelmansld. Danner & Fioritto, PLLC,--F.3d(6th Cir. 2014), 2014 WL 3440174
(6th Cir. Mich. 2014), 2014 U.S. App. LEXIS 13498, the Sixth Circuit expanded the
requirement for how a debt collector must respond to a debtor's request for verification of
debut under the Fair Debt Collection Practices Act, 15 U.S.e. Section 1692. I have also
included an article called (Combating Debt Collectors' Misuse of Credit Reports: Merging
Debt Collection Abuses and False Credit Reporting under the FDCPA and FCRA) by Richard
Rubin who is a private attorney in Santa Fe, New Mexico.

Sincerely,

Matthew Schwob

1822 JF Kennedy

Pittsburg Ks 66762
MATTHEW D SCHWOBj Report # 2206-6304-82 for 03/20/18

The most common items in this section are late payments, accounts that have been charged off or sent to collection,
bankruptcies, liens, and judgments, It also may contain items that are not necessarily negative, but that a potential
creditor might want to review more closely, such as an account that has been settled or transferred, This information is
generally removed seven years from the initial missed payment that led to the delinquency, Missed payment.s and most
public record items may remain on the credit report for up to seven years, except Chapters 7, 11 and 12 bankruptcies,
which may remain for up to 10 years, Unpaid tax liens may remain for up to 10 years from the filing date, and paid tax
liens may remain for up to seven years from the filing date. Transferred accounts that have not been past due remain up
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to 10 years after the date the account was transferred.

Credit items
CAPIT.4L ONE Partla! account # 5 '17805835482. PO BOX 30285, SALT LAKE CITY, UT 84130 or (800) 227 4825
-. -.-----------.---.-------.-~---------~----.~.--.----.---------------------.---.- ------------.-.------
Dateopened First reported Recent balance Payment Ilis!L'I/
Mar 2015 Apr 2015 52, i 11 as of Mar 2018
Jan Feb Mar Apr Mall Jun Jul Aug Sep Oct Nay Dee
Address 10# Terms Status
0137003810
Type
Credit card
Responsibility
Inoividua:
Notreported
Monthly payment
Not reported
Credit limit or original
amount
Accountchargedoff,
$2,111 writtenoff, $2.111
past due as of Mar 2018,
This accountis
scheduled to continue on
2017

2016
2015
"'.,
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- ~

. •
-< ~
~;a - ~~
g"'?;' ~ §f'ii ~~
~ ~

~1..~~
~
~
m
£2,000 record until Feb 2023 (
High balance Comment: .

n. \ u.,\ (.Q 52.111 l ~


bC
i\ccou~t closed at credit
grantor s request.
\\ A \
-....l .P y :
f)
.j. (5{ '0
L
pc,-'1. M~j
'
1 5
p ~. .."
~ncu'O'
\I)·~).,L

v z,.e(O~C·-r,
".JOate of Status..
Nov2016 uK
Account History * (AB = Account Balance, DPR = Date Payment Received, SPA = Scheduled Payment Amount, AAP = Actual Amount Paid)
Feble ,Janie Dec17 Nav17 Oet17 Sep17 Aug17 Jul17 Junl7 Mayl7 Apr17 Marl7 Feb17 Jan17 Dee16
AB($) 2,111 2.111 2,111 2,1',1 2,111 2,111 2,111 2,111 2,111 2.111 2,111 2,111 2,111 2,111 2,111
OPR Mac().!, MaC()4 MaC()4 Mar.:l4 Ma<G4 Maru4 Ma<G4 Mat1J4 MaC()4 MaC()4 MaC()4 Ma<'J4 Ma<'J4 Mar04 Ma<'J4
SPA ($) ND ND ND ~~D ND NO ND NO ND ND ND ND ND NC ND
AAP($) ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ NO
Nav16 Sep16 Aug16 Jult6 Jun16 Mall16 Aprl6 Marl6
AB ($) 2,111 2,071 2,031 1,991 1,954 1,881 1,811 1,742
DPR Mar04 Mar04 Mar04 Mar04 Mar04 Mar04 Mar04 Mar04
SAA~ ~ ~ S ~ ~ B8 ~ ~
~m ~ ~ ~ ~ ~ ~ ~ ~
Between Mar 2016 ano Fei) 2018, !,OIlT credit limit/iliail tietence was 52,000

PORTFOLIO RECOVERY ASSOCIATESPaliial 120 CORPORATE BLVD STE 100. NORFOLK, VA 23502 or (844)675 3408
'# 603220335'118, ..
aCCO;.I11t
Dateopened First reported Recent balance Payment historv
Oct 2017 Feb 2018 $1 ,825 as of Mar 2018 Jan Feb Mar Apr Mall Jun Jul Aug Sep Oct Nay Dee
Address 10# Terms Status
0137003810 1 Months Collection account. 2018 ~ "~ ":'~~
Original creditor Monthly payment $1,825 past due as of
SYNCHRONY SANK Not reported Mar 2018,
Account Hrstory> =
(AS Account Balance, DPR =
Date Payment Received,

Type Credit limit or original This account is


SPA = Scheduled Payment Amount, AAP =
Actual Amount Paid)
Feble Feb18
Debt Buver amount scheduled to continueon
AS ($) 1,825 1,825
Responsibility $1.825 recorduntil Mol' 2023, DPR NO NO
Individual High balance Dateof Status SPA ($) ND NO
Not reported Feb 2018 AAP(S) ND ND
The original amount of this account was 51,825

SYNCHRONY BANKf\NALMART Partial account '# PO BOX 965024. ORLANDO, FL 32896 or (877) 294 7880
6032203:35118 .
Dateopened First reported Recent balance Payment history
Nov2015 Nov 2015 $0 as of Nov 2017 Jan Feb Mar Apr May Jun Jul Aug Sep Oct Nav Dee
Address 10# Tenns Status
0137003810 Notreported
Monthly payment
Closed. $1,824written 2017 im ~ \~~&11 FA(~ m!'i' ~ ~~ ~ IE
Type off. 2016
Charge Card Not reported Comment:
Responsibility Credit limit or original Purchased by another\:015
Individual amount lender.
S 1 400 Dateof Status \ }..,.N
") W (\'1"'-
Personal Information You have been on our files since 09/10/2005

