However, I make a point that there is an "obvious" damage with lowered credit scores. There is a "common sense" equating a lowered credit score to being "damaged". i.e. something a judge could readily see and understand. Unlike the murkiness of other reported information (where you cannot ascertain whether it would damage or not), the "Prudent Man" would NOT apply for credit (secure actual damages) as he would want to minimize the damage. I think this is a valid piece of this issue.
Bizwiz went where I was suggesting that the thought might go. Look at it this way. We have a Don Quixote who has found a windmill of interest. (The windmill actually found him, but that isn't important here). Our Knight is not fresh out of Knight school requiring training hoofs on his horse and a senior knight looking over his shoulder. He knows what windmills are and knows that they have blades (usually four). He has won many encounters. This is a tougher windmill than usual, and yet he is willing to put on his helm and armor, take up his lance, mount his trusty steed, and sally forth. (Sadly, his Squire was laid off last year when the job was outsourced to e-Squire.) This is an interesting windmill in his sights, one that has been difficult to engage. But he has seen a potential vulnerability and is willing to do battle with said windmill to see if he can punch a hole or possibly knock it off its foundation. I am sure that each and every one out there, and that includes me, will be rushing through the hole if he succeeds, because he will have done something that many others have tried and failed to do. Flyingifr seems to have a chance of finally drawing Fair-Isaac under the umbrella of the FCRA. If he succeeds, it will have significant impact on how things are approached. (Apex, as an operator of a Credit Repair Organization, I would think that you would understand that more clearly than most because it means dollars in your pocket.) Instead of pitching brickbats from the sidelines, wouldn't it make sense to help guide Don's lance towards the target? I disagree with Flyingifr on many points, but those differences are much more tactical in nature than strategic. He tends towards the ACLU side of the activist equation, I tend to more middle of the road. But those are matters of style rather than substance. One of his harshest critics has admitted publicly that his Method works. I would agree. His goal of tackling Fair-Isaac and prevailing is one that we should all share. If he is willing to go after him on these grounds, and he may have potential, wouldn't it be to everyone's advantage to further the cause rather than torpedo it? Your responses will tell where you all come down on this.
How about this: If the credit report is supposed to be accurate per the FCRA and not just close, but 100% accurate, how can a consumer know if, in fact, it is accurate if the underlying coded information is kept hidden from the consumer? While the consumer may not understand the actual coding, that doesn't mean the information should be hidden. As BW says, there's no way to know, and there's every reason to think, that some text descriptions in a report reflect more than one underlying code(s). So, if there are more codes than are being displayed or some codes are "merged" to say the same thing on a report, AND those underlying codes are what are being used by third-parties to make decisions regarding the consumer, then it would follow that the consumer should have access to those codes to ensure they are 100% accurate per the FCRA. Now, if the codes are correct and the model scores things differently based on past history, current job, the barometric pressure or whatever, then you have a problem with the model and not the underlying data. As I recall, and I won't profess 100% recall on this, I think the FCRA only goes as far as the report (i.e. the underlying data) and not anything that's derived from that. So if a scoring model makes incorrect assumptions or weights things in some way, I don't know of any law that says that it can or not (is there?) so long as the underlying data is 100% accurate. So, I think it would be worthwhile to use this score discrepancy as a way to maybe leverage your way into the next level of detail in your credit report, but I don't think it'll do you much good in opening the cover on a scoring model because the scoring models don't have to account to anyone or any law. I'll admit that I'm as curious as the next person about how they work, but I don't see any legal leverage in FlyingIFR's approach that would grant him a peek under the covers.
It will be interesting to see how he plans to draw Fair-Isaac into a lawsuit that involves an Experian developed score model.
