Consumer complaint received 2023-12-18
Company: Resurgent Capital Services L.P.
State: NJ
Product: Credit reporting or other personal consumer reports
Sub-product: Credit reporting
Issue: Improper use of your report
Sub-issue: Reporting company used your report improperly

Complaint:
It has come to my attention that XXXX is currently in violation of the Privacy Act of 1974 which states : No agency shall disclose any record which is contained in a system of records by any means of communication to any person, or to another agency, except pursuant to a written request by, or with the prior written consent of, the individual to whom the record pertains [ subject to 12 exceptions ]. 5 U.S.C. 552a ( b ). 

XXXX has been in violation of this Act and has been regularly reporting negative activity via late payments without my consent, and has caused irreparable harm and injuries to me in violation of the abovementioned Act and as stated in 15 U.S. Code 6801 - Protection of nonpublic personal information which states : ( a ) Privacy obligation policy - It is the policy of the Congress that each financial institution has an affirmative and continuing obligation to respect the privacy of its customers and to protect the security and confidentiality of those customers nonpublic personal information.

( b ) Financial institutions safeguards - In furtherance of the policy in subsection ( a ), each agency or authority described in section 6805 ( a ) of this title, other than the Bureau of Consumer Financial Protection, shall establish appropriate standards for the financial institutions subject to their jurisdiction relating to administrative, technical, and physical safeguards ( 1 ) to insure the security and confidentiality of customer records and information ; ( 2 ) to protect against any anticipated threats or hazards to the security or integrity of such records ; and ( 3 ) to protect against unauthorized access to or use of such records or information which could result in substantial harm or inconvenience to any customer.

In addition to 15 U.S. Code See Also 6805 Enforcement ( a ) WHICH STATES THAT : Subject to subtitle B of the Consumer Financial Protection Act of 2010 [ 12 U.S.C. 5511 et seq. ], this subchapter and the regulations prescribed thereunder shall be enforced by the Bureau of Consumer Financial Protection, the Federal functional regulators, the State insurance authorities, and the Federal Trade Commission with respect to financial institutions and other persons subject to their jurisdiction under applicable law, and ( b ) ENFORCEMENT OF SECTION 6801 ( 1 ) Except as provided in paragraph ( 2 ), the agencies and authorities described in subsection ( a ), other than the Bureau of Consumer Financial Protection, shall implement the standards prescribed under section 6801 ( b ) of this title in the same manner, to the extent practicable, as standards prescribed pursuant to section 1831p1 ( a ) of title 12 are implemented pursuant to such section. Therefore, it is within the jurisdiction of the Consumer Financial Protection Bureau ( CFPB ) to enforce this/these Act ( s ) to ensure the protections of all consumers.

SEE ALSO 15 U.S. Code 6802 - Obligations with respect to disclosures of personal information under : ( a ) Notice requirements which states : Except as otherwise provided in this subchapter, a financial institution may not, directly or through any affiliate, disclose to a nonaffiliated third party any nonpublic personal information, unless such financial institution provides or has provided to the consumer a notice that complies with section 6803 of this title.

According to 16 CFR 313.7 - Form of opt out notice to consumers ; opt out methods. ( e ) Time to comply with opt out. Which states that : You must comply with a consumer 's opt out direction as soon as reasonably practicable after you receive it., and 16 CFR 313.7 ( f ) Continuing right to opt out, which also states that A consumer may exercise the right to opt out at any time, and 16 CFR 313.7 ( g ) Duration of consumer 's opt out direction.

( 1 ) A consumer 's direction to opt out under this section is effective until the consumer revokes it in writing or, if the consumer agrees, electronically.

( 2 ) When a customer relationship terminates, the customer 's opt out direction continues to apply to the nonpublic personal information that you collected during or related to that relationship. If the individual subsequently establishes a new customer relationship with you, the opt out direction that applied to the former relationship does not apply to the new relationship.

15 U.S. Code 1681b - Permissible purposes of consumer reports ( a ) Subject to subsection ( c ), any consumer reporting agency may furnish a consumer report under the following circumstances and no other : ( 2 ) In accordance with the written instructions of the consumer to whom it relates.

As stated herein, as well as the enclosed letter which clearly signifies my right to opt out as stated in 6802 ( b ) : Opt out ( 1 ) In general A financial institution may not disclose nonpublic personal information to a nonaffiliated third party unless ( A ) such financial institution clearly and conspicuously discloses to the consumer, in writing or in electronic form or other form permitted by the regulations prescribed under section 6804 of this title, that such information may be disclosed to such third party ; ( B ) the consumer is given the opportunity, before the time that such information is initially disclosed, to direct that such information not be disclosed to such third party ; and ( C ) the consumer is given an explanation of how the consumer can exercise that nondisclosure option. XXXX has never disclosed this information to enable me as the consumer the opportunity to exercise the abovementioned Opt out rights afforded to me.