SSN: XXX-XX·5631 Date of Birth: 12/18/1983

Names Reported: MATTHEWD. SCHWOB, MATT SCHWOB, and /\iATT D SCHWOB

Addresses Reported:
Address Date Reported Address Date Reporte
1822 J F KENNEDYST, PITTSBURG,KS 66762·5728 10/3112015 1501 N EUA ST. PITTSBURG,KS 66762'3132
1118 S ELM ST, PITTSBURG,KS 66762-5805 05/01/2005 502 S CHESWUT ST. PITTSBURG,KS 66762-4934
1251 S 230TH ST, PITTSBURG,KS 66762·6856 06/01i2005

Telephone Numbers Reported:


(620) 249-0912 (620) 231·7796 (620) 241-5699 (620) 308-6711

Employment Data Reported:


Employer Name Date Verified
SELFEMPLOYED 04/05/2017

Adjustable Rate Mortgage Information


PUBLIC RECORD MORTGAGE DETAilS
Recorder's Office: Origmaticn Date: Loan Amount: 55:.52·:
CR.AWFORD.KS

Account Information
Typically, creditors report any changes made to your account iniormation monthly This means mat some accounts listed below may no reflect the most recent a:
until the creditor's next reporting. This information may include things such as balances, payments, dates. remarks, ratings, etc. The keyes) below are provided tc
you understand some of the account information that could bE reported
Ra..tLngK~¥
Some creditors report the timeliness of your payments each month in relation to your agreement with them. The ratings in the key below describe the payments t
may be reported by your creditors. Any rating that is shaded indicates that it is considered adverse Please note: Some but not all of these ratings may be preser
your credit report.

N/R x OK 30 60 90 120
.------------_._--'-------------- ----------------------------.-
COl VS RPO
-----------_.----------------------
F(
Voluntary
Not Reported: Unknown Current 30 days late 60 days late 90 days late 120+ days Collection Repossession Charge Off Foraclc
- late Surrender

f{~JJla..I~KE;!¥
Additionally. some creditors may notate your account with comments each month. We referto these creditor comments as "Remarks". The key below gives the
descriptions of the abbreviated remarks contained in your credit file An remark containing brackets> ( indicates that this remark is considered adverse.
CBG CLOSEDBY CREDITGRANTOR ClO CLOSED PAL PURCHASEDBY ANOTHERLENDER
>PRL< UNPAID BALANCECHARGEDOFF

Adverse Accounts
CAPITAL ONE BANK USA NA #51780583 5482**** (PO BOX 30281, S,4LTLAKECITY. UT 84130, (800) 955·7070)
DateOpened: 03/27/2015 Date Updated: 03/0412018 PayStatus: >Charged Ofll
Responsibility: Individual Account last Payment Made: 03/04.2016 Terms: Paid Monthly
Account Type: Revolving Account Original Charge-off: S2,111 Date Closed: 11/06/2016
Loan Type: CREDITCARD >Maximum Delinquency of 120 days in 08
<...~r$432(

04
~:;:::j~
Balance
J,j.~1Scheduled
L •••• ~ Payment
Amount Paid $0 $0 $0 $0 SO $0 $0 $0 $0 so.
$ 2.,11 li $2,111j
High Balance i $2,111: $2,111i $2,111 $2,111 sz.n n $2,111 $2,111 $2,111 $2,111 $2,111 $2,111
Remarks I CBG/PR4 CBG/PRY' CBG/PRO CBG/PRU CBG/PRW CBG/PR4 CBG/PR4 CBG/PRlj CBG/PRY CBG/PRU CBGjPRUC

nnnnnn 02 05 000045 00
EQ..UIFAX
CREDIT FILE: March 20, 2018 Confirmation # 8079070~
.Pel'$onaJldentificationlnformation .....•
(ThissecfioninclUdes yoUfname, .current alllf prtJv~U$ Please address all future correspondence to:
lIddresses, and any other identifying miormatieJnrePf'l'ted by your creditoris.).·· . . .. ..

Name On File:
Social Security #
Current Address:
Matthew Schwob
XXX-XX-5631 Date of Birth: December 18. 1983
1822 J F Kennedy St. Pittsburg. KS 66762 Reported: 03/2018
*'
~
www.investigate.equifax.com
Equifax Information Services LLC
P.O. Box 105314
Atlanta GA 30348
Previous Address(es): 1501 N Elm St. Pittsburg. KS 66762 Reported: 03/2018
1118 S Elm St. Pittsburg. KS 66762 Reported: 03/2018 (866) 238-6559
502 S Chestnut St. Pittsburg. KS 66762 Reported: 12/2014 M - F 9:00am to 5:00pm in your time zone.
1251 S 230th St. Pittsburg. KS 66762 (620) 231-7796 Reported: 10/2015
Last Reported Employment: Small Construction; Self Employed:
Credit Account Information
(For your security, the last 4 digits of account number(s) have been replaced by') (This section includes open and closed accounts reported by credit grantors)
Account Column Title Descriptions:
Account Number - The Account number reported by credit grantor Amount Past Due - The Amount Past Due as of the Date Reported
Date Acct. Opened - The Date that the credit grantor opened the account Date of Last Paymnt - The Date of Last Payment
High Credit· The Highest Amount Charged Actual Pay Amt - The Actual Amount of Last Payment
Credit Limit - The Highest Amount Permitted Sched Pay Amt - The Requested Amount of Last Payment
Terms Duration - The Number of Installments or Payments Date of 1st Delinquency - The Date of First Delinquency
Terms Frequency - The Scheduled Time Between Payments Date of Last Actvty - The Date of the Last Account Activity
Months Reviewed - The Number of Months Reviewed Date Maj Delq Rptd - The Date the 1st Major Delinquency Was Reported
Activity Designator - The Most Recent Account Activity Charge Off Amt - The Amount Charged Off by Creditor
Creditor Class - The Type of Company Reporting The Account Deferred Pay Date - The 1st Payment Due Date for Deferred Loans
Date Reported - Date of Last Reported Update Balloon Pay Amt - The Amount of Final(Balloon) Payment
Balance Amount - The Total Amount Owed as of the Date Reported Balloon Pay Date· The Date of Final(Balloon) Payment
Status - Condition of Account When Last Updated by Creditor Date Closed - The Date the Account was Closed
or Otherwise
Account History 1 : 30-59 Days Past Due 5 : 150-179 Days Past Due J : VOluntary Surrender
2 : 60-89 Days Past Due 6 : 180 or More Days Past Due K : Repossession
Status Code 3: 90-119 Days Past Due G : Collection Account L : Charge Off
Descriptions 4: 120-149 Davs Past Due H: Foreclosure
Capital One Bank USA Na PO Box 85015 Richmond VA 23285-5015: (800) 955-7070
Account Number Date Opened High Credit Credit Llmil Terms Durauon Terms Frequency Months Revd ActlvJ!y Desienato Creditor Olassmcanon

