Update-Dep/Disc in Small Claims

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......

 

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!

 

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!

 

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!

 

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!

 

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!)