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A July 2014 study by the Urban Institute and debt buyer Encore Capital Group (Midland Funding, Midland Collection Management), “Delinquent Debt in America,” looked at a sample of TransUnion consumer credit reports in September 2013 to determine how many delinquent accounts were noted on the reports and how many collection tradelines could be found. In addition, the study’s authors looked at closed and/or charged off accounts still being reported to determine if they were eligible for collections, even if there was not a specific note of collection on the credit report.
“Collection accounts” for the purpose of this study included direct reports from collectors, accounts that had been charged-off and either sold or outsourced, accounts still being worked in-house after charge-off, and accounts being warehoused by creditors.
The study found that 35.1 percent of the credit reports examined showed collection accounts or accounts qualified for collections. Those results were close to those of a Federal Reserve study from 2004 which showed 36.5 percent of credit reports with an account in collections.
The authors noted that even some 22 million low-income adults do not have credit files and were represented at all in the study, so that the results were understated
The study included every type of debt except mortgage debt. Researchers noted that, “While mortgage debt could result in collections activity, it is very rare.” In addition to traditional financial debt (credit cards, bank loans, etc.), the study found medical debt, utility bills, membership fees, phone bills, and many other kinds of debt being reported as charged-off on credit reports.
Among people with a report of debt in collections, the average amount owed was $5,178, with a median of $1,349.
The study also examined delinquency within the same credit report sample. It showed that 5.3 percent of Americans with a credit file were at least 30 days late on an account. Among people with debt past due, the average amount they need to pay to become current on that debt is $2,258.
The delinquency rate is much lower than the collection rate because typically only financial products are being actively reported to credit bureaus. This means that non-financial accounts comprise the vast majority of accounts in collection.
Please contact us if you are receiving unsolicited text messages promoting a business. They are worth $500 to $1500 each.
According to a study by the Urban Institute, released July 29, 2014, more than 35 percent of Americans have debts and unpaid bills that have been reported to collection agencies. The study found that 35.1 percent of people with credit records had been reported to collections for debt that averaged $5,178, based on September 2013 records. The delinquent debt is concentrated in Southern and Western states. Debts that were surveyed include a nonmortgage bill—such as a credit card balance, medical or utility bill—that is more than 180 days past due and has been placed in collections. Some 5.3 percent of people with a credit file have a report of past due debt, indicating they are between 30 and 180 days late on a nonmortgage payment.
The study, “Delinquent Debt in America,” looked at a sample of TransUnion consumer credit reports in September 2013 to determine how many delinquent accounts were noted on the reports and how many collection tradelines could be found.
The authors noted that even the 35.1 percent figure is a bit too low; some 22 million low-income adults do not have credit files and were represented at all in the study. Researchers used a random sample of 7 million TransUnion reports at a fixed point in time. The sample was out of a total population of 220 million Americans with credit files.
In Haddad v. Alexander, Zelmanski, Danner & Fioritto, PLLC, 758 F.3d 777 (6th Cir. 2014), the federal Court of Appeals for the Sixth Circuit (covers Michigan, Ohio, Tennessee, Kentucky) expanded the requirement for how a debt collector must respond to a debtor’s request for verification of a debt under the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. (FDCPA), creating the most consumer-friendly verification standard ever.
Under § 1692g(b), if a consumer notifies the debt collector in writing within 30 days of receiving the § 1692g(a) “notice of debt” that he 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 addressed the meaning of “verification” 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 reversed 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.” The law firm failed this test because it did not provide information about the nature of the $50 beginning balance that Haddad disputed and instead continued its collection efforts. The failure to explain the $50 charge led the Court to conclude that the documents the law firm provided were insufficient to allow the debtor to dispute the debt.
In announcing this new standard for verification, the Sixth Circuit reviewed other Circuit 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.” E.g., Chaudhry v. Gallerizzo, 174 F.3d 394, 406 (4th Cir. 1999); Clark v. Capital Credit & Collection Services, 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.
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. 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. Although the 8th Circuit declined to set a higher threshold for verification than that in Chaudhry and Clark, it also noted that “under different facts, perhaps a debt collector must do more than what the debt collector did here.”
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.” 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…”
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.” 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.”
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).
Question: I am no longer able to afford my car payments. I would like to take the car to Carmax and sell it. I think I will get more than if it is repossessed and sold at auction. Can I do this?
