Update-Dep/Disc in Small Claims

Discussion in 'Credit Talk' started by LisaMc, Oct 16, 2002.

  1. LisaMc

    LisaMc Well-Known Member

    The atty representing Big Bad Bank from DE looked to be approximately 12 years old. She was wearing a cheap shiny business suit, 6 inch silver strappy high heel sandals, zero make up, and a hot pink scrunchie in her hair. She looked ridiculous.

    The judge told her rather pointedly that he did not like "fishing expeditions" when it came to discovery. He said the name of the game was "limited." He agreed to allow it. For Discovery she stated that she wanted to see ALL disputes filed on the 2 accounts in question for each of the 3 CRA's since the beginning of time. I have already copied all of that for the judge to prove that I attempted to resolve this issue prior to filing the suit. It is also important to note that nothing had EVER been changed on these two accounts over the last 14 months. They were still dead wrong even though the results of the investigation said "updated" or "new information." Not one item has changed. So, what she thinks she will learn from this, I have no clue. She also wants a copy of all correspondence. Evidently no one in DE forwarded anything to her.

    Here is the clencher. Everybody just jump right in. She went on to tell the judge that I misunderstood the entire concept I was suing under. The FCRA had LIMITED exposure for the bank. It was actually a law put in place to control the CRA's; furthermore, the bank was regulated by the FTC which lacked any provision for a consumer to bring a suit under.

    Point #1 - No permissible purpose in inquiry -
    "Your honor, my client honestly thinks Ms. LisaMc is highly uninformed on this issue. It is not the duty of the bank to control what credit reports they pull. It is the duty of the CRA to police those that access the reports. If the CRA deems that a permissible purpose exists, they will allow a credit report to be pulled. If they don't, we can't access one. So, therefore, the burden lies with the CRA not my client. Ms Mc should have filed suit again the CRA for allowing her report to be pulled"
    I very quickly refuted this argument saying that her theory would mean that a permissible purpose is created when a report is pulled. That makes no sense. I also called EXP (copyright Quixote) and inquired as to the PP given at the time my report was accessed. EXP did not have it because the inquiry had been reclassified. The rep did say that whoever pulls certifies that they have a PP as outlined in section 604. If they don't specify this, they can't access it. What about section 619? The bank owes money to the CRA for accessing my report under false pretenses. What about that? She said that only applied to fraud cases.

    Point #2 - Incorrect credit reporting on 2 accounts - "Your honor, my client reports accurate information. It is not always recorded in credit reports as such by the CRA. Our hands are tied in this matter."

    Point #3 - Not marking 2 accounts as in dispute -
    "your honor, Ms. LisaMc once again is uninformed. Marking an account as "in dispute" is the duty of the CRA, not the bank. My client has no way to do this at all! When Ms. Mc files a dispute, the account will be noted as such. The bank would never note an account in this manner and was never intended to do so. This section is written for the CRA not a creditor."

    Today, the bank has cleaned up the 2 accounts on EXP as "an act of futher goodwill."

    After the hearing, the atty and I sat outside and talked for about 20 minutes. She said because this account was included in bk, they felt it only fair to continue to report it in error or otherwise! She also said that the bank would defend its actions even in an appeal. She said that I should not profit on accounts included in a bk! I told her that I was in no way profiting off of those accounts. It was never about the money to me EVER!!!! I told her that I had agreed in every piece of correspondence to settle for deletion of the inquiry and the 2 accounts. She acted surprised. She then very quickly said "my client will never agree to that. They will want to take the high road in this situation." She went on to ask again if I was definitely saying I would drop the case on deletion. I (once again stealing from Quixote) told her to make a check out for $500 made payable to the American Red Cross and make those deletions, and she would never have to deal with this again. She said she would run that by the legal dept in DE.

    The saga continues......
     
  2. charlieslex

    charlieslex Well-Known Member

    LisaMc, It looks like you did a great job defending yourself! Congratulations, so far, so good! How far did the bank's attorney have to travel? Charlie
     
  3. LKH

    LKH Well-Known Member

    Good job. Hold your ground. That so called lawyer is either highly uninformed, doesn't undertstand the FCRA or is just a liar. She is completely off base with her ideas of who the FCRA pertains to. I'd be willing to bet you that she calls you in a couple of days agreeing to settle.
     
