Ex refuses to dispute!

You have to dispute with something DIFFERENT...

 

No, after anyone does 2 disputes EXP refuses to investigate again regardless of the reason. It is another clear violation of FCRA.

Also, asking for procedures is irrelevant, there were no procedures because there was no investigation. The remedy is to sue for wilful violation of fcra.

If you are reluctant to sue because the item is factually accurate, dispute something like balance (hopefull the account is open with changing balance), wait for them to refuse to investigate then sue. That way when you go into court not only did they *wilfully* fail to comply with FCRA but you can even show a valid dispute.

 

Solzy, I am a newbie in the lawsuit arena. It appears so clear to me--they refuse to investigate, they are bound by the FCRA to investigate, slam-case won. Am I missing something here? I have always wondered how a national organization like TU can blatantly, with a form letter, REFUSE to investigate/remove an inquiry. How do they get away with that?

My question is this...Do I have a snowball's chance in hell of winning a small claims suit against EX based on only this? My evidence would be my request for an investigation and their corresponding form letter saying "we did it twice, now live with it?" It seems so easy. I guess I am just afraid of that first lawsuit (like the rest of America I would guess!)

Lisa

 

Very intersting as I think I will be taking the same route with Experian.

 

Lisa,

You actually ask 4 questions.

1. Failure to investigate INQs IS a slam dunk case. FCRA states a consumer file means "ALL" the information relating to a consumer. A different section says a consumer can initiate a dispute of "ANY" of the information in the file. The failure to investigate is "wilful noncompliance" which means you do NOT have to show actual damages and if you do NOT are entitled nevertheless to statutory damages of $100 to $1000.

2. The failure to investigate a derog mor than twice is also a slam dunk case. But here it gets a little trickier. Because a small claims judge is basically an ignoramus, perhaps a lawyer sitting pro tem, etc. And the judge is likely to just ask (though the law doesn't really pertain) "is the item accurate?" Or if EXP actuallys shows up they would probably argue "we already investigated twice, the dispute is frivolous." You respond, "where in FCRA does it say I can only dispute twice?" "Has EXP ever been wrong?" "Has EXP ever deleted an item on the third dispute?" Etc. If the item is, in fact, inaccurate then it does not matter -- you can come loaded for bear. In fact your case is probably even stronger because they probably didn't really investigate properly, verified off the tape, etc. Subpoena their investigation records. If the item is "accurate" then dispute some element (eg balance) that is not, or that you have not disputed before, and sue when they refuse to investigate it.

3. Will you win? If you know the law you almost certainly should. Most people who run into trouble get asked "what are your damages" and do not understand the concept/have the FCRA code provisions pertaining to "wilful noncompliance." You do NOT have to show actual damages to prevail.

4. Even if you thought you would lose you should probably file suit. This is the great American pasttime..... Seriously, small claims court is very easy and convenient and, sadly, is becoming the only way to get corporate america not to screw you much of the time. There's nothing to be frightened of. If you really are petrified just pop by for 30 minutes one afternoon and watch.

 

I don't agree with you on number 2. I don't think it is a slam dunk if they refuse to investigate more than twice *IF* the consumer has not provided any additional information. How many times should they investigate the same thing before considering it frivilous? Just my opinion...but if I were in a situation where I had had two investigations come back as verified, I would then go after the CA. If I had a CA who refused to send me any type of validation and yet also continued verifying...I would file a lawsuit against the CA.

Just my opinion which won't buy you anything.


L

 

Solzy, this is some of the best advice I have ever gotten! Thanks for the post.

I honestly do intend to drop by my small claims court and see what goes on. That may just end the intimidation factor. After reading posts by you, Lizardking, Whyspers, Breeze, Sassyinaz, LKH, just to name a few, who needs an attorney? These people know the law and know their rights probably better than any small claims court judge on this particular topic.

I saw someone post that filing a small claims suit is worth $100 to assure superb customer service. I thought that was an interesting slant!