Answer: Generally if you find yourself unable to afford a car, you are much better off selling it than allowing it to be repossessed. This is because repossessed cars are sold at auction for low prices. The creditor/ secured party is entitled to the proceeds up to the balance owed. If the creditor refuses to cooperate with a commercially reasonable disposition that protects its interests, it may forfeit its right to any deficiency, or incur substantial statutory damages.
A.G. Schneiderman Announces Commitment By Capital One To Expand Access To Bank Accounts For Consumers Previously Excluded From The Banking System
Policy Changes Will Help Eliminate Barriers That Unfairly Keep Low-Income New Yorkers And Consumers Nationwide From Opening Checking And Savings Accounts
Schneiderman: New Yorkers Must Have Equal Access To Banking Services
NEW YORK – Attorney General Eric T. Schneiderman today announced that Capital One Financial Corporation has agreed to adopt new policies governing its use of ChexSystems, a credit bureau that screens people seeking to open checking or savings accounts, which will allow many more New Yorkers to open bank accounts. Working in cooperation with the Attorney General’s office, Capital One has devised new policies that will allow many thousands more New Yorkers and consumers nationwide to open bank accounts by the end of this year. The change comes amid concerns that screenings by ChexSystems and other credit bureaus, which are used by many of our nation’s biggest banks, adversely affect lower-income applicants and those who fall prey to identity theft.
“No one – least of all struggling New Yorkers – should be forced to rely on high-cost alternatives to banks just because they bounced a check or were a victim of identity theft,” Attorney General Schneiderman said. “Equal access is the least we can do to ensure that all New Yorkers have access to widely used services such as our nation’s banking system. I commend Capital One for stepping up and working with us to help eliminate an unnecessary barrier to opening a checking or savings account. I would hope other banks will step up and join us to do the same.”
ChexSystems is one of several databases used by some of the nation’s largest banks and credit unions to analyze the banking history of consumers who apply for bank accounts. Customers who are deemed by ChexSystems to present a credit or fraud risk are typically denied the opportunity to open an account. Such databases disproportionately affect lower-income Americans, often punishing them for relatively small financial errors and forcing them to resort to fringe banking services that are more costly than mainstream checking and savings accounts.
Studies show that more than 3 million New York households are either unbanked, meaning that no family member has a bank account, or are underbanked, meaning that they have a bank account but also rely on high-cost alternative financial services. According to one study, the New York State average for unbanked households is 9.8%, higher than the national average of 7.7%. Of counties with more than 100,000 households, the study ranks the Bronx as the second most unbanked county in the country and Brooklyn as the eighth most unbanked county. Of cities with more than 100,000 households, Buffalo ranks as the eighth most unbanked city in the country. Of midsize cities– those with 50,000 to 100,000 households– Rochester is the eighth most unbanked. In New York City, according to a 2010 study, more than 825,000 adults did not have bank accounts and, in two neighborhoods —Jamaica in Queens and Melrose in the Bronx—residents spent more than $19 million per year on check cashing fees.
The Attorney General’s agreement with Capital One comes as part of an ongoing investigation by the Attorney General’s Civil Rights and Consumer Frauds Bureaus into the use of credit bureaus like ChexSystems by major American banks.
Under the terms of the agreement, Capital One will continue screening customers for past fraud but will no longer seek to predict whether customers present credit risks. Capital One also has committed to expanding its support for the Office of Financial Empowerment (OFE), a New York City agency that provides financial education and counseling to low-income New Yorkers. Capital One, which has an existing partnership with the city agency, will donate $50,000 to help OFE provide counseling for applicants who are rejected by the bank on the basis of a ChexSystems report. OFE’s services are available to all New Yorkers, regardless of their county of residence. The changes to Capital One’s policies, which are expected to take effect by the end of 2014, will be implemented nationwide.
Marc Morial, President and Chief Executive Officer of the National Urban League, said, “Promotion of economic opportunity for minority and low-income families and communities must be a top priority. Too many African-American and Latino communities are denied access to traditional banking products and left vulnerable to costly and predatory check cashing outlets. I thank the Attorney General’s Office for taking action to ensure that banks are extending basic services equally to all communities.”
