Non permissible pull - BK7 discharge in 2005

[cprems]

Guys,

I do not know what to do here - I am in Texas

I filed BK7 in 2005 and the original creditors I will call bankohell & water fargone

In 2010 bankohell reviewed my credit report 12 times under the guise of an A/R (account review) This OC was included in my BK7 in 2005. I am opted out of ANY promotional invites on my credit reports and have NO current business relationship with them.

water fargone - 2 hard inquires this year on a home loan included in said BK7 in 2005. I spoke to their "office o the president" and they stated that since my name was on the loan and it was being "modified" they could review my credit - EVEN though it was included in my BK7. They said they could do it and the BK did not matter.

I believe they both violated the permanent injunction by reviewing my credit without ANY permission.

I am planning on reopening my BK7 and filing for sanctions and actual damages with water fargone for the actual amount of the home loan (65K) and statutory damages against both.

I am not sure what I need to do to reopen my case or even if I have a case against them.

Any help you guys can provide - links, posts etc would be greatly appreciated.

[HHM]

Sorry, no violations.

If you request a modification, that permits hard pulls.

The thing is, you aren't damaged by these pulls. Even if they were a violation, there has been no harm. Who cares of bankofhell did a soft pull, it doesn't hurt you in anyway.

Stop stressing so much about your credit report and live your life.

[justbroke]

I believe they both violated the permanent injunction by reviewing my credit without ANY permission.

This is my opinion and I may be completely wrong, but I don't think this is a violation for a soft "account review". It's not the process of continuation of collection.

The hard inquiry may be different and may be an FCRA violation. You might be able to convince a BK judge that it's a continuation of collection activity since the hard pull does affect your credit score (albeit a small hit).

To see if this is worth your time, see if a local attorney will do this on contingency. If 0 out of 5 won't to touch it (on contingency), then it's indicative that it's not worth their time as a BK permanent injunction violation. You may want to just use small claims to file against the banks under the FCRA permissible purpose rules. If the loan was actually being "modified" as you stated, then perhaps you gave them permission by seeking a modification. That would not be a violation under FCRA or BAPCPA (BK laws).

If you decide to pursue this on your own, then I recommend filing a complaint instead. I'd file a Motion to Re-Open in order to file the complaint, and then file the complaint. However, you need great specificity in the Motion and the Complaint and I don't know that you provided enough above. For example, a "soft" pull doesn't affect your credit. Blocking "promotional" items only blocks new creditors, not creditors that already have your information and want to offer you credit or monitoring your credit.

Almost all Districts publish procedures for re-opening a closed bankruptcy case. This usually starts with a Motion to Re-Open which sometimes requires a hearing. The motion must have enough specificity to convince the judge that the case should be re-opened to litigate some argument whether it's a contested matter (by motion) or an adversary proceeding (by complaint).

(Did you discharge the debt on your home, stayed current, and are or have sought to get a modification?)

[cprems]

You either missed the point OR I may have NOT been as clear as I meant to be.

I NEVER asked for the modification...This was discharged in 2005. MY EX wife wanted the modification. As for not being damaged my credit score went down and I got higher interest rates because of it. Are you not aware of the FCRA - 1K statutory damages for non PP. I came here asking for advice. As for damages I will claim the 65K they wanted to "modify", since it was extinguished in my BK

Sorry, no violations.

If you request a modification, that permits hard pulls.

The thing is, you aren't damaged by these pulls. Even if they were a violation, there has been no harm. Who cares of bankofhell did a soft pull, it doesn't hurt you in anyway.

Stop stressing so much about your credit report and live your life.

[justbroke]

You either missed the point OR I may have NOT been as clear as I meant to be.

Nothing was missed.

I NEVER asked for the modification...This was discharged in 2005. MY EX wife wanted the modification. As for not being damaged my credit score went down and I got higher interest rates because of it.

Since you are still on the security instrument (mortgage or deed of trust) and the promissory note, the request for the modification caused the inquiry. If you divorced your wife, you should have had her re-title the property into her own name as well as take out a new mortgage obligation on the property. Even though the bankruptcy discharges your liability to "pay" the note, it does not in any way "extinguish" the note. Tge promissory note is still a valid legal document. The only thing the discharge did was remove your personal liability and it also stays the creditor from attempting to employ legal process to collect it. If your final divorce decree -- and property settlement -- granted the home to her with no liability on your part, it would probably have been wise to also include in the final property settlement agreement something that forced her to re-title and re-mortgage the property.