517805835482* 03/27/2015 $2.000 Monthly 35 Closed


Items As 01 Balance Amount Date of Actual Scheduled Date ot 15t Dale ot Date Mal. Charge Off Deferred Pay Balloon Pay Balloon Date
Date Reported Amount Past Due Last Paymnt Paymnt Amount Paymnt Amount Delinquency Last ActiVity Del. t st Rptd Amount Start Date Amount Pay Date Olos.
03/04/2018 $2,111 $2.111 03/2016 05/2016 11/2016 $2.111
Status - Charge Off: Type of Account - Revolving; Type of Loan - Credit Card: Whose Account -Individual Account: ADDITIONAL INFORMATION - Charged Off Account: Account
Closed By Credit Grantor; ,
Account History 0212018 0112018 1212017 1112017 1012017 0912017 0812017 0712017 0612017 05/2017 04/2017 0312017 02/2017 0112017 12/2016 1112016 09/2016 08/2016 0712016 0612016 0512016
with Status Codes L L L L L L L L L L L L L L L L 5 4 3 2 1
0212016
1

( Continued On Next Page) Page 4 of 22 80790702673PD-002697651- 2324 - 330~


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UF March 22, 2018
Matthew D Schwob
1822 J F Kennedy St
Pittsburg KS 66762-5728

--=- Re: xxxxxxxxxxxx8892

-- Case #: 10003283672486

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Dear Matthew D Schwob,

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Thank you for contacting us about your Capital One account.
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Please call 1.800.258.93 '19 for help with your request. Please note, some accounts are serviced by third
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party agencies. If this is the case with your account, your call will be routed automatically, and the

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third-party agent can assist you.

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Capital One Services, LLC

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NOTICE: PLEASE READ THE FOLLOWING FOR IMPORTANT INFORMATION.

1. Who We Are. Capital One" Services, LLC is the servicer of your referenced account unless this communication or a separate
communication has informed you of another current servicer. We are a subsidiary of Capital One, National Association, and service
the following Capital One affiliated companies:

• Capital One Bank~ (USA), National Association


• Capital One, National Association

The I-an'e of yOV ueditor has been previously disclosed to you and rs idel~~i.ieo for purposes of this communication by your account

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2. State and Local Disclosures. If you receive this cornmurcet 0, n Ccnr ecncut. :he District of Columbia, Hawaii, Iowa, New

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Yorx ::.ty, ~a"t11 Ca-o ina, or Oregon and your account involves a oeb: c.ved orirr anlv la' personal, fam,il', household, or other
consumer purpose(s), or !f you receive this communication in verrr.or-t .rrespective of 'the nature of the debt associated with your

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account, the following disclosure is required by state or local law:
This is an attempt to collect a (consumer) debt (claim). Any information obtained will be used for that purpose.

-- TI-e follow ng cisclcsrrs is reo uired by state law if your account invoves 3 debt owed primarily for personal, family, household, or

-- o-:I"'e" CCI"';.JMer p,..rrc cse/s: arj yOv receive :his cc-nr-u.-iicet on in Ha'/:a .Jcvva. or Gregor
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for oerscna., family, household. or

ii NOTICE OF IMPORTANT RIGHTS: YOU HAVE THE RIGHT TO MAKE A WRIITEN OR ORAL REQUEST THAT TELEPHONE CALLS

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REGARDING YOUR DEBT NOT BE MADE TO YOU AT YOUR PLACE OF EMPLOYMENT. ANY SUCH ORAL REQUEST WILL BE
== VALID FOR ONLY 10 DAYS UNLESS YOU PROVIDE WRIITEN CONFIRMATION OF THE REQUEST POSTMARKED OR

-!! DELIVERED WITHIN SEVEN DAYS OF SUCH REQUEST. YOU MAY TERMINATE THIS REQUEST BY WRITING TO THE
CREDITOR.

Thrs IS not 3 cor-ip.ete list 0: :h? r ;Jh!> :h3t you mlgh: l13ve Tre ter-ns a::>o,'e 1'1tr-s Section are ~Iefined by applicable state or local
law. Pursuant 15 JSe • 692aIiS'I(B) ard (F) of the Far )el::: Co -ect 0, p·"ct'CE"> Act, Caorta Ope Services, LLC is not a debt collector
under federal law

3. Bankruptcy. If yo •.•are ent.tled :c l;ar,,-uFtcy protect.ens for; cur accou·,t, this cornrn.mication .s cnly for mforrnational
purposes. It is no: an attempt to collect, assess, or -sem'er a debt or cia rr Do r-ot serd any payments directly 10 us without
speaking with your attorney or Bar-k-uptcy "rurree

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4. Electronic Check Conversion. ~vne'1 you orcvde a check as ':3,rrel':, ,Ol. authorize l.S either to use information from your
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.d transfer f'orr. your depos t acccvnt or to process the payment as a check transaction.
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vVhen we use nforrrat'C'J "rOr:1 your check to make ar electrcr-c tund tre nsfer, fL."CJ; may be withdrawn frorn your deposit
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5. Interest and Charges Continue to Accrue. All stated amounts are owed on the date of this communication. If applicable,
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example, if you pay the amount stated in this cornrr-urucaticn, your acco.mt I11'ght still have a balance after ,'Je receive your
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action begins 01' the date of this communication .
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7. IRS Reporting of Debt Forgiveness. If we cancel or forgive 5600 or more of principal on a debt you owe, we will provide you

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a 1099-C tax form if required by law. Please consult your tax advisor anti the instructions acc:ompanyil,g a"y tax forms for more
information.

8. Credit Reporting of Your Settled Account. If we report your settled account to a consumer reporting agency (credit bureau).
we will report it as paid il, full for less thaI' the full balance.

Credit Cards-Collections
Contact Information

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Credit CardS-Charged Off
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1-800-955-6600 1-800-258-9319 I
Mon-Fri: 8 a.m.-11 p.m. ET &Sat-SuI1: 8a.tn.-5 p.m ET Men-Fri' 8 a.m.-·g p.rn. ET I
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DykEMA
I\lerts & Newsletters
Sixth Circuit Broadens FDCPA Verification Requirements for Debt
=irm Publications
Collectors
=vents & Speaking Engagements

Attorneys July 22, 2014

Last week, in Haddad v. Alexander, Zelmanski, Danner & Fioritto, PLLG, -- F. 3d --- (6th Cir. 2014), 2014 WL 3440174 (6th Cir.
Robert Horwitz Mich. 2014), 2014 U.S. App. LEXIS 13498, the Sixth Circuit expanded the requirement for how a debt collector must respond t
a debtor's request for verification of a debt under the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. (FDGPA),
Industries creating the most consumer-friendly verification standard ever.