  4. charlieslex

    charlieslex Well-Known Member

    LKH, You're right! Isn't that what lawyers do best is bluff and lie, then want to settle when you hold your ground. Then bill their client hundreds of dollars an hour. I had a real good friend that got out of law school and went into his dad's law firm, and I asked him how he liked being a lawyer. He said," It's a license to steal". Isn't that so true. Charlie
     
  5. LisaMc

    LisaMc Well-Known Member

    I can only hope that she calls to settle! I meant what I said. It was never about the money to me, never.

    In our casual conversation after the hearing (read "fishing expedition" by atty), I also told her that I had honestly been intimidated by her motions for discovery, jury trials, etc. In fact, I had called the leading FCRA atty in town and asked for some quick advice and a much needed pep rally! He said "Let me get this straight. You sued Big Bad Bank pro se and it begins tomorrow? Good girl!" I felt so much better. He also said that this particular bank is the leading lobby for bankruptcy reform and that every bk atty in the nation wants to take them on in class action. He said if I lost today to give him a call. His firm would like to create a class action suit out of it. I told her this and said that I was flattered but really didn't want to do that. I had devoted a lot of time to this already, and I have a 2 year old daughter that would benefit more from my attention than all of this junk. She said she would pass that tidbit on to DE legal dept as well.

    I just want this to be over. Filing suit sounded so easy. I didn't count on all of the work in preparation or the sleepless nights. You earn that $1000 per violation if you put as much time into as I have!
     
  6. sassyinaz

    sassyinaz Well-Known Member

    wooooooooo hoooooooooo, Lise!

    That's it? The 12-year old attorney in the shiney suit with a scrunchie blamed the CRA's and didn't even KNOW she nor her pompous bank had any responsibilities or duties?

    Bwwwwwwaaaaaaahahahahahaha, gotta LOVE that!

    I wish for you, fave sister Lise, whatever will put your mind at ease and give you peace in feeling justice was served. I understand it's a long and windy road, mostly uphill, and tons of work.

    I am proud and admire you for standing up, for being heard, for being counted, for drawing the line and saying no more. A check to the Red Cross is nice, nice for them, nice for you, any way you look at it.

    They are wrong and you have exposed them -- in the light darkness is exposed! What a great mom and example you are for your daughter.

    Congrats to you!

    Sassy
     
  7. LisaMc

    LisaMc Well-Known Member

    Thanks Sis Sassy! You helped me so much with your research. I really appreciate you so much! I was armed and ready with enough code to put the whole courtroom to sleep for about 3 hours. I feel so relieved, and i didn't even win! Wow, think how I would have felt if I won! We still have a long road ahead of us I'm afraid, but I am not scared of it anymore. I needed to get my feet wet, and this hearing was a good way to do that without losing any ground.

    The best thing that came out of the whole day was getting to hear the atty's slant on the case. I had pictured her as this tough as nails, experienced, noting gets by me, FCRA whiz litigator. Nothing could have been further from the truth. Now I know that the focus in presenting my case should be the bank's responsibilities in all of this constantly backed up by the statutes. There is no way to misinterpret section 619 as a reponsibility of the CRA! It is so blatant. For her to say that the burden was with the CRA to prohibit the bank from pulling my report was ludicrous. I'll bet Big Bad Bank does this all the time. That is going to be the focus of my discovery items. So far I have 33 pages of questions ready for her! I can still think of more!
     
  8. whyspers

    whyspers Well-Known Member

    Congrats, Lisa!!!! Her asking you to confirm that you would settle for deletion, etc. means its ninety percent over. If she doesn't go back and recommend this to her client, then she should be sued for malpractice...lol.


    L
     
  9. Burbs Guy

    Burbs Guy Well-Known Member

    Good job, Lisa !! A couple questions to add to your list, based on the responses of the highly educated representative from Legal Hut:

    1) How many inquiries does Big Bad Bank pull in a year?

