Critique my 2 lawsuits against CRA

I am considering filing 2 lawsuits against a particular CRA. I only have 2 weeks left to file, and haven't decided whether to go federal or state. My apologies in advance for the long post, but I'm looking for general feedback and critique (or reasons why I shouldn't proceed).


CAUSE OF ACTION #1: FCRA 607(a) states that "Every CRA shall maintain reasonable procedures designed...to limit the furnishing of CR to the purposes listed under section 604 of this title."

FACTS:

1. I had an account with First USA which was closed by consumer in 1995 and was never late.

2. FUSA pulled 2 Account Reviews (AR) in 2001.

ARGUMENT: The CRA is required to maintain "reasonable procedures" to limit the furnishing of CR only for a valid PP. In this case, FUSA clearly had no PP to do an AR because the account had been closed. Since the CRA's own records showed the account as being closed, the CRA failed to maintain reasonable procedures to prevent FUSA from doing an AR on a closed account.

RELIEF: While I have no actual damages from these inquiries, FCRA 616 does allow punitive damages to be awarded for willful noncompliance of the FCRA. I believe discovery would show that the CRA routinely allows ARs on closed accounts, thus proving willful noncompliance. Therefore request punitive damages of $1000 for each instance in which the CRA allowed the creditor to do an AR on a closed account (for a total of $2000). Also request injunctive relief to require the CRA to institute reasonable procedures to prevent future occurrences.


CAUSE OF ACTION #2: FCRA 609(a) states that "Every CRA shall clearly and accurately disclose to the consumer: (1) All information in the consumer's file; 3(A) Identification of each person that procured a CR; (5) A record of all promotional inquiries."

FACTS:

1. The CRA provided a list of inquiries termed "Requests Viewed By Others" (i.e. hard inquiries).

2. The CRA provided a list of inquiries termed "Requests Viewed Only By You" (i.e. soft inquiries including both PRM and AR).

3. For ARs, the CRA states in the CR that the "date listed may reflect only the most recent request."

4. FUSA made 2 inquiries in 2001. However, the CRA only identified those inquiries as "Requests Viewed Only By You." There was no indication as to whether they were PRM or AR.

ARGUMENT:

1. The CRA is required to "clearly and accurately" disclose to the consumer all information in the consumer's file at the time of the request. However, the CRA failed to disclose whether the inquiries categorized as "Requests Viewed Only By You" were for promotional or account review purposes. This information does indeed reside in the consumer's file at the CRA in the form of "codes" which tell the CRA whether the inquiry was promotional or account review. However, the CRA does not distinguish between the two types of inquiries in its credit reports and therefore does not "clearly and accurately" disclose to the consumer all information in the consumer's file.

2. The distinction between promotionals and account reviews is important for the consumer to know since the FCRA sets different requirements defining the permissible purpose for each of these two separate types of inquiries. Consumers cannot exercise their right to bring an action under FCRA 616 for violations of FCRA 604 when the CRA intentionally disguises whether the inquiries are for promotional or account review purposes.

3. FCRA 609(a)(5) requires the CRA to provide a record of all promotional inquiries. However, account reviews are specifically exempted from this definition by FCRA 603(m). Thus, by providing a list of promotional inquiries mixed with and indistinguishable from account reviews, the CRA has failed to "clearly and accurately" disclose to the consumer a record of the promotional inquiries as required by the FCRA. The record is not clear when it consists of mixed and indistinguishable types of inquiries.

4. The CRA states in the credit report that for account reviews the "date listed may reflect only the most recent request." By providing only the date of the most recent request, the CRA has failed to disclose all information in the consumer's file as required by FCRA 609(a)(1) and has unilaterally limited the consumer's ability to bring an action under FCRA 616 for violations of FCRA 604. The consumer cannot become aware that a creditor has violated the permissible purposes requirements of the FCRA when the CRA by policy fails to disclose all of the dates upon which the inquiries were made.

RELIEF:

1. Request that damages be determined based on discovery that reveals the dates of all inquiries made during the previous 10 years, determination of whether these inquiries were for promotional or account review purposes, examination of the documents that certified the purpose for which all of the inquiries were made, and determination as to whether any of the inquiries violated the permissible purpose requirements of the FCRA. Request damages of $1000 for each instance of lost opportunity to bring actions under FCRA 616 for violations of FCRA 604.

2. Request punitive damages as determined by the court.

3. Request injunctive relief to require the CRA to hereafter (1) Identify all inquiries that are not viewable by the creditors as being either promotional or account review, and (2) List the dates of each and every inquiry in the consumer report and not just the date of the most recent request.

 

I have already sued FUSA and been awarded judgment of $1000 for the first violation. I'm suing FUSA again this month for the second violation. However, my focus in this post is entirely on the CRA and here again are the specific acts of commission (or omission) of the CRA for which I would be suing them:

1. Failure to maintain "reasonable procedures" to limit the furnishing of credit reports only for permissible purposes (i.e allowing FUSA to pull ARs on its closed accounts).

2. Failure to "clearly and accurately" disclose to the consumer all information in the consumer's file (i.e. not disclosing whether inquiries are promotional in which the creditor receives only the header info, or account review in which the creditor receives the full credit report).

3. Failure to "clearly and accurately" disclose to the consumer a record of all promotional inquiries within the past year (i.e. making the promotional inquiries indistinguishable from the other inquiries in the same list that are for account review, employment, insurance, or investment purposes) (i.e. when the list is jumbled and the various types of inquiries are indistinguishable from one another, the info has not been "clearly" disclosed to the consumer).

4. Failure to "clearly and accurately" disclose to the consumer all information in the consumer's file (i.e. reporting only the most recent date that a creditor reviewed his account as opposed to reporting each and every time that a creditor reviews his account).


Here is some additional information that may shed some light on why I am considering suing this particular CRA: I currently have 15 negative tradelines with them plus a ton of inquiries. In other words, I have nothing to lose. But by being a litigious pain in the butt to them, I might be able to negotiate a settlement that cleans up my credit report and perhaps puts a few $$ in my pocket as well. If they don't sign up for that, then I guess they can just spend $10,000 in legal fees defending the actions, answering interrogatories, responding to motions, responding to discovery, and rolling the dice in front of a consumer-friendly jury.

 

Re: Re: Critique my 2 lawsuits against CRA

Lucky you...I believe that cutting you off from your credit file because of the litigation is another violation that gives you yet another opportunity to sue them!

You are absolutely right that my damages will be hard to quantify and prove. I am going under the assumption that punitive damages or injunctive relief can still be awarded by a judge or jury even in the absence of actual monetary damages, as long as the violation itself is upheld. If this is true, then the CRA would be taking a gamble by letting this case get in front of a jury.

As for the reasonableness issue, all I can do is argue my point and try to convince that the CRA is responsible for doing more than just blindly accepting the user's blanket certification, especially when the CRA itself has evidence at hand that readily contradicts the stated PP.

I wasn't aware of the fact that the defendant's answer can be statutorily deficient...I'll be anxious to hear how the judge rules on that issue!

 

Re: Re: Critique my 2 lawsuits against

That is what I was hoping to hear as far as the intimidation factor is concerned. I feel more comfortable keeping this in state court anyway, although the defendant might try to have it moved to federal court for the very reason you mentioned.