Thanks, again.

Lisa

 

Here's why you are wrong.

1. The FCRA doesn't limit the number of time one can investigate. They should investigate as many times as the law says they must. Whether they like it or think its fair or not.

1b. The only limit is if the matter is deemed frivolous.

The CRA must give the consumer a notice of determination the dispute is frivolous. That is not the same thing as refusing to investigate. EXP does not do this.

A blanket across the board "all disputes after 2 are frivolous" policy is not legally defensible. Because:

* we all know many, many items are "verified" twice but are not accurate. So as a factual matter it is not reasonable to deem all third requests "frivolous"

* the other CRAs investigate more than twice (=customary business practice)

*EXP is required to take into consideration any material provided by consumer (both in the investigation and the frivolousness determination). They don't. It basically does not matter what documentary evidence you provide EXP with dispute #3.

* Here's the killer. EXP WON'T investigate an item a 3rd time EVEN if the dispute is different. Note that this really matters -- for eg, EXP is required to furnish the OC with all the information the consumer provides (though if you subpoenaed this I would bet that EXP doesn't send them anything = yet another FCRA violation).

It would not be hard to show that a blanket frivolousness determination is factually indefensible.

Carla, has EXP *ever* investigated more than twice?

Has this ever resulted in a deletion?

Has EXP ever received incorrect information twice?

Has EXP ever verified off the tape?

Did you send the creditor the information the consumer provided to you the first two times?

Indeed, the automatic nature of the refusal to reinvestigate (rather than individualized determination) a third time is precisely where the real problem lies for EXP -- this turns it into WILFUL noncompliance once a bright lawyer realizes the suit is out there.

 

Well, Solzy...let me know what the judge says when you take them to court over this...lol. <wink>


L

 

The deal is with INQUIRES is they they THINK because it was "PULLED" there MUST have been a "PERMISSABLE PURPOSE"...and it is a matter of record that an inquiry WAS pulled...

 

This matter of factual record stuff is such a joke....what does that mean the rest of your file is supposed to be?

 

That is the whole issue, George. I understand exactly what you are saying. That is the basic premise in EVERY form letter saying "we don't investigate inquiries. period." I guess the CRA's have a comfort level legally with the assumption that all inquiries have an inate permissible purpose just because they were "in fact, made." Well, as we all know, that logic doesn't hold water.

I am going to file my very first lawsuit in the next few days based on this very point. In response to a request for correct reporting on an account that had been closed for several years, MBNA pulled a hard inquiry because they wanted to see what they were reporting. When I asked what their permissible purpose was, MBNA was ARROGANT in their permissible purpose defense. Give me a break--no where in the FCRA does it say that general chaos, disorganization, and ineptitude of staff by a major national bank constitutes permissible purpose.

 

Lisa, you have 2 lawsuits....1 against MBNA for pulling your report without a permissible purpose and 1 againt EXP for wilful noncompliance (refusal to investigate the hard INQ). Sue em both.

 

Would I be better off to leave the MBNA inquiry on my report for sake of the suit? I just read a post where EX agreed to investigate an inquiry! If I pushed the issue with EX, I might get them to delete it. Would that be in my best interest at this time?

 

I had same issue. I called them. I got a really rude rep who hung up on me. I called back and simply asked to talk to a supvsr. That rep put me right to one. I explained the violations (per this posting, LOL). She agreed to discipline employee and reinvestigate!

Gotta love it!

 

As I have said 1000 times, the reason CRAs do not investigate INQs is because people don't sue immediately when they violate. At least that's my opinion. Personally I'd rather see you sue EXP because, aside from the common weal, you go to court against MBNA with the INQ still there which is an additional wilful violation against MBNA (no PP + failure to properly investigate under the duties of an original creditor section). But ymmv.

 

Solzy why is it an additional violation against MBNA under the original creditor section? They made the inquiry, without permissible purpose, and refused to delete it. My thought on this suit was 3 violations--one for the inquiry with no permissible purpoe, one for EACH of the accounts that continue to report incorrectly.