Consumer. Financial Under § 1692g(b), if a consumer notifies the debt collector in writing within thirty days of receiving the § 1692g(a) notice that he
Services disputes the debt or any portion of it, the debt collector must stop collecting the debt, or the disputed portion of the debt, and
obtain verification of it and mail that verification to the consumer. The Haddad Court confronted the meaning of "verification"
Financial Industry Group
under § 1692g(b), because that term is not defined in the FDCPA.

Haddad received an initial letter from the defendant law firm notifying him that he owed a delinquent condominium assessment
bill. The debtor disputed the amount of the debt in writing within 30 days of receiving the initial letter. In response, the law firm
provided verification in the form of an accounting ledger showing the amounts comprising the total and a letter generally
explaining the charges. The debtor replied with a letter explaining that there was no support for the beginning $50 balance or
the subsequent fines and that the debt was still disputed as to those amounts. The law firm responded by sending a second
letter and ledger providing more details about the charges. The debtor replied by letter again, demanding substantiation of the
beginning $50 balance. The law firm sent a third letter itemizing the debt without explaining the beginning $50 balance and
enclosing a copy of the lien that it later placed on the debtor's condo.

Haddad sued the law firm under § 1692e and § 1692g(b) of the FDCPA, claiming that the law firm had not properly verified the
debt before resuming collection activity. The District Court granted summary judgment to the law firm. The Sixth Circuit reverse
and granted summary judgment to Haddad and against the law firm, finding that the law firm violated 1692g(b). In so doing, it
announced a new standard for verification under § 1692g(b), holding that "the verification provision must be interpreted to
provide the consumer with notice of how and when the debt was originally incurred or other sufficient notice from which the'
consumer could sufficiently dispute the payment Obligation," Haddad, 2014 U.S. App. LEXIS 13498 at 1< 21, The law firm failed
this test because it did not provide information about the nature of the $50 beginning balance that Haddad disputed and instear
continued its collection efforts. Id. at 1< 22. The failure to explain the $50 charge led the Court to conclude that the documents th
law firm provided were insufficient to allow the debtor to dispute the debt. Id.
In announcing this new standard for verification, the Sixth Circuit reviewed other Circuit's rulings on the same issue and found
that those courts had interpreted "verification" as requiring "nothing more than the debt collector confirming in writing that the
amount being demanded is what the creditor is claiming is owed" and that "the debt collector is not required to keep detailed
files of the alleged debt." Id. at * 13-19 (citing Chaudhry v. Gallerizzo, 174 F.3d 394, 406 (4th Cir. 1999); see a/so, Clark v.
Capital Credit & Collection Servs., 460 F.3d 1162 (9th Cir. 2006». However, the Court was quick to point out that in each of
those cases and in others the debt collectors had gone beyond the standard verification requirement by sending itemized
statements to the debtors which provided sufficient information to allow the consumer to dispute the debt. Id. at * 19.

The Sixth Circuit then turned to the 8th Circuit's treatment of verification in Dunham v. Portfolio Recovery Assocs., LLC, 663 F.3d
997 (8th Cir. 2011). There, the debt collector did not obtain additional information from the creditor to verify the debt; it
responded to the dispute by confirming the debtor's name, address, last four digits of his social security number, the outstanding
balance of the debt, the date the debt was incurred, and the date the current creditor had purchased the debt. Id. at * 17. The
6th Circuit explained that the 8th Circuit held that the information provided to the consumer was sufficient verification because it
provided enough information to put the consumer on notice that he was not the debtor when he realized that the last four digits
of his social security number were different from that of the actual debtor. Id. at * 18-19. It was important to the 6th Circuit that
although the 8th Circuit declined to set a higher threshold for verification than that in CI1audhry and Clark, it also noted that
"under different facts, perhaps a debt collector must do more than what the debt collector did here." Id. at * 19 (citing Dunham at
1003).

The Sixth Circuit's verification standard appears similar to that of the 8th Circuit. It seems to have adopted the Dunham Court's
interpretation of "verification" in which it did not attach a specific action to "verification" (such as confirming the amount owed)
but ruled that "the verification requirement was satisfied where the debtor could sufficiently dispute the payment obligation." Id.
at * 19-20. The Sixth Circuit's adoption of this standard appears to be driven by its conclusion that what is sufficient for
verification "depends on the facts of a particular situation ... " ki. at *19.

Although it did not articulate a bright line test for "verification," the Sixth Circuit offered guidance about what it believes would
suffice. For example, in those cases where the debtor appears to acknowledge the account belongs to him but disputes owing
the balance or any portion of it, the Sixth Circuit stated that "an itemized accounting detailing the transaction in an account that
has led to the debt is often the best means of accomplishing that objective." Id. at * 19. Then the Sixth Circuit, stating that it
believed it was making the debt collector's job easier, said that the information used to verify a debt "does not have to be
extensive. It should provide the date and nature of the transaction that led to the debt, such as a purchase on a particular date,
a missed rental payment for a specific month, a fee for a particular service provided at a specified time, or a fine for a particular
offense assessed on certain date." Id. at * 19.

Debt collectors must address several issues in light of Haddad to ensure their compliance management systems are updated to
meet this new verification standard and otherwise comply with Section 1692g(b}. First, because credit reporting may be
considered collection activity, debt collectors should not furnish information to the credit reporting agencies until the
validation/verification period has expired and the debt collector has not received a dispute. Then the debt collector won't have to
request deletion of the trade-line to avoid violating § 1692g(b) in the event it cannot validate the account.
Second, the debt collector must determine the nature of the dispute to know whether proper verification can be provided. The
Sixth Circuit's somewhat flexible standard allows for different types of verification depending on the nature of the dispute. For
example, where a person claims he is not the debtor but does not provide identification sufficient to support his claim, the debt
collector could provide summary information about the account and the last four digits of the responsible party's social security
number. Such notice would allow the person to determine that he is, in fact, not the debtor the collector is seeking.