Justine Zinkin, CEO of Neighborhood Trust Financial Partners, said, “Today’s announcement is an important step in the process of reforming how the big banks serve low-income consumers. At Neighborhood Trust our clients are regularly denied basic banking services because of errors in ChexSystems or identity theft, and it is nearly impossible to correct these inaccuracies. The irony is that our clients and millions of other low-income New Yorkers, the majority of whom are underbanked, would be reliable customers. This is not to mention the outsized social impact of getting someone banked. Neighborhood Trust applauds the Attorney General’s office and Capital One. We hope investigations like this one will continue and that other banks will follow Capital One’s example.”
Kleber Santos, Capital One Bank’s Senior Vice President of Retail and Direct Banking, said, “We greatly appreciate the work of the Attorney General’s staff in bringing these concerns to light, and we’re pleased to be able to work together to expand access to critical banking services for all New Yorkers. Capital One is committed to providing the broadest possible access to our banking products and services to consumers across the credit spectrum to help ensure that economic opportunity is available to everyone, in every community.”
|Court Halts Debt Collector’s Operations, Freezes Assets
Defendants Behind Buffalo, New York-based Operation Used Lies and Threats to Pursue Fraudulent Debt Collection Strategy, FTC and New York Attorney General Allege
At the request of the Federal Trade Commission and the New York Attorney General’s Office, a U.S. district court halted a Buffalo, NY-based debt collection operation, froze the operation’s assets, and appointed a temporary receiver to take over the defendants’ business pending trial.
In a joint complaint, the FTC and New York Attorney General charged the operation with using lies and threats against consumers in violation of federal and state law. The defendants misrepresented that consumers had committed check fraud or another criminal act; falsely threatened to arrest or imprison consumers, sue them, garnish their wages, or put a lien on their property; failed to back up their claims that consumers owed the debt; charged illegal fees; and improperly revealed consumers’ debts to third parties, according to the complaint.
Operating the scheme since February 2010, the defendants have collected at least $8.7 million dollars in payments for purported debts, according to the complaint. The joint complaint charged that the defendants’ tactics violated the Federal Trade Commission Act, the Fair Debt Collection Act and various New York state laws.
“These debt collectors continued to harass consumers and violate the law after the validity of the debt was called into question, and after the New York Attorney General’s office ordered them to stop,” said Jessica Rich, director of the FTC’s Bureau of Consumer Protection. “By working together with our state partners, we can leverage our resources to stop these illegal tactics.”
“All too often, innocent New Yorkers are relentlessly harassed by predatory, abusive debt collectors,” Attorney General Eric T. Schneiderman said. “My office, along with partners like the Federal Trade Commission, will keep fighting to protect hardworking consumers and put a stop to unfair financial bullying once and for all.”
Part of the FTC’s continuing crackdown on scams that target consumers in financial distress, the agencies have charged three individuals – Joseph C. Bella, III, Diane Bella, Luis A. Shaw – and 9 interrelated companies they control. Going by various names including National Check Registry, the operation began using another name – eCapital Services, LLC – to evade detection and continue its illegal behavior after signing an agreement with New York State authorities in October 2013 that prohibited it from violating federal and state debt collection laws, according to the complaint.
Also, according to the complaint, the defendants:
In addition to Joseph and Diane Bella, Luis A. Shaw, National Check Registry, LLC, and eCapital Services, LLC, the complaint names as defendants Check Systems, LLC, Interchex Systems, LLC, Goldberg Maxwell, LLC, Morgan Jackson, LLC, Mullins & Kane, LLC, Buffalo Staffing, Inc., and American Mutual Holdings, Inc.
The Commission vote authorizing the staff to file the complaint was 5-0. The FTC and the New York Attorney General’s Office filed the complaint and the request for a temporary restraining order in the U.S. District Court for the Western District of New York on June 23, 2014. The court granted the plaintiffs’ request for a temporary restraining order with an asset freeze, the appointment of a receiver, immediate access to the business premises and limited discovery on June 24, 2014, and it approved a stipulated preliminary injunction on July 10, 2014.
NOTE: The Commission files a complaint when it has “reason to believe” that the law has been or is being violated and it appears to the Commission that a proceeding is in the public interest. The case will be decided by the court.