As for not being damaged my credit score went down and I got higher interest rates because of it.

There is no way under the Fair Isaac Credit model that a single "hard" credit inquiry lowered your score. However, if you were applying for multiple credit products over a short period, a single "additional" hard inquiry could cause you to cross a threshold.

Are you not aware of the FCRA - 1K statutory damages for non PP. I came here asking for advice.

More than you know. However, it may be permissible because you continue to be listed on the mortgage (security instrument) and promissory note. At least that would be my argument. In any event, this would be a private cause of action and you'd file an FCRA violation in small claims court. There are some arguments as to whether the Bankruptcy Court is the proper venue for FRCA or FDCPA violations.

I came here asking for advice. As for damages I will claim the 65K they wanted to "modify", since it was extinguished in my BK

I don't think you have a case on the "modification" portion. As I posted, please run this by 5 attorneys to see if they'll take it on contingency. Most bankruptcy attorneys would jump all over the opportunity to earn some significant fees -- at $250/hr -- to defend a violation of the permanent discharge injunction. If you get one of them to say yes, then you should let THEM pursue it! That way, if they lose, you are not out a dime and wasted none of your time. If they are successful, they get paid and you'd get whatever actual and punitive damages awarded.

The advice remains the same. Seek an attorney to see if they'll do it on contingency. I personally don't see anything other than "maybe" an FRCA permissible purpose violation with a singular count.

[cprems]

Justbroke,

I was replying to the other poster. Apparently my othre post got lost and this is what I was replying before you posted. The house was foreclosed on. She does not have a job or the income to support the payments.

I discharged my portion of the debt in 2005. We stayed current until the divorce in 2009. She went delinquent on the house as soon as she threw me out. I never sought ANY action on the house. I never reaffirmed the house note and NEVER authorized ANY modification. As far as I was concerned the debt was extinguished. My Ex's credit is trashed and I have NO intentions of living in that house.

As for the soft pulls there is NO distinction put forth in the FCRA (I believe) delineating between the 2. However, I included these idiots in my 2005 BK and they have been using the guise of A/R. I have NO accounts with them and even if I did, they were included in the BK. So there is NO PP.

I will be talking to a BK Attorney sometime next week.

Nothing was missed.

Since you are still on the security instrument (mortgage or deed of trust) and the promissory note, the request for the modification caused the inquiry. If you divorced your wife, you should have had her re-title the property into her own name as well as take out a new mortgage obligation on the property. Even though the bankruptcy discharges your liability to "pay" the note, it does not in any way "extinguish" the note. Tge promissory note is still a valid legal document. The only thing the discharge did was remove your personal liability and it also stays the creditor from attempting to employ legal process to collect it. If your final divorce decree -- and property settlement -- granted the home to her with no liability on your part, it would probably have been wise to also include in the final property settlement agreement something that forced her to re-title and re-mortgage the property.

There is no way under the Fair Isaac Credit model that a single "hard" credit inquiry lowered your score. However, if you were applying for multiple credit products over a short period, a single "additional" hard inquiry could cause you to cross a threshold.

More than you know. However, it may be permissible because you continue to be listed on the mortgage (security instrument) and promissory note. At least that would be my argument. In any event, this would be a private cause of action and you'd file an FCRA violation in small claims court. There are some arguments as to whether the Bankruptcy Court is the proper venue for FRCA or FDCPA violations.

I don't think you have a case on the "modification" portion. As I posted, please run this by 5 attorneys to see if they'll take it on contingency. Most bankruptcy attorneys would jump all over the opportunity to earn some significant fees -- at $250/hr -- to defend a violation of the permanent discharge injunction. If you get one of them to say yes, then you should let THEM pursue it! That way, if they lose, you are not out a dime and wasted none of your time. If they are successful, they get paid and you'd get whatever actual and punitive damages awarded.