That type of verification will clearly not suffice in response to a debtor who is the right person but disputes the balanced owed, or
any portion of it. Verification of that debt will most likely require "an itemized accounting detailing the transaction in an account
that has led to the debt." If the debt collector is unsure of the nature of the dispute, nothing prevents it from trying to find out
more about the dispute provided the debt collector does not try to collect (including furnishing information to the credit reporting
agencies) the debt in the interim. And, of course, there is always the option of closing the account in response to the dispute as

permitted by § 1692g(b). '/ W (H'''~N F{ ') c.JoS<?d I tf\ N~V. '-Df to


The real difficulty of the Haddad ruling will be where to draw the line. The Haddad verification standard is a somewhat flexible
standard that requires a factual assessment of the details of each debt and assumes that the debtor has a real dispute that he
wants to resolve. For debtors who simply want to avoid paying, the Haddad verification standard gives them endless
opportunities to demand more verification information, hold off collections indefinitely, and badger debt collectors with trivial Of

irrelevant demands. Debt collectors will need to judge carefully about which demands for verification are frivolous and when the
debt collector has met the burden of supplying sufficient verification. The new standard for verification articulated in Haddad
does not make this task easy. Debt collectors should contact their attorneys for legal advice about how to comply with Haddad.

For further information about how the Haddad standard may impact your business practices, please contact the author of this
alert Robert Horwitz (rhorwitz@dykema.com or 313-568-5384).

As part of our service to you, we regularly compile short reports on new and interesting developments and the issues the developments raise. Please

recognize that these reports do not constitute legal advice and that we do not attempt to cover all such developments. Rules of certain state supreme

courts may consider this advertising and require us to advise you of such designation. Your comments are always welcome. © 2017 Dykema Gossett

PLLC.
o
Combating Debt Collectors' Misuse of Credit Reports:
lvIerging Debt Collection Abuses and False Credit Reporting
Under the FDCPAand FCRA
by Richard Rubin