    2) How many inquiries are denied, based on the CRA's demand for permissible purpose?

    3) What permissible purpose does Big Bad Bank usually (customarily) offer to a CRA when they request a consumer inquiry?

    4) Has Big Bad Bank ever had to countersue a CRA because the CRA let a non-permissible inquiry slip thru the system?

    5) Has Big Bad Bank ever had to countersue a CRA because the CRA "distorts" the "accurate information" provided by Big Bad Bank?

    I hope you get your deletions AND your check to the ARC. I also hope that you're able to tell the story after the settlement, so that everyone knows that standing up for their rights Will work. Good luck !!
     
  10. LisaMc

    LisaMc Well-Known Member

    Burbs Guy, great questions for discovery! I seriously do have 33 pages of questions ready to go. It would take them a year to answer them with the detail I asked for. I doubt that the judge would agree to these as "limited."

    I wish you all could have seen her face when I said I didn't care about the money, and if I won this suit they could pay the ARC. She looked stunned.

    I love the "legal hut" description! I had this soooo wrong in my mind. I was waiting for Perry Mason to walk in, and here comes someone that I would not allow to babysit my 2 year old.

    I really am tired of this though. I do hope that they settle. It would be a homerun for me. If I ever have to do this again, I am going to hire Lizardking to represent me! He has the stamina for the long haul!
     
  11. charlieslex

    charlieslex Well-Known Member

    If you can't take Lizardking I'd take Sassy.....in a heartbeat, especially if she was armed with a laptop!! ;) Charlie
     
  12. sassyinaz

    sassyinaz Well-Known Member

    Thanks charlie,

    I'm up for a Texas vacation, yeeeeeeeeeee haw!

    Sassy
     
  13. Butch

    Butch Well-Known Member


    To borrow a phrase; "Good Girl"!!
     
  14. KHM

    KHM Well-Known Member

    YAY Lise!!!!!!!!

    If this goes back to court and gets dragged out, which it probably won't, can you ask the 12 year old "If the FCRA doesn't apply to them, what federal law regarding proper credit reporting would they fall under?" Oh and "what does furnish mean? and do they "furnish" stuff to the CRA's"

    Main Entry: fur·nish
    Pronunciation: 'f&r-nish
    Function: transitive verb
    Etymology: Middle English furnisshen, from Middle French fourniss-, stem of fournir to complete, equip, of Germanic origin; akin to Old High German frummen to further, fruma advantage â??more at FOREMOST


    PS YOU GO GIRL!!!!
     
  15. LisaMc

    LisaMc Well-Known Member

    Charlie, I laughed out loud at the "Sassy armed with a laptop" idea.......

    The courtroom is quiet. The doors burst open! Oh No! It is the defendant's worst nightmare! Sassy, the leading FCRA researcher in the nation, armed with a lap top! "your honor, we would like to offer a settlement at this time."

    Ha!
     
  16. Marie

    Marie Well-Known Member

    Can you ammend and include the credit bureau? that way.. they can point at each other but someone will be responsible.
     
  17. LisaMc

    LisaMc Well-Known Member

    Marie, I am such a novice at this that I didn't even know I could do that. That would really be interesting though. Absolutely every point I made was refuted by "that is not our responsibility--it is the CRA's." I don't know how familiar the judge is going to be with the FCRA, and frankly, I would think he would believe the atty over me if he didn't know. She sounded like she knew what she was talking about even though it was crap.

    I was planning to call the clerk's office today anyway and ask if I could request a jury trial. I don't know what the deadline was for that (or if there even was one) but I am starting to think that would be a much better approach. This judge is iffy to me. A jury might have more sympathy for my struggle even though they probably wouldn't have much experience with the FCRA at all. What do you think about this idea?

    Also, how would I word my complaint if I included both the OC and CRA? I have 5 violations against the OC. Should I also make it the same 5 violations against the CRA? I don't understand how that would work. I have a $5K limit. Also, the CRA didn't break the law in this situation (that I know of!)
     

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