What do I have on Experian other than refusal to investigate the inquiry?

Pardon me, but I still don't understand why you think I would be better off leaving the inquiry on my report for the suit. Can you explain it to a rookie filer?

 

In addition to the accounts which report incorrectly, the INQ itself (because it is hard) is being reported incorrectly. So it is 4 violations.

Its actually more because they didn't provide notice of dispute and they furnished inaccurate info with actual knowledge.

The reason to leave the INQ is de facto not de jure...."your honor, its STILL there even today, even as we speak!!!!!!! They're STILL ruining my credit two months after the fact!!!!!!!" It just makes them look like worse scumbags. If its gone, unless you have good actual damages you can show, the inaccurately reported info looks like a problem that got worked out albeit slowly.




§ 623. Responsibilities of furnishers of information to consumer reporting agencies [15 U.S.C. § 1681s-2]

(a) Duty of furnishers of information to provide accurate information.

(1) Prohibition.

(A) Reporting information with actual knowledge of errors. A person shall not furnish any information relating to a consumer to any consumer reporting agency if the person knows or consciously avoids knowing that the information is inaccurate.

(B) Reporting information after notice and confirmation of errors. A person shall not furnish information relating to a consumer to any consumer reporting agency if

(i) the person has been notified by the consumer, at the address specified by the person for such notices, that specific information is inaccurate; and

(ii) the information is, in fact, inaccurate.

(C) No address requirement. A person who clearly and conspicuously specifies to the consumer an address for notices referred to in subparagraph (B) shall not be subject to subparagraph (A); however, nothing in subparagraph (B) shall require a person to specify such an address.

(2) Duty to correct and update information. A person who

(A) regularly and in the ordinary course of business furnishes information to one or more consumer reporting agencies about the person's transactions or experiences with any consumer; and

(B) has furnished to a consumer reporting agency information that the person determines is not complete or accurate,

shall promptly notify the consumer reporting agency of that determination and provide to the agency any corrections to that information, or any additional information, that is necessary to make the information provided by the person to the agency complete and accurate, and shall not thereafter furnish to the agency any of the information that remains not complete or accurate.

(3) Duty to provide notice of dispute. If the completeness or accuracy of any information furnished by any person to any consumer reporting agency is disputed to such person by a consumer, the person may not furnish the information to any consumer reporting agency without notice that such information is disputed by the consumer.

(4) Duty to provide notice of closed accounts. A person who regularly and in the ordinary course of business furnishes information to a consumer reporting agency regarding a consumer who has a credit account with that person shall notify the agency of the voluntary closure of the account by the consumer, in information regularly furnished for the period in which the account is closed.

(5) Duty to provide notice of delinquency of accounts. A person who furnishes information to a consumer reporting agency regarding a delinquent account being placed for collection, charged to profit or loss, or subjected to any similar action shall, not later than 90 days after furnishing the information, notify the agency of the month and year of the commencement of the delinquency that immediately preceded the action.
(b) Duties of furnishers of information upon notice of dispute.

(1) In general. After receiving notice pursuant to section 611(a)(2) [§ 1681i] of a dispute with regard to the completeness or accuracy of any information provided by a person to a consumer reporting agency, the person shall

(A) conduct an investigation with respect to the disputed information;

(B) review all relevant information provided by the consumer reporting agency pursuant to section 611(a)(2) [§ 1681i];

(C) report the results of the investigation to the consumer reporting agency; and

(D) if the investigation finds that the information is incomplete or inaccurate, report those results to all other consumer reporting agencies to which the person furnished the information and that compile and maintain files on consumers on a nationwide basis.

(2) Deadline. A person shall complete all investigations, reviews, and reports required under paragraph (1) regarding information provided by the person to a consumer reporting agency, before the expiration of the period under section 611(a)(1) [§ 1681i] within which the consumer reporting agency is required to complete actions required by that section regarding that information.