It is well recognized that reporting a debt to a credit includes a credit reporting protocol that prohibits a collector
bureau is, as one knowledgeable federal judge put it, a "pow- from knowingly communicating false information to a CRA or
erful tool designed, in part, to wrench compliance with pay- failing to disclose to a CRA that a known disputed debt is dis-
ment terms."! Federal Trade Commission staff states, "the puted. Virtually every violation of the FCRA's (unenforce-
reality is that debt collectors use the reporting mechanism as able) requirement for initially accurate reporting may violate
a tool to persuade consumers to pay, just like dunning letters this part of the FDCPA when undertaken by a debt collector.
and telephone calls." 2
The FCRA also complements FDCPA remedies. One
As a result, communications from a debt collector to a significant limitation in the FDCPA is that a non-compliant
credit reporting agency (CRA) should be tested for compli- debt collector is not liable for punitive damaqes.f The FCRA
ance with the Fair Debt Collection Practices Act (FDCPA), as permits recovery of actual damages and attorney's fees,?
any other debt collection activity. 3 Conversely, one should just like the FDCPA, but it also allows the award of uncapped
consider asserting claims under the FCRA whenever a eRA punitive damages whenever a collector/furnisher's non-com-
publishes a credit report that contains inaccurate or incom- pliance is willful. B Thus, when a collector/furnisher willfully
plete information furnished by a debt collector in violation of communicates false information to a CRA as part of the for-
the FDCPA. mal FCRA dispute process, one can combine the resulting
FDCPA violation with the parallel FCRA claim for punitive
Many different types of businesses report debts to CRAs. damages.
Most of them do so to directly or indirectly collect those
debts+ The focus of this article is the FCRAlFDCPA over- Getting Started
lap whenever, as regularly happens, the person who furnish-
es the information to the CRA (referred to as a "furnisher" in Part of case preparation entails reviewing the con-
the case law) is an FDCPA "debt col/ector."5 sumer's credit reports. Consumers have the right under the
FCRA to know the contents of the files maintained on them
Historically a problem, the abuses inherent in combining by any CRA.9 Various options are available to consumers to
debt collection and credit reporting have expanded in recent exercise that right,10 including receiving a free credit report
years with the emergence of the multi-billion dollar distressed disclosure annually from nationwide CRAs, including the Big
debt industry. This industry buys, sells, and re-buys large Three: Equifax, Experian, and Trans Unlon."!
portfolios of defaulted and time-barred debt for pennies on
The FDCPA expressly permits debt collectors to furnish
the dollar and then duns vulnerable consumers for inflated
sums. Many of these bad-debt portfolio buyers misuse the information about consumers to CRAs.12 Proof of the effica-
credit reporting system as a stealth collection device. The cy of credit reporting to collect debts is that collectors fre-
options here may be particularly helpful when confronting quently threaten to report consumer delinquencies to CRAs.
these "bottom feeders." False threats to report the consumer to a CRA are, like all
false threats, prohibited by the FDCPA.13 Routinely review-
Consumers have FDCPA and FCRA rights and remedies ing consumers' credit reports from trye Big Three will help
that can fill enforcement gaps in the other law. For example, determine whether any such threats were false.
the FCRA effectively provides furnishers immunity from pri-
vate enforcement for initially providing inaccurate information Collectors' Role in Insuring the Accuracy
to a eRA. However, the full panoply of FDCPA remedies is of Credit Reports
available to redress this precise misconduct. The reason is
that the FDCPA prohibits debt collectors generally from using The FCRA imposes on collector/furnishers the obligation
any false or deceptive means to collect a debt and explicitly to report only accurate informatlon.l" However, the FCRA
orohibits consumers from enforcing this portion of the FCRA. delinquency or charge-off of the debt, as expressly required
Jnly designated public officials can do so.15 by the FCRA.26 As a result of this ornlsston, the CRA is left
with the false belief that the initial date of delinquency or
The FCRA's primary mechanism to ensure the accuracy charge-off is the more recent "date of last activity" (when the
)f credit reports is the formal reinvestigation process that account was assigned to the collector) rather than a date
must be initiated by consumers with the CRAs. This mecha- months or years earlier, when the debt was in the hands of
nism is privately enforceable against furnishers. Furnishers the original creditor. Misreporting in this manner means that
must investigate the information that they have previously the debt will be included in credit reports long after it has
reported if a consumer disputes the accuracy or complete- become legally obsolete and therefore no longer reportable
ness of that information with the CRA.16 In effect (and in (seven years after delinquency for most debts).27 Are-aged
contrast to the FDCPA), the FCRA allows a collector/furnish- debt may also skew consumers' credit scores, since most
er to misrepresent information one time and even more until credit scoring systems assign a higher negative weight the
the consumer disputes the credit report entry with a CRA.17 more recent the adverse item of information.28
However, a collector/furnisher who fails to fulfill its obligations
This "re-aging" problem has grown particularly prevalent
in the reinvestigation process becomes liable to the con-
and profitable with the emergence of bad-debt portfolio buyer
sumer under the FCRA for actual damages and attorney fees
industry. This purposeful misrepresentation of the date of
for a negligent violation, plus additional statutory and punitive
charge-off resurrects long dormant and nearly worthless
damages when the violation is willful.18
debts with the simple act of false credit reporting. The "re-
The FDCPA contains both general and specific provi- aging" abuse is a manipulation that the FTC has attempted to
sions prohibiting debt collectors from engaging in any form of rein in, but it nevertheless continues at astounding levels.29
misrepresentation or deception. In addition to outlawing
In response to this re-aging problem, Congress amend-
objective inaccuracies, the FDCPA prohibits deception gen-
ed the FCRA in 2003 to provide explicit rules regarding how
erally. The test is the "least sophisticated consumer" stan-
to determine the date of an account's delinquency for credit
dard. Any communication that "can be reasonably read to
reporting purposes. The FCRA now specifies how
have two or more different meanings, one of which is inaccu-
furnisher/collectors should designate the date to ensure that
rate," is deemed deceptive. 19
the date of delinquency precedes the date the creditor placed
The FDCPA also contains a specific provision applicable the account for collection. 30 If no date can be determined by
to debt collectors when they communicate with a CRA. This these procedures, then the furnisher must establish and fol-
provision, § 1692e(8),20 provides a very effective means for low reasonable procedures to ensure that the date reported
consumers to police debt collector credit reporting. Under § precedes the date on which the account is placed for collec-
1692e(8), a debt collector is liable for reporting to a CRA tion, charged to profit or loss, or subjected to any similar
information that it knows or should know is fa/se21 or for fail- action.31
ing to disclose in any communication with a CRA that it
Compliance with these rules would end the reporting of
knows a debt is disputed.22 The eRA naturally is aware that obsolete information and the unlawful re-aging of debts.
the consumer is disputing a debt, because of its own direct However, the abuse continues, perhaps because this new
dealings with consumer through the formal FCRA dispute date designation requirement is one of the several FCRA
process. That knowledge does not relieve the collector from reporting duties that do not provide for private enforcement. 32
this FDCPA obligation to disclose that the debt is disputed,
Nevertheless, the consumer can Challenge the resulting inac-
when communicating with that CRA.23 curacy, as any other inaccuracy, through the formal FCRA
dispute process.
Recurring Examples Of False Credit Reporting
Disputing a Debt
Two categories of inaccuracies are particular1y common.
First, collectors often report an incorrect credit history or Both the FOCPA and the FCRA provide opportunities for
inaccurate current status of the debt. One example is consumers to formally dispute a debt. The FDCPA mecha-
miSidentifying the legal obligor to force individuals (e.g. nism is significantly narrower in scope and substance than
spouses or authorized credit card users) to pay debts that the FCRA mechanism. An FDCPA dispute requires the debt
they do not legally owe.24 Another common abuse occurs collector only to provide "verification" of the debt, an exercise
when collectors ignore the special rules designed to make that is much less demanding than the.FCRA directive to the
certain that debts are tracked and identified as a single obli- furnisher/collector to undertake an "investigation" of the dis·
gation as they are transferred from holder to holder.25 pute. Still, taking advantage of the FDCPA dispute process
can be helpful. Using the FCRA dispute mechanism in con-
Second, debt collectors often engage in the abusive tac- junction with an FDCPA dispute can remedy the deficiencies
tic of "re-aging" a debt by failing to report the initial date of from which the FOCPA process currently suffers.
The formal FDCPA right to dispute a debt is limited to a Where that furnisher is a debt collector, sending a cour-
thirty-day period after a consumer receives written verifica- tesy copy of the dispute letter is also an opportunity for the
tion disclosures with or promptly following the initial commu- consumer to invoke the FDCPA's formal cease communica-
nication from the debt collector.33 Consumers have the right tion mechanism.43 One should insert a simple statement that
to dispute the debt or any portion of it. A debt collector who the consumer refuses to pay the disputed debt in the cover