The advice remains the same. Seek an attorney to see if they'll do it on contingency. I personally don't see anything other than "maybe" an FRCA permissible purpose violation with a singular count.

[justbroke]

I was replying to the other poster. Apparently my othe post got lost and this is what I was replying before you posted.

He's well respected here and gets right to the point.

I discharged my portion of the debt in 2005. We stayed current until the divorce in 2009. She went delinquent on the house as soon as she threw me out. I never sought ANY action on the house. I never reaffirmed the house note and NEVER authorized ANY modification. As far as I was concerned the debt was extinguished. My Ex's credit is trashed and I have NO intentions of living in that house.

Doesn't matter that you didn't sign it. Contrary to popular belief, a bankruptcy does not actually cancel or extinguish a debt. It only stops the legal process of collecting the debt. That's it! Unfortunately, you are still a customer of the bank and you still have pledged the house as collateral for the underlying debt -- the promissory note -- and they are still entitled to enforce the terms of the security instrument (the mortgage or "deed of trust").

As for the soft pulls there is NO distinction put forth in the FCRA (I believe) delineating between the 2. However, I included these idiots in my 2005 BK and they have been using the guise of A/R. I have NO accounts with them and even if I did, they were included in the BK. So there is NO PP.

While there is no distinction, the FCRA actually goes on to basically allow soft pulls for ANY purpose where the person is a customer or that the creditor wants to extend credit. Otherwise, all those credit card offers in the mail would be a violation. As I stated in the prior paragraph, you are still a customer until you satisfy the terms on the promissory note. They just can't use legal process or other means to collect it! Now, if you said that they were reporting it past the discharge date as late in any month after the discharge date, then that's a different story. I don't know if you can see the distinction, but there is definitely a distinction there.

I will be talking to a BK Attorney sometime next week.

I think this is your best bet. Run it by several (up to 5). I'm guessing that you won't get anywhere, but I've been wrong before!

[cprems]

He's well respected here and gets right to the point.

Understood.

Doesn't matter that you didn't sign it. Contrary to popular belief, a bankruptcy does not actually cancel or extinguish a debt. It only stops the legal process of collecting the debt. That's it! Unfortunately, you are still a customer of the bank and you still have pledged the house as collateral for the underlying debt -- the promissory note -- and they are still entitled to enforce the terms of the security instrument (the mortgage or "deed of trust").

they have they foreclosed on it. I disagree with being a customer, this ended once the discharge was finalized.

While there is no distinction, the FCRA actually goes on to basically allow soft pulls for ANY purpose where the person is a customer or that the creditor wants to extend credit. Otherwise, all those credit card offers in the mail would be a violation. As I stated in the prior paragraph, you are still a customer until you satisfy the terms on the promissory note. They just can't use legal process or other means to collect it! Now, if you said that they were reporting it past the discharge date as late in any month after the discharge date, then that's a different story. I don't know if you can see the distinction, but there is definitely a distinction there.

I understand what you are saying regarding the FCRA - however I AM opted out, have NO current accounts with them, never applied for either credit or a job with them.

I think this is your best bet. Run it by several (up to 5). I'm guessing that you won't get anywhere, but I've been wrong before!

We shall see. I believe they violated - most Attorney's just file BK's I have found where I live, they do not want to defend. My BK Attorney was next to useless. I will let you know what happens. I do appreciate the time you have taken to give me advice.

[smoothdaddy]

HHM is well respected? By who? He doesnt offer any helpful advice!!

[Peeps]

By me, for one.

There are some incredible people on this forum. And if their advice isn't helpful it's because the questions are sometimes incoherent. Or misguided. Or repeats of the same question that has been asked a hundred times before. Being newish to this, I'm guilty of putting out some incoherent, misguided, and repetitive questions, myself. And I'm quite thankful for the patience and unassuming service that people here, HHM included, are willing to extend.

[ValleYum]

HHM is well respected? By who? He doesnt offer any helpful advice!!

You know, I am a month newer to the forum that you are, but WTF dude??

Insinuations against others character and knowledge are against TOS. You are doing this same shizz-stirring in another thread, too. You really need to put down the eggnog and back away from the computer.

ETA: And Peeps said it beautifully!!!