CCbob- the gist of my argument in this matter (and I am still waiting for some shoe to drop that would create monetary damages) is two-fold: 1. FCRA gives us the right to question and have corrected what is in our credit file., but we cannot dispute what is hidden from us. If FICO can see it, then we should be able to see it also, since the FICO algorithm, or something like it, is used not only for credit decisions, but for more and more decisions that affect consumers on a daily basis. You can't dispute what you can't see. This is a fundamental fairness issue. If a CRA set up a "two-tiered File" system where the consumer could see one file only and the rest of the world could see both, it would be a blatant FCRA violation, but with the coding that FICO can see hidden from us, that's exactly what we have. 2. Under the legal principle of "there but", this case presents as clean a situation as any lawyer could imagine - the whole thing took place over a couple of days and the "before" and "after" credit files are absolutely correct in what can be seen and at the same time absolutely identical. The drop in Credit Score is significant. In this instance, there was no act by the consumer that could have contributed to the drop in credit score. Therefore, "there but" for the manipulations of my credit file by EXP by adding at least 7 other people's files into mine, including derogatory trade lines, then removing them, one would think I would have been made whole by the removal. I was not. I can see the finger pointing now - EXP will argue "we deleted the erroneous information, what else do you want?" and FICO will say "we only use the information EXP gives us, what else do you want?" This kind of responsibility avoidance is common in today's world. It will take Discovery and a Judge to sort out how this can happen, but be aware - it can happen to anyone. FICO is quick to penalize and slow to reward. I was penalized valuable FICO points for absolutely nothing that I did, and that is the definition of damages. It's the quantifying of those damages into dollars that is the hard point at this time.
Show that a score that is actually used by creditors as opposed to a score that was designed for consumers, for consumers use only, is affected and there might be suggestions forthcoming.
Just to play the devil's advocate, I think the damages issue is going to be a problem, here. If the FICO score that is used by banks and creditors is corrected back to the previous value as a result of EXP's corrections, then no harm, no foul, bona-fide error, etc. If another score used for "entertainment" is not corrected then where's the material harm? I don't know if FAKO purports to be anything "viable" in terms of economic or financial matters. I'm sure they have a list of disclaimers. Further, since your FAKO is confidential to only you, it's up to you to decide who, if anyone, can know it and in that sense what if any damage to your reputation might result. For all anyone beyond FlyingIFR knows, his FAKO could be 1,000,000 because we have no way to prove or disprove it-- it's his personal and confidential information that only he has access to and the legal ability to publish. So, in that sense, any damage incurred would be of his own doing. In practical sense, getting your FAKO score wrong is about as "harmful" as your PlayStation recording an incorrect high score to a video game. In other words, proving harm in this case would seem to be challenging.
But I think that that the inability to see what really is reality puts it legitimately in the "there but" ball park. Once there, much more could or would be revealed. He may need only to establish the dichotomy to get past the first hurdle. As has been pointed out, real damages may be necessary to get the chance to go against the windmill. I think there may be another side to the "prudent man" man contention and the attendant mitigation. Would not a "prudent man" seek to establish whether or not he has been damaged? Isn't there an obligation to himself to be informed? To do otherwise might allow the damage to propagate instead of the intended mitigation. To argue that he should do nothing may be a denial of the fundamental right for him to manage his own affairs.
This is all nice in theory. However, the fact remain is that we are talking about FAKO scores, something no creditor sees. We are also talking about someone with 700 credit scores. Put together a scenario wherein the OP is denied credit or suffers higher rates than he would have before the dip (if there is a FICO dip) and this is based upon his FICO scores, then you have something. Right now, you have a 12b6 and the possibility of a fee shifting award. That is the way I see it. There is no damage by virtue of a lowered FAKO score insofar as no one even uses it much less would decline you credit in light of it. Oh, DNSB does . . . but, Macy's won't deny you with that type of score. Last time I checked the FCRA requires damages and there are none here.
Not from what has been posted herein. They're talking about FAKO scores. I'm not saying that a case against FICO cannot be had rather, just not under these circumstances. In short, the case isn't ripe and it would be difficult to get it to a point where it was viable against FICO rather than Experian. Experian took the action which reduced the FAKO points, not FICO. Believe me, I'm trying to see a cause of action here but, it's just not there yet.
I think we are all saying that, including Flyingifr. But that doesn't help get the issue any closer, now, does it?