receives a written dispute during the thirty-day validation letter that conveys the CRA dispute to the debt collector. A
period must cease all collection activity until it provides the collector receiving that notice must discontinue virtually all
required verification.34 Accordingly, because credit reporting further collection communications with the consumer+' A
constitutes debt collection activity, the collector therefore collector that has received a written cease communication
cannot report the debt to a CRA once the consumer has notice may communicate with the consumer to provide any
lodged the dispute until the collector has provided the verifi- required verification but may not demand payment or other-
cation.35 wise seek to collect the debt.45 Despite the clarity and sim-
plicity of the FDCPA's "cease communication" language, a
Case law has interpreted the FDCPA "verification" surprisingly large number of debt collectors fail to comply
process as requiring only a minimal effort to confirm the with it when consumers provide written notice of their refusal
underlying data: "[V]erifcation of a debt involves nothing to pay a debt.
more than the debt collector confirming in writing that the
amount being demanded is what the creditor is claiming is Furnisher's Duty to Conduct a Reasonable Investigation
owed."36 Still, a debt collector that does not respond with
such verification violates the FDCPA if it takes any further After a CRA notifies a furnisher that an item of informa-
steps to collect the debt. 37 tion the furnisher provided is disputed, the FCRA requires the
furnisher to conduct its own investigation into the accuracy
After it provides verification, the collector is still on notice and completeness of that information. The furnisher must
that the consumer disputes the debt. It is a separate FDCPA promptly report back to the CRA.46 The FCRA does not
violation for a collector to report the debt to a CRA without specify the standard for the investigation, but the federal
disclosing that the debt is disputed.38 In addition, a collec- courts uniformly have held that the furnisher must conduct a
tor that receives any notice that the consumer disputes a "reasonable investigation."47 The investigation's adequacy
debt-even beyond the formal FDCPA thirty-day written dis- is a question of fact for jury determination.48 An inadequate
pute process-also must act on that notice and therefore investigation is actionable under the general standards that
may not report the debt to a CRA without disclosing that the allow private enforcement for negligent or willful noncompli-
debt is disputed.39 ance with the FCRA.49
The furnisher's investigation must be a good faith sub-
Unlike the FDCPA, the FCRA imposes no time limits on stantive inquiry, not simply a pro forma exercise. The inves-
a consumer to initiate its formal dispute process. The first tigation's exact nature depends on how the dispute is framed
and most important step is to lodge a dispute directly with the and what information is available to the furnisher. At a mini-
CRA that has reported the debt.40 Disputing the debt sole- mum, the fumisher must consider information sent by the
ly with the collector or furnisher reporting the debt is ineffec- CRA and evaluate any inconsistencies. In addition, informa-
tive for FCRA dispute purposes." tion received directly from the consumer must be checked
against the collector's internal records. 50 Sometimes a cred-
The dispute should be detailed and specfic and should itor's own records will be inconsistent and require reevalua-
include supporting documentation when available. An FCRA tion.
dispute that provides only conelusory or vague allegations
will rarely be effective, either to resolve the issue or to estab- The FTC has confirmed that a debt collector must refer
lish the grounds for successful litigation. The NCLC FCRA to relevant original account records when necessary to inves-
manual contains substantial practical advice that can be tigate the merits of a formal FCRA dispute.51 Thus, in con-
essential to enhance a consumer's dispute.42 trast to the standard for FDCPA verification, a collection
agency, assignee, or other purchaser or holder of an obliga-
While not required by the FCRA, it is prudent for con- tion cannot rely merely on the balance due as transmitted by
sumers to send to the collector/furnisher a courtesy copy of the original creditor when the truth of that information is the
the dispute letter that they are sending to the eRA. Notifying subject of the dispute. Instead, it must verify the debt with the
the collector/furnisher directly that a dispute has been sub- original account records in its or the original creditor's pos-
mitted to the CRA increases the likelihood of clearing up the session. If no original records exist, the information must be
record. It also strengthens the consumer's FCRA case deleted. 52 Many debt collectors, particularly bad-debt port-
against the collector who ignores both the CRA's request that folio buyers, do not have the capability to access that type of
it investigate the debt and the consumer's dispute letter. information.
Prohibition Against Re-Reporting Inaccurate Information Special Duties Where Debt Arises from Fraud or Identity
Theft
One persistent problem that has plagued the credit
reporting system for decades is the reinsertion in a con- Finally, the 2003 FACTA amendments to the FCRA give
sumer's file of information that has previously been delet- consumers certain rights when debts arise from identity theft
ed.53 Congress has responded to this phenomenon by plac- or fraud. However, these rights are not yet well developed.
ing separate prophylactic duties on both the furnishers of For the time being practitioners may want to focus instead on
such information as well as on the CRAs. the claims that are discussed above and that have been per-
fected through years of testing and litigation. Indeed,
If information which is deleted by the CRA is later rein- whether these new FACTA furnisher duties are privately
serted into the consumer's file, the CRA must notify the con- enforceable under the FCRA is currently an unresolved ques-
sumer of the reinsertion.54 Furthermore, the CRA may not tion that has split the federal courts.61
reinsert any previously deleted information unless the fur-
nisher certifies that it is accurate and complete. 55 One of these important new FACTA provisions requires
CRAs to block information that resulted from fraud, including
As an additional part of their reinvestigation duties, fur- identity theft.62 Once properly notified by the consumer of
nishers/collectors must modify, delete, or block inaccurate, the fraud, the CRA also must promptly notify the furnishers of
incomplete, or unverifiable information and must "perma- the information, including debt collectors.53 That debt collec-
nently" prevent that information from being re-reported.56 tor or other furnisher then may not sell or transfer the debt or
This provision is part of FCRA § 1681s-2(b}, which con- place it for further collection.64
sumers may enforce through a private cause of action.
Violations in this regard will be largely evident from the cred- These FACTA amendments also impose notification
it report itself. Any re-reporting by a debt collector of a dis- responsibilities on debt collectors once a consumer provides
puted debt once deleted, followed by re-insertion by the notice that a debt may be fraudulent or may have resulted
CRA, will establish a prima facie violation of FDCPA § from identity theft.65 Once so notified, the debt collector
1692e(8), if the collector fails to note that the debt is disput- must then notify the creditor of that allegation.66 In addition,
ed. It is likely as well to prove an FCRA violation for failure the collector also must provide the consumer with all informa-
to maintain the required permanent block.
tion about the debt to which the consumer would be entitled
Collectors As CRAs
if the consumer were in fact the liable party,67 thus apparent-
ly requiring the collector to treat the identity theft victim as the
A collection agency will meet the definition of a consumer
obligor for purposes of complying with the debt verification
reporting agency if it regularly furnishes information beyond
provisions of the FDCPA.68
its own transactions or experiences with consumers to third
parties for use in connection with consumers' transactions. Conclusion
Conversely, merely reporting its own experience with the
consumer will not make it a CRA.57 Not every FDCPA violation involves a debt collector mis-
using the credit reporting system. Not every credit report fur-
The business model of typical debt collectors usually nisher who violates the FCRA is a debt collector. But clearly,
does not include such reporting beyond their own experi- any person who combines acting as an FDCPA debt collec-
ences with consumers; thus, they would not be considered tor and an FCRA furnisher may well be liable under both
consumer reporting agencies. However, certain check guar- statutes if it violates either. FDCPA and FCRA practitioners
antee companies that both collect dishonored checks and need to be adequately versed in both fields to address these
provide merchants with instant check pre-approval are an occasions.
example of an FDCPA "debt collector"58 that is also an
Endnotes
FCRA "consumer reporting agency."59 If a collection agency
meets this definition, it will have to comply with all the 1. Rivera v. Bank One, 145 ER.O. 614 (0. P.R. 1993); accord Blanks
requirements that the FCRA imposes on CRAs. Collectors v: Ford Motor Credit, 2005 Wl43981, at -3 (N.D. Tex. Jan. 7,2005) (com-
municating information to credit reporting agency is a communication in con-
who do not consider themselves to be CRAs are unlikely to
nection with collection of the debt); Aka/wadi v: Risk Mgmt. Alternatives. tnc .•
have the systems necessary to comply with these many 336 F. Supp. 2d 492,503 n.4 (D. Md. 2004) (reporting debt is "in connection
duties. with" debt collection); Sullivan II. Equifax, 2002 WL 799856.2002 U.S. Dist.
LEXIS 7884, at *15 (E.D. Pa. Apr. 19. 2002) (reporting a debt is a powerful
cof/ection tool); Ditty v: CheckRite, Lid., 973 F. Supp. 1320, 1331 (D. Utah
A debt collector may not use a name that falsely implies
1997) (reporting bad check information to others is designed to give collec-
the collector is a CRA, e.g., a name with the words "credit tor additionallaverage over debtor); In re Sommersdorf, 139 B.R. 700, 701
oureau."60 (Bankr. S.D. Ohio 1991).
'Pe' .1