This ongoing negative reporting is causing irreparable injury, embarrassment, emotional damage, stress and humiliation to me and my family by being denied of credit and my ability to prosperously move forward financially in life by their violations of the laws stated herein. It is also illegal to report any negative transaction history to the major credit reporting agencies which XXXX continues to illegally report to this day. 

17 CFR 248.7 - Form of opt out notice to consumers ; opt out methods ( a ) ( 1 ) Form of opt out notice. If you are required to provide an opt out notice under 248.10 ( a ), you must provide a clear and conspicuous notice to each of your consumers that accurately explains the right to opt out under that section. The notice must state : ( i ) That you disclose or reserve the right to disclose nonpublic personal information about your consumer to a nonaffiliated third party ; ( ii ) That the consumer has the right to opt out of that disclosure; and ( iii ) A reasonable means by which the consumer may exercise the opt out right.

16 CFR 313.7 - Form of opt out notice to consumers ; opt out methods.

( a ) ( 1 ) Form of opt out notice. If you are required to provide an opt out notice under 313.10 ( a ), you must provide a clear and conspicuous notice to each of your consumers that accurately explains the right to opt out under that section. The notice must state : ( i ) That you disclose or reserve the right to disclose non-public personal information about your consumer to a nonaffiliated third party ; ( ii ) That the consumer has the right to opt out of that disclosure; and ( iii ) A reasonable means by which the consumer may exercise the opt out right.

16 CFR 433.2 - Preservation of consumers ' claims and defenses, unfair or deceptive acts or practices.

In connection with any sale or lease of goods or services to consumers, in or affecting commerce as commerce is defined in the Federal Trade Commission Act, it is an unfair or deceptive act or practice within the meaning of section 5 of that Act for a seller, directly or indirectly, to : ( a ) Take or receive a consumer credit contract which fails to contain the following provision in at least ten point, bold face, type : NOTICE ANY HOLDER OF THIS CONSUMER CREDIT CONTRACT IS SUBJECT TO ALL CLAIMS AND DEFENSES WHICH THE DEBTOR COULD ASSERT AGAINST THE SELLER OF GOODS OR SERVICES OBTAINED PURSUANT HERETO OR WITH THE PROCEEDS HEREOF. RECOVERY HEREUNDER BY THE DEBTOR SHALL NOT EXCEED AMOUNTS PAID BY THE DEBTOR HEREUNDER.

or, ( b ) Accept, as full or partial payment for such sale or lease, the proceeds of any purchase money loan ( as purchase money loan is defined herein ), unless any consumer credit contract made in connection with such purchase money loan contains the following provision in at least ten point, bold face, type : NOTICE ANY HOLDER OF THIS CONSUMER CREDIT CONTRACT IS SUBJECT TO ALL CLAIMS AND DEFENSES WHICH THE DEBTOR COULD ASSERT AGAINST THE SELLER OF GOODS OR SERVICES OBTAINED WITH THE PROCEEDS HEREOF. RECOVERY HEREUNDER BY THE DEBTOR SHALL NOT EXCEED AMOUNTS PAID BY THE DEBTOR HEREUNDER.

16 CFR 433.3 - Exemption of sellers taking or receiving open end consumer credit contracts before November 1, 1977 from requirements of 433.2 ( a ).

( a ) Any seller who has taken or received an open end consumer credit contract before November 1, 1977, shall be exempt from the requirements of 16 CFR part 433 with respect to such contract provided the contract does not cut off consumers ' claims and defenses.

( b ) Definitions. The following definitions apply to this exemption : ( 1 ) All pertinent definitions contained in 16 CFR 433.1.

( 2 ) Open end consumer credit contract : a consumer credit contract pursuant to which open end credit is extended.

( 3 ) Open end credit : consumer credit extended on an account pursuant to a plan under which a creditor may permit an applicant to make purchases or make loans, from time to time, directly from the creditor or indirectly by use of a credit card, check, or other device, as the plan may provide. The term does not include negotiated advances under an open-end real estate mortgage or a letter of credit.

( 4 ) Contract which does not cut off consumers ' claims and defenses : A consumer credit contract which does not constitute or contain a negotiable instrument, or contain any waiver, limitation, term, or condition which has the effect of limiting a consumer 's right to assert against any holder of the contract all legally sufficient claims and defenses which the consumer could assert against the seller of goods or services purchased pursuant to the contract.

It is for the reasons stated herein and the protection of my rights as a consumer is why I am entitled to the opting out remedy and relief sought in the form of XXXX XXXXorrecting the record by removing all negative reporting, and negative credit history via late payments from any and all credit reporting agencies records, including but not limited to XXXX, XXXX, XXXX which has caused irreparable harm, embarrassment, humiliation, mental anguish and undue financial hardships committed against me and should be granted in my favor.

Company response to consumer: Closed with explanation