[AngelinaCatHub]

HHM is well respected? By who? He doesnt offer any helpful advice!!

Excuse me. HHM is not monitoring this site 7X24 as some do. When he posts, he posts from experience and knowledge. He does not need to be bothered to even be here as he adjusted his life some time ago. He donates his time and knowledge here out of courtesy. I have not seen him give anything but very good advice and accurate as he can.

Justbroke is also well versed, and this OP has been given the best from the VERY BEST.

I would advise personally to our OP to let this incident go. Until another infraction, note this one. To go to reopen for such a frivolous reason, means stress and expense does not mean too much to the OP and he can do what he wishes. Several now have given advice to back it down and "get a life". If it happens again, a letter to C&D as well as action would be advised. At this time, really for whatever damage the OP considers, is negligible. That is my opinion, only. 'Hub

[cprems]

Hub,

This is NOT frivolous in my opinion. I used to just roll over and let these idiots run all over my credit. NOT ANY MORE. I have been given good advice here and I WILL act on it.

Damages 12 NON PP at $1K a pop with a trebling allowed under my State laws $36K

2 NON PP for a loan modification on a discharged debt $2K with a trebling under State laws PLUS actual damages of $65K oh by the way, in MY State there is NO cap on actual damages. I just wonder WHY they pulled my credit, when my obligation was discharged? Are there NO policies or procedures in place to stop this?

Is this a far reach...yes it is. Can it be plead out using the law - very difficult, but it can be done. Would an Attorney be willing to take it - doubtful.

I am willing to put forth the effort to get this resolved.

Excuse me. HHM is not monitoring this site 7X24 as some do. When he posts, he posts from experience and knowledge. He does not need to be bothered to even be here as he adjusted his life some time ago. He donates his time and knowledge here out of courtesy. I have not seen him give anything but very good advice and accurate as he can.

Justbroke is also well versed, and this OP has been given the best from the VERY BEST.

I would advise personally to our OP to let this incident go. Until another infraction, note this one. To go to reopen for such a frivolous reason, means stress and expense does not mean too much to the OP and he can do what he wishes. Several now have given advice to back it down and "get a life". If it happens again, a letter to C&D as well as action would be advised. At this time, really for whatever damage the OP considers, is negligible. That is my opinion, only. 'Hub

[justbroke]

HHM is well respected? By who? He doesnt offer any helpful advice!!

Unfortunately, many people come here and ask questions for which they want a specific answer. Again, unfortunately, providing answers that people want to here, is not why the experts chime in on particular topics. I don't respond to every post and I am certainly not monitoring the boards 24x7. While I tend to be more verbose in my responses, HHM gets right to the point.

Sometimes the advice offered is not what anyone wants to hear, but one should still respect the time and wisdom that a well-versed and knowledgeable poster (and moderator) such as HHM provides!

[justbroke]

I just wonder WHY they pulled my credit, when my obligation was discharged? Are there NO policies or procedures in place to stop this?

Because you are still a customer and they can still monitor your behavior to determine if they should, for example, be more aggressive in foreclosure proceedings. (I know you don't think you are a customer, but you are a customer until the earlier of the promissory note being paid in full (with a release filed) or the property being sold or otherwise being transferred and the promissory note changed.) None of what you are arguing is precluded under Bankruptcy law (BAPCPA) or the FCRA or FDCPA. I re-iterated earlier that a discharge does not in any way remove your obligation, only your liability. Your divorce settlement agreement and final dissolution order should have been drafted such that your ex was required to re-title and re-mortgage the property to remove your name from the title (and promissory note). A discharge doesn't relieve you of any responsibility or the debt itself.

Is this a far reach...yes it is. Can it be plead out using the law - very difficult, but it can be done. Would an Attorney be willing to take it - doubtful.

If you choose to proceed on your own and you are successful in being awarded damages, it will probably be on a default due to the defendant not responding. Sometimes, it's not worth their time and money to defend something. You still need to, however, plead something that there is claim under the law and that you would prevail.

I think most people are just saying... sometimes, it's just best to let it go. You can attempt a letter campaign, but I think you're just looking to get an award of damages. (I can't blame you for that, but the motivation seems misplaced?)