2. Cass, FTC Informal Staff Letter (Dec. 23, 1997), reprinted in National (8) Communicating or mreateninq \0 cornrnumcate '[0 any person creou
Consumer Law Center, Fair Debt Collection (5th ed. 2004 and Supp.), Appx. information which is known or which should be known to be false, including
B.2, p. 720-21 (hereafter "NCLC FDCPA manual"). the failure to communicate that a disputed debt is disputed.

3. The FCRA and FDCPA are titles of the federal Consumer Credit 21. NCLC FDCPA manual, § 5.5.11.
Protection Act and are codified at 15 U.S.C. §§ 1681-1681x and 15 U.S.C.
§§ 1692-16920, respectively. 22. /d.; see Brady If. Credit Recovery Co., 160 F.3d 64 (1st Cir. 1998).

4. See National Consumer Law Center, Fair Credit Reporting, 23. Wesley V. Calvary Investments, LLC, 2006 WL 1285020, '2
§ 6.2.1 (6th ed. 2006) (hereafter "NCLC FCRA manual"). (E.D.Pa.).

5. 15 U.S.C. § 1692a(6); see NClC FDCPA manual § 4.2. 24. See e.g., Johnson V. MBNA Am. Bank, NA. 357 F.3d 426 (4th Cir.
2004) (Affirming jury verdict for consumer against credit card company that
6. 15 U.S.C. § 1692k(a). failed to comply with the FCRA's reasonable investigation standard where
the consumer showed that the company continued to reject her claim that
7. 15 U.S.C. §§ 16810(a}. she was only an authorized user, and not an obligor as the company was
reporting, on her bankrupt ex-husband's credit card account).
8. 15 U.S.C. §§ 1681n(a)(2}.
25. See NCLC FCRA manual §§ 6.3.3.5 and 6.3.3.8.
9. 15 U.S.C. § 1681g; see Gillespie v. Trans Union Corp., 482 F.3d 907
(7th Cir. 2007). 26. 15 U.S.C. §§ 1681s-2(a)(5).

10. See NClC FCRA manual § 3.3. 27. 15 U.S.C. §§ 1681c(a)(4} and (c).

11. The three nationwide credit reporting agencies have established a 28. See NCLC FCRAmanual § 14.5.2.1.
"centralized source," required by the FCRA, where consumers can obtain
their free annual credit report on-line [www.annualcreditreport.com]; see 29. See U.S. V. NCD Group, Inc ..
NCLC FCRA manual § 3.3.2. www.ftc.gov/os/caselisti9923012/040513ncoc09923012.pdf(E.D.Pa. May
13, 2004} (consent decree) (civil penalty of $1.5 million against company thai
12. 15 U.S.C. § 1692c(b). reported later-than-actual delinquency dates); United States If. Performance
Capital Mgmt., Inc., F.T.C. File No. 9B2-3542 (complaint and proposed con-
13. 15 U.S.C. § 1692e(5); see NCLC FDCPA manual § 5.5.8.4, note 576 sent decree, announced Aug. 24, 2000, available ai
and accompanying text. WW-N.ftc.gov/osf2000/08fpertomncomp.htm and www.ftc.govlosI2000/08/per-
formconsent.htm; decree would require collector to report accurate delln-
14. 15 U.S.C. § 1681s-2(a)(1). quency dates).

15. 15 U.S.C. §§ 1681s-2(c) and (d); see NCLC FCRA manual 30. 15 U.S.C. § 1681s-2(a}(5).
§ 6.1.2.
31. /d.; see NCLC FCRA manual § 6.7.
16.15 U.S.C. § 1681i; see NClC FCRA manual § 4.5.
32.15 U.S.C. §§ 1681s-2(a), 1681s-2(c)(1).
17. See Nelson V. Chase Manhattan Mortgage Corp., 282 F.3d 1057,
1060 (9th Cir. 2002): 33. 15 U.S.C. § 16929(a); see NClC FDCPA manual § 5.7.
"It can be inferred from the structure of the statute that Congress did not
want fumishers of credit information exposed to suit by any and every con- 34. 15 U.S.C. § 1692g(b); see NCLC FDCPA manual § 5.7.3.4.
sumer dissatisfied with the credit information fumished. Hence, Congress
limited the enforcement of the duties imposed by 35. Cass, FTC Informal Staff Letter (Dec. 23, 1997), reprinted in NCLC
§ 1681s-2(a} to governmental bodies. But Congress did provide a filtering FDCPA manual, Appx. B.2, p. 720-21 (reporting to a credit bureau is "collec-
mechanism in § 1681s-2(b) by making the disputatious consumer notify a tion activity" that must cease until section 1692g(b) verification is provided)
CRA and setting up the CRA to receive notice of the investigation by the fur-
nisher. See 15 U.S.C. § 1681i(a)(3) (allowing CRA to terminate reinvestiga- 36. Clark V. Capital Credit & Collection Services, lnc., 460 F.3d 1162
tion of disputed item if CRA "reasonably determines that the dispute by the 1173-74 (9th Cir. 2006), quoting Chaudhry V. Gallerizzo, 174 F.3d 394, 40t
consumer is frivolous or irrelevant"). With this filter in place and opportunity (4th Cir. 1999).
for the furnisher to save itself from liability by taking the steps required by
§ 1681s-2(b), Congress put no limit on private enforcement under §§ 1681n 37. 15 U.S.C. § 1692g(b); see NCLC FDCPA manual § 5.7.3.4.
& 0."
38.15 U.S.C. § 1692e(8). See NCLC FDCPA manual § 5.5.11.
18. 15 U.S.C. §§ 1681s-2(b}, 1681n (generally creating cause of action
for willful noncompliance), 16810 (generally creating cause of action for 39. See NCLC FDCPA manual § 5.5.11, note 626 and accompanyiru
negligent noncompliance); see NCLC FCRA manual § 6.10 and Ch. 11, and text.
Nelson V. Chase Manhattan Mortgage Corp., 282 F.3d 1057 (9th Cir. 2002).
40. See NCLC FCRA manual § 4.5.
19. Brown If. Card Service Center, 464 F.3d 450, 455 (3rd Gir. 2006),
quoting Wilson V. Quadramed, 225 F.3d 350, 354 (3rd Cir. 2000); see NCLC 41. See NCLC FCRA manual §§ 6.10 and 10.2.4.
FDCPA manual § 5.5.
42. See NCLC FCRA manual § 4.5.2.5.
20. 15 U.S.C. § 1692e(8} states as follows:
A debt collector may not use any false, deceptive, or misleading repre- 43.15 U.S.C. § 1692c(c): "If a consumer notifies a debt collector in writ
sentation or means in connection with the collection of any debt. Without ing that the consumer refuses to pay a debt or that the consumer wishes thl