The Federal Trade Commission works for consumers to prevent fraudulent, deceptive, and unfair business practices and to provide information to help spot, stop, and avoid them. To file a complaint in English or Spanish, visit the FTC’s online Complaint Assistant or call 1-877-FTC-HELP (1-877-382-4357). The FTC enters complaints into Consumer Sentinel, a secure, online database available to more than 2,000 civil and criminal law enforcement agencies in the U.S. and abroad. The FTC’s website provides free information on a variety of consumer topics. Like the FTC on Facebook, follow us on Twitter, and subscribe to press releases for the latest FTC news and resources.
Question: About 4 years ago I received a loan modification on my mortgage loan when the original balloon payment came due. I am current on my payments. However, the bank charged off the loan. When I inquired I was told that the bank did not have any record of the modification and charged the loan off because the value of the property is less than the loan balance. Is what they are doing legal? Can I make the collection calls and letters stop? I am continuing to make payments on time and for the full amount of the original monthly payment amount. Per my online statement 100% of the payment is going towards the charged off amount.
Answer: If you have an executed loan modification, it is binding whether or not the bank can find its copy.
Whether a loan can be declared to be in default because the value of the collateral has declined depends on the terms of the note, but most likely the answer is “no.”
Check your credit reports to see if the loan is being reported as in default or charged off.
If so, send a letter to the 3 credit bureaus explaining that the bank has failed to honor a modification and that you have made all of your payments, enclosing a copy of the modification, with a copy to the bank.
Whether or not it is on your credit reports, send a similar letter to the bank with your name, loan number, and the statement “qualified written request/ notice of error.” Include a copy of the modification and ask why it is not being honored. Specifically ask that the calls stop. Also specifically ask for what authorized the bank to charge off the loan.
Send a similar letter each time you receive a statement, notice of default, or other document from the bank that contains any error. Specifically refer to the new correspondence from the bank by date and type.
If the matter is not cleared up within 30 days, you should file suit. There are several consumer protection laws that the bank appears to be violating.
The U.S. Department of Education has not properly overseen the collection agencies it hired to pursue delinquent federal student loans, according to a July 2014 audit released by the department’s inspector general.
The report found that the Education Department did not make sure the 22 companies under contract were collecting debt in line with federal law and contract terms. The department also had not effectively monitored borrowers’ complaints or ensured that corrective actions were taken and failed to penalize companies for ongoing bad behavior.
Recurring borrower complaints are supposed to lead to a reduction in their performance scores, under the terms of the government’s contract with the collection agencies. The audit states that, in spite of the more than 3,000 complaints the department received between the 2010 and 2012 fiscal years, officials never docked the scores of any of the companies.
In its response to the audit, the Office of Federal Student Aid (FSA), the division of the Education Department that oversees the collection agencies, concurred with most of the report’s recommendations for reform, saying corrective policies had been and would continue to be instituted – including new directions to the collection agencies and a promise to take borrower complaints into account when evaluating them.
The inspector general’s investigation found that FSA did not account for service quality when deciding how to award compensation to the agencies. If a borrower complained about an improper collection practice, for example, one the department had previously warned a company against, FSA did not penalize the agency financially for continued poor performance.
Auditors also found FSA officials did not effectively ensure that companies were abiding by federal collection laws and related contract terms. For example, monthly quality-control reports containing information about the companies’ own monitoring of their compliance with state and federal laws were readily available, the report states, but the auditors “found no evidence that anyone in FSA evaluated” those reports.
The portfolio of defaulted loans assigned to private collection agencies totaled more than $34 billion as of December 31, 2013, according to the report. From the 2010 to 2013 fiscal years, the department paid 22 companies $1.59 billion to collect debt payments for student loans. In 2012 alone, the department paid $448 million in commissions and $8.3 million in bonuses to collection agencies, based on estimates.
The Education Department previously has faced other criticism for its oversight of federally contracted debt collectors. A May 2013 inspector general report found that the department had paid out bonuses to the companies without verifying that they had actually been earned. A consumer advocacy group also has criticized department officials for keeping secret how it pays out bonuses to the collection companies.
In a 2012 report, the National Consumer Law Center accused the department of failing to protect student borrowers, and of creating financial incentives that encouraged collectors to put profits first. ACA International quickly responded to that report. The report also said official complaint reports underestimated the scope of the problems borrowers had experienced with debt collectors.
The consumer law center sued the Education Department in May to turn over records on incentives for debt collectors.