Wow, trying to catch up on the discussions here... What is intriguing (and exciting) about this scenario is that you can prove damages (IMHO), in fact you have a better chance of "quantifying" damages. This situation turns the previous "damages" issues on its head (of other suits). By this I mean, there was always a doubt about the extent of damages by incorrect/inaccurate information on a credit report. Ironically, the true (dollar) damage was a result of the credit score impact. We all know the "FICO score savings calculators", and have looked to them often. So, this case shows the quantifiable "damage" to the score (768 down to 732 FAKO). This drop (if it were FICO scores) would "cross" tiers of "savings/credit costs", based upon widely circulated, and accepted, "circumstantial evidence of "calculators" used in the industry. So, Fly has a strong circumstanial evidence of credit score damage; Fly could easily use a calculator to quantify damages for buying a home, auto, LOC, etc. So, what makes this interesting (and opens Pandora's Box), a good credit score" is an asset. Fly has an asset that has been "quantifiably damaged", now what would a "prudent person" do? Apply for credit knowing they will suffer the "actual" damages? This is highly unlikely. A damaged credit score can be compared to cases of "defamation of character", yes it is difficult to quantify, but cases for damages are awarded every day. What is different about damaging Fly's "credit character? What is more interesting here, is that Fly has done EVERYTHING a "prudent person" can, and would do in this case. Fly has proven that everything that could be done to remedy the situation has been done. I don't think it is "reasonable" to expect Fly to have gone out and perhaps purchased an automobile at a higher interest rate to quantify and prove damages. Fly had the evidence to "know" not to do that (if by chance Fly was going to buy a car over the weekend). So, what is so exciting is that Fly's case jumps to the product which determines the quantifiable result for "evidence" of damages. Previous cases of damages wre able to somewhat hide behind the effect on a FICO score and "tier". The only better case would be this one with FICO scores. I think this is insight into the "chink" in the armor of the CRA/Scorers. Again, I'm 100% positive this would be a legal "finger pointing war". But I think we all know this is at the heart of the system which seems undefeatable. There was always a "link" that could not be broken. An "error" in your reports, where damage extent really relied upon its translation into a credit score to determine effect. The credit scorers had the shield of "it's based upon the CRAs data, if it's wrong, then dispute it with them. Now, that has been turned upside down. Fly's case highlights the specifics that we do not know about, but that severely impact our financial lives. Again, sorry about the on and on, but this is shaping up to be a tipping point in the industry.
No damages, no foul; Acton v. Bank One Corp. 293 F.Supp.2d 1092 D.Ariz.,2003. Nov 07, 2003 "D. Other Damages. [23] [24] Plaintiff has made a number of generalized statements in his pleadings concerning damages allegedly suffered as a result of Equifax's actions. These include his alleged inability to purchase a home from 1999 until April 2000, the termination of two credit accounts allegedly related to his bad credit, and damages suffered in relation to inaccurate credit reports he obtained on July 14, 1999 and September 17, 1999. Plaintiff has provided the Court with no specific information concerning these alleged injuries, and it is not the Court's duty to search the record for evidence on which to deny summary judgment. Forsberg v. Pac. N.W. Bell Tel. Co., 840 F.2d 1409, 1417- 18 (9th Cir.1988). Because Plaintiff has failed to support his generalized allegations of damages with specific evidence, they will be eliminated by summary judgment. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (Federal Rule of Civil Procedure 56(c) "mandates the entry of summary judgment ... against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.")."
Just to quickly address the FAKO-FICO issue, it is very fair to assume that what happens in one would happen in the other, since they both do essentially the same thing with the same data in the same way. Not a big leap at all. The fact that EXP's score is for my eyes only is irrelevant - they also sell that score to creditors. In marketing the service to consumers, what is the claim - "see the credit score your creditors will see". Well.... if it's like that when they are signing me up, it's like that when they are sabotaging my scores....
My point, a drop in a credit score is "evidence" of damages, the question of "award" comes into play here. This case states "..against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case...". Perhaps I am incorrect, but I feel that evidence of dropped credit score is good circumstantial evidence, perhaps sufficeint to satisfy the burden. Not to overlook the thesis here; that our credit reports are (possibly) not accurate and/or complete, though they "read" correct and complete. Forcing someone to "explain" the credit score drop" opens that window of opportunity.
The "associative principle" supports this thought ( a drop in FICO as well). Again, I would say this is "reasonable" circumstantial evidence. There are enough cases out there to detail the relationship.
Until you are denied goods, benefits or services; have a negative change in terms or interest rate, then there is no damage done.
